ARABIAN TIMES NEWS NETWORK
Counselor Mohamed Bin Naji, the former President of the Constitutional Court in Kuwait, has raised serious concerns regarding the independence of the court, as outlined in its founding law. According to Bin Naji, despite the critical role the Constitutional Court plays as one of the highest judicial authorities in the country, the law that established it prevents it from achieving the level of autonomy that is essential for any constitutional court globally. Speaking with Al Jarida newspaper, Bin Naji emphasized that the court’s subordination is a significant barrier to its effective functioning and independence.
Kuwait’s Constitutional Court holds a position of utmost importance in the country’s judiciary. It is tasked with interpreting the constitution, resolving disputes related to the constitutionality of laws, and shaping the legal and political landscape of the nation through its rulings. Despite this, multiple draft laws proposing the court’s independence have been submitted by past governments and councils but none have been finalized or implemented. This lack of action has left the court in a subordinate position, a situation Bin Naji believes must change.
In a judicial study published by Al Jarida, Bin Naji traced the court’s history to the issuance of the Kuwaiti Constitution on November 11, 1962. He noted that while the constitution has largely been respected and implemented effectively over the past 62 years, Article 173 of the document, which relates to the Constitutional Court, has not been given the attention it deserves. Article 173 stipulates that a specific judicial authority must be appointed to handle constitutional disputes and defines the procedures for this authority. It also ensures the right of both the government and individuals to challenge the constitutionality of laws and regulations. However, the court’s current structure, created by Law No. 14/1973, has not provided the necessary independence to fulfill its mandate properly.
Bin Naji elaborated on the problems arising from the court’s current configuration. The judges of the Constitutional Court are not dedicated solely to their roles within this important institution. Instead, they are seconded from their positions in the ordinary courts, where they have primary responsibilities. This creates a situation in which judges are unable to focus fully on constitutional matters, which are of significant political and legal importance. The heavy workload from their regular judicial duties makes it impossible for them to devote the necessary time and attention to the complex constitutional issues they are tasked with resolving. Bin Naji argued that the court’s judges end up prioritizing their regular court duties over their work on the Constitutional Court, treating their constitutional responsibilities as secondary.
Despite these challenges, Bin Naji acknowledged the immense contributions made by the court’s judges, both past and present. He praised them for establishing foundational legal principles that have been recognized throughout the judiciary, both within Kuwait and internationally. These contributions have served as a roadmap for the country’s executive and legislative authorities.
Looking to the future, Bin Naji expressed confidence in what he termed the “New Covenant,” a political era he believes will revitalize Kuwait’s governance. He is hopeful that this new phase will bring about much-needed reforms, including providing the Constitutional Court with an independent judicial cadre. By doing so, the court would be empowered to operate independently and deliver judgments free from the constraints of its current hybrid structure. Bin Naji’s vision is for the court to attain the independence it deserves, ensuring its vital role in Kuwait’s judicial and political system remains effective and respected.
