Separation of Powers in the Kuwaiti Criminal Justice System: A Case Study

Introduction

The Separation of Powers (SOP) in a criminal justice system can be regarded as a method of protecting citizens’ rights from bias, corruption, and inequality in judging.¹The history of the phenomenon has involved several milestones and was the product of the minds of multiple notable figures. For example, Aristotle introduced a number of constitution-related ideas in his Politics, especially in books two – seven, which considered citizenship, types of regimes, and constitution. With respect to SOP, the author distinguished between “the deliberative body, the magistracies and the judges” in book four, suggesting that such separation could prevent absolute power.²Furthermore, in his criticism of the then-existing patriarchal system of power, Locke focused on SOP in the context of legislation and formulated the “principle of legislative supremacy … in the sense that it envisions the legislature as having an initiating place on the assembly line of law-making/law enforcement”³, arguing that an “authority that is able to give laws to others must necessarily be the superior of the latter.”⁴ It can be suggested that Locke did not only try to separate the judiciary system; he also implied that there was a hierarchy of the branches of power, with judiciary being the “supreme power.”⁵ However, the principle of separating powers was clearly formulated by Montesquieu, who focused on the idea of SOP between “the three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regard to matters that depend on the civil law.”⁶ Montesquieu based his view on a comprehensive analysis of a variety of systems, including ancient ones (for example, those of Romans and Barbarians)⁷ and those that were contemporary at the time (for example, that of England).⁸While not the first to pinpoint the idea of SOP, Montesquieu is believed to be the first person to fully and explicitly formulate the idea of tripartite SOP, aiming to “prevent the concentration of all power in the hands of a single ruler.”⁹ It is also noteworthy that the practice of using SOP in Islamic countries started with Umar ibn Al-Khattab (634-644 AD), who was the second Caliph of Islam. He may have been the first person to implement a form of SOP, in particular, to isolate the judiciary from the executive branch.¹⁰This outcome was achieved by appointing both judges and governors in the provinces, both of which were supposed to be under the supervision of the Caliph.¹¹ This measure ensured their independence from each other, although, eventually, the judiciary depended on the Caliph. Thus, the Islamic roots of SOP can also be found, and they are related to the practice of SOP.

It can be suggested that the discussions around the SOP tend to be related to administrative or public law in the majority of cases. In her study, Barkow states that although scholars have written many works on the SOP in a state, they “have wholly ignored the criminal state”.¹²Barkow mentions at least a dozen works that illustrate her point, explaining that she had analysed only a small sample of the literature.¹³ It is noteworthy that the majority of the works that she mentions were written in the previous century. Still, the issue appears to have been carried into the new century: the consideration of the administrative side of SOP is exemplified by multiple works, including those by Koven, Bruff, Kamali, and Tribe.¹⁴ However, the criminal-matters perspective seems to be rarely mentioned. Articles by Haljan and Nelson and Ringsmuthcan be used to illustrate works that do mention it, but such examples seem to be underrepresented, and they do not focus on the topic.¹⁵ At the same time, it is important to achieve the SOP in the field of justice as it permits the judicial system to be relatively independent and it improves its legitimacy, which is highlighted, for example, by Hall.¹⁶ An analysis of Ashworth’s conclusions can be interpreted to suggest that this importance also correlates with a history of challenges in ensuring the judiciary’s independence, which the author recognises as “failures of state-led criminal justice.”¹⁷ These failures can be the result of the difficulties the judiciary experience in resisting external pressures, which the government is supposed to reduce, if not nullify. As suggested by Ashworth, “it should remain the responsibility of the state towards its citizens to ensure that justice is administered by independent and impartial tribunals.”¹⁸ Apart from that, Barkowdemonstrates that the administrative and criminal perspectives on the SOP are noticeably different, and in practice, few safeguards, including individual rights as delineated in the Constitution, are applied to the latter.¹⁹ Thus, the author points out the tendency to ignore criminal-matter SOP, indicating the need to acknowledge and change the situation, which the proposed paper aspires to do.

The current research aims to examine how the SOP in the criminal justice system of Kuwait contributes to addressing citizens’ rights, with the focus on the principles mentioned in the Constitution of Kuwait. Article 50 of the Kuwaiti Constitution declares the principle of SOP at the level of the state: “In conformity with the provisions of the Constitution the system of government shallbe established on the basis of separation and cooperation of powers”, and moreover, “No Authorityshall be allowed to waive all or part of its jurisdiction as prescribed in thisConstitution”.²⁰Still, the legal background for the SOP principles in the state is not derived solely from the Constitution. Much attention will be paid to discussing the effect of British Jurisdiction(as a past influence), as well as the continuing impact of the French and Egyptian law on the development of the criminal justice system in a country that gained independence from the United Kingdom in 1961.²¹ Furthermore, it is important to take into account the fact that Kuwait is an Islamic country, but that Muslim law has a direct impact on only the country’s family law.²²

The proposed study will examine the extent to which an effective SOP exists in the Kuwaiti criminal justice system. The first step is a general overview of the intricate net of functions that are shared and divided between institutions and personnel, and which are typical of the country’s criminal justice system. The second step is a discussion of critical issues in the system and its functioning, involving the question of the protection of citizens’ rights. The Kuwaiti criminal justice system can be described as mixed in its origins.²³Also, it is not fully protected from over-bureaucratisation, dishonest or wrongful conduct, possible biases, and unfairness.²⁴ Due to the significance of these challenges, the analysis of police structures, prosecutors’ responsibilities, and the judiciary, with a focus on the role of Article 50 in determining the SOP, are the most important parts of this research.

Much attention should be paid to the role of prosecutors and the prosecutorial process in Kuwait, which are influenced by the traditions of French law. Discussion of this process allows conclusions to be drawn regarding the effectiveness of the SOP in Kuwait, with the focus on conducting unbiased crime-control procedures. The analysis should include a discussion of those aspects of the criminal justice system adopted in Kuwait that can lead to a reduction in the number of crimes against citizens’ rights in the country.²⁵ In this context, the focus is on the resources that are available to representatives of different branches of the system for the purpose of organising an effective prosecutorial process and litigation. Finally, conclusions and recommendations need to be provided regarding the role of SOP in the criminal justice system in protecting Kuwaiti citizens’ rights. The recommendations will be formulated referring to the analysis of the criminal justice system’s mixed structure.

