Periodic Issue | Volume 11 Issue 4 | Serial Number 44 | Safar 1444 AH – September 2023 AD
Editorial
Amendments to the Constitutional Court Law to Reinforce
the Political, Legal and Legislative Stability
By: Prof. Badria A. Al-Awadi
Editor-in-Chief
The Official Gazette (Kuwait Today), in its issue No.1650, sixty-ninth year, issued on August 27, 2023, included Law No. 119 of 2023 amending some provisions of Law No. 14 of 1973 about establishing the Constitutional Court. This law added two important new articles with numbers (Article 4 bis A), and (Article 4 bis B), the text of which is as follows:
Amendments to the Constitutional Court Law to Reinforce the Political, Legal and Legislative Stability
Chief-in-Editor Prof. Badria A. Al-Awadi
The Official Gazette (Kuwait Today), in its issue No.1650, sixty-ninth year, issued on August 27, 2023, included Law No. 119 of 2023 amending some provisions of Law No. 14 of 1973 about establishing the Constitutional Court. This law added two important new articles with numbers (Article 4 bis A), and (Article 4 bis B), the text of which is as follows:
Article (4 bis A): “Any person with a direct personal interest has the right to appeal before the Constitutional Court, with an original claim, the decree dissolving the National Assembly, as well as the decree calling for elections for members of the National Assembly, within ten days from the date of their publication in the Official Gazette. The court shall issue its ruling on the appeal within Ten days from the expiry of the deadline for appeals.
Article (4 bis B): “In all cases, the Constitutional Court may not consider the decree dissolving the National Assembly, as well as the decree calling for elections for members of the National Assembly after announcing the election results. The court shall decide on appeals regarding the election of members of the National Assembly or the validity of their membership within thirty days from the date on which the appeal period expires”.
By extrapolating these two articles, the following observations can be made:
First: The law affirmed the guarantee of the right of citizens with a personal and direct interest to appeal the decrees of the executive authority related to the decrees of dissolving the National Assembly and calling for legislative elections. It is an inherent right that finds its basis in the provisions of the Constitution relating to the right to litigation, and in the democratic system that is keen on the integrity, transparency and safety of the electoral process.
Second: The law clearly and explicitly affirmed its respect for the powers and powers assigned by the Constitution and the law to the Constitutional Court. As a fair, impartial and independent judicial institution, no harm to it or reduction of its borders was included; this is out of belief in its role in ensuring the integrity of elections, the legitimacy of the performance of political institutions, and ensuring the rule of law.
Third: The law indicated precise dates for submitting appeals against the decrees dissolving the National Assembly and calling for legislative elections, as well as for considering and deciding on them. It specified submission within ten days from the date of their publication in the Official Gazette (Kuwait Al-Youm) only, and it also obligated the court to rule on these appeals within ten days from the expiry of the appeal deadline. Setting these deadlines aims to ensure the integrity of the stages that precede the elections, limit their duration, and to contribute to fortifying the elected Legislative Council. It would also alert the executive authority to ensure the integrity of its procedures while using its constitutional powers to dissolve the National Assembly and call for elections, which are important matters because it relates to the functioning of the state’s executive and legislative bodies which aim to achieve the public interest and maintain public order.
Fourth: In order to achieve the law’s goal of ensuring the greatest degree of stability for the constitutional authorities, the law, in the first paragraph of Article (fourth bis b), prevented the Constitutional Court from considering – in all cases – the decrees to dissolve the National Assembly and call for elections after announcing the election results; some losing candidates seek to raise suspicions and gaps regarding the previous stages.
Fifth: The law obliges the court to decide on appeals related to the election of members of the National Assembly or the validity of their membership within thirty days from the date of expiry of the appeal deadline. This is an obligation aimed at limiting the period of uncertainty in the life of the legislative institution.
The competence of the National Assembly in this matter, related to determining the dates for hearing appeals before the Constitutional Court, is an inherent constitutional and legal jurisdiction. The establishment of the court itself was carried out by a law referred to by the Constitution, and the Council itself was the one which set the dates and deadlines in the civil, commercial, penal, and other laws. Also, specifying the period for submitting and deciding on appeals does not restrict the court or interfere in its work, but it is a sufficient period in view of the court’s resources, its institutional work, and its accumulated experience in this regard. This is aimed at achieving the public interest and the stability of authorities and institutions.
There is no doubt that this approach adopted by the National Assembly is commendable, and it found cooperation and understanding from the government which voted in favor of the law (57 deputies and ministers voted in favor of the law in the session of July 26, 2023), which was proposed by the parliamentary majority, and the judicial authority approved it. It rejected an appeal submitted against it in a ruling issued by the Consulting Chamber on May 21, 2024.
Law No. 119 of 2023 is an important law and a historical development in regulating appeals against dissolution decrees, calling for elections, and on the conduct of elections and their results and their adjudication by the Constitutional Court, which reflects positively on the performance of the three constitutional authorities, and strengthens the rule of law, as well as the political, legal and legislative stability in the country. It is a gain for the legislative, legal and political route in the State of Kuwait, which can be built upon and developed.
