Dr Turki Sattam Al Mutairi
Associate Professor of Public Law
Department of Law, College of Business Studies, PAAET, State of Kuwait

Dr Abdulkarim Rabie Al Enezi
Associate Professor of Civil Law
Department of Law, College of Business Studies, PAAET, State of Kuwait

Abstract:

This research paper deals with the issue of the Kuwaiti Constitutional Court’s supervision of the ambiguity of legislative texts, which is a topic that has not received sufficient attention from jurisprudence. The problem of the research is represented by the seriousness of legislative texts that are tainted by the defect of ambiguity, its negative effects on those addressed by these texts, and that one of the most important ways to address this defect is that it is subject to the supervision of the Constitutional Court. The researchers reviewed the rulings of the Kuwaiti Constitutional Court to determine its position on the ambiguity of legislative texts, the extent to which these texts are monitored, and the scope of this supervision, so as to determine an important means of addressing the ambiguity of legislative texts as one of the most serious flaws in legislative drafting.
In addressing the subject of the study, the two researchers followed an approach that combines the analytical approach and the original approach, and they reached – at the end of the research – a number of results, the most important of which is that most cases of ambiguity in legislation arise from a defect in the legislative drafting. It also became clear to them that this ambiguity has negative effects, including that it leads to a violation targeting legal security, as ambiguity results in a lack of harmony between the various legislations in the pyramid of legal structure, or the complexity of the laws, their lack of clarity for those concerned with them, or their frequent amendments which causes them to be unpredictable.
It has also been shown that the Constitutional Court monitors legislative texts that are tainted by the defect of ambiguity and decides whether they are constitutional or unconstitutional. Depending on the presence of ambiguity in them or not, and that it limits its supervision to the ambiguity of legislative texts to the extent that they violate the constitutional texts that determine public rights and freedoms. This court also limits its supervision to the ambiguity of legislative texts, within the scope of penal legislation and not other non-penal legislation. The researchers also saw that the Kuwaiti Constitutional Court has the ability to extend its supervision over the ambiguity of legislative texts in all criminal and non-criminal legislation subject to its constitutional supervision. Rather, it may adopt the principle of clarity of legislative texts, which was adopted by the French Constitutional Council as a constitutional principle.
Moreover, the study concluded with many recommendations, the most important of which is the call on the Kuwaiti legislator to activate the text of Article (71) of the Judicial Regulation Law, by referring to all the laws in which the judiciary’s rulings showed ambiguity in their texts, and the necessity of publishing those reports, as well as calling on the Kuwaiti Constitutional Court to extend its supervision over all ambiguous legislative texts, and not limit it to penal legislation only. They also call on it to exercise this supervision over legislation, in the event that it violates any text of the Constitution, and to adopt the position of the French Constitutional Council, and to attach a constitutional value to the principle of clarity of legislative texts, and also to exercise its role in monitoring legislation’s respect for this principle.
Keywords: ambiguity of legislative texts, negative effects of ambiguity, legislative drafting requirements, the Constitutional Court’s supervision of ambiguity, and the scope of the Constitutional Court’s supervision of ambiguity.

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