Kuwaiti MPs call for abolishing Constitutional Court

Manama: Five Kuwaiti lawmakers have submitted a draft law to abolish the Constitutional Court and replace it with the Supreme Constitutional Court that “would not interfere in the work of the parliament.”

The move by MPs Thamer Al Suwait, Abdul Wahab Al Babtain, Omar Al Tabtabaie, Khalid Al Otaibi and Osama Shaheen was made two days before a divided parliament convenes to discuss a ruling by the Constitutional Court on December 19 that declared that Article 16 of the parliament’s bylaws was unconstitutional.

The article was used by lawmakers to maintain the parliament membership of two MPs, Waleed Al Tabtabaei and Jamaan Al Harbash, who were last year sentenced by the Cassation Court to prison.

The two MPs, currently out of Kuwait, were among a group of 67 defendants that included 10 former and sitting lawmakers who stormed the parliament building in November 2011 during a rally calling for the resignation or removal of then Prime Minister Shaikh Nasser Al Mohammad.

The case remained pending until December 2013 when the Criminal Court acquitted all suspects.

However, the Court of Appeals in November 2017 rejected the ruling, and sentenced the defendants to jail terms ranging from one to nine years.

Al Tabtabai and Al Harbash were sentenced to seven years each. The verdict was confirmed by the Cassation Court, the highest court in the country, in May.

However, the parliament in October and under the umbrella of Article 16 of its bylaws voted to keep the membership of the two lawmakers.

The case was referred to the Constitutional Court which ruled that Article 16 was unconstitutional, annulling the parliament’s decision and ordering the two lawmakers to serve their prison terms.

The judges argued that Article 16 made court rulings “hostage” to the will of the parliament and amounted to blatant interference in legal instances and a violation of the principle of separation of powers.

The legislative branch cannot interfere in the work assigned by the Constitution to the judiciary or violate court rulings or undermine their right or independence, they said.

“Lawmakers are not above or beyond the law. Immunity is not a privilege, but is part of public interest. Lawmakers have no more rights than any other Kuwaiti to comply with the law. The law must take its natural course for all people without discrimination and the lawmakers’ immunity is not intended to confront decisions, nor is it a means of breaking the law with impunity,” they said.

However, MP Al Suwait, explaining the raison d’etre of the proposal submitted by the five MPs on Sunday, said the parliament was the entity that reflected the will of the people.

“We have the power to promulgate and repeal laws, and in order to achieve the principle of separation of powers, we must act legally to reform the judiciary and strengthen its independence,” he said.

“We made our proposal so that we achieve more guarantees and fill gaps and eliminate the flaws in the current law. The new law offers several guarantees, including the formation of the court in a manner commensurate with the desire of the constitutional legislator. It should consist of representatives of the parliament and the government in order to achieve political harmonisation in the decisions by the court.”

Under the proposal, the Supreme Constitutional Court will comprise seven members, five chosen by the judiciary and two representing the government and the parliament.

“The new law clearly provides for non-interference in parliamentary work in order to prevent authorities from getting into mazes,” he said.

The proposal is set to deepen divisions within the parliament between those who are adamant that Tabtabaei and Harbash are legally full MPs and those who insist their membership has been revoked by the Constitutional Court and by-elections should be announced to replace them.

Kuwait’s Constitutional Court was established in 1973. It comprises five members selected by the Supreme Council of the Judiciary and appointed by an Emiri decree. The Council also selects two substitute members.