A certain typology of SOP assessment criteria is also proposed for the study. A most significant criterion is the level of the independence of the judiciary, which can be assessed by pinpointing the instances of supervision and control performed by other branches of power. In particular, in Kuwait, the procedures that are related to the appointments of judges imply a lack of judiciary independence from the executive power.²⁶ Thus, the procedures of the judiciary, including the appointment and removal of judges, can be reviewed to assess SOP. Apart from that, the management of cases, especially those related to political crimes, the protection of the rights of offenders and inmates, and the work of the appeal system, might signal independence issues. If miscarriages of justice can be pinpointed, they should also be analysed for external pressures. Finally, police conduct, including interrogation, is of interest for the study.

It should also be mentioned that the proposed study refers to the work of Barkow. The article considers the context of the United States, and Barkow notes that although the risk of abuse and prejudice can be reduced with SOP, “more stringent enforcement of the separation of powers in criminal cases” is required in the United States.²⁷As a result, Barkow’s work is not directly connected to the topic of the current research, but it may be helpful to consider the research and practice in the field of SOP in several countries to form the argument for Kuwait.

The Role of Separating Powers Between Institutions in the Criminal Justice System

Throughout its existence, the idea of SOP was adopted in a number of contexts, which allows conclusions to be drawn about its theoretical and practical value. A very early example of the use of SOP is the adoption of some of its elements (in particular, the separation of the judiciary from the executive branch) by Umar ibn Al-Khattab (634-644 AD).²⁸ There is some debate on the topic: according to Rehman, Ibrahim, and Bakar,²⁹ one of the schools of thoughts argues that at that time of Umar ibn Al-Khattab, the judiciary was merged with the executive branch (which means that neither of them is controlling the other; they were just parts of the same branch). However, Rehman, Ibrahim, and Bakar highlight the evidence³⁰ which indicates that the caliphs did delegate part of their power to judges. Apart from that, the authors focus on the principles of justice from the Quran,³¹ suggesting that in order to achieve justice, fairness, equity, and impartiality promoted by it, the judiciary needs to be independent.³² The authors present a clear and logical argument, which is based on historical evidence and the analysis of Quran. Therefore, the Islamic roots of SOP practice may be present.

In the British and French law systems (which both developed their own monarchy-based SOP versions), the concept of the SOP was adopted in the wake Montesquieu’s argument regarding the potential of this system to protect citizens’ rights.³³ It is noteworthy that France’s legal-matters SOP refers back to the pre-revolutionary “parlements” that performed “regulated resistance,” which modified the relationships between the monarchy and the nobility, according to Goldoni.³⁴ In addition, the SOP has been demonstrated to be a legitimate means of protecting democracy or, rather, limiting absolute power by making it impossible to concentrate power in one place.³⁵As a result, the principle of the SOP is reflected in many modern constitutions, including those of the United Kingdom, the United States and France, among other countries. Therefore, it would be feasible to state that the SOP is typical of both common law and civil law systems.³⁶

The aim of SOP, as pointed out by Montesquieu, is to “prevent the concentration of all power in the hands of a single ruler.”³⁷ Therefore, SOP in a criminal justice system is meant to prevent power abuse and ensure the protection of the vulnerable populations.³⁸ The population that is involved in the criminal justice system is indeed particularly vulnerable and requires effective safeguards.³⁹However, historically, SOP in criminal matters was not only largely ignored by the researchers;⁴⁰it also proved to be difficult to maintain.⁴¹As a result, the present study intends to rectify this issue by attracting attention to criminal justice SOP and investigating related issues.

The Concept of a Criminal Justice System and Its Patterns

The term criminal justice that is employed in this paper can be defined as “the formal social institution designed to respond to deviance defined as crime.”⁴²The system is typically saidto have three subsystems: “law enforcement, courts, and corrections.”⁴³ The first one is concerned with enforcing laws, which is carried out by specific agencies through the activities related to crime: its prevention, detection, and response to it (investigation and apprehension).⁴⁴ The second one consists of the courts that uphold laws by resolving disputes,⁴⁵ and the third one is concerned with punitive operations, as well as rehabilitation.⁴⁶Criminal justice systems are complex and vary from country to country. In the present study, the criminal justice system of Kuwait is going to be considered.

Barkow’s Review

The article by Rachel E. Barkow⁴⁷presents a critical analysis of the classical approach to SOP and demonstrates the fact that criminal-matters SOP has the specific features that require a different approach. According to Barkow, the typical approach to SOP which is applied to administrative law consists of a relatively flexible “blending of powers” combined with regular checking aimed at ensuring the lack of power abuse. The flexibility can provide the opportunity to step back from full, complete SOP in order to enable the “government to respond more readily to criminal matters.”⁴⁸On the other hand, an alternative approach would consist of strict adherence to SOP in criminal matters to ensure the lack of power abuse which, in this context, can have disastrous consequences. In other words, Barkow views SOP as a form of possible protection of the population from power abuse, which can technically be modified (be made less strict and more flexible) as long as it is combined with another safeguard (checks in the first example).

When analysing the SOP in the US, Barkow claims that the criminal-matters SOP happens to follow the flexible approach with the exception of checks, which the author defines as insufficient, claiming that only the Constitutional rights can be considered criminal-matters safeguards in the country.⁴⁹ According to the author, they are not sufficient when structural power abuse is concerned.⁵⁰As a result, Barkow suggests that criminal-matters SOP is a field that needs separate, specific attention and consideration when determining its significance and potential forms, as well as safeguards.⁵¹ The author criticises the lack of attention to the topic within academic literature, offers an analysis of the SOP that she observed in the US and proposes a different approach, as well as the justification of the reasons for her suggestions.

