Kuwait Court of Cassation principle number 561

Summary: - Application to recuse a judge. The legislature surrounded it with a framework of procedures that the applicant must undertake. Reason therefor. It concerns the judge's disqualification from hearing the case because of a personal dispute between the recusal applicant and the judge whose recusal is sought. Nature of that dispute. A dispute wholly unconnected with the original dispute; only the recusal applicant personally can assess its existence, seriousness, significance, or consequences, and therefore personally files the declaration or authorizes an agent to file it under a special power of attorney concerning a specific recusal application, rather than the applicant's general agent. Implication thereof. The declaration seeking the judge's recusal must bear the signature of the applicant personally or that of the agent authorized under a special power of attorney. - Application to recuse a judge submitted by administrative authorities represented before the courts by the Department of Legal Advice and Legislation, which defends the interests of the public treasury. Must be based on their special authorization or instruction to recuse a specific judge or a specific panel from hearing a particular case. Reason therefor. Representation of the State in litigation is a branch of statutory representation; determining its extent and scope therefore requires reference to its source, namely Amiri Decree No. 12 of 1960. - Amiri Decree No. 12 of 1960 concerning the law regulating the Department of Legal Advice and Legislation contains no regulation of the right to undertake procedures for recusing judges, nor does it exempt it from the general procedural rules in the Code of Procedure. Implication thereof. Recourse must be had to the procedural rules contained in the latter Code. - Representation by the Department of Legal Advice and Legislation under Article 8 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 in accordance with its assessment of the interests of the public treasury. Implication thereof. Where the Government has grounds to seek the recusal of a judge from hearing a case pending before the courts and considers that circumstances or grounds of disqualification exist in respect of that judge, it must issue a special authorization or instruction to the Department of Legal Advice and Legislation declaring its express intention to recuse a specific judge or a specific panel from hearing a particular case. Signature by a member of the Department of Legal Advice and Legislation on the declaration seeking recusal without attaching that special authorization or instruction issued to that member by the applicants in their capacities. Insufficient for the recusal application. Reason therefor. 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—and no others may decide on recusal and then grant a specific special authorization to file the declaration. - Establishment that the declaration seeking the judges' recusal in the present recusal application bears the signature of a member of the Department of Legal Advice and Legislation, allegedly instructed by the appellants in their capacities to file it, relying solely on general statutory representation of them under Amiri Decree No. 12 of 1960 and without attaching to the declaration a special authorization or instruction issued by them in their capacities authorizing the member to sign the recusal declaration. Implication thereof. Inadmissibility of the recusal application. Rule: Article 106 of the Code of Procedure provides: "If a ground for recusal exists in respect of a judge and the judge does not withdraw, a litigant may apply for the judge's recusal. Recusal shall be sought by a declaration at the Registry signed by the applicant personally or by the applicant's agent authorized 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 to recuse a judge with a framework of procedures that the applicant must undertake, because it concerns the judge's disqualification from hearing the case owing to a personal dispute between the recusal applicant and the judge whose recusal is sought. That dispute is wholly unconnected with the original dispute, and only the recusal applicant personally can assess its existence, seriousness, significance, or consequences. The applicant therefore personally files the declaration or authorizes an agent to file it under a special power of attorney concerning a specific recusal application, rather than the applicant's general agent. The legislature was clear and careful in requiring the declaration seeking the judge's recusal to bear the signature of the applicant personally or that of the agent authorized under a special power of attorney, as confirmed by Article 57 of the same Code, which states in its text that seeking a judge's recusal is not valid without special authorization. This is not altered by the fact that the declaration seeking recusal is submitted by administrative authorities represented before the courts by the Department of Legal Advice and Legislation under Amiri Decree No. 12 of 1960 concerning the law regulating the Department of Legal Advice and Legislation of the Government of Kuwait, Article 8 of which provides: "The Department of Legal Advice and Legislation shall defend the interests of the public treasury in all cases brought before the courts against or by the Government." Representation of the State in litigation is a branch of statutory representation, and determining its extent and scope requires reference to its source, namely the aforementioned Amiri Decree, which contains no regulation of the right to undertake procedures for recusing judges and does not exempt it from the general procedural rules of the Code of Procedure in this respect. This means that recourse must be had to the procedural rules contained in that Code. Further, although the aforementioned Article 8 confers on the Department of Legal Advice and Legislation the status of statutory representative in cases brought by and against the State, its wording indicates that this general representation applies to actions that the administrative authority concerned itself—not the Department of Legal Advice and Legislation representing it—decides to institute in accordance with its assessment of the interests of the public treasury. Since the legislature did not accept a general power of attorney or equivalent general representation when seeking a judge's recusal, but instead—as stated above—made it subject to a special provision for the foregoing considerations, the necessary consequence is that, if the Government has grounds to seek the recusal of a judge from hearing a case pending before the courts and considers that circumstances or grounds of disqualification exist in respect of that judge, it must issue a special authorization or instruction to the Department of Legal Advice and Legislation declaring its express intention to recuse a specific judge or a specific panel from hearing a particular case. It is insufficient for a member of the Department of Legal Advice and Legislation to sign the declaration seeking recusal unless the special authorization or instruction to that effect, issued to that member 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, and no others, may decide on recusal and then grant a specific special authorization to file the declaration. That being so, and whereas the declaration seeking the judges' recusal in the present recusal application bears the signature of a member of the Department of Legal Advice and Legislation, allegedly instructed by the applicants in their capacities to file it, relying solely on general statutory representation of them under the aforementioned Amiri Decree No. 12 of 1960, without attaching to the declaration a special authorization or instruction issued by them to that member to sign the recusal declaration, the declaration seeking recusal is inadmissible, and it must be so adjudged.