Legal certainty

The focus of legal certainty entails practical benefits by sustaining the clarity, predictability, and accessibility of the law.[1] Legal certainty, then, is a principle of importance for the criminal law, given its serious penalties. In the light of the constitutional principle that no punishment exists without law (or the principle of legality in general), there is no room for criminal laws to be obscure, uncertain, or open to interpretation. Thus, the certainty of law should be bound by two requirements. First, the legal construct of a crime and its elements should be clearly stipulated in the law. Second, the legislature and courts should not create or extend the current law insofar as they criminalise conduct or an omission that was not previously punishable or impose penalties retrospectively. However, the courts can, within reasonable limits, clarify and adapt the existing elements of a crime to new circumstances as long as the clarification and adaptation arc in accordance with ‘the original concept of the offence’. The two elements are interdependent: the precision of the legislator in formulating the law prevents the deviation of judges’ interpretation and public authorities’ enforcement. To achieve legal certainty, the accessibility of the law is a requirement that should be promoted through adequately identifiable sources. The European Court of Human Rights (ECtHR) has ruled that ‘the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case’.

Legal certainty is one of the constitutional principles in the Kuwaiti legal system. Several constitutional provisions guarantee on paper the predictability of, and accessibility to, the legislation enacted in Kuwait. For example, treaties that affect citizens’ rights should be ratified and sanctioned by an enactment of law and must then be published in the Official Gazette, and it is only after this publication that these treaties have the force of law. Also, laws and regulations must be published within two weeks of their issuance, and they will come into force within one month of their publication. The accessibility of the law is

achieved in Kuwait, as there are national codes that, by covering major areas of laws such as civil law and criminal law, are stable and represent the bedrock for other laws. These codes are published via a number of identifiable sources, such as the Official Gazette, which has been issued since 1954 to promulgate what is enacted in Kuwait.[2] The ‘Legal Gate’ and the ‘Legal Information Network’ are two sources through which legislation can be accessed. However, the extent to which these sources are updated is problematic.

In regard to the criminal law, the Kuwaiti Constitution, Article 32, determines the limits of the criminal policies and states that ‘Crime and punishment will be regulated by Law’ and that ‘Criminal punishment shall not be inflicted on the basis of ex post facto laws’. Article 32 ensures the fulfilment of the two elements analysed above: that the criminalisation must be stipulated by the law and that the legislature should not impose sanctions retrospectively. The Constitutional Court in Kuwait emphasised legal certainty. It showed that the legislature had not violated the principle of nullum crimen sine lege when it examined, in one case, that the legal construct of crime, including actus mwand mens rca, was clearly stipulated so that all those subject to it know what the law is: ‘the crime was not drafted in a general and loose way which would not lead to uncertainty’. In 2019, the Kuwaiti Constitutional Court declared the unconstitutionality of the CIA on grounds related to the legal certainty principle: the elements of the conflict of interest crime were considered general, unclear, and ambiguous, and thus, it violates the principle of legal certainty.

Legal certainty applies to the corruption laws, in particular those of a criminal nature with serious penalties. How far the counter-corruption legislation is understandable is also an issue that is relevant for legal certainty. The comprehensibility of corruption laws is of particular significance, especially in Kuwait, where corruption laws are scattered throughout a number of laws (rather than being in a unified code). Also, the introduction of‘indefinite legal concepts’ in laws with complex technicalities to capture the various aspects of the phenomena at issue may threaten the legal certainty. To face that threat, some techniques may be suggested. In the light of the absence of a thorough Explanatory Memorandum and systematic commentaries for a specific piece of legislation, the dependence on decisions developed by the Supreme and Constitutional Court helps to determine the meaning of a contested concept/provision, hence

Counter-corruption: Values and strategies 103 fulfilling the guidance function of legal certainty. The intelligibility of prohibited conduct is critical to ‘communicate the wrongfulness of the behaviour in question to the accused’ and to secure the society’s respect for the criminal law (hence, its legitimacy).[3]

  • [1] Bingham (2011). 2 Legality is one of the principles that can be found in most constitutions. See Berger (2014). 3 International Commission of Jurists (1959). 4 Gay Hews Ltd. and Lemon v United Kingdom App No. 8710/79 (1983) 5 EHRR 123,129. 5 Whelan (2012). 6 Bingham (2011). 7 Sunday Times v United Kingdom App No. 6538/74, Series A, No. 30 (1979) 2 EHRR 245,271. 8 Kuwaiti Constitution, art.70. 9 Ibid., art.178.
  • [2] See . 2 See . 3 See . 4 Case No. 46-47/2015, 28/10/2015 (Constitutional Court). 5 Case No. 7/2018, 1/5/2019 (Constitutional Court). This decision is analysed in chapter 6 See Bingham (2011). 7 See chapter 4.3. 8 Maxeiner (2007, p. 560). 9 In Kuwait, each statute is often issued with a concise and brief explanatory memorandum.
  • [3] Whelan (2012, pp. 681-682). 2 Ades and di Telia (1997, p. 497). 3 The remit of the SAB was explained in section
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