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Separation of Powers in the Kuwait Criminal Justice System Proposal

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Updated: May 24th, 2021

Abstract

Discussions of the Separation of Powers tend to be related to the administrative state. In her study, Barkow states that although scholars have written many works on the SOP in a state, they “have wholly ignored the criminal state”. The proposed research addresses the question of separating powers within the criminal justice system of Kuwait, examining the function of this division and the structures that are designed to protect the rights of citizens. Despite being regulated according to democratic principles, the criminal justice system of Kuwait has been described as excessively controlled by executive bodies. Currently, there appears to be a lack of research explaining how numerous criminal justice bodies in Kuwait can be effective in promoting the principles of freedom, democracy, and equality before the law. The proposed research can provide some insights into the SOP between institutions and make an assessment of its effectiveness in addressing the principles stated in the Constitution of Kuwait.

In addition, the current research allows discussion about the origins of the modern Kuwaiti criminal justice system, with the focus on British law (which is a past influence) as well as French, Egyptian and Islamic law (as continuing influences). As a result of its development history, Kuwait is a very good example of the diffusion of law; for instance, it was described as “mixed” by Williamson to reflect its components. The diffusion of law in Kuwait is a better-investigated topic, but even nowadays it still attracts the attention of modern researchers. Finally, the theme of human rights and their protection through the criminal law system is also a topic of acute interest. Thus, this study can be regarded as original because it aims to discuss an under-researched topic, and it is valuable because it touches upon topics of acute interest in the field. In the end, the paper will discuss the SOP in the Kuwaiti criminal justice system as a mixed phenomenon that originated from French, Egyptian, and Islamic law and that can influence the protection of Kuwaiti citizens’ human rights at each stage of law enforcement and prosecution.

Introduction

Overview of the Research

The Separation of Powers (SOP) in a criminal justice system can be regarded as a method of protecting citizens’ rights from bias, corruption, and inequality in judging.1 The history of the phenomenon has involved several milestones and was the product of the minds of multiple notable figures. For example, Aristotle introduced a number of constitution-related ideas in his Politics, especially in books two – seven, which considered citizenship, types of regimes, and constitution. With respect to SOP, the author distinguished between “the deliberative body, the magistracies and the judges” in book four, suggesting that such separation could prevent absolute power.2 Furthermore, in his criticism of the then-existing patriarchal system of power, Locke focused on SOP in the context of legislation and formulated the “principle of legislative supremacy … in the sense that it envisions the legislature as having an initiating place on the assembly line of law-making/law enforcement”3, arguing that an “authority that is able to give laws to others must necessarily be the superior of the latter.” 4

It can be suggested that Locke did not only try to separate the judiciary system; he also implied that there was a hierarchy of the branches of power, with judiciary being the “supreme power.” 5 However, the principle of separating powers was clearly formulated by Montesquieu, who focused on the idea of SOP between “the three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the judiciary in regard to matters that depend on the civil law.”6 Montesquieu based his view on a comprehensive analysis of a variety of systems, including ancient ones (for example, those of Romans and Barbarians)7 and those that were contemporary at the time (for example, that of England). 8

While not the first to pinpoint the idea of SOP, Montesquieu is believed to be the first person to fully and explicitly formulate the idea of tripartite SOP, aiming to “prevent the concentration of all power in the hands of a single ruler.”9 It is also noteworthy that the practice of using SOP in Islamic countries started with Umar ibn Al-Khattab (634-644 AD), who was the second Caliph of Islam. He may have been the first person to implement a form of SOP, in particular, to isolate the judiciary from the executive branch. 10 This outcome was achieved by appointing both judges and governors in the provinces, both of which were supposed to be under the supervision of the Caliph.11 This measure ensured their independence from each other, although, eventually, the judiciary depended on the Caliph. Thus, the Islamic roots of SOP can also be found, and they are related to the practice of SOP.

