PACA law unconstitutional: Court By Jaber Al-Hamoud
LAW NOT QUALIFIED UNDER DECREE OF NECESSITY
KUWAIT CITY, Dec 20: The Constitutional Court has ruled that Legislative Decree No. 24/2012 on the establishment of the Public AntiCorruption Authority (PACA) and the provisions on financial disclosure is unconstitutional.
In a session chaired by Judge Yusuf Al-Mutawa on Sunday, the court explained that the decree “is not among urgent issues which necessitate expediting legislative procedures. This is despite what the explanatory document of the decree stated in terms of issues which require legislators to urgently stipulate regulations to combat corruption and deal with its sources.”
The court clarified “the issuance of this decree was not done under circumstances which permit stipulation of such
laws, nor there was necessity that propelled the establishment of the anti-corruption agency in the absence of the Parliament – a situation which allows enactment of exceptional laws as per Article 71 of the Constitution (emergency decree).
According to Article 71, “Should the need arises for urgent measures to be
taken while the National Assembly is not in session or is dissolved, the Amir may issue decrees in respect thereof which have the force of law, provided that they are not contrary to the Constitution or to the appropriations included in the budget law”.
The article also stipulates that, “Such decrees are referred to the National Assembly within 15 days following their issuance if the Assembly is in session. If it is dissolved or its legislative term has expired, such decrees are referred to the next Assembly at its first sitting.
“If they are not thus referred, they retrospectively cease to have the force of law, without the necessity of any decision to that effect. If they are referred and the Assembly does not confirm them, they retrospectively cease to have the force of law, unless the Assembly approves their validity for the preceding period or settles in some other way the effects arising there from.”
The petition challenging the decree
was filed directly by Khaled Al-Nisafi, who lamented against the establishment of the authority on various grounds. He argued the decree was issued solely by the executive authority during the absence of the National Assembly which was dissolved at the time. He pointed out that although the executive authority issued the decree based on Article 71, it breached the condition of having an emergency situation which necessitates urgent measures.
The decree, which was issued on Nov 19, 2012, was motivated by the signing of the United Nation’s AntiCorruption Pact, in which Kuwait became a member in 2006. According to the petitioner, “it is not an urgent issue which necessitates the enactment of such law during the absence of the Parliament.”
The petitioner also pointed out that articles of the decree contravene constitutional articles which guarantee the right to privacy. This is in addition to what the court stated, “The Parliament’s endorsement
of the decree does not give it the status of being constitutional,” although, this does not change the fact that the Parliament endorsed it.
Therefore, the court affirmed, “it is no longer necessary to challenge the arguments filed by the petitioner regarding the decree since the whole law has been declared unconstitutional.” MPs eye alternative law The Constitutional Court barely delivered judgment to nullify law No. 24/2012 regarding Kuwait Anti Corruption Public Authority before the lawmakers started reacting to the decision and attempted to enact an alternative law to fill the constitutional vacuum emanating from the verdict.
Although the lawmakers expressed the significance of expediting the presentation of draft bill for establishing Anti Corruption Public Authority to fill the constitutional vacuum, they expressed divergent opinions as to the ministry the authority should be affiliated to.
Some of them are of the view that the authority must be affiliated to the Council of Ministers, and many others said it should be independent or operate under the National Assembly, and the third opinion recommended putting the authority under the watch of the Prosecutor General.
In his remark, the Chairperson of Legal and Legislation Committee MP Mubarak Al-Hares revealed that series of suggestions were made for the establishment of Anti Corruption Authority, which the parliament had suspended until the Constitutional Court issued the verdict nullifying the authority.
He urged the government to sponsor an alternative bill but presented an amendment on the same law instead. He said the parliament should act fast on a related draft bill to avoid a constitutional vacuum.
In a press statement to the daily, MP Dr Khalil Abul said he respects the verdict of the Constitutional Court, stressing the importance of looking into the AntiCorruption Authority with seriousness and agree on a draft law to establish anticorruption authority. However, it should not be affiliated to any power and operate as an independent body like the State Audit Bureau.
Meanwhile, MP Dr Abdulhameed Dashti confirmed that he submitted a draft law after the Constitutional Court issued its verdict to establish anti-corruption authority, as the authority plays a substantial role in pursuing corrupt people.
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