While the specifics of the US SOP are not pertinent to the present study, the rest of the article can be viewed as the framework adopted by the current investigation. In particular, Barkow claims that SOP in criminal matters is particularly important because of the potential negative outcomes (threat to human rights) of power abuse,⁵²that strict SOP in criminal matters is a working mechanism for preventing power abuse because it directly prevents power from accumulating in a specific branch,⁵³and that this approach would be functional within the criminal matters context specifically because of the features of that context.⁵⁴Consequently, Barkow advocates for amore vigorous enforcement of SOP within the criminal-matters context.⁵⁵

Barkow’s investigation is based on a literature review and analysis of the Constitution of the US, as well as some cases that illustrate her points. Despite this fact, Barkow’s work is of relevance to a study on Kuwait since certain similarities can be found in the development of the Kuwaiti SOP and that of other governments. For example, the process that characterises the development of the Kuwaiti SOP can be termed democratisation, which has been taking place in countries all over the world.⁵⁶Also, Barkow provides a sound argument for the idea that criminal-matters SOP is strongly connected to, and even rooted in, the Constitution, which can be used to justify the approach used by the proposed study. Similarly, works by Samuels and Al-Zumai illustrate the way the constitutions of different countries, including Kuwait, establish the SOP principle.⁵⁷ Thus, Barkow’s work can be regarded as a framework that guides the current research from the point of view of its content and methodology.

The Criminal Justice System of Kuwait

The criminal justice system of Kuwait includes the typical elements of such a system, that is, the law enforcement agencies, the courts, and the correctional institutions.⁵⁸The Kuwaiti Penal Code(Law No. 16 of 1960) contains the information pertinent to crimes and penalties,⁵⁹and the criminal procedures are guided by the Kuwait Code of Criminal Procedure (Law No. 17 of 1960).⁶⁰Overall, however, very few recent resources are available on the topic of the criminal justice system in Kuwait. For example, when researching political crimes, which is one of the SOP criteria proposed within this research, a lack of resources that would consider this phenomenon in Kuwait is apparent. The National Security Law,⁶¹which is the Law No. 31 of 1970 (Act Amending the Provisions of the Penal Code), seems to be dedicated to this topic. Indeed, the law focuses on the crimes that can be concerned withstate security, describing them and stating the related punishments. The law has been labelled as insufficiently detailed and termed, which, according to specialists, might result in abuse.⁶²Mousavi described an example in which a woman’s tweet was reinterpreted to imply “reproach of the Prince person,”⁶³ which is punishable according to Article 25 of the law.⁶⁴ Moreover, since the term “political crime” is not used by the document, it is difficult to determine if this category of crime is specifically acknowledged and regulated by the Kuwaiti government. Secondary sources on the topic are also rather rare, which limits the ability of this study to assess the way political crimes are handled in the country. Thus, Kuwaiti criminal system can be viewed as understudied. However, a report developed with the help of the Kuwait International Legal Research Centre and the Queen’s University of Belfast has provided a short overview of the system and its issues in 2016.⁶⁵

One of the first issues that the report considers consists of the fact that the criminal justice system of Kuwait does not exhibit a “principled” or “coherent” structure, which is why some important elements are missing.⁶⁶ According to the report, this issue makes the strategic development of the system more difficult and hinders the process of policy formation.⁶⁷ Similarly, the authors mention the lack of officials’ training, insufficient guidance (code of practice) for crime investigation, and resource shortages, as wellas some more specific challenges.⁶⁸The report focuses on issues without considering the positive elements. Still, the mentioned issues are important to review in the present research since they provide the opportunity for analysing the concerns of Kuwaiti criminal justice system, which may be pertinent to the analysis of its SOP. Apart from that, the Kuwaiti government and legal and academic communities have expressed the idea that the justice system of Kuwait requires some improvement.⁶⁹ Therefore, the analysis of the data from the report appears to be particularly important. The details about the elements of the Kuwaiti criminal justice system are presented below.

It is alsonoteworthy that Kuwait is a part of multiple international treaties and organisations, which have affected its criminal justice system. For example, Kuwait is a member of the Gulf Cooperation Council.⁷⁰ Similarly, it is a part of the United Nations, which means that it is also a member of a variety of affiliated entities, including, for instance, the United Nations Educational, Scientific and Cultural Organization or the United Nations Development Programme, which is reported to have particular influence in the country.⁷¹Regarding the relevant treaties, Kuwait has signed the Charter of the United Nations,⁷² theKyoto Protocol,⁷³ and the Convention against Torture⁷⁴ toname just a few relevant documents. The latter convention is connected, for instance, to the National Security Law No. 31/1970, which criminalises torture.⁷⁵The legal education in Kuwait also incorporates international law courses.⁷⁶Thus, Kuwait’s criminal justice system has been impacted by the international influences.

Separation of Powers in Kuwait and Article 50 of the Constitution

In Kuwait, the history of the SOP is related to the history of the country and its constitution, and it can be regarded as an example of the democratisation of a monarchy.⁷⁷Therefore, a brief history needs to be provided. Kuwait has a rich history that, among other things, involved being a centre of trade.⁷⁸ In 1938, oil was discovered in the area, which spurred on the country’s economic growth after the Second World War.⁷⁹ This possibly facilitated the democratisation of the country, as exemplified by freedom of expression in the press, which has been greater than anywhere else in the Arab world since the previous century.⁸⁰Apart from that, the proclamation of the country’s independence in 1961 was a major step towards its democratisation.⁸¹Thus, the specifics of the country’s economic and political development might have prepared it for the introduction of an increasingly independent SOP. Also, the development of education and increased awareness of political concepts has contributed to the process.⁸²Similarly, the integration of Western liberal attitudes into the life of the people of Kuwait must have mirrored the adoption of the SOP, which may have seemed premature at the time but appears to have been carried out smoothly.⁸³ Here, it should be pointed out that citizenship of Kuwait is a birthright⁸⁴ connected to the nationality of the father of the child.⁸⁵ In other words, a child fathered by a Kuwaiti in any country is Kuwaiti; also, foundlings found in Kuwait are considered Kuwaiti.⁸⁶ Furthermore, Kuwaiti citizenship can be granted for prolonged residence in the country (at least 15 consecutive years for Arab people), for various services to Kuwait, and other factors.⁸⁷