It can be suggested that the discussions around the SOP tend to be related to administrative or public law in the majority of cases. In her study, Barkow states that although scholars have written many works on the SOP in a state, they “have wholly ignored the criminal state”.12 Barkow mentions at least a dozen works that illustrate her point, explaining that she had analysed only a small sample of the literature.13 It is noteworthy that the majority of the works that she mentions were written in the previous century. Still, the issue appears to have been carried into the new century: the consideration of the administrative side of SOP is exemplified by multiple works, including those by Koven, Bruff, Kamali, and Tribe.14 However, the criminal-matters perspective seems to be rarely mentioned. Articles by Haljan and Nelson and Ringsmuth can be used to illustrate works that do mention it, but such examples seem to be underrepresented, and they do not focus on the topic.15

At the same time, it is important to achieve the SOP in the field of justice as it permits the judicial system to be relatively independent and it improves its legitimacy, which is highlighted, for example, by Hall.16 An analysis of Ashworth’s conclusions can be interpreted to suggest that this importance also correlates with a history of challenges in ensuring the judiciary’s independence, which the author recognises as “failures of state-led criminal justice.”17 These failures can be the result of the difficulties the judiciary experience in resisting external pressures, which the government is supposed to reduce, if not nullify. As suggested by Ashworth, “it should remain the responsibility of the state towards its citizens to ensure that justice is administered by independent and impartial tribunals.”18 Apart from that, Barkow demonstrates that the administrative and criminal perspectives on the SOP are noticeably different, and in practice, few safeguards, including individual rights as delineated in the Constitution, are applied to the latter.19 Thus, the author points out the tendency to ignore criminal-matter SOP, indicating the need to acknowledge and change the situation, which the proposed paper aspires to do.

The current research aims to examine how the SOP in the criminal justice system of Kuwait contributes to addressing citizens’ rights, with the focus on the principles mentioned in the Constitution of Kuwait. Article 50 of the Kuwaiti Constitution declares the principle of SOP at the level of the state: “In conformity with the provisions of the Constitution the system of government shall be established on the basis of separation and cooperation of powers”, and moreover, “No Authority shall be allowed to waive all or part of its jurisdiction as prescribed in this Constitution”.20 Still, the legal background for the SOP principles in the state is not derived solely from the Constitution. Much attention will be paid to discussing the effect of British Jurisdiction (as a past influence), as well as the continuing impact of the French and Egyptian law on the development of the criminal justice system in a country that gained independence from the United Kingdom in 1961.21 Furthermore, it is important to take into account the fact that Kuwait is an Islamic country, but that Muslim law has a direct impact on only the country’s family law.22

The proposed study will examine the extent to which an effective SOP exists in the Kuwaiti criminal justice system. The first step is a general overview of the intricate net of functions that are shared and divided between institutions and personnel, and which are typical of the country’s criminal justice system. The second step is a discussion of critical issues in the system and its functioning, involving the question of the protection of citizens’ rights. The Kuwaiti criminal justice system can be described as mixed in its origins.23 Also, it is not fully protected from over-bureaucratisation, dishonest or wrongful conduct, possible biases, and unfairness.24 Due to the significance of these challenges, the analysis of police structures, prosecutors’ responsibilities, and the judiciary, with a focus on the role of Article 50 in determining the SOP, are the most important parts of this research.

Much attention should be paid to the role of prosecutors and the prosecutorial process in Kuwait, which are influenced by the traditions of French law. Discussion of this process allows conclusions to be drawn regarding the effectiveness of the SOP in Kuwait, with the focus on conducting unbiased crime-control procedures. The analysis should include a discussion of those aspects of the criminal justice system adopted in Kuwait that can lead to a reduction in the number of crimes against citizens’ rights in the country.25 In this context, the focus is on the resources that are available to representatives of different branches of the system for the purpose of organising an effective prosecutorial process and litigation. Finally, conclusions and recommendations need to be provided regarding the role of SOP in the criminal justice system in protecting Kuwaiti citizens’ rights. The recommendations will be formulated referring to the analysis of the criminal justice system’s mixed structure.

A certain typology of SOP assessment criteria is also proposed for the study. A most significant criterion is the level of the independence of the judiciary, which can be assessed by pinpointing the instances of supervision and control performed by other branches of power. In particular, in Kuwait, the procedures that are related to the appointments of judges imply a lack of judiciary independence from the executive power.26 Thus, the procedures of the judiciary, including the appointment and removal of judges, can be reviewed to assess SOP. Apart from that, the management of cases, especially those related to political crimes, the protection of the rights of offenders and inmates, and the work of the appeal system, might signal independence issues. If miscarriages of justice can be pinpointed, they should also be analysed for external pressures. Finally, police conduct, including interrogation, is of interest for the study.

