| Volume 12 | Dhul Qadah – Dhul Hijiah 1445 AH |
| Issue 47 | June 2024 AD |
| ISSN 24102237 |
Editorial
The Kuwaiti Constitutional Court reaffirms the right of government agencies to set and change the costs of services provided
By: Prof. Badria A. Al-Awadi
Editor-in-Chief
As part of a strategy to review the state’s financial policies, enhancing its resources and reducing waste, the government has announced a set of plans and programs over the past few months to achieve this goal. This included calling on various ministries and government agencies to take steps to review the costs of services provided to the public and raise them to reduce the burden on the state, limit the existing financial deficit, and allow for contributions and partnerships in financing the development of these services. These plans and procedures also include setting new costs for some services that were previously provided free of charge.
The Kuwaiti Constitutional Court reaffirms the right of government agencies to set and change the costs of services provided
Chief-in-Editor Prof. Badria A. Al-Awadi
As part of a strategy to review the state’s financial policies, enhancing its resources and reducing waste, the government has announced a set of plans and programs over the past few months to achieve this goal. This included calling on various ministries and government agencies to take steps to review the costs of services provided to the public and raise them to reduce the burden on the state, limit the existing financial deficit, and allow for contributions and partnerships in financing the development of these services. These plans and procedures also include setting new costs for some services that were previously provided free of charge.
While these measures were met with satisfaction and positive interaction from many social and economic circles because they reflect government policies aimed at rationalizing spending, developing services, and achieving sustainability principles, they raised legal discussions – old and new – regarding the constitutionality of raising some of the existing costs due to ongoing economic developments, and government agencies imposing new costs on services that were provided to the public free of charge or new services. This is in different interpretations and explanations of the text of Article (134) of the Constitution, which states that: “The establishment, amendment, and cancellation of general taxes shall only be by law. No one shall be exempted from paying all or some of them except in the cases specified by law. No one may be required to pay other taxes, fees, and costs except within the limits of the law.”
Amidst this ongoing legal debate, and in a recent ruling issued in a lawsuit of unconstitutionality referred to it by the Court of Appeal, and registered with it under No. 2 of 2024 “Constitutional – which relates to an appeal filed by the Union of Private Medical Professions against the constitutionality of the Minister of Health’s Decision No. 196 of 2022, issued on May 17, 2022, and published in the Official Gazette (Kuwait Today) on May 29, 2022, regulating the treatment of medical waste, including determining the schedule of its material costs and the company responsible for it, the Kuwaiti Constitutional Court reiterated the constitutional right of ministries and government agencies to set the price or equivalent for the services they provide according to their value and the nature of the economic situation.
The Court affirmed that the Ministry of Health’s decision to impose a fee for medical waste treatment services is not subject to the provisions of Article (134) of the Constitution, and is not considered a fee that must be issued by law. The Court indicated in the grounds for its ruling that: “The meaning of Article (134) of the Constitution is that no one may be required to pay fees except within the limits of the law. What is meant by fees is what a public body imposes in exchange for specific services it provides to those who request them. In assessing them, the cost of the service is not taken into account, as their amount is, as a general rule, fixed for all beneficiaries of these services, and throughout the validity of the legislative instrument that imposed them.”
The Court added that according to this interpretation, fees: “differ from the price of the product or the fee for the service collected by the entities responsible for managing state property, as the price or fee is paid to a public economic facility that is managed by one of the entities according to economic management methods, and is determined according to purely economic criteria. It is subject to changes imposed by the nature of economic conditions, and may expand to include changes resulting from negotiations between the requester of the product or service and the economic facility. It may even change according to the nature of the transactions in terms of their size, quantity, or the conditions of their performance.”
The Court pointed out that based on the fact that the ministerial decision included a schedule of medical waste disposal costs according to their size, and that the cost of treating the waste, medicines and medical consumables agreed upon in that contract was not permitted to exceed the maximum limit stated in the appendix attached to the decision, “what the (ministerial) decision included regarding the cost of treating the aforementioned waste is not considered a fee, as it is not a fixed amount that all health facilities are obligated to pay, but rather it is estimated according to purely economic considerations that take into account the nature and quantity of the waste required to be treated. The reality of this cost is that it is the price of the service that the medical facility requests from the company assigned by the Ministry of Health to manage the treatment plant to treat its waste, so it does not fall within the concept of fees that can only be established within the limits of the law…”
Thus, this criterion, which the Constitutional Court has renewed its adoption of in distinguishing between fees falling within the framework of Article (134) of the Constitution and the costs of services provided, is distinguished by being an objective criterion subject to specific and defined controls, as indicated in the grounds of the aforementioned ruling, which contributes to determining and clarifying the effects and provisions resulting from it.
