Kuwait Court of Cassation principle number 123

Summary: - Amiri Decree No. 443 of 2011 dissolving the National Assembly and Amiri Decree No. 447 of 2011 inviting voters to elect members of the National Assembly. His Highness the Amir's exercise therein of his powers as a governing authority, seeking the country's supreme interest and preserving the existence of the State. Necessary consequence. Their classification as acts of sovereignty. Effect. Courts are prohibited from considering any claims arising in relation to them. The reason therefor. The challenged judgment's departure from this view and its award of compensation to the respondent on the basis of established fault on the part of the appellant in his capacity as Prime Minister in the measures he took to procure the issuance of the Amiri Decree dissolving the National Assembly. A defect requiring its cassation. Rule: The provision in Article Two of the Judicial Organisation Law promulgated by Decree-Law No. 23 of 1990 that "The courts may not consider acts of sovereignty" means that, whenever an act is an act of sovereignty, the prohibition on the courts considering it is not limited to a request for its annulment; rather, the prohibition encompasses all claims arising in relation to it. It is established in the case law of this Court that acts of sovereignty encompass those acts issued by the government that relate to high policy or to measures it takes as a governing authority—not an administrative authority—within the scope of its political function and by virtue of its supreme authority to preserve the State's sovereignty and existence internally and externally, thereby falling outside judicial review. Since the legislature provided neither a definition nor a specification of the acts of sovereignty which Article Two of the aforementioned Law prohibits courts from considering, it left their identification to the judiciary, contenting itself with declaring the principle of their existence. Accordingly, the courts have jurisdiction to determine the legal characterisation of an act issued by the government and whether or not it constitutes an act of sovereignty. The trial court's characterisation of this matter is subject to review by the Court of Cassation. Although it is impossible to formulate an exhaustive and exclusive definition of acts of sovereignty or to enumerate them precisely, there are elements distinguishing them from ordinary administrative acts, foremost among them their pronounced political character, without judicial scrutiny or the extension of judicial review to them. That being so, Amiri Decree No. 443 of 2011 dissolving the National Assembly and Amiri Decree No. 447 of 2011 inviting voters to elect members of the National Assembly were issued by the executive authority in its capacity as a governing authority, not as an administrative apparatus, given that executive authority is vested in the Amir and the Council of Ministers and that the Amir exercises his powers through his ministers, pursuant to Articles 52 and 55 of the Constitution. The political character of these two decrees was pronounced in that they embodied the political relationship between the executive and legislative authorities, and His Highness the Amir exercised his powers as a governing authority, seeking the country's supreme interest and preserving the State's existence and stability. This therefore constitutes an act of sovereignty, and the courts are prohibited from considering any claims arising in relation to them. That being so, the challenged judgment departed from this view and awarded the respondent the compensation claimed on the basis of established fault on the part of the appellant in his official capacity in the measures he took to procure the issuance of the Amiri Decree dissolving the National Assembly, notwithstanding that this Decree constitutes an act of sovereignty in relation to which the courts are prohibited from considering any claim. It is therefore defective in a manner requiring its cassation, without any need to examine the remaining grounds of appeal.