Kuwait Court of Cassation principle number 469

Summary: - A plea of unconstitutionality based on the challenged regulation contravening laws. It is considered a plea of unlawfulness, not a plea of unconstitutionality. Its effect: the constitutional question 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 government housing instalments. It is in reality a plea of its unlawfulness, not of its departure from the provisions of the Constitution. Rule: The implication of Articles 1 and 4 of Law No. 14 of 1973 establishing the Constitutional Court is that the court of merits shall not refer the matter to the Constitutional Court unless determination of the dispute before it depends on determination of the constitutionality of a law, decree-law or regulation, any of which must be applied to its facts, and determination of the constitutional question is necessary and essential to enable determination of that substantive dispute. This rule represents an important principle applied in the field of monitoring judicial review of the constitutionality of laws. This is manifested when ascertaining whether the conditions of interest in the constitutional action are satisfied; the criterion for such interest is its connection with the appellant's interest in the substantive action. If the plea is based on the challenged regulation contravening laws, it is, in that capacity, a plea of the unlawfulness of that regulation, not a plea of its contravention of the Constitution. This does not justify examining the constitutional question, since the dispute concerning it becomes immaterial and a ruling upon it has no effect on determination of the facts of the dispute. That being so, 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 government housing instalments, 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 rules of justice, liberty and equality pursuant to Article 7 of the Constitution. It is therefore no more than a plea that the provisions of this Article contravene a binding law and legislative decision, and is, in that capacity, a plea of their unlawfulness, not on account of its departure from the provisions of the Constitution which the Constitutional Court is entrusted with safeguarding and protecting. Furthermore, the Public Authority for Housing Welfare's issuance of the ownership deed to the 2 appellants is discretionary, even under Decree-Law No. 20 of 1992—previously described—and the positions of citizens to whom government houses have been allocated are general regulatory positions whose determination is subject to the laws, regulations and decisions issued concerning housing welfare, the application of which individuals acknowledge when they accept this system. Accordingly, the characteristic of seriousness, which is a condition for admission of the plea of unconstitutionality, is absent.