According to Barkow, in the United States, “the Constitution separates legislative, executive, and judicial power to prevent tyranny and protect liberty”, and this principle works for many countries, including Kuwait.⁸⁸The Constitution of Kuwait was adopted in 1962 after the country was proclaimed independent,⁸⁹ and the principles of the codified law system were reflected in its articles.⁹⁰ According to Hijazi, the Kuwaiti Constitution reflects and determines the approach to dividing powers in the country’s criminal justice system.⁹¹Articles 6 and 7 state that Kuwait has a democratic government and its justice system is based on the principles of democracy and equality.⁹² In addition, Article 8 of the Constitution notes that the state guarantees the security and protection of its citizens.⁹³

Article 50 of the Constitution declares the principle of the SOP for the state, which is reflected in the criminal justice system.⁹⁴Alhajeri demonstrates that the Constitution creates a threefold SOP and entrusts specific powers in its elements, whilst also requiring that they are independent of each other. In her article, Barkowalso answers the question about the role of the Constitution in determining the SOP for the criminal justice system. She states that“each branch must agree before criminal power can beexercised against an individual. Congress must criminalise the conduct, the executive must decide to prosecute, and the judiciary (judges andjuries) must convict”.⁹⁵ The same approach is also followed in Kuwait because Parliament criminalises the conduct, guidelines for prosecutors are written according to the Constitution, and the judiciary is responsible for convicting, employing the principles of law adopted from the French and Egyptian systems.⁹⁶

An analysis of the Constitution of Kuwait reveals an important element of its articles: the figure of the Amir.The legislative power is “vested in the Amir and the National Assembly”;⁹⁷ the executive power “shall be vested in the Amir, the Cabinet and the Ministers,”⁹⁸ and the judicial power “shall be vested in the Courts in the Amir's name.”⁹⁹ Article 56 also states that Ministers are appointed by the Amir, but the number of Ministers cannot be greater than one-third of the National Assembly, which is formed through “general direct secret ballot.”¹⁰⁰ Both males and females are allowed to vote after they reach the age of 21.¹⁰¹ Thus, the people’s will is generally expressed by the National Assembly, and the suffrage of Kuwait is considered to be “near universal” and fair.¹⁰²

With respect to legislation, the Amir has the right to propose, sanction, and promulgate laws, and laws can be submitted by the National Assembly to the Amir. Also, the Amir can produce a variety of decrees that can be used to enforce laws, regulations, and “other necessary rules.”¹⁰³ Thus, the legislative and executive powers are closely connected to the Amir, even though his power is balanced out by the Cabinet (chosen by himself, preferably from the National Assembly)¹⁰⁴ and the National Assembly (chosen by the people).¹⁰⁵ The candidates must be Kuwaiti, at least thirty years old, and fluent in Arabic; also, they have to correspond to the current requirements of the Electoral Law.¹⁰⁶ Overall, the Amir possesses great power, but the Constitution limits it notably.¹⁰⁷

It is acknowledged that the Assembly “plays an active and substantive role in governance, both in legislating and in monitoring the government,” especially when compared to the activities of parliaments in other constitutional monarchies of the region.¹⁰⁸ In particular, the Amir’s decrees and the appointment of the Prime Minister can be controlled by the body to an extent.¹⁰⁹ More than that, in 2006 the National Assembly set forward the appointment of Amir Sheikh Sabah Al-Ahmad Al-Sabah, instead of the then-ailing Amir Sheikh Sa’ed Al-Abdulah Al-Sabah. This was considered an empowering step that signified a strengthening of democratic tendencies in Kuwait.¹¹⁰As a result, through the Assembly, the people became the source of sovereignty for the country.¹¹¹ According to Selvik and Alnajjar, the people of Kuwait can be characterised as politically active,¹¹² which appears to correspond to reality, despite the relatively subjective character of the term.

The Kuwaiti judiciary is supposed to be completely separated from the Amir, since “no Authority may wield any dominion over a Judge.”¹¹³But the judges are expected to perform their duties in the name of the Amir. Also, it is apparent that a country’s judicial system is unlikely to be completely immune to varied external forces.¹¹⁴ Still, it can be stated that the Constitution of Kuwait postulates and demands the independence of the system from the direct influence of external forces, including the executive power.¹¹⁵

However, certain boundaries and obstacles to the continued development of Kuwaiti democracy have been identified, including political challenges (for example, power imbalances and a lack of unity in the opposition) and economic issues – the liberalisation of the economy is considered unfinished,¹¹⁶ which means that the government is not ready to relinquish its control over a number of economic aspects, for example, lending rate ceilings.¹¹⁷ As shown by Al-Zumai, both economic and political issues tend to weaken the development of democracy, including the empowerment of Kuwaiti parliament and voters,¹¹⁸ which eventually hinders effective SOP. It has been established that the Amir still holds impressive power, which is enhanced by the extensive involvement of the country’s princes in political matters as Ministers.¹¹⁹Also, a number of setbacks before 1992 involved unconstitutional dissolutions of the Assembly.¹²⁰ Fortunately, the new century has seen only constitutional dissolutions.¹²¹As a result, the democratisation of the country is incomplete.

