Kuwait Court of Cassation principle number 70

Summary: - An application for recusal of a judge. The legislature surrounded it with procedural safeguards that the applicant must observe. 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 disconnected from the original dispute, whose existence, gravity, significance, and consequences can be assessed only by the recusal applicant personally, who therefore files the declaration personally or authorizes an agent to file it under a special power of attorney for a particular recusal application, rather than through a general agent. Its import: the declaration seeking recusal of a judge must bear the applicant's own signature or the signature of an agent authorized under a special power of attorney. - An application for recusal of a judge submitted by administrative authorities represented before the courts by the Legal Advice and Legislation Department, which defends the interests of the Public Treasury. It must be based on their special authorization or instruction to recuse a particular judge or a particular panel from hearing a particular action. The reason: representation of the State in litigation is a form of statutory representation, and its extent and scope must be determined by reference to its source, namely Amiri Decree No. 12 of 1960. - Amiri Decree No. 12 of 1960 concerning the Law Regulating the Legal Advice and Legislation Department does not regulate the right to undertake procedures for recusal of judges and does not contain an exemption from the general procedural rules in the Civil and Commercial Procedure Law. Its import: recourse to the procedural rules contained in the latter Law. - Representation by the Legal Advice and Legislation Department 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 Public Treasury's interests. Its import: where circumstances prompt the Government to seek recusal of a judge from hearing an action pending before the courts, and it considers that situations or grounds of disqualification exist, it must issue a special authorization or instruction to the Legal Advice and Legislation Department expressing its explicit intention to recuse a particular judge or a particular panel from hearing a particular action. A member of the Legal Advice and Legislation Department signing the declaration of the recusal application without attaching that special authorization or instruction issued to that member by the applicants in their official capacities. Insufficient for the recusal application. The reason: the dispute is personal between the applicants—in their official capacities—and the judge whose recusal is sought, not the member of the Legal Advice and Legislation Department. They alone—in their official capacities—and no others may decide upon recusal and then grant a specific special authorization to file the declaration. - Establishment that the declaration seeking recusal of the judges forming the subject of the present recusal application bears the signature of a member of the Legal Advice and Legislation Department claiming to have been instructed by the appellants in their official capacities to file it, relying solely on general statutory representation of them under Amiri Decree No. 12 of 1960, without attaching to the declaration a special authorization or instruction issued by them in their official capacities authorizing that member to sign the recusal declaration. Its import: inadmissibility of the recusal application. Rule: As to the form of the application, Article 106 of the Civil and Commercial Procedure Law provides: “If a ground for recusal exists in respect of a judge and the judge does not withdraw, a litigant may seek the judge's recusal. Recusal shall be sought by a declaration at the Registry signed by the applicant personally or by an 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 for recusal of a judge with procedural safeguards that the applicant must observe, 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. It is a dispute wholly disconnected from the original dispute, whose existence, gravity, significance, and consequences can be assessed only by the recusal applicant personally, who therefore files the declaration personally or authorizes an agent to file it under a special power of attorney for a particular recusal application, rather than through a general agent. The legislature was clear and careful in requiring that the declaration seeking recusal of a judge bear the applicant's own signature or the signature of an agent authorized under a special power of attorney. This is confirmed by Article 57 of the same Law, which states in its text that a judge's recusal cannot validly be sought without special authorization. This is not altered by the declaration seeking recusal being submitted by administrative authorities represented before the courts by the Legal Advice and Legislation Department under Amiri Decree No. 12 of 1960 concerning the Law Regulating the Legal Advice and Legislation Department of the Government of Kuwait, Article Eight of which provides: “The Legal Advice and Legislation Department 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 form of statutory representation, and its extent and scope must be determined by reference to its source, namely the aforementioned Amiri Decree, which does not regulate the right to undertake procedures for recusal of judges and contains no exemption from the general procedural rules in the Civil and Commercial Procedure Law in this respect. This means that recourse must be had to the procedural rules contained in that Law. Furthermore, although the aforementioned Article Eight confers on the Legal Advice and Legislation Department the status of statutory representative in cases brought by and against the State, it indicates, as its wording states, that this general representation applies to actions which the administrative authority concerned itself—not the Legal Advice and Legislation Department representing it—decides to institute according to its assessment of the Public Treasury's interests. Since the legislature did not accept a general power of attorney or its equivalent in general representation when seeking a judge's recusal, but instead—as explained above—devoted a special provision to it for the foregoing considerations, the necessary consequence is that, if circumstances arise prompting the Government to seek recusal of a judge from hearing an action pending before the courts, and it considers that situations or grounds of disqualification exist, it must issue a special authorization or instruction to the Legal Advice and Legislation Department expressing its explicit intention to recuse a particular judge or a particular panel from hearing a particular action. It is insufficient for a member of the Legal Advice and Legislation Department to sign the declaration of the recusal application without attaching the special authorization or instruction issued to that member by the applicants in their official capacities. The dispute is personal between the applicants in their official capacities—not the member of the Legal Advice and Legislation Department—and the judge whose recusal is sought. They alone, and no others, may decide upon recusal and then grant a specific special authorization to file the declaration. That being so, the declaration seeking recusal of the judges forming the subject of the present recusal application bears the signature of a member of the Legal Advice and Legislation Department claiming to have been instructed by the applicants in their official 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 authorizing that member to sign the recusal declaration. The declaration seeking recusal is therefore inadmissible, and judgment must be rendered accordingly.