Special Issue | Volume 11 Issue 43 | 8th Annual Conference Research | Dhul Qadah – Dhul Hijjah 1444 AH – June 2023 AD
Editorial
Law in the Historical and Civilizational Context (2-4):
International Declarations and Laws – Principles and Charters Designed to Regulate Cooperation, Coexistence, and Renunciation of Wars between Nations: Towards More Commitment and Respect
By: Prof. Badria A. Al-Awadi
Editor-in-Chief
{O humanity! Indeed, We created you from a male and a female, and made you into peoples and tribes so that you may ˹get to˺ know one another. Surely, the most noble of you in the sight of Allah (God) is the most righteous among you. Allah is truly All-Knowing, All-Aware.} (Sourat Al-Hujurat, verse 13)
Law in the Historical and Civilizational Context (2-4)
Chief-in-Editor Prof. Badria A. Al-Awadi
{O humanity! Indeed, We created you from a male and a female, and made you into peoples and tribes so that you may ˹get to˺ know one another. Surely, the most noble of you in the sight of Allah (God) is the most righteous among you. Allah is truly All-Knowing, All-Aware.} (Sourat Al-Hujurat, verse 13)
Relations between states constitute a mirror reflecting the development of the role of laws in regulating life within the international community, a role that intersects in many aspects with the role of law in local societies and within a single state, but differs from it according to its parties and units. International law views states as equals, grants them sovereignty over their lands, territorial waters, and airspace. It does not allow aggression against them or interference in their internal affairs. The rules of this law appeared successively in the form of charters, agreements, and declarations of principles and rights, after a difficult period of labour that witnessed tragic wars and conflicts, which claimed the lives of tens of millions of people in the First and Second World Wars, in addition to the wars of colonialism and aggression.
Many of these rules find their origins and roots in historical theories and legal codes, which arose in the midst of conflicts between earlier nations to control resources and impose sovereignty, and in the predominance of the logic of wars, invasion and aggression, and then developed gradually and cumulatively in a development that took many centuries, to establish peace instead of war, and coexistence instead of conflict, adopting dialogue and negotiation instead of weapons to settle existing problems.
Heavenly laws in general, and Islamic law in particular, as it is the final, wisest, fairest, and most comprehensive of all messages and laws, has contributed to raising awareness of the importance of the values of coexistence and understanding between human societies, and rejecting division and aggression, as the Almighty said in a decisive revelation:
{And cooperate in righteousness and piety, but do not cooperate in sin and aggression}, (Surat Al-Ma’idah, verse 2)}. He also said: {And do not transgress, for God does not love transgressors} (Surat Al-Ma’idah, verse 87).
These provisions were mirrored on the ground by the example of the state of Medina established by the Messenger of God, may God’s prayers and peace be upon him, and later in Mecca after its conquest, and then in the rest of the cities that the Muslims opened and ruled, where the values of brotherhood and affection, justice and equality prevailed, and security, stability and prosperity spread in these zones for a period of time, due to adherence to the values and principles included in the provisions of the Sharia, and the jurisprudence reached by the caliphs, scholars and jurists.
The two historical legal schools, Latin and Anglo-Saxon, also contributed to the emergence of many theories and rules of international law, based on the experience of the Roman Empire and the principles and ideas of Roman philosophers, and then the philosophers and thinkers of the Age of Enlightenment, some of whom lived through dark periods in the history of civil and inter-war wars in Europe and the United States of America. And other wars of colonialism, aggression, and control in the eighteenth and nineteenth centuries, especially the first and second world wars in the twentieth century.
The development of international law culminated in the emergence of a number of declarations, covenants, conventions, and protocols, which followed World War II, most notably: the United Nations Charter (1945), the Universal Declaration of Human Rights (1948), the Geneva Conventions (1949), and its subsequent protocols, and others. International efforts have also been active to formulate and adopt multilateral agreements aimed at encouraging the resolution of problems and disputes through dialogue and negotiation and by avoiding wars.
There is no doubt that these efforts and initiatives have achieved some results, but data on the ground indicate the limited impact of the repository of international laws and agreements in curbing the aggressive tendency inherent in a number of international parties that do not hesitate to use force to achieve their interests, and to interfere in internal affairs of countries, and impose their conditions by force. In addition to the fact that this situation has led to instability in many regions of the world, it has engendered more and more doubts about the binding force and even the very existence of the rules of international law, due to the increasing violations and disrespect of them by the major powers, based on the fact that laws require force to compel the implementation of its provisions, which is not available for many of the rules and provisions of international law, especially when major powers are involved, as confirmed by successive facts.
In view of the common needs of human societies towards strengthening international peace and stability in order to address the real problems that threaten the future of humanity (climate – hunger – depletion of resources …), many parties, at the forefront of whom responsible states and governments, as well as international organizations and jurists of international law, are invited to dwell again on reviewing mechanisms for activating respect for the rules and provisions of international law, and the need to adhere to them to include everyone without exception.
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44
Volume 11
Issue 44
Safar 1445 AH
September 2023 AD
ISSN 2410-2237