It should also be mentioned that the proposed study refers to the work of Barkow. The article considers the context of the United States, and Barkow notes that although the risk of abuse and prejudice can be reduced with SOP, “more stringent enforcement of the separation of powers in criminal cases” is required in the United States.27 As a result, Barkow’s work is not directly connected to the topic of the current research, but it may be helpful to consider the research and practice in the field of SOP in several countries to form the argument for Kuwait.

Research Question and Aims

The current research will be devoted to the following research question

How effectively does the separation of powers between institutions in the criminal justice system of Kuwait, which is rooted in the country’s Constitution and demonstrates the impacts of several law systems, contribute to protecting the rights of citizens, and what can be done to ensure this protection?

In accordance with the question, the following aims will be pursued

  1. To discuss how the separation of powers between institutions in the criminal justice system of Kuwait, as a constitutional monarchy, contributes to protecting the rights of citizens and influences fairness and effectiveness in the criminal justice system, with a focus on suspects’ rights.
  2. To take into account the role of French, Egyptian, and Islamic law, and/or legal principles, in the development and division of the criminal justice system in Kuwait while discussing SOP. Also, to take into account the role of British Jurisdiction as a past influence.
  3. To describe the role of Article 50 of the Constitution of Kuwait in promoting the separation of powers in the criminal justice system.
  4. To consider what can be done to guarantee that the separation of powers in the criminal justice system of Kuwait leads to fulfilling the democratic principles mentioned in the Constitution.
  5. To determine whether improved protection of individuals’ rights (the constitutional provisions of which Barkow regards as a safeguard against discrimination and abuse28 ) in Kuwait can be an alternative to the separation of powers in the criminal justice system from the point of view of their effectiveness in ensuring the protection of the people of Kuwait.

The Value and Originality of the Proposed Research

The proposed research addresses the question of separating powers within the criminal justice system of Kuwait, examining the function of this division and the structures that are designed to protect the rights of citizens. Despite being regulated according to democratic principles, the criminal justice system of Kuwait has been described as excessively controlled by executive bodies.29 In order to be able to propose solutions for the issue, it is necessary to aggregate data pertinent to it, which explains the need for the present research.

Currently, there appears to be a lack of research explaining how the numerous criminal justice bodies in Kuwait can be effective in promoting the principles of freedom, democracy, and equality before the law. The proposed research can provide some insights into the SOP between institutions and make an assessment of its effectiveness in addressing the principles stated in the Constitution of Kuwait. In addition, the current research allows a discussion about the origins of the modern Kuwaiti criminal justice system. The focus is on the past influence of the law of the United Kingdom (termed the “British Jurisdiction”)30 from the times when Kuwait was a British protectorate, as well as the impact of French, Egyptian and Islamic law (as continuing influences).

As a result of its history, Kuwait is a very good example of the diffusion of law; for instance, it was described as “mixed” by Williamson, a description that reflects its many components.31 The diffusion of law in Kuwait is a topic that has been investigated better than the SOP in the Kuwaiti criminal justice system, but it still attracts the attention of modern researchers.32 Therefore, the investigation of this topic is also an appropriate aim for the proposed research. Finally, the theme of human rights and their protection through the criminal law system is also a topic of acute interest.33 Thus, this study can be regarded as original because it aims to discuss an under-researched topic, and it is valuable because it touches upon topics of acute interest in the field.

Ultimately, the paper will discuss the SOP in the Kuwaiti criminal justice system as a mixed phenomenon that originated from French, Egyptian, and Islamic law, and one that can influence the protection of Kuwaiti citizens’ human rights at each stage of law enforcement and prosecution. In addition, the process of the drafting of the Constitution will be investigated. The Constitution was developed by the Constitution Committee, which included the members of the royal family and jurists, including the famous Egyptian jurist Abd al-Razzaq al-Sanhuri.34 It aimed to reflect democratic principles as well as the realia of Kuwait in the final draft, 35 which was approved by Amir Abdullah Al-Salem Al-Sabah.36 The contribution of these people is also an important element to consider in a study of Kuwaiti SOP.

