Khaberni - Lawyer Abdul Karim Al-Kilani wrote:
Between the substantive rule and the procedural rule**
Recently, there has been a legal debate about amending the social security law, centered around the opinion that rights not yet settled remain amendable, even if they arose under a previous law. It is argued that unsettled rights mean the rights are incomplete, and therefore can be subjected to the amended law.
However, this view contains a fundamental legislative and legal fallacy, which is the confusion between substantive rules that establish rights and define their scope, and procedural rules that organize how these rights are exercised without affecting their essence.
Firstly: The nature of pension rights and their legal character
Pension rights do not originate at the moment of their settlement or allocation, but gradually develop from the time a participant is subject to a specific law, resulting in legal and financial effects, most importantly:
* Mandatory participation in the system,
* Deductions from pay subject to a set ceiling,
* Compliance by the participant and the employer with the provisions of that law.
These elements collectively establish a substantive legal status subject to the law in force at the time of its inception, not at the time its final effects are arranged.
Secondly: The pension settlement – a revealing rather than establishing action
Legally, the pension settlement is:
* An administrative procedure,
* Intended to calculate the amount of the right,
* And determine how it is paid.
Thus, it's:
Revealing of the right, not establishing it.
The pension right:
* Is not generated by an administrative decision,
* Nor is it established by the settlement,
* But rather, the settlement reveals what has already arisen under the applicable law.
Suggesting otherwise results in an unacceptable conclusion that rights are not stable until determined by the administration, which contradicts the simplest principles of legality and rule of law.
Thirdly: The confusion between substantive and procedural rules
Substantive rules are those that:
* Establish the right,
* Define its scope, ceiling, and essential conditions.
Whereas procedural rules are those that:
* Organize how to claim the right,
* And mechanisms for calculating and executing it.
The established doctrine and jurisprudence state that:
* Substantive rules are subject to the principle of the law in force at the time the legal status is established,
* While procedural rules are applied immediately to incomplete procedures.
Therefore, using “lack of settlement” as a criterion for changing the applicable law is a misapplication of a procedural standard to a substantive issue, which legally does not hold.
Fourthly: Stability of legal status, not retroactivity
It is important to emphasize that the issue here:
* Does not concern the retroactivity of laws,
* Rather, it relates to the principle of stability of existing legal statuses.
Although the legislator has the power to regulate for the future, this power is:
* Restricted by not affecting the legal statuses that arose properly under a previous law,
* And does not have the authority to disregard or amend their essence, even with an explicit text, without exposing this text to suspicion of unconstitutionality.
Fifthly: Application to the ongoing debate regarding amending the social security law
Based on the above, the claim that previous participants can be subjected to a new legislative amendment on the grounds that their rights “have not yet been settled” is refutable, because:
1. The pension right originated under a previous law.
2. The ceiling subject to deduction is a substantive rule.
3. The settlement is a subsequent revealing action, not establishing.
4. Incomplete procedures do not undermine the stability of the legal status.
Thus, any legislative amendment:
* Should only affect new participants,
* Or events subsequent to its enforcement,
* Without affecting the existing legal statuses.
Protecting pension rights does not rely on legislative grace, but on solid legal and constitutional foundations, at the forefront of which is the distinction between substantive and procedural rules, and the principle of stability of legal statuses.
Any breach of this distinction, under the pretext of “lack of settlement”, is not a legitimate argument, but a legal fallacy that opens the door to undermining trust in the legal system as a whole.
Consequently, attempting to subject pension rights to subsequent amendments under the pretense of "lack of settlement" clashes with the rock of established judicial principles, including the principle that: "The legal relationship, once established and its elements determined under a specific law, remains governed by this law in all its consequences and disputes."
The judiciary is settled on the fact that the crucial factor is the time the right was established, not the time it was recognized by the administration; thus, the administrative delay in conducting "the settlement" is a material occurrence that does not have the legal power to nullify a substantive legal status that has stabilized for the participant over years of deductions and compliance.
Thus, any transgression of this principle is not just a legislative violation, but a waste of the principle of legal security, and an attack on acquired rights that have been fortified over time and by fulfilling corresponding obligations. Protecting the participant is not a "favor", but a right imposed by the Constitution and protected by the judiciary against any procedural encroachment that affects the essence of the substantive right
