Al-Qabas publishes explanatory memorandum for the new law: Judiciary capable of purifying itself
The explanatory memorandum for the Law Regulating the Judiciary, approved by the Cabinet yesterday, affirmed that the judiciary will remain a symbol of state sovereignty, a refuge for the oppressed, and a bulwark against chaos. Its independence is a fundamental pillar of justice, as it has borne the trust of justice since the dawn of history, as old as the human community itself, which has always sensed its need for security, tranquility, and the resolution of disputes arising among individuals.
The memorandum clarified that the stability of the governance system, the consolidation of security, and the prosperity of the state are achieved through the judiciary. While the essential condition for ensuring this role is that the judiciary must have its own law regulating its affairs, it is worth noting that the first Law Regulating the Judiciary, issued under Emir Decree No. 19 of 1959, was entirely reviewed after approximately thirty years and subsequently repealed by Law-Decree No. 23 of 1990, which issued the Law Regulating the Judiciary. This law reorganized the judiciary to align with the prevailing circumstances at the time. However, this law was subject to continuous legislative amendments to prevent its principles from becoming stagnant, necessitating a comprehensive review to enable the judiciary to fulfill its optimal and most complete role.
With the wave of comprehensive reform in the country, which began with the High Speech of His Highness the Amir on May 10, 2024, and included his eloquent words stating that the justice system is the refuge of people to safeguard their rights and freedoms, remaining a beacon of light, a protector of rights, and a guardian of liberties; that the judiciary is one of the pillars of the state; that negative phenomena will not persist and will be reviewed according to careful, measured steps undertaken by trusted men from among the people of Kuwait; and that the judiciary is capable of purifying itself through the hands of its loyal men—these high directives, which carried the banner of reform in the judicial system, inevitably influenced the Law Regulating the Judiciary issued by Law-Decree No. 23 of 1990. To achieve these noble objectives, there was a need for a new law that would reorganize the judicial framework, strengthen its weak points, and present more advanced features keeping pace with developments in comparative judicial systems.
Given that the Emir’s Order was issued on May 10, 2024, and Article 4 thereof stipulates that laws are issued by law-decrees, the present law-decree was prepared. It contains eleven articles, the first of which stipulates that the provisions of the accompanying law shall apply in regulating the judiciary.
**The Judicial Post is Not a Personal Entitlement or Permanent Right**
The explanatory memorandum affirmed that reorganizing administrative posts in the judiciary and determining the conditions for holding them and their terms does not constitute dismissal from the judicial position, nor does it amount to stepping down from it, nor does it diminish the judicial status of its holder. Holding these posts is a duty necessitated by the needs of the service, not a personal entitlement or a permanent right to remain in them. If a judge’s term in one of these posts expires, they return to exercising their judicial duties according to their rank and seniority, as the essence of a judge’s work is the judiciary and adjudicating disputes, whereas administrative posts are incidental to their career path.
**Permissibility of Holding Sessions and Hearing Witnesses via Electronic Means**
Due to continuous technological and technical advancements, it was necessary to leverage these developments to serve justice, saving time and effort, realizing the concept of timely justice, and aligning with the practices of courts in neighboring countries that took the lead in holding sessions via electronic means. Therefore, Article 14 of the law stipulates the permissibility of holding court sessions and hearing witnesses and other judicial procedures via electronic means, without prejudice to trial guarantees, according to controls issued by a decision of the Minister of Justice after obtaining the opinion of the Supreme Council of the Judiciary. Publicity is considered achieved if conducted electronically, and the pronouncement of the judgment must be in a public session, unless the law stipulates otherwise.
**Kuwaitization of the Judiciary within Five Years**
In compliance with the High Order contained in the speech of His Highness the Amir during his visit to the Supreme Council of the Judiciary regarding the swift Kuwaitization of the judiciary and support functions, Article 5 of the present law-decree stipulates that the Minister of Justice, in cooperation with the Supreme Council of the Judiciary, shall gradually issue the necessary decisions to Kuwaitize the judiciary and the Public Prosecution within a maximum period of five years from the date of implementation of this law-decree. Non-Kuwaiti judges and Public Prosecution members contracted on a loan basis or in a personal capacity shall continue to perform their duties until the end of their loan period or the maximum limit for its renewal, provided that in all cases, this period does not exceed the five years mentioned in the first paragraph of this article.
Article 6 exempted Kuwaiti judges and Public Prosecution members appointed before the implementation of its provisions, allowing them to remain in their positions until the end of their service term, with the possibility of transfer between the judiciary and the Public Prosecution. This constitutes an exception to the two new conditions included in the accompanying law for those assuming judicial roles or working in the Public Prosecution: that they must be Kuwaiti by origin and hold a law degree or an equivalent certificate recognized by the Ministry of Higher Education. This exemption also included Kuwaitis who applied for or were appointed to the position of “Junior Legal Researcher,” which qualifies them for the role of Deputy Public Prosecutor, prior to the implementation of this law-decree.
