Judicial Foundation and Legal Codification
The legal system of Kuwait is an amalgam of British common law, French civil law, Islamic legal principles, and Egyptian law. The Kuwaiti Constitution of 1962 provides for an independent judiciary, and Law No. 19 of 1959 (amended in Law No. 19 of 1990) regulates the organization and functioning of the judiciary. The major legal codifications include the Civil Code, contained in Decree Law No. 67 of 1980; the Code of Civil Procedure, contained in Law No. 38 of 1980 (amended in Law No. 47 of 1994); the Commercial Code, contained in the Law of Commerce No. 68 of 1980 (amended by Law No. 45 of 1989); the Penal Code, contained in Law No. 16 of 1960; and the Code of Criminal Procedure, contained in Law No. 17 of 1960.
Judicial Structure and Court System
The judiciary is structured in three levels. At the base of the hierarchy are the Courts of First Instance. These Courts handle civil, commercial, personal status and penal matters separately. Judgments in cases involving misdemeanors punishable by less than three years of imprisonment or fines of less than 250 Kuwaiti dinars cannot be appealed to a higher level court; commercial and civil judgments involving fines less than 1000 dinars are final. The Courts of Appeal, which sit in panels of three judges, serve as both intermediate and final courts of appeal.
Judicial Authority and Appointment of Judges
The official language of the court is Arabic, although other languages are not prohibited. Court proceedings are public unless keeping the peace requires they be closed, and some Court decisions are made public in the official Gazette. The judiciary is administered by the Judicial Council, which consists of the President and Deputy of the Court of Cassation, the President and Deputy of the Court of Appeal, the Attorney General, the President of the Al-Kulliyya Court, and the Deputy of the Ministry of Justice.
The Court of Cassation, added to the system in 1990, sits at the apex of the Kuwaiti judiciary and serves as the final court of appeal. Divided into Commercial, Civil, and Criminal Boards, the Court’s judgments are not legally binding on the lower courts, yet they are normally respected.
Constitutionality of Laws – Judicial Review
Law No. 14 of 1973 established the Constitutional Court, which has exclusive jurisdiction to interpret the constitutionality of legislation and is empowered to review electoral contestations. The Court is comprised of five members who are chosen by the Judicial Council by secret election, and one reserve member who is appointed by decree. Although judges of the other courts may be non-Kuwaiti, judges of the Constitutional Court must be Kuwaiti nationals. An important guide to the judiciary in rendering opinions about legislation is the Explanatory Note stating the intentions of the legislature that frequently accompanies legislative acts.
There are a number of courts with specialized jurisdictions. Law No. 26 of 1969 established the Court of State Security, which is authorized to try cases related to the internal and external security of the state. The Court is composed of three members who are recommended by the Minister of Justice and authorized by decree. Judgments made by this court cannot be appealed.
Judicial Education and Profession
Members of the judiciary must have training from an accredited institution, and a minimum of six years of legal experience. Judges are appointed by Emiri decree, and may not assume any other profession after appointment. The Judicial Council must authorize the impeachment of a judge, and the Judiciary Disciplinary Council must exercise disciplinary action. The retirement age of members of the judiciary is 65. The legal profession is governed by Law No. 42 of 1964. A practicing lawyer must be registered in the list of lawyers, and is required to be of Kuwaiti nationality and hold a degree from an institution recognized by Kuwait University, which also has a Faculty of Law.
The Magazine of the Judiciary and Law, published by the High Court of Appeal, includes judgments of the Court of Cassation. The Ministry of Justice publishes the Magazine of Consultation and Legislation, which comments on judgments made in the Arab world. The Magazine of the Lawyer, published by the Kuwaiti Society of Lawyers, is devoted primarily to legal research, and the Magazine of Law focuses on aspects of Islamic law.