Content
Arabic Studies and Research
The Express Termination Clause and Judicial Authority over Its Enforcement: A Doctrinal and Analytical Study under Kuwaiti Civil Law with Comparative References
Dr Sami Al Hathal Al Anzy
Second Author
Assistant Professor of Civil Law
Law Department, College of Business Studies, PAAET, State of Kuwait
Dr Abdulkarim Rabee Al Enezi
First Author
Associate Professor of Civil Law
Law Department, College of Business Studies, PAAET, State of Kuwait
Pretrial Detention in the Kuwaiti Code of Criminal Procedure and its Amendments Compared to French and Egyptian Laws: A Critical Analytical Study
Dr Iqbal Khalil Al Qallaf
Assistant Professor of Criminal Law
Law Department, College of Business Studies
PAAET, State of Kuwait
The Islamic Legislative System … “A Right that Must Be Claimed!” An Analytical Reading in Philosophy and Rooting
Prof Mohammad Arfan Alkhatib
Professor of Civil Law, Law Department,
Ahmad bin Mohammad Military College,
Doha, State of Qatar
The Philosophy of Objective Digital Criminal Policy in Egypt and Saudi Arabia
Dr Hanan Mohammad Al Hussaini
Associate Professor of Criminal Law
College of Law and Political Science
King Saud University, Riyadh
Kingdom of Saudi Arabia
Electronic arbitration: A comparative study of the Saudi System and Sudanese Law
Dr Othman Mohammad Hammad
Associate Professor of Commercial Law,
College of Sharia and Law, University of Hail,
Kingdom of Saudi Arabia
The Principle of Suitability in Investment-Related Financial Activities: Concept and Justifications
Anwar Namshan Al Janfawi
PhD Researcher
College of Law, University of Sharjah, UAE
Prof Dr Rasha Mohammad Hattab
Professor of Commercial Law
College of Law, University of Sharjah, UAE
Methods of challenging the decision issued regarding the request to declare the debtor’s insolvency in Jordanian legislation: French legislation as a guidance
Dr Ismael Nayef Al Hadidi
Assistant Professor of Commercial Law
Faculty of Law, University of Jordan
Authorization in Completing Check Data after Issuance: A Study in the light of Jordanian Trade Law
Dr Jaber Ghazi Shatnawi
Assistant professor of Commercial Law
Faculty of Law, Yarmouk University, Jordan
Jamming the Radio Frequency Spectrum and Satellite Signals: A Legal and Technical Study
Dr Jamal Mohammad Al Habishi
Assistant Professor of Public International Law
Head of the Department of Sharia and Law
College of Humanities and Social Sciences
University of Science and Technology
Ibb Branch, Yemen
The Problematic Relationship between the Money Laundering Crime and the Original Crime according to the Palestinian and Kuwaiti Laws: A Comparative Study
Prof Dr Mustafa Hussein Abdel Baki
Professor of Criminal Law
Faculty of Law and Public Administration
Birzeit University, West Bank, Palestine
Abrar Ibrahim Alassy
Phd. Researcher
Faculty of Law & Political Science
University of Constantine 1, Algeria
The extent of application of “legitimate claim” provisions over “owned registered lands” in the Palestinian legislation in the light of Palestinian and comparative judiciary
Dr Mahmoud A. Salameh
Assistant Professor of Civil Law
Faculty of Law, Arab American University
West Bank, Palestine
English Studies and Research
The Express Termination Clause and Judicial Authority over Its Enforcement: A Doctrinal and Analytical Study under Kuwaiti Civil Law with Comparative References
Dr Sami Al Hathal Al Anzy
Second Author
Assistant Professor of Civil Law
Law Department, College of Business Studies, PAAET, State of Kuwait
Dr Abdulkarim Rabee Al Enezi
First Author
Associate Professor of Civil Law
Law Department, College of Business Studies, PAAET, State of Kuwait
Pretrial Detention in the Kuwaiti Code of Criminal Procedure and its Amendments Compared to French and Egyptian Laws: A Critical Analytical Study
Dr Iqbal Khalil Al Qallaf
Assistant Professor of Criminal Law
Law Department, College of Business Studies
PAAET, State of Kuwait
The Islamic Legislative System … “A Right that Must Be Claimed!” An Analytical Reading in Philosophy and Rooting
Prof Mohammad Arfan Alkhatib
Professor of Civil Law, Law Department,
Ahmad bin Mohammad Military College,
Doha, State of Qatar
The Philosophy of Objective Digital Criminal Policy in Egypt and Saudi Arabia
Dr Hanan Mohammad Al Hussaini
Associate Professor of Criminal Law
College of Law and Political Science
King Saud University, Riyadh
Kingdom of Saudi Arabia
Electronic arbitration: A comparative study of the Saudi System and Sudanese Law
Dr Othman Mohammad Hammad
Associate Professor of Commercial Law,
College of Sharia and Law, University of Hail,
Kingdom of Saudi Arabia
The Principle of Suitability in Investment-Related Financial Activities: Concept and Justifications
Anwar Namshan Al Janfawi
PhD Researcher
College of Law, University of Sharjah, UAE
Prof Dr Rasha Mohammad Hattab
Professor of Commercial Law
College of Law, University of Sharjah, UAE