The analysis of key governmental bodies also indicates that majoritarianism appears to be present in the Kuwaiti political system. Majoritarianism can be defined as an approach to politics that favours a particular majority, resulting in that majority being able to influence a country’s politics to a greater extent.¹²² Given the fact that judges are not immune to these influences, majoritarianism is clearly an issue for SOP in criminal law. This is especially true for Egyptian judges in Kuwait, who are particularly unwilling to disturb the powerful groups of the country because the salary of a judge is greater in Kuwait than in Egypt.¹²³As pointed out by Ashworth and Horder, the “individuals whose preferences are at odds with those of the majority” are bound to “lose out” in the case of democratic or participatory decision-making.¹²⁴Thus, the main problem with majoritarianism is the neglect of minorities, which attracts criticism and calls for an approach that is more representative.¹²⁵ It is noteworthy that offenders are a minority, and from the perspective of the criticism of majoritarianism, a balance between the protection of the majority and the human rights of both groups needs to be found.¹²⁶ In general, majoritarianism is relatively typical for Asian countries, and Kuwait does not appear to be an exception.¹²⁷

To sum up, the existing state of affairs in Kuwait cannot be regarded as an illustration of the theoretically ideal SOP, even though it has travelled a long way from the archetypical monarchy.¹²⁸Nowadays, liberal tendencies in Kuwait remain strong¹²⁹ despite the difficulties in establishing them¹³⁰ and the fact that the United Nations insist on the further development of democratic governance in the country,¹³¹ which is its policy in the Asian region in general.¹³² Kuwait seems to respond favourably to such comments as it tends to highlight the importance of freedoms¹³³ and equality¹³⁴ for its population, while also emphasising its agreement with the UN.¹³⁵

It is important to note that, according to Conway, no currently existing system has managed to achieve the pure threefold SOP that, according to the author, exists only theoretically,¹³⁶ and this results in both risks and benefits for citizens. Similarly, Daughterly points out that separating the judicial branch from the executive one is a necessity, but one that is not always possible, providing an example of a politically-influenced case of criminal prosecution.¹³⁷Therefore, the issues that are experienced by Kuwait do not indicate the impossibility of change and, in fact, signify a room for improvement.

The Past Influence of British Jurisdiction and the Continuing Impact of French, Egyptian, and Islamic Law on the Criminal Justice System of Kuwait in Terms of Separation of Powers

The current criminal justice system of Kuwait is based on contrasting principles of British Jurisdiction(as a past influence) as well as French, Egyptian and Islamic law (that can be described as continuing influences). This feature makes the criminal justice system in Kuwait rather unique in its diffusion and dependence on several different patterns, including the reference to civil codes and Islamic views.¹³⁸Farran, Gallen, and Rautenbach¹³⁹ offer a collection of chapters that are devoted to different cases of law diffusion. One of them isWilliamson’s work,¹⁴⁰ which refers to Kuwait and considers the way that a variety of legal concepts are diffused within its legal system. The author also points out that scholars do not tend to have a unanimous opinion concerning the classification of the Kuwaiti legal system, which is common for the subject¹⁴¹ but which results in very different appraisals of the share and influence of different sources of Kuwaiti law. The author mentions that some scholars, for example, Palmer, choose to highlight civil and Islamic law while, for example, the Central Intelligence Agency, which also devotes reports to the topic, emphasises common and French civil law.¹⁴² According to Williamson, the country’s history (in particular since colonisation and the restoration of independence) is responsible for the process of diffusion, and this process may explain “the discrepancies between these classifications.”¹⁴³ The present section will consider all the pertinent influences that have had a major impact on Kuwaiti law.

British Jurisdiction (Past Influence)

Kuwait used to be under the influence of the British Jurisdictionsince 1925and until the country became independent in 1961.¹⁴⁴Technically, however, Kuwait was not colonised by Great Britain; instead, the two countries entered an Anglo-Kuwaiti Treaty, in which it was specified that Great Britain would provide protection but would not interfere with the internal affairs of Kuwait.¹⁴⁵ Great Britain had entered such treaties with multiple other countries, including, for example, Bahrain.¹⁴⁶ The treaties affected the external politics of the Gulf states,¹⁴⁷but they were intended to have no consequences for their internal affairs, including positive ones.¹⁴⁸It is noteworthy that the level of democracy in Bahrain¹⁴⁹ is considered to be lower than that in Kuwait.¹⁵⁰ For instance, in both countries, there is a constitution, a king (Bahrain) or Amir (Kuwait), a cabinet of ministers appointed by the king or Amir, and a National Assembly elected by the people. However, in Bahrain, the ministers constitutehalf of the government,¹⁵¹ and in Kuwait, ministers can only take up one-third of it,¹⁵²providing more power for the representatives of the people. Thus, the two countries that share similar history have moved in the same direction (towards complete independence and democracy), but Kuwait has moved further. It has been suggested that the activities of colonising countries could have beeneither beneficial or harmfulfor the development of democracy in a country.¹⁵³Possibly, the lack of direct colonisation and the presence of only treaties reduced the potential negative impacts of outside influence on Kuwaiti democratic growth.

Thus, in Kuwait, the British Jurisdiction operated separately from the National one. In other words, between 1925 and 1961, the country had two separate and very different Jurisdictions,¹⁵⁴ the latter of which applied to predominantly to Kuwaiti citizens while the former was applicable to other groups, mostly British, Americans, Greeks, and some others.¹⁵⁵According to the literature of the time, the National Jurisdiction was “ relativelysemitribal”¹⁵⁶and had “no written laws, no procedure and no defined courts”¹⁵⁷with the exception of the “personal status matters, which were and stillare governed by Islamic law.”¹⁵⁸ The British Jurisdictionwas based on English legal principles and mirrored the procedures and court functions of England.¹⁵⁹

The two Jurisdictions worked together for mixed cases, but in general, the existence of two different jurisdictions led to problems and confusion.¹⁶⁰Given the advantages of a system with written laws and defined procedures, the British Jurisdiction became popular in Kuwait, but consequently, it was also attacked by the nationalists because it was symbolic of potentially colonialist issues.¹⁶¹Again, Kuwait was not a colony; it was a party in a treaty with Great Britain, but at the time, the presence of the British Jurisdiction in Kuwait caused unease, especially among the nationalists.¹⁶²As a result, in 1959, it was established that the British Jurisdiction in Kuwait would be repealed after a new working system would have been implemented,¹⁶³ and in 1961, the British Parliament officially fulfilled that promise.¹⁶⁴

The British Jurisprudence legacy is multidimensional. According to Professor Abdullah Alnafisi, who is a former Parliament member of Kuwait, the influence of British specialists like John Richmond, George Middleton, Edward Heath, and William Loose illustrates that legacy. In particular, the named figures promptedthe Amir to pursue democratic principles and freedom of the press.¹⁶⁵ On the other hand, there have been cases in which Britain hindered the development of SOP and democracy, for example, by ensuring the dissolution of the first Shura Council in Kuwait.¹⁶⁶The Jurisdiction that was developed for Kuwait in the years following the decision to repeal British Jurisdiction was not based on the principles of the latter, which limits its impact on Kuwaiti legislation. However, it can be argued that the reason for choosing non-British legislation for Kuwaiti laws might be connected to colonialism and subsequent rejection of British Jurisdiction.¹⁶⁷ Thus, the choice of non-British legislation for Kuwait may have been the result of its presence in the country, which demonstrates that British Jurisdiction is an important influence on Kuwaiti laws.