Impact of Study

The study’s contribution to existing debates on the topic is the opportunity to cover gaps in the research literature on issues associated with the SOP in the criminal justice system of Kuwait. Thus, the study can make a contribution to the body of knowledge about the SOP because the current focus is on discussing SOP in the context of an administrative state, not a criminal justice system.37 Given the significance of SOP in criminal justice, as well as the difficulties associated with ensuring it,38 this contribution is particularly valuable.39 Apart from that, there are few sources that consider Kuwaiti criminal justice or Kuwaiti SOP, but said sources still point out the presence of some issues,40 which need to be analysed and resolved. The proposed study’s contribution is significant from this perspective as well. The results of the study can be used by researchers and practitioners to analyse the functions of the criminal justice system. Moreover, the results are necessary to assess the effectiveness of the system in protecting the rights of Kuwaiti citizens as a democratic priority. The study’s recommendations might be useful in addressing the complex structure of criminal justice bodies in Kuwait, and its outcomes will be relevant to the discussion of similar criminal justice systems based on the principles of different laws.

Literature Review

Introduction

In the present literature review, the topic of SOP will be considered from the point of view of criminal justice, and the Kuwaiti criminal justice will receive some attention. Also, the topic of the law diffusion in Kuwait will be considered in detail. The article by Barkow will be analysed to demonstrate the significance of SOP in criminal justice and justify the article’s use as the present study’s framework. Overall, the chapter is dedicated to the coverage of the topics defined by the research questions through the analysis of primary and secondary sources that are available on the topic.

The Role of Separating Powers between Institutions in the Criminal Justice System

Throughout its existence, the idea of SOP was adopted in a number of contexts, which allows conclusions to be drawn about its theoretical and practical value. A very early example of the use of SOP is the adoption of some of its elements (in particular, the separation of the judiciary from the executive branch) by Umar ibn Al-Khattab (634-644 AD).41 There is some debate on the topic: according to Rehman, Ibrahim, and Bakar,42 one of the schools of thoughts argues that at that time of Umar ibn Al-Khattab, the judiciary was merged with the executive branch (which means that neither of them is controlling the other; they were just parts of the same branch). However, Rehman, Ibrahim, and Bakar highlight the evidence43 which indicates that the caliphs did delegate part of their power to judges. Apart from that, the authors focus on the principles of justice from the Quran,44 suggesting that in order to achieve justice, fairness, equity, and impartiality promoted by it, the judiciary needs to be independent.45 The authors present a clear and logical argument, which is based on historical evidence and the analysis of Quran. Therefore, the Islamic roots of SOP practice may be present.

In the British and French law systems (which both developed their own monarchy-based SOP versions), the concept of the SOP was adopted in the wake Montesquieu’s argument regarding the potential of this system to protect citizens’ rights.46 It is noteworthy that France’s legal-matters SOP refers back to the pre-revolutionary “parlements” that performed “regulated resistance,” which modified the relationships between the monarchy and the nobility, according to Goldoni.47 In addition, the SOP has been demonstrated to be a legitimate means of protecting democracy or, rather, limiting absolute power by making it impossible to concentrate power in one place.48 As a result, the principle of the SOP is reflected in many modern constitutions, including those of the United Kingdom, the United States and France, among other countries. Therefore, it would be feasible to state that the SOP is typical of both common law and civil law systems.49

The aim of SOP, as pointed out by Montesquieu, is to “prevent the concentration of all power in the hands of a single ruler.”50 Therefore, SOP in a criminal justice system is meant to prevent power abuse and ensure the protection of the vulnerable populations.51 The population that is involved in the criminal justice system is indeed particularly vulnerable and requires effective safeguards.52 However, historically, SOP in criminal matters was not only largely ignored by the researchers;53 it also proved to be difficult to maintain.54 As a result, the present study intends to rectify this issue by attracting attention to criminal justice SOP and investigating related issues.

The Concept of a Criminal Justice System and its Patterns

The term criminal justice that is employed in this paper can be defined as “the formal social institution designed to respond to deviance defined as crime.”55 The system is typically said to have three subsystems: “law enforcement, courts, and corrections.”56 The first one is concerned with enforcing laws, which is carried out by specific agencies through the activities related to crime: its prevention, detection, and response to it (investigation and apprehension). 57 The second one consists of the courts that uphold laws by resolving disputes, 58 and the third one is concerned with punitive operations, as well as rehabilitation.59 Criminal justice systems are complex and vary from country to country. In the present study, the criminal justice system of Kuwait is going to be considered.

