legal article

Twenty-Five Years of Civil Law System in Kuwait Author(s): Isa A. Huneidi Source: Arab Law Quarterly, Vol. 1, No. 2 (Feb., 1986), pp. 216-219 Published by: Brill Stable URL: http://www.jstor.org/stable/3381480 Accessed: 17-01-2017 06:00 UTC

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TWENTY-FIVE YEARS OF CIVIL LAW SYSTEM IN KUWAIT

Isa A Huneidi

LLB (Lond), ACI Arb Barrister

The year 1961 was a landmark in the history of Kuwait. In that year, Kuwait achieved full independence, accepted democracy as a form of government, and, last but not least, chose a French-based civil law system. It was a daring choice, because Kuwait at that time had no experience of a modern legal system. What it then had, was, in the main, tradiiional Islamic courts staffed by Shariahwducated judges who administered e Mejelleh (which is the Ottoman compilation of the code of obligations) and other uncodified S&nah law. But with the advent of full mdependence and the accelerating economic resurgence, Kuwait felt the need for a modern system of codified law and chose the civil law system, and turned to Egypt for assistance. Egypt, which had extensive expenence in civil law) furnished Kuwait with a complete machinery of justice, from appeal court judges, public prosecutors and legal advisers) down to legal clerks and summons seners. Above all) Kuwait obtained the services of the eniinent jurist Dr Abdi Razzak Al-Sanhuri) the "Jeremy Bentham" of Egypt, who had previously drafted laws and consiituiions for several Arab countries.

It is not the purpose of this paper to analyse the various laws that Kuwait had adopted) but simply to describe briefly the manner and fonn in which Kuwait adopted what essentially was an alien legal system and integrated it into its social fabric and body politic. Apart from the Constituiion, the most important piece of legislation which Dr Sanhuri drafted was the Law of Commerce, which laid the foundation of commercial activities in Kuwait until it was superseded 20 years later by the new commercial code.

Its title as the Law of Commerce was an intended misnomer, since it also incorporated a substantial part of the civil code. In drafting it, Dr Sanhuri borrowed a great deal from the commercial laws of the other Arab countries, which he also helped to draft. For mstance, the seciion on the law of obligaiions came principally from the Iraqi civil code, which itself was a blend of Shah and French legal principles. Dr Sanhuri explained that he preferred the Iraqi law to the Egypiian law of obligaiions, because it was, in his opinion, more akin to the Kuwaiii local environment. The section of the code which deals with agenciesn commission agents, brokers and securities came from the Syrian commercial code) whereas the seciion on bankruptcies came from Egypt.

Further laws dealing with other commercial matters were also drafted and enacted. The most significant of these were the law of land registraion, the law regulamg liabiliiies arising from unlawful acts (the law of torts)) the law of commercial companies, and the labour law in the pnvate sector. However) two important aspects Of Kuwaiti law remained unchanged and were unaffected by modern legislations.

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CIVIL LAW IN KUWAIT 217

F¢st, the Mejelleh, except for those provisions specifically superseded by commercial

legislations, coniinued to be in force. Secondly, laws of personal status (Ahwal

shakAsiyah) and inhentance also were unaffected

Thus, Kuwait had a diverse legal system, dominated ffiough it was by the civil law.

The whole system functioned reasonably well, thanks to the very high ciibre of the

judges recruited by Kuwait, mostly from Egypt, and to the readiness of the

government to enact the required amendments whenever social pressure, legal gaps)

and inconsistencies came up to surface.

Some 15 years later, junsts and pariicularly law professors of the newly-established

University of Kuwait spoke in favour of a uniform legal system. They pointed out a

few instances of contradiction between the laws even when dealing wiffi a specific

issue. Eventually) the need was felt for the reform of the laws m the light of previous

experience and with a view to establishing a homogeneous legal system.

The Council of isters responded in 1977 by issg an order setiing up four

separate committees to draft modern legislaiion on aspects of the law which remained

uncodified and to develop and revise existing legislaton Ln the light of previous

experience. In the legal history of Kuwait this order was perhaps as momentous as the

earlier order of the late Amir of Kuwait Shaikh Abdulla al-Salem al-Sabah introducing

the civil law system to the country. The committees were instructed to draft the new

codes within the framework of the pnnciples of Shanah, in accordance with the

Conshtuiion and consistent math the traditions of Kuwait. These instructions should

not be interpreted as a retrogressive legal development, but rather as a reminder to the

drafters, many of whom were not Kuwaitis, to stay within the bounds of reahsm and

to forgo the natural temptation of producing theoreacally-sound codes that bear little

relaiion to local circumstances and conditions of Kuwait.

Each one of the four cottees was assigned one of the following legislative tasks:

criIxiinal, civil,- commercial, aflministraiive and procedural.

