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..
Legal Stability and the Problems of Preparing and Drafting Legislations and Laws
By: Prof. Badria A. Al-Awadi
Recently, there have been an increase in substantive and formal observations regarding the contradiction and inconsistency in the provisions of a number of laws, legislations and regulations, whether issued by the legislature or the executive branch, including the Anti-Corruption Authority Act, the Conflict of Interests Act, and the Competition Protection Act which is currently under amendment. This is in addition to the rejection of other acts, such as the early retirement law, not only because of the government’s objection to some of its clauses, but also because of the conflict between these clauses. This constitutes a real problem in relation to drafting and establishing jurisprudence as well as coordination and cooperation between the relevant parties in this regard.
These flaws and problems represent negative phenomena in the work of legislators and regulators. These problems should be corrected, but they certainly appear more frequently within elected and active parliaments, especially those with high levels of parliamentary coordination or government coordination. This is because the elected members are keen on participating in the legislative initiative through proposing laws or announcing their support to proposals of other MPs, as well as compatibility and coordination with the government, especially if it is a parliamentary government that is supported by a parliamentary majority, or a technocratic independent government seeking to meet the needs of its people, as is the case in Kuwait.
It is also impossible to ignore the losses incurred by the concerned parties as a result of the faulty drafting in legislation and laws as well as the lack of consistency, clarity, accuracy and coherence. These result in wasting time, money and effort, in addition to wasting the opportunities of those who propose these laws, legislations and regulations. This would undermine legal stability, which means that legal rules are established and specific in organizing legal centers, thus contributing to ensuring the achievement of desired results.
This is clearly due to the limited legislative awareness of some members of the National Assembly as well as some ministers, especially those responsible for the preparation and drafting of laws and regulations in the executive branch. This is in addition to the limited competence of advisers and experts forming the drafting review teams in the parliamentary institutions.
It should be emphasized that this is not only a technical issue, but a substantive one, with various methods of approaching it. Therefore, the solutions will not only be the formal conditions and procedures established in law books and legal drafting guides. It mainly requires the clarity of the ideas, visions and legal and legislative philosophy that are the source of these laws and legislations. It shall also consider both medium-term and long-term future, in addition to training relevant parties. This will result in saving effort and money and achieving the desired legal stability. Benefiting from the expertise of national academic institutions, especially law schools, will definitely assist in providing effective practical solutions.