Ali Saoud Al Dhafiri
Associate Professor of Public Law
Kuwait International Law School

Abstract:

This research paper deals with the study and analysis of the legal value of the principle of confrontation in the disciplinary procedures facing the public employees within the Kuwaiti Civil Service Law, and the frequent judicial applications of the Kuwaiti and comparative judiciary towards strengthening its protection. This principle is based on a fundamental issue represented by the necessity of informing the employee of the accusations against him, so that he is aware and clear of these accusations and becomes able to prepare his defense and refute what had been directed against him. This topic is important because it is one of the main elements in the defense guarantees established in the framework of disciplinary accountability for public officials, which find their roots and foundations in the principles of natural law, constitutional rules and public and private legal legislation. It also gains its importance from the many issues it raises in practical application, and from the legal, administrative and social effects that it raises.
This paper aims to clarify the objective and procedural aspects of the principle of confrontation defined by the Kuwaiti Civil Service Law, and its judicial applications in the Kuwaiti and comparative judiciary, by addressing it in two topics: one of them relates to clarifying the content of the confrontation, and the second one seeks to clarify the requirements of the right of defense, through a comparative analytical approach that analyzes the texts and legal procedures regarding the principle and its applications in the State of Kuwait, legally and judicially, and compares it with what is going on in the law and comparative judiciary, especially in France and Egypt. The research concludes with several results, most notably that the principle of confrontation has become a stable principle in legal and judicial terms in light of the Kuwaiti civil service law and the jurisprudence of the Kuwaiti judiciary. But it faces challenges in the administrative aspect represented by attempts to circumvent it and consolidate presidential authority. The research ends with recommending the need to strengthen objective guarantees for the public employee facing disciplinary accountability, which includes all stages of the investigation, and within a framework of justice, transparency and objectivity, as well as the need for the legislator to stipulate the employee’s right to the assistance of a lawyer during all stages of the investigation, and to allow all employees facing disciplinary accountability to review their files to help them defend themselves and refute the charges against them.

Keywords: disciplinary accountability, public servant, defense rights, disciplinary guarantees, disciplinary penalty.

Read Full PDF Text (Arabic)