Barkow’s Review

The article by Rachel E. Barkow60 presents a critical analysis of the classical approach to SOP and demonstrates the fact that criminal-matters SOP has the specific features that require a different approach. According to Barkow, the typical approach to SOP which is applied to administrative law consists of a relatively flexible “blending of powers” combined with regular checking aimed at ensuring the lack of power abuse. The flexibility can provide the opportunity to step back from full, complete SOP in order to enable the “government to respond more readily to criminal matters.” 61 On the other hand, an alternative approach would consist of strict adherence to SOP in criminal matters to ensure the lack of power abuse which, in this context, can have disastrous consequences. In other words, Barkow views SOP as a form of possible protection of the population from power abuse, which can technically be modified (be made less strict and more flexible) as long as it is combined with another safeguard (checks in the first example).

When analysing the SOP in the US, Barkow claims that the criminal-matters SOP happens to follow the flexible approach with the exception of checks, which the author defines as insufficient, claiming that only the Constitutional rights can be considered criminal-matters safeguards in the country. 62 According to the author, they are not sufficient when structural power abuse is concerned.63 As a result, Barkow suggests that criminal-matters SOP is a field that needs separate, specific attention and consideration when determining its significance and potential forms, as well as safeguards.64 The author criticises the lack of attention to the topic within academic literature, offers an analysis of the SOP that she observed in the US and proposes a different approach, as well as the justification of the reasons for her suggestions.

While the specifics of the US SOP are not pertinent to the present study, the rest of the article can be viewed as the framework adopted by the current investigation. In particular, Barkow claims that SOP in criminal matters is particularly important because of the potential negative outcomes (threat to human rights) of power abuse, 65 that strict SOP in criminal matters is a working mechanism for preventing power abuse because it directly prevents power from accumulating in a specific branch, 66 and that this approach would be functional within the criminal matters context specifically because of the features of that context. 67 Consequently, Barkow advocates for a more vigorous enforcement of SOP within the criminal-matters context.68

Barkow’s investigation is based on a literature review and analysis of the Constitution of the US, as well as some cases that illustrate her points. Despite this fact, Barkow’s work is of relevance to a study on Kuwait since certain similarities can be found in the development of the Kuwaiti SOP and that of other governments. For example, the process that characterises the development of the Kuwaiti SOP can be termed democratisation, which has been taking place in countries all over the world.69 Also, Barkow provides a sound argument for the idea that criminal-matters SOP is strongly connected to, and even rooted in, the Constitution, which can be used to justify the approach used by the proposed study. Similarly, works by Samuels and Al-Zumai illustrate the way the constitutions of different countries, including Kuwait, establish the SOP principle.70 Thus, Barkow’s work can be regarded as a framework that guides the current research from the point of view of its content and methodology.

The Criminal Justice System of Kuwait

The criminal justice system of Kuwait includes the typical elements of such a system, that is, the law enforcement agencies, the courts, and the correctional institutions.71 The Kuwait Penal Code contains the information pertinent to crimes and penalties.72 Very few recent resources are available on the topic of the criminal justice system in Kuwait. For example, when researching political crimes, which is one of the SOP criteria proposed within this project, a lack of resources that would consider this phenomenon in Kuwait is apparent. The National Security Law No. 31/197073 seems to be dedicated to this topic, but the exact term is not used in the document. Instead, the law focuses on the crimes that can be concerned with state security, describing them and stating the related punishments. Since the term “political crime” is not used by the document, it is difficult to determine if this category of crime is specifically acknowledged and regulated by the Kuwaiti government. Secondary sources on the topic are also rather rare, which limits the ability of this study to assess the way political crimes are handled in the country. Thus, Kuwaiti criminal system can be viewed as understudied. However, a report developed with the help of the Kuwait International Legal Research Centre and the Queen’s University of Belfast has provided a short overview of the system and its issues in 2016.74

One of the first issues that the report considers consists of the fact that the criminal justice system of Kuwait does not exhibit a “principled” or “coherent” structure, which is why some important elements are missing.75 According to the report, this issue makes the strategic development of the system more difficult and hinders the process of policy formation.76 Similarly, the authors mention the lack of officials’ training, insufficient guidance (code of practice) for crime investigation, and resource shortages, as well as some more specific challenges.77 The report focuses on issues without considering the positive elements. Still, the mentioned issues are important to review in the present research since they provide the opportunity for analysing the concerns of Kuwaiti criminal justice system, which may be pertinent to the analysis of its SOP. Apart from that, the Kuwaiti government and legal and academic communities have expressed the idea that the justice system of Kuwait requires some improvement.78 Therefore, the analysis of the data from the report appears to be particularly important. The details about the elements of the Kuwaiti criminal justice system are presented below.