French Civil Law in Kuwait (Latin Civil Law)

The French law has served as an inspiration for the codified law of Kuwait in the majority of areas that do not cover personal status or financial matters (in particular, banking and tax legislation), which are governed by Islamic law.¹⁶⁸ This outcome was achieved indirectly: the legal system of Kuwait that was developed to supplant the British system was based on the Egyptian law, and the latter is noticeably inspired by the French law.¹⁶⁹ Other influences have also been noted; for example, the Kuwaiti Law of Commerce was created with the help of Iraqi law, which is also based on French legal principles.¹⁷⁰In turn, a major source of the French law is the Roman law, which is associated with the prioritisation of functional codification.¹⁷¹ Thus, the French law has influenced the Kuwaiti law indirectly through multiple sources while also bringing its own sources to have an impact as well.

According to Williamson, French law tends to be viewed as relatively less flexible and convenient than the British law. For example, the author notescertain French law-relateddrawbacks that can affect economic development. In particular, the British law is considered to be more business-friendly (providing “more adequate institutions for financial markets”) and implies less governmental interventions than the French law.¹⁷²Williamson amends that this idea is supported by limited evidence and can be contested, but the author also suggests that the Kuwaiti legal systemmight have inherited the issues related to the French law.¹⁷³ The author exemplifies this statement usingthe comments of the Oxford Business Group regarding the restrictive legislationin Kuwait that may result in challenges for the economic development of the country.

Admittedly, the report mentions some information about restrictive legislation, for example, that pertinent to insurance.¹⁷⁴However, it also highlights some achievements in the field, including the movement of the tax legislation towards a more liberal one.¹⁷⁵Therefore, it is difficult to assess the impact of French law on Kuwaiti legislation, but it is clearly present.

Egyptian Law and the Kuwaiti Civil Code Used by Judges

The Egyptian law was particularly important for the development of the Kuwaiti legislation because the working system that was meant to supplant the British Jurisdictions in Kuwait was based on it. Indeed, Dr Abdel-Razzaq al-Sanhouri (a famous and accomplished¹⁷⁶ specialistfrom Egypt)was invited to develop the new Kuwaiti legislation, and since he was Egyptian, he used the Egyptian legal system for inspiration.¹⁷⁷

Thus, the Egyptian Law assisted in the development of the codified Kuwaiti law in the non-personal status matters along with the French Law.¹⁷⁸ The Kuwaiti Civil Code was enacted in 1980.¹⁷⁹It incorporates the general rules of Kuwaiti law; the more specific cases (for example, commercial transactions) are regulated by specific laws (for example, Commercial Code).¹⁸⁰

The new system developed by Dr al-Sanhouri was based on non-Kuwaiti legislation rather heavily and was also implemented in a very short time,¹⁸¹ which is why it was not assimilated easily and is sometimes described as unnecessarily complicated and cumbersome, as well as inflexible.¹⁸² Williamson suggests that such a conclusion is largely warranted and uses the example of the ease of conducting business in the country to demonstrate that the process is more complicated in Kuwait than in New Zealand.¹⁸³ The lack of judges and lawyers in Kuwait was resolved by attracting Egyptian specialists, which is a decision that must have been necessary at the time, but which also required a different long-term solution.¹⁸⁴ In summary, the development of the new system was not very smooth, and some of the issues related to it have remained topical to this day.

Muslim Jurisprudence in Kuwait

As mentioned, the Islamic law(Shari’a) dominated Kuwait until the middle the previous century.¹⁸⁵ In fact, in the 1930s, the people of Kuwait petitioned for the introduction of a Shari’a-based political system.¹⁸⁶The influence of the Muslim jurisprudence onmodern Kuwait is notable;¹⁸⁷ in fact, it is explicitly stated in Article 2 of Constitution that the Islamic Shari’a is supposed to be a primary source of Kuwaiti legislation.¹⁸⁸However, according to Williamson, Islamic Shari’ais a major but not the main source of Kuwaiti legislation; the author points out that it is used predominantly for personal-status matters and financial services (Islamic banking is very well-developed in the country).¹⁸⁹In the end, the result of the law diffusion in Kuwait is a combination of Muslim law and French-Egyptian-based civil law.¹⁹⁰ In summary, the diffusion of law in Kuwait is the result of its history, the investigation of which can help to pinpoint and comprehend some of the challenges faced by the system nowadays.

The Kuwaiti Constitution as the Guarantor of Democracy and Citizens’ Equality Before the Law

The Kuwaiti Constitution is the guarantor of democracy in the country, which can be provenwith the help of Article 6, which states that the country’s governmental system is democratic.¹⁹¹The rights of the population of Kuwait are proclaimed by Articles 27-46, which includes rights to privacy,¹⁹²freedom,¹⁹³trade unions,¹⁹⁴ freedom of religion,¹⁹⁵expression,¹⁹⁶opinion and press,¹⁹⁷ and so on.Also, the freedom from torture and the principle of no “punishment without law” are included in the Constitution.¹⁹⁸Apart from that, the citizen’s equality is directly stated in the Constitution’s preamble and supported by Article 8,¹⁹⁹which is concerned with equal opportunities, and Article 29,²⁰⁰ which specifically points out the equality of the people of Kuwait “in the eyes of the Law.” In summary, the Kuwaiti Constitution guarantees human rights, democracy, and citizen equality.