Methods of challenging the decision issued regarding the request to declare the debtor’s insolvency in Jordanian legislation: French legislation as a guidance
Dr Ismael Nayef Al Hadidi
Assistant Professor of Commercial Law
Faculty of Law, University of Jordan
Authorization in Completing Check Data after Issuance: A Study in the light of Jordanian Trade Law
Dr Jaber Ghazi Shatnawi
Assistant professor of Commercial Law
Faculty of Law, Yarmouk University, Jordan
Jamming the Radio Frequency Spectrum and Satellite Signals: A Legal and Technical Study
Dr Jamal Mohammad Al Habishi
Assistant Professor of Public International Law
Head of the Department of Sharia and Law
College of Humanities and Social Sciences
University of Science and Technology
Ibb Branch, Yemen
The Problematic Relationship between the Money Laundering Crime and the Original Crime according to the Palestinian and Kuwaiti Laws: A Comparative Study
Prof Dr Mustafa Hussein Abdel Baki
Professor of Criminal Law
Faculty of Law and Public Administration
Birzeit University, West Bank, Palestine
Abrar Ibrahim Alassy
Phd. Researcher
Faculty of Law & Political Science
University of Constantine 1, Algeria
The extent of application of “legitimate claim” provisions over “owned registered lands” in the Palestinian legislation in the light of Palestinian and comparative judiciary
Dr Mahmoud A. Salameh
Assistant Professor of Civil Law
Faculty of Law, Arab American University
West Bank, Palestine
The Medina Civil State From Practice to Theory .. The Model State of the Islamic Government
Prof. Mohammad Abdul Mohsen Al Moqatei
Professor of Public Law - Faculty of Law - Kuwait Universitybr>
President of the Kuwait International School
Issue 49
Volume 13Jumada 1/ Jumada 2 1446Issue 49December 2024ISSN 24102237 [...]
The Ethics of Artificial Intelligence Employment Among Law Students
Dr Abdulaziz Ajeel Al Nashmi
Assistant Professor of Comparative Jurisprudence
and Islamic Studies, Kuwait International Law School
Uniform Rules of the International Chamber of Commerce (ICC) No. 758 on Letters of Guarantee A Comparative Analytical Study
Dr Fahad Ali Al Zumai
Associate Professor of Private Law
College of Law, Kuwait University
The Use of Artificial Intelligence in Photography and its Rulings in Islamic Jurisprudence: A Fundamental Study
Dr Khaled Jasem Al Houli
Associate Professor, Department of Comparative
Jurisprudence and Sharia Policy, College of Sharia
and Islamic Studies, Kuwait University
The Role of the Sports Arbitrator in Addressing Financial Imbalances in Professional Sports Contracts Amid the Coronavirus Pandemic
Dr Adel F. Al Mayas
Assistant Professor of Commercial Law
Department of Law, College of Business Studies, PAAET, State of Kuwait
Dr Mohammed Al Kandari
Assistant Professor of Litigation Law
Department of Law, College of Business Studies, PAAET, State of Kuwait
Prof Mansour Al Saeed
Professor of Commercial Law
Department of Law, College of Business Studies, PAAET, State of Kuwait
Civil Law…Phoenix – From life to life?!: An Analytical Reading of the Reality of Civil Law within the Legal System
Prof Dr Mohammed Arfan Alkhatib
Professor of Civil Law
Ahmad bin Mohammad military College
Doha, State of Qatar
Public Employees’ Complaints Presented to the Public in Light of Administrative Judicial Jurisprudence: A Comparative Study
Dr Saqer Eid Alroies
Associate Professor of Administrative Law
College of Law, University of Bahrain
Manama, Kingdom of Bahrain
Regulating the Right of Jurisdiction in Bahraini Civil Law: A Comparative Analytical Study
Sayed Ibrahim Al Alawi
Lawyer, Master›s Degree in Private Law
College of Law, University of Bahrain
Manama, Kingdom of Bahrain
Penal Institutions in Palestinian Legislation: A Comparative Study
Dr Isam Husni Alatrash
Associate Professor of Criminal Law
Faculty of Law and Criminal Sciences
Al Istiqlal University, Jenin, Palestine
Constitutional Protection of the Right to the Environment: An Analytical Study in Light of the Vision of the Algerian Constitutional Founder
Dr Hassina Ghouas
Lecturer, Division A, Faculty of Law
University of August 20, 1955
Skikda, Algeria
The Statute of Limitations Barring the Hearing of a Lawsuit in Kuwaiti Civil Law Commentary on the Ruling of the First Civil Circuit of the Court of Cassation No. 1112/1124 of 2018 Issued on March 23, 2021: An Analytical and Fundamental Study
Dr Abdul Karim Rabie Al Enezi
Associate Professor of Civil Law
Department of Law, College of Business Studies, PAAET, State of Kuwait
Assistant Professor of Civil Law
Department of Law, College of Business Studies, PAAET, State of Kuwait
Protecting the Marine Environment from Pollution by Oil and its Derivatives Commentary on the French Court of Cassation’s Ruling in the Criminal Appeal Issued on September 25, 2012, under No. 10-82.938 Concerning the Erika Oil Tanker Incident
Dr Mohammad Hassan Al Kandari
Advisor, Fatwa and Legislation Department
Council of Ministers, State of Kuwait