Judicial amendments spark debate on right to litigation in Kuwait

• Legislative measures that prevent individuals from exercising their right to appeal may be deemed unconstitutional if they impose excessive restrictions that hinder access to justice and conflict with the fundamental right to litigation.

• The new law restricts appeals for claims below 30,000 dinars while allowing unassessed claims, making the right to appeal dependent on monetary value, which creates an inherent imbalance.

• Compared to forty years ago, when the bail was set at 100 dinars, the current amount is disproportionately high. More importantly, the legislation does not treat all litigants equally, as cases involving the government or official entities are exempt from fees and bail.

Amendments to the Code of Civil Procedure, governing appeals against civil and commercial rulings before the Court of Cassation, took effect on March 16. However, judicial sources report that the number of appeals has not declined since the introduction of new financial guarantees and remains at pre-amendment levels. They note that most appeals are filed by the government through the Fatwa and Legislation Department, which is exempt from fees and financial guarantees, Al Jarida newspaper reported.

According to judicial sources, most appeals filed after the law’s implementation come from the government, in contrast to the previous trend, where individual litigants filed a greater number of appeals than the government.

Meanwhile, the Kuwait Lawyers Association has announced its intention to appeal the law before the Constitutional Court, arguing that it raises concerns of unconstitutionality by restricting the guaranteed right to litigation. This has sparked legal debate over the merits of challenging the law and whether it indeed contains unconstitutional provisions that would justify such a challenge.

Before addressing these concerns, it is essential to reaffirm key principles enshrined in the Constitution and the international treaties and agreements to which Kuwait is a party, which have become part of its domestic laws. These principles guarantee the right to litigation and access to the judiciary as fundamental human rights. Any restriction on these rights, including obstacles to litigation, directly conflicts with the Constitution and international human rights agreements that Kuwait has ratified.

Although the Constitution guarantees the right to litigation and allows the legislature to regulate it, such regulation must not impose restrictions that obstruct or effectively nullify this right.

If legislative measures prevent individuals from exercising their right to appeal, such regulations may be deemed unconstitutional due to their direct conflict with the fundamental right to litigation. Any legal framework governing litigation must not impose excessive restrictions that hinder access to justice.

Under the new legislation, the right to appeal before the Court of Cassation is subject to two conditions: (1) the claim must exceed 30,000 dinars, except for unassessed claims, and (2) the appellant must pay a bail of 500 Kuwaiti dinars. This raises the critical question: Do these conditions effectively prevent access to the Court of Cassation and undermine litigants’ rights? Addressing this requires an examination of the extent and impact of these restrictions.

Regarding the actual impact of these conditions, the law prevents litigants from appealing before the Court of Cassation if their claim is below 30,000 dinars. However, if the claim is unassessed, an appeal remains permissible. This effectively means that the right to appeal is determined by the claim’s monetary value, which is inherently unfair. A claim of 10,000 dinars may be of significant importance to one litigant while being relatively minor to another.

Denying the right to appeal based solely on monetary thresholds disregards the possibility that lower-value cases may still involve significant legal errors. Appeals to the Court of Cassation serve to correct legal flaws in rulings, and barring litigants from this process based on claim value risks denying justice in cases where legal mistakes have occurred.

On the other hand, setting the claim threshold at 30,000 dinars may prevent the original litigant from appealing before the Court of Cassation if their claim is below this amount.

Meanwhile, if there is a subsidiary lawsuit with an unquantified request, the opposing party would still be allowed to appeal. This creates a legal imbalance, potentially violating the right to litigation and undermining equality between litigants. As a result, the 30,000-dinar restriction raises concerns about its constitutionality, particularly in relation to Articles 7, 29, and 166 of the Constitution.

The legislator erred in imposing these restrictions, which effectively deprive certain litigants of their right to appeal before the Court of Cassation, regardless of whether the appeal is ordinary or extraordinary. This legislation fails to ensure equal legal standing for all parties and restricts their access to litigation, a fundamental right.

Lawmakers must address this issue, given its impact on the right to litigation and the justice system, which should remain free from administrative and financial obstacles. Access to justice must be guaranteed without unnecessary restrictions or conditions, ensuring that individuals can claim their rights in accordance with the principles of justice and equality—principles that Kuwait’s esteemed judiciary has long upheld and continues to safeguard.

Financial burden of discrimination in litigation

The second restriction introduced in the legislative amendment concerns raising the bail for appeals to the Court of Cassation to 500 dinars. This significant increase imposes a financial burden that could hinder access to litigation.

Compared to forty years ago, when the bail was set at 100 dinars, the current amount is disproportionately high. More importantly, the legislation does not treat all litigants equally, as cases involving the government or official entities are exempt from fees and bail.

It is unjustifiable to impose high bail fees on private litigants under the pretext of ensuring the seriousness of appeals while exempting government entities. If all lawsuits filed by official bodies are inherently serious, as implied by their exemption, then fairness demands that the same consideration be given to ordinary litigants. This disparity in legal treatment raises constitutional concerns, as it violates the principle of equality by exempting one party from financial obligations while burdening another.

Furthermore, this inequality becomes even more apparent when a subsidiary opponent, exempt from fees and guarantees, is allowed to file an appeal without cost, while the original litigant is barred from appealing solely due to financial constraints. Such an imbalance undermines the integrity of the law and raises serious constitutional doubts, as it contradicts the provisions of the Constitution outlined above.