The problem of legislative vacuum and its solution

By Lawyer Mohammed Al-Muthaffar

The latest ruling of the constitutional court on March 19, 2023 invalidated the entire process of the last National Assembly elections which took place on Sept 29,2022. The ruling invalidated the membership of those declared victorious in all five constituencies due to the invalidity of the decree dissolving the National Assembly and the invalidity of calling on voters to cast their votes in the elections.

Most notably, the dissolved parliament regains its constitutional authority by the power of the constitution from the date of issuance of the ruling, as if the dissolution was not done. After this ruling, we are in a stage of what is called a legislative vacuum. This ruling came as an affirmation of the victory of the constitution and the rule of law in the country, as the ruling applied the rules and foundations of the constitution as well as upholding considerations of justice without equivocation, favoritism or bias towards a political opinion.

The reasons for the dissolution included that there was a deep disagreement between the government and the parliament without a solution, and that there was no way out of that crisis except by dissolving the parliament and resorting to the people to choose new members. However, the government that issued the dissolution decision had been formed following the resignation of the government that preceded it, which submitted its resignation as a result of the deepening dispute between it and the parliament.

The new government that participated in issuing the dissolution decree did not clash with the parliament, not even for a short while. Therefore, no disputes arose between the government that issued the decree and the Assembly in the first place, which means that the dissolution decree was issued without a reason. Therefore, the current concern is as follows:

First: The problem of the presence of a defect in the laws issued by the Assembly, which was declared invalid.

Second: The existence of a legislative vacuum that necessitates a preference between calling for new elections or the continuation of the Assembly whose return was issued to exercise its duties and complete its legal term.

Third: What is the fate of the laws issued during the era of the dissolved Asembly? The solution to the first problem is to issue Amiri decrees until the Assembly returns.The second problem is that we see that out of respect for the court’s ruling and the constitution, the dissolved parliament should return to complete its term, after which new elections will be called after the end of its legal term, so that we abide by the constitution and respect its provisions, and there is more legislative stability.

The third problem is that these laws remain in force until they are invalidated or abolished, and thus we have overcome this dilemma, especially since this ruling is not the first of its kind. The 2012 Assembly was considered nulland the 2009 Assembly was reinstated, while keeping the laws issued during that period.

The constitutional court relied in its ruling on the fact that the request for the dissolution of the 2009 Assembly came from a ministry that had lost its capacity by accepting its resignation in full, and the new prime minister also met with ministers who had lost their capacity due to accepting the resignation of the previous government. Only thus would it be a violation of article 107 of the Kuwaiti constitution. The ruling of the constitutional court to restore a dissolved council was the first of its kind in Kuwaiti parliamentary life at that time, and our current ruling has become the second.

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