Kuwait Court of Cassation principle number 268

Summary: - A plea of unconstitutionality based on the contention that the challenged regulations contravene laws. Its consideration as a plea of unlawfulness, not a plea of unconstitutionality. Its effect. The constitutional issue may not be examined because the dispute concerning it is immaterial. - The plea that Article 14 of Law No. 47 of 1993 concerning housing welfare is unconstitutional because it contravenes Amiri Decree No. 20 of 1992 and Cabinet Resolution No. 422 of 1992 explaining it, concerning exemption from credit loans and installments for government housing. In reality, it is a plea of their unlawfulness, not of their departure from the provisions of the Constitution. Rule: The import of Articles 1 and 4 of Law No. 14 of 1973 establishing the Constitutional Court is that the court of merits refers the matter to the Constitutional Court only if determination of the dispute before it depends on determination of the constitutionality of a law, decree-law or regulation that must be applied to its facts, and determination of the constitutional issue is essential and necessary to enable determination of that substantive dispute. This rule represents an important principle applied in the sphere of monitoring judicial review of the constitutionality of laws. This is apparent when ascertaining the fulfillment of the conditions of interest in constitutional proceedings, the criterion for interest therein being its connection with the appellant's interest in the substantive action. If the plea rests on the contention that the challenged regulations contravene laws, it is, as such, a plea of the unlawfulness of those regulations, not a plea that they contravene the Constitution. It is therefore not permissible to examine the constitutional issue, since the dispute concerning it becomes immaterial and a ruling upon it has no effect on determination of the facts of the dispute. Accordingly, the plea of the 2 appellants is based principally on Article No. 14 of Law No. 47 of 1993 contravening Amiri Decree No. 20 of 1992 and Cabinet Resolution No. 422 of 1992 explaining it, concerning exemption from Credit Bank loans and installments for government housing, and on its taking precedence over any other decision, whether of the Public Institution for Housing Welfare or any legislative provision, as well as contravening the principles of justice, liberty and equality pursuant to Article 7 of the Constitution. It is therefore no more than a plea that the provisions of that Article contravene a binding law and legislative resolution, and is, as such, a plea of their unlawfulness, not on the basis of their departure from the provisions of the Constitution which the Constitutional Court is entrusted to safeguard and protect. Furthermore, the issuance by the Public Authority for Housing Welfare of the title deed to the 2 appellants is discretionary for it even under Decree-Law No. 20 of 1992, mentioned above. The positions of citizens allocated government houses are general regulatory positions, the determination of which is governed by the laws, regulations and decisions issued concerning housing welfare, whose application individuals acknowledge once they accept this system. Consequently, the quality of seriousness, which is a condition for admitting a plea of unconstitutionality, is absent.