It is also noteworthy that Kuwait is a part of multiple international treaties and organisations, which have affected its criminal justice system. For example, Kuwait is a member of the Gulf Cooperation Council.79 Similarly, it is a part of the United Nations, which means that it is also a member of a variety of affiliated entities, including, for instance, the United Nations Educational, Scientific and Cultural Organization or the United Nations Development Programme, which is reported to have particular influence in the country.80 Regarding the relevant treaties, Kuwait has signed the Charter of the United Nations,81 the Kyoto Protocol,82 and the Convention against Torture83 to name just a few relevant documents. The latter convention is connected, for instance, to the National Security Law No. 31/1970, which criminalises torture.84 The legal education in Kuwait also incorporates international law courses.85 Thus, Kuwait’s criminal justice system has been impacted by the international influences.

Separation of Powers in Kuwait and Article 50 of the Constitution

In Kuwait, the history of the SOP is related to the history of the country and its constitution, and it can be regarded as an example of the democratisation of a monarchy.86 Therefore, a brief history needs to be provided. Kuwait has a rich history that, among other things, involved being a centre of trade.87 In 1938, oil was discovered in the area, which spurred on the country’s economic growth after the Second World War.88 This possibly facilitated the democratisation of the country, as exemplified by freedom of expression in the press, which has been greater than anywhere else in the Arab world since the previous century.89 Apart from that, the proclamation of the country’s independence in 1961 was a major step towards its democratisation.90

Thus, the specifics of the country’s economic and political development might have prepared it for the introduction of an increasingly independent SOP. Also, the development of education and increased awareness of political concepts has contributed to the process.91 Similarly, the integration of Western liberal attitudes into the life of the people of Kuwait must have mirrored the adoption of the SOP, which may have seemed premature at the time but appears to have been carried out smoothly.92 Here, it should be pointed out that citizenship of Kuwait is a birthright93 connected to the nationality of the father of the child.94 In other words, a child fathered by a Kuwaiti in any country is Kuwaiti; also, foundlings found in Kuwait are considered Kuwaiti. 95 Furthermore, Kuwaiti citizenship can be granted for prolonged residence in the country (at least 15 consecutive years for Arab people), for various services to Kuwait, and other factors. 96

According to Barkow, in the United States, “the Constitution separates legislative, executive, and judicial power to prevent tyranny and protect liberty”, and this principle works for many countries, including Kuwait.97 The Constitution of Kuwait was adopted in 1962 after the country was proclaimed independent,98 and the principles of the codified law system were reflected in its articles.99 According to Hijazi, the Kuwaiti Constitution reflects and determines the approach to dividing powers in the country’s criminal justice system.100 Articles 6 and 7 state that Kuwait has a democratic government and its justice system is based on the principles of democracy and equality.101 In addition, Article 8 of the Constitution notes that the state guarantees the security and protection of its citizens.102

Article 50 of the Constitution declares the principle of the SOP for the state, which is reflected in the criminal justice system.103 Alhajeri demonstrates that the Constitution creates a threefold SOP and entrusts specific powers in its elements, whilst also requiring that they are independent of each other. In her article, Barkow also answers the question about the role of the Constitution in determining the SOP for the criminal justice system. She states that “each branch must agree before criminal power can be exercised against an individual. Congress must criminalise the conduct, the executive must decide to prosecute, and the judiciary (judges and juries) must convict”.104 The same approach is also followed in Kuwait because Parliament criminalises the conduct, guidelines for prosecutors are written according to the Constitution, and the judiciary is responsible for convicting, employing the principles of law adopted from the French and Egyptian systems.105

An analysis of the Constitution of Kuwait reveals an important element of its articles: the figure of the Amir. The legislative power is “vested in the Amir and the National Assembly”;106 the executive power “shall be vested in the Amir, the Cabinet and the Ministers,”107 and the judicial power “shall be vested in the Courts in the Amir’s name.”108 Article 56 also states that Ministers are appointed by the Amir, but the number of Ministers cannot be greater than one-third of the National Assembly, which is formed through “general direct secret ballot.”109 Both males and females are allowed to vote after they reach the age of 21.110 Thus, the people’s will is generally expressed by the National Assembly, and the suffrage of Kuwait is considered to be “near universal” and fair. 111

