Kuwait Court of Cassation principle number 307

Summary: - An application for recusal of a judge. The legislature surrounded it with a framework of procedures which it required the applicant to undertake. The reason. It concerns the judge’s disqualification from hearing the action because of a personal dispute between the recusal applicant and the judge whose recusal is sought. The nature of that dispute. A dispute wholly unrelated to the original dispute, whose existence, seriousness, significance, or consequences can be assessed only by the recusal applicant himself, who therefore files the declaration personally or authorizes his agent to file it under a special power of attorney for a particular recusal application, rather than his general agent. The consequence. The declaration for recusal of a judge must bear the applicant’s own signature or the signature of his agent authorized therein under a special power of attorney. - An application for recusal of a judge submitted by administrative authorities represented before the courts by the Department of Legal Advice and Legislation, which undertakes the defense of the interests of the public treasury. Must be made under a special authorization or assignment from them to recuse a particular judge or a particular panel from hearing a specific action. The reason. Representation of the State in litigation is a branch of statutory representation, and its extent and scope must therefore be determined by reference to its source, namely Amiri Decree No. 12 of 1960. - Amiri Decree No. 12 of 1960 promulgating the Law Regulating the Department of Legal Advice and Legislation contains no regulation of the right to undertake procedures for recusal of judges and does not include an exemption for it from the general procedural rules of the Code of Civil Procedure. Its import. Recourse to the procedural rules contained in the latter Code. - Representation by the Department of Legal Advice and Legislation pursuant to Article Eight of Amiri Decree No. 12 of 1960. Its nature. General statutory representation in cases and actions brought by or against the State, which the administrative authority concerned itself decides to institute according to its assessment of the interests of the public treasury. The consequence. Where the government has grounds to seek recusal of a judge from hearing an action pending before the courts and considers that circumstances or grounds of disqualification exist in respect of him, it must issue a special authorization or assignment to the Department of Legal Advice and Legislation declaring its express intention to recuse a particular judge or a particular panel from hearing a specific action. The signature of a member of the Department of Legal Advice and Legislation on the declaration of the recusal application without attaching that special authorization or assignment issued to him by the applicants in their capacities. Is insufficient for the recusal application. The reason. The dispute is personal between the applicants—in their capacities—and the judge whose recusal is sought, not the member of the Department of Legal Advice and Legislation. They alone—in their capacities—to the exclusion of others, may take the decision to seek recusal and then authorize the filing of its declaration by a specific special authorization. - Establishment that the declaration for recusal of the judges concerned by the present recusal application bears the signature of a member of the Department of Legal Advice and Legislation, allegedly assigned by the appellants in their capacities to file it, relying solely on his general statutory representation of them pursuant to Amiri Decree No. 12 of 1960, without attaching to the declaration a special authorization or assignment issued by them in their capacities to him to sign the recusal declaration. Its consequence. Inadmissibility of the recusal application. Rule: As to the form of the application, Article 106 of the Code of Civil Procedure provides that: “If a ground for recusal exists in respect of a judge and he does not withdraw, a litigant may request his recusal. Recusal shall be sought by a declaration at the Registry signed by the applicant himself or his agent authorized therein under a special power of attorney, and the power of attorney shall be attached to the declaration...” This indicates that the legislature surrounded an application for recusal of a judge with a framework of procedures which it required the applicant to undertake, since it concerns the judge’s disqualification from hearing the action because of a personal dispute between the recusal applicant and the judge whose recusal is sought. This is a dispute wholly unrelated to the original dispute, whose existence, seriousness, significance, or consequences can be assessed only by the recusal applicant himself. He therefore files the declaration personally or authorizes his agent to file it under a special power of attorney for a particular recusal application, rather than his general agent. The legislature was clear and careful in requiring that the declaration for recusal of a judge bear the applicant’s own signature or the signature of his agent authorized therein under a special power of attorney, as confirmed by Article 57 of the same Code, which states in its text that recusal of a judge is not valid without a special authorization. This is not altered by the declaration of the recusal application being submitted by administrative authorities represented before the courts by the Department of Legal Advice and Legislation pursuant to Amiri Decree No. 12 of 1960 promulgating the Law Regulating the Department of Legal Advice and Legislation of the Government of Kuwait, Article Eight of which provides that: “The Department of Legal Advice and Legislation shall undertake the defense of the interests of the public treasury in all cases brought before the courts against or by the government.” This is because representation of the State in litigation is a branch of statutory representation, and in determining its extent and scope reference must be made to its source, namely the aforementioned Amiri Decree, which contains no regulation of the right to undertake procedures for recusal of judges and includes no exemption for it from the general procedural rules of the Code of Civil Procedure in this regard. This entails recourse to the procedural rules contained in that Code. Furthermore, although the aforementioned Article Eight confers on the Department of Legal Advice and Legislation the status of statutory representative in cases brought by and against the State, it indicates, according to its wording, that this general representation applies only to actions which the administrative authority concerned itself—and not the Department of Legal Advice and Legislation representing it—decides to institute according to its assessment of the interests of the public treasury. Since the legislature did not accept a general power of attorney or an equivalent general representation when seeking recusal of a judge, but rather—as explained above—made it the subject of a special provision for the foregoing considerations, the necessary consequence and requirement is that, if the government has grounds to seek recusal of a judge from hearing an action pending before the courts and considers that circumstances or grounds of disqualification exist in respect of him, it must issue a special authorization or assignment to the Department of Legal Advice and Legislation declaring its express intention to recuse a particular judge or a particular panel from hearing a specific action. It is not sufficient for a member of the Department of Legal Advice and Legislation to sign the declaration of the recusal application unless the special authorization or assignment for that purpose, issued to him by the applicants in their capacities, is attached. The dispute is personal between the applicants in their capacities—not the member of the Department of Legal Advice and Legislation—and the judge whose recusal is sought. They alone, to the exclusion of others, may take the decision to seek recusal and then authorize the filing of its declaration by a specific special authorization. That being so, and since the declaration for recusal of the judges concerned by the present recusal application bears the signature of a member of the Department of Legal Advice and Legislation, allegedly assigned by the applicants in their capacities to file it, relying solely on his general statutory representation of them under the aforementioned Amiri Decree No. 12 of 1960, without attaching to the declaration a special authorization or assignment issued by them to him to sign the recusal declaration, the declaration of the recusal application is inadmissible, and judgment must be rendered accordingly.