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Sovereign acts immunise the government: A window to the underworld

This post has been read 260895 times!

On 17 April 2022, the General Authority of the Court of Cassation issued a verdict stating that governmental decisions on nationality matters are not subject to judicial review. All the courts must issue rulings of non-competence whenever a legal dispute is raised regarding nationality.

Attorney Dr. Fawaz Alkhateeb

This means that if the government withdraws the nationality of a Kuwaiti citizen for any reason, even if it is an unjust decision, the person may not dispute it. They have no legal recourse. The reasoning of the verdict by the General Authority of the Court of Cassation is mainly based on Decree Law No. 20 of 1981 regarding establishing the Administrative Court, which states in Article one, paragraph five, that there is no jurisdiction over decisions regarding nationality , residency, deportation and places of worship, as they are sovereign acts. The reason behind the verdict is that the application by the Kuwaiti courts of the point of law in question has resulted in different rulings. Some judicial rulings reviewed nationality issues in specific cases on the grounds that the Constitution states the right to litigation is guaranteed to all people (Article 166 of the Constitution), and the law has no meaning if courts do not review its application. Other rulings decreed that the law clearly states there is no jurisdiction regarding the withdrawal of nationality; such decisions fall outside the court’s authority.

Problematic ruling
The verdict of the General Authority of the Court of Cassation is problematic as the Supreme Court’s judicial power is granted the privilege to interpret the law, but it is not supreme as it should not violate fundamental constitutional rights. The court followed an illogical justification of the notion of sovereignty, providing absolute authority to the government, thereby affecting the inherent rights of citizens. This leads to misuse of power, errors and injustice for individuals. It puts citizens at the mercy of the government as there are no limits to its discretion.

Nationality law is meaningless if there is no judicial review of its application.The right to a nationality is such a fundamental human right, it should be under constant supervision. There is no rule of law without an independent and competent judicial authority with sufficient powers to resolve disputes fairly and impartially. The right to litigation means all administrative decisions are subject to judicial review. The notion of immunising the State’s decisions is unfair and unconstitutional. It is a gateway to using nationality as a tool against the opposition.

Required next steps
In the name of legitimacy, the National Assembly should delete the fifth paragraph of Article one of Decree Law No. 20 of 1981. However, I am not optimistic that this will happen as the government dominates the political arena. The alternative solution is to contest the law directly in front of the Constitutional Court as per Article 4 (bis) of the Constitutional Court Law, as there is a grave suspicion of its violation of the Constitution’s rules.

Doctrine of judicial review
All parties must agree that our judiciary is distinguished by its independence and integrity. The courts enjoy an excellent reputation and are worthy of a final review of the State’s decisions. The time has come to call for reforming judicial jurisdiction to include all aspects of State decisions. It is a basic defence of legal constitutionalism: a right of hearing, supervision and review by the judicial body. The courts serve to protect rights and safeguard the supremacy of constitutional principles.

By Dr Fawaz Alkhateeb

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