Prof. Ali Abdul Qader Al-Qahwaji
Head of Criminal Law Department – Kuwait International Law School

Abstract:

“There is neither crime nor penalty except as provided by law” is one of the principles established and recognized constitutionally, legally, internationally and legitimately in the Penal Code and the Code of Criminal Procedure and Trials, along with “the accused is innocent until proven guilty” before a competent court in a fair trial and due process. Although these two principles are subject to exceptions stipulated by the Constitution and regulated by the law, their legislative and practical application witnesses a deviation from their clear concept in both the Constitution and the law.
The principle of “there is neither crime nor penalty except as provided by law” is a constitutional principle, where the Constitution sets out its limitations and exclusions in case of necessity and under certain conditions. Nevertheless, a deviation of this principle occurs when the legislator authorizes the competent minister (executive authority) to determine certain aspects of criminalization and punishment. He may add new actions or delete existing actions from the scope of criminalization. He may also be authorized to determine penalties for breaches of some administrative regulations.
The principle “presumed innocence” becomes completely useless for the accused, and conviction becomes the principle in this case, as in cases of arrest and detention on the basis of suspicion, or when the discretion of such procedures is left to the judicial officer without prior or current supervision. In most cases, the Law Enforcement Office carries out the preliminary investigation, which is originally the competence of the investigation authority through the investigative assignment system, without prior qualification to perform that function, and the impartiality of the investigating authority.
In this paper, we present comparative analyzes and studies in both Kuwait and Egypt on the role of the Executive Authority in the field of crimes and its restrictions. We then consider the excesses that may occur in the practice of this jurisdiction by the executive authority. We conclude by considering the impact and dangers of an increase in this role, calling on the legislative and judicial authorities to exercise their powers in this regard, in order to implement the provisions of Article 50 of the Kuwaiti Constitution which states: “… No authority may delegate all or part of its powers  provided for in this Constitution.”

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