The Kuwaiti Constitution was promulgated on 11 November 1962—approximately sixty-two years ago—on the assumption that most of those years represented an ideal application of its provisions and adherence to its principles. Article 173 of the Constitution provides as follows:
“The law shall designate the judicial authority competent to adjudicate disputes concerning the constitutionality of laws and regulations, and shall define its powers and the procedures it shall follow. The law shall guarantee the right of the Government and interested parties to challenge the constitutionality of laws and regulations before that authority. Where such authority rules that a law or regulation is unconstitutional, it shall be deemed null and void.”
Pursuant to this constitutional mandate, Law No. 14 of 1973 was enacted to establish the Constitutional Court, defining its composition, formation, jurisdiction, and procedures. By virtue of this structure, the Constitutional Court—considered one of the highest and most prestigious courts within the judicial authority of the State of Kuwait, if not the highest—became institutionally affiliated in a manner that deprived it of the full independence that constitutional courts worldwide are expected to enjoy.
Under this arrangement, the judges of the Constitutional Court sit and adjudicate by way of secondment, in addition to their primary duties in the ordinary courts to which they belong, without being fully dedicated to the work of the Constitutional Court. This is notwithstanding the importance of the Court, the political and legal impact of its judgments, and the significance of the constitutional principles it establishes. Given the heavy caseload borne by the ordinary courts and the burdens placed upon judges therein, it is not practically possible for those judges to devote the majority of their attention to constitutional adjudication or to fully engage in the numerous and critical functions of the Constitutional Court. Inevitably, under such circumstances, constitutional adjudication becomes secondary, while the material and moral privileges associated with membership in the Court remain the principal benefit.
This observation does not in any way detract from the merit of the former or current judges of the Constitutional Court—and I am one of them. They have inscribed, in letters of gold, judgments and principles that constitute milestones in the history of the Kuwaiti judiciary, recognized by both specialists and the general public alike. These judgments have become authoritative references for researchers, legal practitioners, and constitutional courts in other jurisdictions, and a constitutional roadmap for both the executive and legislative authorities in Kuwait. I am firmly convinced that this contribution and distinction will continue and will not cease.
It should also be noted that the Government and previous National Assembly councils have, on more than one occasion, submitted draft laws proposing the establishment of an independent constitutional court; however, none of these proposals reached the stage of enactment. Moreover, the Supreme Judicial Council, in several advisory opinions issued in response to draft laws presented to it for consultation, objected solely to provisions relating to the composition of the court where such drafts included members from outside the judicial body, but did not object to the concept of the Constitutional Court being an independent entity.
I am also firmly convinced that the new era—an era of rescuing Kuwait, renewing its path, and accelerating its progress—will seek to change and reform this hybrid status of the Constitutional Court, and to grant it full independence through a dedicated judicial cadre.
Consultant
Mohammed bin Naji
Former President of the Constitutional Court
Disclaimer
This article was originally written in Arabic.
The English translation provided above is intended for informational and professional purposes only. Due to linguistic and structural differences between Arabic and English, certain legal expressions, nuances, or contextual meanings may not be fully conveyed or may be interpreted differently. In the event of any inconsistency or ambiguity, the original Arabic text shall prevail.