The Three Divisions of the Criminal Justice System in Kuwait

The Police as the Law Enforcement Body and Divisions Within the Ministry of Interior

Within the Ministry of Interior, which is responsible for enforcing the law, the Directorate of Police and Public Security²⁰¹represents the law enforcement body.²⁰²Its divisions include those working with criminal investigation, civil defence, traffic, immigration, and so on, which corresponds to the typical activities performed by a law enforcement agency.²⁰³

There are some issues related to Kuwaiti police that can be found in literature. The recent report on Kuwaiti criminal justice suggests that there is no effective SOP with respect to investigative power when police and prosecutors are concerned.²⁰⁴ Apart from that, the Ministry of Interior demonstrates a lack of control over the national police, its sub-divisions, and the National Guard in relation to investigations and guaranteeing public security.²⁰⁵This is the result of the existence of a rather complicated net of agencies that are responsible for internal security, which results in their responsibilities overlapping.²⁰⁶Consequently, citizens’ rights can be violated when individuals are unfairly imprisoned or held in police offices for more than four days without prosecution. The criminal justice system must respect human rights and freedoms,²⁰⁷but the inefficiency of the system can pose a threat to them.

Naturally, the Penal Code of Kuwait contains Article 184, which states that imprisoning or arresting a person “without observing the procedures” must be punished.²⁰⁸ Moreover, the Constitution also contains Article 31, which establishes that people cannot be “arrested, detained, searched, or compelled to reside in a specified place” unlawfully.²⁰⁹ Finally, the Prison Regulation Act 26/1962 establishes the need for a legal authorisation for imprisonment.²¹⁰Thus, there are multiple legal safeguards, but they might not be entirely successful in achieving the desired level of protection of human rights.

Prosecutors as Part of the Criminal Justice System and Details of the Prosecutorial Process

Prosecutors are a part of the judicial system of Kuwait, appearing in the courts of different levels.²¹¹Public Prosecution²¹² members defend the interests of the community of Kuwait.²¹³The decision regarding the appointment of the candidates is made by a body called the Supreme Judicial Council.²¹⁴The latter is comprised of the Heads and Deputies of Kuwaiti Courts (including Court of Cassation, Court of First Instance, Court of Appeal, and Supreme Court of Appeal), as well as the Public Prosecutor.²¹⁵A representative of the Ministry of Justice is also present in the Council, but they are prohibited from voting.²¹⁶The activities of the Council are governed by the law.²¹⁷The appointment decision is carried out by the Minister of Justice through decrees.²¹⁸Thus, since the decision is made by the Council, which consists of the representatives of the judiciary, it can be suggested that the appointment of prosecutors does not depend on the Minister.

Liability to prosecution is governed by the Kuwait Penal Code.²¹⁹According to a recent report, the prosecutors that were interviewed for it “appeared not to fully understand their role during the trial process.”²²⁰ Apart from that, the problem of insufficient SOP between police and prosecutors seems to be problematic.²²¹ Thus, the literature on the topic identifies some pertinent procedures and issues, but in general, Kuwaiti prosecution does not receive sufficient coverage in modern research. As a result, no reliable source was found that would critique the details of the prosecution processes in Kuwait.

The Kuwaiti Judicial System and the Responsibilities of Judges

The Judicial system of Kuwait consists of the Courts of First Instance, the Courts of Appeal, the Supreme Court or Court of Cassation, and the Constitutional Court.²²² The courts of the first two degrees are comprised of three judges, and the Supreme courtconsists of the court’s heads, deputies, and Consultants. The Constitutional Court is comprised of five Consultants.²²³ The first- and second-degree courts and the Supreme Court also incorporate multiple circuits dedicated to particular law branches.²²⁴The Constitution points out that the Military courts are “restricted to deal with military offenses committed by members of the Armed and Public Security Forces within the limits prescribed by Law.”²²⁵

According to the recent report, the judicial supervision is crucial for Kuwaiti criminal justice, but no direct guidelines on this process exist.²²⁶

The independence of the judiciary is established Articles 50, 53, and 163 of the Constitution. The Kuwaiti judiciary is supposed to be completely separated from the Amir, since “no Authority may wield any dominion over a Judge.”²²⁷But the judges are expected to perform their duties in the name of the Amir. Also, it is apparent that a country’s judicial system is unlikely to be completely immune to varied external forces.²²⁸ Still, it can be stated that the Constitution of Kuwait postulates and demands the independence of the system from the direct influence of external forces, including the executive power.²²⁹

Theeffectiveness of Articles may be undermined by the fact that senior judicial officials are appointed by the Minister of Justice (who belongs to the administrative branch of power) through decrees.²³⁰However, the Minister has to consult the Supreme Judicial Council before the appointment,²³¹and the decision should belong to the Supreme Judicial Council,²³² which is comprised predominantly of the representatives of the judicial branch of power.²³³The rest of the officials are appointed by the Supreme Judicial Council. However, as pointed out by Brown, the Council includes the mentioned senior officials and is not independent in its funding.²³⁴ Moreover, foreign judges are appointed after requests by the Ministry of Justice, without any discussions with the Council.²³⁵ Apart from that, the Minister is lawfully vested with the power to supervise the judiciary system.²³⁶Thus, certain aspects of judiciary-related procedures appear to undermine the independence of the judiciary.

Some of the historical developments in the field of judicial independence can be regarded as adversely affecting the SOP. There was a notable attempt to make the justice system less dependent in the 1980s, which was curbed as a result of the suspension of Parliament in 1986 and reintroduced in the 1990s in the form of new proposals.²³⁷In particular, the 1990s saw a decree limiting the independence of the judiciary;²³⁸ it prevented the Courts from considering acts of sovereignty.²³⁹ The decree was not repealed to this day. Thus, there is a need for continuous development of SOP to ensure the independence of Kuwaiti judges.

