The civil court system in Kuwait is one of the oldest in the Arabian peninsula and, unlike other GCC states, comprises personal status cases (and thus avoids the civil court-shari�a court dualism prevalent in its sister states).
- Constitutional provisions for the judiciary
Kuwait�s constitution was adopted in 1962 and has never been amended. Thus it is one of the oldest documents governing an Arab country (only Lebanon, Tunisia, and Jordan have older constitutions and all have been amended). The constitution contains a section on the judiciary with twelve articles:
Article 162 The honor of the Judiciary and the integrity and impartiality of judges are the bases of rule and a guarantee of rights and liberties.
Article 163 In administering justice, judges are not subject to any authority. No interference whatsoever is allowed with the conduct of justice. Law guarantees the independence of the Judiciary and states the guarantees and provisions relating to judges and the conditions of their irremovability.
Article 164 Law regulates the Courts of various kinds and degrees and specifies their functions and jurisdiction. Except when Martial Law is in force, Military Courts have jurisdiction only over military offences committed by members of the armed and security forces within the limits specified by law.
Article 165 Sittings of the Courts are to be public, except for the cases prescribed otherwise by law.
Article 166 The right of recourse to the Courts is guaranteed to all people. Law prescribes the procedure and manner necessary for the exercise of this right.
Article 167 (1) The Public Prosecution Office conducts penal charges on behalf of society. It supervises the affairs of judicial police, the enforcement of penal laws, the pursuit of offenders, and the execution of judgments. Law regulates this body, lays down its duties, and defines the conditions and guarantees for those who assume its functions. (2) As an exception, law may entrust to the public security authorities the conduct of prosecutions in misdemeanors in accordance with the manner prescribed by law.
Article 168 The Judiciary has a Supreme Council which is regulated, and its duties defined, by law.
Article 169 The law regulates the settlement of administrative suits by means of a special Chamber or Court, and prescribes its organization and the manner of assuming administrative jurisdiction including the power of both nullification and compensation in respect of administrative acts contrary to law.
Article 170 The law organizes the body that renders legal advice to ministries and public departments and drafts bills and regulations. Law also regulates the representation of the State and other public bodies before the Courts.
Article 171 A Council of State may be established by a law to assume the functions of administrative jurisdiction, rendering legal advice, and drafting bills and regulations, mentioned in the preceding two Articles.
Article 172 The method of resolving conflicts of jurisdiction or of judgments between the various kinds of Courts is prescribed by law.
Article 173 (1) The law specifies the judicial body competent to deciding disputes relating to the constitutionality of laws and regulations and determines its jurisdiction and procedure. (2) The law ensures the right of both the Government and the interested parties to challenge the constitutionality of laws and regulations before the said body. (3) If the said body decides that a law or a regulation is unconstitutional, it is considered null and void.
- Structure of court system
Kuwait�s court system is unusually unified. The civil courts have three levels. Initially, summary (juz�i) or first instance (kulli) take cases according to their gravity. The next level is an appeals court. A Court of Cassation (mahkamat al-tamyiz) stands at the apex of the system.
Rather than construct separate court systems, Kuwait has generally favored a unified approach. Thus, while its constitution permits (without requiring) a separate administrative court system, Kuwait has opted instead to construct sections of existing courts for administrative disputes. Other sections deal with criminal, commercial, personal status, labor, and rental cases.
There are some specialized courts (for instance, traffic courts), but they fall within the regular civil judiciary.
- Personal status issues
Personal status cases are not assigned to a separate shari�a judiciary; instead, sections of the civil courts are designated for hearing personal status cases. For Muslims, the courts rule on the basis of codified Sunni law or Shi�i (ja�fari) law depending on the litigants. Non-Muslims are governed by their own laws.
- Prosecution system
Kuwait largely follows the niyaba system in which the investigation and prosecution of crimes is a judicial function. The Attorney General heads the niyaba which is judicial in character. It is directed by a judicial official appointed by the minister of justice and approved by the Supreme Judicial Council. However, many lesser crimes are investigated and prosecuted by the police. In addition, a special and independent niyaba is formed for the Court of Cassation by the Supreme Judicial Council.
- Appointing/assigning/evaluation of judges
Kuwaiti judges are formally appointed by the amir who acts on the advice of the Supreme Judicial Council. The Council is almost exclusively judicial in character, but a representative from the executive branch (the deputy minister of justice) employees serves. Judicial inspection is similarly carried out by judicial personnel.
Kuwait is still reliant on a significant number of judges from other Arab countries. Their contracts are concluded with the Ministry of Justice. Those contracts cannot be ended except after consultation with the Supreme Judicial Council, but the role of the Ministry is still paramount in originating and renewing contracts.
- Administration and Relationship with Ministry of Justice.
The Ministry of Justice oversees most budgetary issues and administrative support for the courts. Since a 1996 reform, the Ministry is required to consult with the Supreme Judicial Council on such issues, and the Council gives its opinions not only to the Ministry but also directly to the parliament (which approves the budget).
The 1996 reform was a major step in elevating the role of the Supreme Judicial Council in its dealings with the executive branch. Because of the 1996 reform, the Supreme Judicial Council is a more powerful body and takes more responsibility over judicial affairs. The Ministry of Justice retains a role in the Supreme Judicial Council (one member is from the ministry), some senior appointments, and in administrative matters. However the role of the Council in all these areas has been enhanced. For instance, the Council now is required to issue an annual report that goes not only to the Ministry but also to the cabinet.
- Specialized courts
Kuwait has a specialized constitutional court, though its members are all senior judges from the civil judiciary. It has the authority to issue binding rulings concerning the constitutionality of laws and regulations. The court also rules in election disputes.
The constitution does allow for martial law courts, which have been formed in Kuwait on two occasions: in 1967 and 1991. On both occasions, the declaration of martial law allowing the courts to operate lasted only a few months. The law provides for such courts to have both military and civilian judges.
Unless Kuwait is under martial law, military courts have no jurisdiction over civilians or non-military cases.
State security courts existed from 1975 until they were abolished in 1995. These courts were criticized inside the country because their judges were appointed by the minister of justice (though they were professional judges) and they did not provide for a right of appeal. While a challenge to their existence was rejected by the Constitutional Court in 1976, the Kuwaiti parliament revoked the legislation establishing them in 1995.
- Judicial education
Kuwait has the oldest law school in the GCC region. However, Kuwait has still not been able to train sufficient numbers of judges to staff all of its courts. Judges are therefore brought in from other Arab countries. If they are seconded from their own judiciaries, they are often only able to serve on short-term contracts.
In 1994, the amir issued a decree establishing the Kuwait Institute for Judicial and Legal Studies within the Ministry of Justice. While the minister of justice appoints the director, he does so only after consulting with the Supreme Judicial Council. The Institute administers training sessions for judges, prosecutors, court personnel, and state legal advisors. The Institute was given a deeper legal basis in the 1996 reform.
There have also been some efforts to establish a Judges Club in Kuwait, and the 1996 law explicitly allows such a body. In some countries (such as Egypt) such an organization can act as a corporate voice for the judiciary and carry out some education activities.