Commentary on the ruling of the Constitutional Court
in Case no. 6 of 2018 Issued on 19/12/2018
Prof. Mohammad Abdulmohsen Almoqatei
Professor of Public Law – President of Kuwait International Law School
This commentary studies and analyses the ruling issued by the Constitutional Court in Case no. (6) of 2018 issued on 19/12/2018, which ruled the unconstitutionality of Article (16) of the Standings Order of the National Assembly which issued by Law no. 12 of 1963, regulating the dismissal of MP’s membership, such process start with review and hearings by the legal committee to prepare its report and hear the testimony of the member subject to the dismissal process, determining the time period and submitting the report to one of the National Assembly session, which end with the voting by the Parliament which require a the absolute majority.
The court ruling is considered a serious violation of the principle of distribution of constitutional competence between the State powers.
This case was submitted a few days after the National Assembly voted in the 30/10/2018 session to reject the dismissal of two members: Dr. Walid Al-Tabtabai and Dr. Jamaan al-Harbash, who received sentenced by the criminal cassation court for three years and six months in the case of unlawful entering to the National Assembly, which took place on 16/11/2011.
This article essential annotate due to the fact that the ruling which is subject to the commentary seriously adverse to constitutional principles, including the concept of separation of powers and the breach of the jurisdiction of the legislative authority. It is also diverts the well established ruling of the Constitutional Court in respect of the concept of constitutional distribution of jurisdictions between the powers. Therefore the jurisprudence’s and legal authorities ought to closely review this judgment and its severe consequences. We have presented this through eight in-depth, analytical and comparative reviews based on constitutional basis, in light of comparative court ruling and jurisprudence opinions.
In this commentary, we concluded that the ruling was defective in form and objectivity. It has also infringed the constitution, because it violates the principles of constitutional legitimacy and undermines the parliamentary independence in regulating it’s internal standing order, in addition the wrongful Jurisdiction by this court to review parliamentary acts in an approach that is contrary to all constitutional provisions, norms and conventions, as well as the well established rulings of the Constitutional Court itself.
The court also disregarded the personal interest and standing conditions that is required in submitting the case in accordance with what is established in the judiciary and stipulated by the law. In the light of that, the judgment is defective and lacks a well established legal foundation. Therefore, it does not lead to any legal effect and not has no consequences as it is regarded void and null.
Keywords: Parliamentary work, constitutional oversight, recall of deputy, internal charter, parliament, separation of powers.