Other issues pertinent to the judges of Kuwait may also pose a threat to human rights. They may include transparency issues.²⁴⁰ Moreover, although judgements are usually declared to be in line with the principle of equality of all citizens before the law, they tend to take a lot of time to “move their way through the court system,”²⁴¹ which implies the existence of red tape.

According toLiebesny, challenges in the Kuwaiti legal system “arose initially since the courts, staffed by lawyers from Arab countries whose systems had been modernised many years ago, were not familiar with the background of the Kuwaiti system,” and moreover, “the Kuwaiti court clerks and police officers on their part found the precipitous introduction of a largely alien system hard to cope with.”²⁴²Williamsonalso agrees that “the strong presence of foreign (mainly Egyptian) judges working in the Kuwait judiciary” creates a challenge for the system.²⁴³ The fact that judges in Kuwait are often non-citizens can undermine a sense of their legitimacy when they need to be regarded as the highest authority in determining punishments. Brown points out that the need for foreign judges is typical for some Arab countries due to their shorter legal history, which may result in less-established law schools.²⁴⁴ He emphasises, however, that Kuwait’s legal history is sufficient to avoid employing foreign lawyers and that Egyptian lawyers can only take overseas contracts (through which they are recruited in Kuwait) for a limited number of years, which, in his view, makes the problem less acute but still present.²⁴⁵ Currently, Egyptian judges are appointed for four years (with a possible two-year extension) through an Egypt-approved request from the Kuwaiti Ministry of Justice; as of 2011, there were 300 Egyptian judges working in Kuwait.²⁴⁶ The appointment of foreign judges would be expected to reduce the issue of the elitism of the judiciary, but it should be pointed out that Kuwaiti judges hold their posts for a lifetime, even though they can be removed from this position in the case of misconduct.²⁴⁷Thus, it can be suggested that Kuwait suffers “from unnecessarily complicated, inflexible and sometimes outdated laws and procedures, not to mention frustrating bureaucracy.”²⁴⁸ As a result, the authority of the courts becomes questionable. In this context, there is the possibility of the introduction of the jury system in Kuwait to increase the potential for fair trials, but researchers state that the criminal justice system of the state is not prepared for this pattern.²⁴⁹

It should be pointed out that the judicial independence and transparency appear to be commonly challenging to achieve, while corruption is difficult to avoid in a variety of countries, indicating that the problems are not unique to Kuwait and its SOP.²⁵⁰For example, Ashworth considers the topic of the separation of powers and responsibilities in the field of restorative justice, highlighting the role of government in ensuring the independence of justice, and pointing out that state-led justice tends to have flaws and can result in failures.²⁵¹In particular, Ashworth states that "the list of failures of state justice is a lengthy one.”²⁵²Still, Brown asserts that since the 1990s the process of increasing judicial independence in Kuwait has been in motion.²⁵³ This process illustrates the fact that the government tends to develop and evolve together with the evolution of the SOP.²⁵⁴

Resources Available for the System’s Functioning

The criminal justice system requires resources for functioning just like any other system. In particular, funding, human resources, equipment (for instance, police cars or computers) are necessary.²⁵⁵ However, according to the recent report on Kuwaiti criminal justice system, resources in it are not distributed adequately.²⁵⁶ Therefore, at least one issue pertinent to the topic can be encountered in relevant literature. However, the topic of resources within the criminal justice system of Kuwait appears to be otherwise uncovered by recent and less recent literature, which limits the ability of the current study to draw conclusions on it.

The Role of Article 50 in the System

Article 50 of the Constitution which requires SOP, as well as cooperation of powers, states that “No Authority shall be allowed to waive all or part of its jurisdiction.”²⁵⁷Therefore, the Article guarantees SOP and implies that each of the components of criminal justice of Kuwait must act in accordance with their authority. The significance of establishing SOP has already been mentioned,²⁵⁸which suggests that the implications of Article 50 for the functioning of the criminal justice system should be notable and beneficial. However, as it was mentioned above, the cases when the authority of the elements of the criminal justice system wasunderdefined²⁵⁹ or waived do occur.²⁶⁰Consequently, the literature indicates that Article 50 is not always followed, but following it is crucial for ensuring SOP and the lack of power abuse.

Conclusion

The significance of SOP is easily established by the literature, but criminal-matters SOP is less extensively covered. As a result of the present literature review, no studies that would consider the criminal justice SOP in Kuwait were found, but the research and reports on the aspects that can be included in the discussion were encountered. In particular, the majority of the significant aspects of the criminal justice system can be described relatively well, which offers the opportunity for analysis. Similarly, the diffusion of law has been discussed relatively extensively.Also, the issues experienced by the criminal justice system in Kuwait appear to have received some coverage. The fact that the topic is understudied limits the ability of the literature review to respond to the research questions, but still, the following conclusions can be made.

The history of the development of Kuwaiti legal system has defined its features and some of its problems. Kuwait had experienced the impact of British Jurisdictionfor a long period, but when the country gained independence from the United Kingdom in 1961, the civil law system, based on the Egyptian law, which, in turn, is developed in accordance with the French law, was established in the country in addition to traditional Islamic law.However, the hasty introduction of the new legislation, as well as some of its inefficiencies, and the introduction of Egyptian lawyers into the Kuwaiti legal system have caused some long-lasting issues. The Constitution of Kuwait requires SOP and independence of the judiciary while also granting the citizens all the necessary rights and proclaiming them equal in the eyes of the law. However, the mentioned issues, especially those related to transparency and red tape, might endanger those rights. Moreover, there is some evidence indicating that the independence of judiciary being limited legislatively. Apart from that, the literature on the topic indicates other inefficiencies in various elements of the criminal justice system of Kuwait.

As shown by Barkow’s article, which is the framework of the present study, the development of criminal-matters SOP is a crucial element of Kuwaiti’s democratisation, and it is an important guarantee of the protection of the freedoms and rights of Kuwaiti people, which is especially evident in the light of the issues and barriers mentioned above. As a result, the proposed research aspires to investigate SOP, primarily by considering its constitutional and historical roots and discussing its effectiveness from the point of view of human rights’ protection.

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