In an unprecedented recent judicial decision, the Supreme Constitutional Court of the Arab Republic of Egypt, after over fifty-six years of the enactment of the Civil and Commercial Procedure Law and Law No. 13 of 1968, delivered a judgement concerning the application ambit of Paragraph 6, Article 241 of the same statute. The Court held that it contravenes the principles of justice, the supremacy of law, and the rights to litigate and defend, for a court adjudicating a petition for a retrial to be constituted – wholly or partially – of the same judges who rendered the original verdict.

• The Court opined that judicial activity must not become a venue for potential conflict of interest, casting doubts over its neutrality, thus undermining public trust, especially when it deviates from the esteemed principles of judicial duty.

Upon scrutinising the same judgement, it aligns with the stipulations of Article 150 of the Civil and Commercial Procedure Law, promulgated by Decree-Law No. 38 of 1980 in the State of Kuwait.

• Given the rulings of the Constitutional Court possess amplified significance due to their nature and exclusive remit in supervising the constitutionality of laws and regulations, they embody constitutional legal authority, as long as they adhere to their delineated jurisdiction. The ramifications of these rulings, both direct and indirect, exceed the immediate parties, impacting the operational frameworks and guarantees of constitutional institutions presently and in the future. Hence, such judgements require meticulous study and analysis, contributing to the development of constitutional jurisprudence, especially in the State of Kuwait, and fostering awareness of the operational modalities and protocols of institutions under constitutional principles, with the primacy of national sovereignty as the fountainhead of all powers.
• Pertinently, the judgement issued by the Supreme Constitutional Court of the Arab Republic of Egypt on 6 January 2024, which declared the formation of a retrial court with the same judges as unconstitutional, is congruent with the factual and legal propriety, reflecting the provisions of Article 150 of Decree-Law No. 38/1980 concerning the issuance of the Kuwaiti Civil and Commercial Procedure Law.

This judgement is commendable for its objective, procedural, and substantive merits, conforming to the constitutional allocation of competencies among the judiciary.

• It is incumbent in this context to recognise that the provision of Article 150 of the aforementioned Kuwaiti Civil and Commercial Procedure Law, addressing similar content, asserts that it is inconceivable for a court, in its same composition, to contemplate a retrial petition on a judgement it previously issued, thus finalising a judicial decision reached by the court and elucidated in its prohibitive ruling, pursuant to the reasons specified in Article 148 of the same law.
• This concurrence of accuracy and necessitated acceptance signifies the court’s endorsement in its judgement, necessitating its nullification for an intrinsic reason when required.

Therefore, arising from our professional and regulatory duty, we advocate for the legislative amendment of Article 150 of Decree-Law No. 38/1980 regarding the Civil and Commercial Procedure Law, specifically pertaining to the composition of the court considering a retrial petition, by integrating a prohibitory clause (لا), mandating that the same court must not oversee a retrial petition.

In acknowledging the appeal mentioned afore, the Constitutional Court’s Consultative Chamber, and concerning the Constitutional Court’s rulings in the State of Kuwait, exhibits its consistent enforcement of oversight and congruence with its recurrent judgements in this respect, concentrating on its jurisdiction to review appeals related to the constitutionality of laws and regulations, to the exclusion of other courts.

This approach guarantees impartiality and reinforces it, establishing the function of judicial rulings as a stronghold for litigants. This stance serves as an entreaty for the Supreme Constitutional Court of the Arab Republic of Egypt to embrace a similar methodology in its determinations.