The order laid down that each committee must be composed of full-iime jgists

from amongst the university professors, men of religion and the judiciary who are

specialised in drafung legislation. In addition, there were part-time members from the

faculty of the University of Kuwait, from Kuwaiti judges and from experts and

specialists in the employ of the government or public corporations. After a draft

legislaiion had been completed, it would be reviewed by another comrriittee composed

of seven to nine Kuwaioci members in addition to the full-time members of the original

committee which had drafted the legisiaiion. The review cottee would have a

Kuwaiti chairman and would decide on che draft legislation by a two-thirds majority.

After the draft legislation had been reviewed, it would go back to the original

committee for further consideration and preparaiion of an explanatory memorandum.

As a fixlal step, both draft and explanatory memorandum would be submitted to a . . . . . .

sterla egls atlve commlttee.

This momentous task was carried out under the personal supervision and guidance

of the Minister of State for Legal and A(lministaiive Aff, Shaikh Salman al-Duaij

al-Sabah, a distinpshed lawyer with long expenence in public service who) prior to

becoming Minister in 1976) was head of the State Legal Deparent. He was Xche

architect and moving force behind deareloping the Kuwaiii legal system from 1969

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218 ARAB LAW QUARTERLY

until his resignation in 1985. He organised and raised the stature of the Legal

Deparent by recruiting highly qualified legal counsellors from Egypt and bright

young Kuwaiti lawyers to succeed them in due course. He was instrumental in

improving further the quality of the judiciary by careful selection of judges and by

substantially increasing their pay and status to a higher level than the civil service.

When he finally embarked on reforniing the legal system, he already had available in

his service a cadre of qualified and experienced judges and legal collnsellors.

It may be of interest to describe briefly a typical example in the work of the

committee for legislation. By Order No. 2 of 1977, Shaikh Salman set up this

cottee comprising Dr Abdul Fattah Abdul Baqi, Dr Mansour Mustapha

Mansour, and Counsellor Safa Aldin al-Atifi. By a separate order, he co-opted, as

part-time members, two senior appeal court judges, the State Public Defender, and a

practising Kuwaiti lawyer. He then issued another order co-opting two more part-

time members: the legal advisor of a Kuwaiii Fund for Economic and Arab

Development and the acting Dean of the law faculty of Kuwait University, who is

now Head of the State Legal Department. Further additions increased membership of

this cottee to ten of whom six were part-time members. Among themselves they

represented professors of law, senior judges, practising lawyers, men of religion and

legal advisors in economic organisations.

After four years of work the new Civil Code and Explanatory Memorandum were

produced in October 1980, and becnme law on 25 February 1981. In his introduction

to the Code, Shaikh Salman proudly stated that:

Kuwait for the first time in its history had an integrated civil code of the highest standard. Its

provisions are in harmony with the schools of Islaniic jurisprudence, to the extent that there is

no provision in it, which cannot be supported by any one such school or in conflict with the

spirit of Shariah. At the same tirne, benefit was obtained from the great advances that have been

achieved by current legal thinking in the art of legislation and modern procedures.... In

particular, I am proud of Article 257 whereby the State has assumed the residual liability in

personal injury cases, where the party that is legally liable is not known".

That Article brought to a new peak the concept of the no-fault liability, itself a recent

development in western legal thinking.

It is not the purpose of this paper to comment on this Code in any detail, but brief

mention should be made of some of its most important effects. It repealed the

Mejellah and Law No. 6 of 1961, regulating the liabilities arising out of unlawful acts,

to which I shall refer later. Perhaps, one of the most important provisions is Article 2,

which enables the judge, in the absence of any legislative provision, to rlile in

accordance with custom, and, failing which, in accordance with the principles of

Islamic jurisprudence which are more suited to the interests and realities of Ktlwait.

This renders custom a prime source of law with priority over the principles of Islamic

jurisprudence. In defending this somewhat danng provision, the explanatory

memorandum points out that Shariah recognises custom as a prime source of law.

Another drastic aspect of this provision is that the judge now has freedom to seek

guidance from any one school of law, despite the fact that the people of Kuwait are

followers of the Maleki school of law. The judge is required to put the interests of

Kuwait and its way of life above doctrinal variations.

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CIVIL LAW IN KUWAIT 219

In additon to the Civil Code, five other major codes were produced and became

law. These are commercial and criminal codes, civil procedure and personal status

laws.

Mention also should be made of the law regulating liabilities arising out of unlawful

acts (laws of torts) in order to describe how local social condiiions influenced the

adaptation and development of modern legislation in Kuwait. Under Law No. 6 of

1961, the concept of liability was primarily based on fault, which was close to the

French concept of delict (Articles 2 and 19). It so happened that in many traffic

accidents, drivers of motor-cars were acquitted of liability, and their victims were left

without compensation. Social pressure led to the first amendment of the law in 1967.

A new Article 19 was added, bringing the concept of liability closer to Shariah, under

which injury must be redressed regardless of howsoever it is caused. Further social

considerations led to the second amendment in 1976. The new Civil Code has now

repealed the whole law and subsetuted for it Ariicles 227-261 in the Code.

The daring experiment of 1961 is now a well established and accepted fact of life in

Kuwait.

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