With respect to legislation, the Amir has the right to propose, sanction, and promulgate laws, and laws can be submitted by the National Assembly to the Amir. Also, the Amir can produce a variety of decrees that can be used to enforce laws, regulations, and “other necessary rules.”112 Thus, the legislative and executive powers are closely connected to the Amir, even though his power is balanced out by the Cabinet (chosen by himself, preferably from the National Assembly)113 and the National Assembly (chosen by the people).114 The candidates must be Kuwaiti, at least thirty years old, and fluent in Arabic; also, they have to correspond to the current requirements of the Electoral Law. 115 Overall, the Amir possesses great power, but the Constitution limits it notably.116

It is acknowledged that the Assembly “plays an active and substantive role in governance, both in legislating and in monitoring the government,” especially when compared to the activities of parliaments in other constitutional monarchies of the region.117 In particular, the Amir’s decrees and the appointment of the Prime Minister can be controlled by the body to an extent.118 More than that, in 2006 the National Assembly set forward the appointment of Amir Sheikh Sabah Al-Ahmad Al-Sabah, instead of the then-ailing Amir Sheikh Sa’ed Al-Abdulah Al-Sabah. This was considered an empowering step that signified a strengthening of democratic tendencies in Kuwait.119 As a result, through the Assembly, the people became the source of sovereignty for the country.120 According to Selvik and Alnajjar, the people of Kuwait can be characterised as politically active,121 which appears to correspond to reality, despite the relatively subjective character of the term.

The Kuwaiti judiciary is supposed to be completely separated from the Amir, since “no Authority may wield any dominion over a Judge.” 122 But the judges are expected to perform their duties in the name of the Amir. Also, it is apparent that a country’s judicial system is unlikely to be completely immune to varied external forces.123 Still, it can be stated that the Constitution of Kuwait postulates and demands the independence of the system from the direct influence of external forces, including the executive power.124

However, certain boundaries and obstacles to the continued development of Kuwaiti democracy have been identified, including political challenges (for example, power imbalances and a lack of unity in the opposition) and economic issues – the liberalisation of the economy is considered unfinished,125 which means that the government is not ready to relinquish its control over a number of economic aspects, for example, lending rate ceilings.126 As shown by Al-Zumai, both economic and political issues tend to weaken the development of democracy, including the empowerment of Kuwaiti parliament and voters,127 which eventually hinders effective SOP. It has been established that the Amir still holds impressive power, which is enhanced by the extensive involvement of the country’s princes in political matters as Ministers.128 Also, a number of setbacks before 1992 involved unconstitutional dissolutions of the Assembly.129 Fortunately, the new century has seen only constitutional dissolutions.130 As a result, the democratisation of the country is incomplete.

The analysis of key governmental bodies also indicates that majoritarianism appears to be present in the Kuwaiti political system. Majoritarianism can be defined as an approach to politics that favours a particular majority, resulting in that majority being able to influence a country’s politics to a greater extent.131 Given the fact that judges are not immune to these influences, majoritarianism is clearly an issue for SOP in criminal law. This is especially true for Egyptian judges in Kuwait, who are particularly unwilling to disturb the powerful groups of the country because the salary of a judge is greater in Kuwait than in Egypt. 132

As pointed out by Ashworth and Horder, the “individuals whose preferences are at odds with those of the majority” are bound to “lose out” in the case of democratic or participatory decision-making.133 Thus, the main problem with majoritarianism is the neglect of minorities, which attracts criticism and calls for an approach that is more representative.134 It is noteworthy that offenders are a minority, and from the perspective of the criticism of majoritarianism, a balance between the protection of the majority and the human rights of both groups needs to be found.135 In general, majoritarianism is relatively typical for Asian countries, and Kuwait does not appear to be an exception.136

To sum up, the existing state of affairs in Kuwait cannot be regarded as an illustration of the theoretically ideal SOP, even though it has travelled a long way from the archetypical monarchy.137 Nowadays, liberal tendencies in Kuwait remain strong138 despite the difficulties in establishing them139 and the fact that the United Nations insist on the further development of democratic governance in the country,140 which is its policy in the Asian region in general.141 Kuwait seems to respond favourably to such comments as it tends to highlight the importance of freedoms142 and equality143 for its population, while also emphasising its agreement with the UN.144

It is important to note that, according to Conway, no currently existing system has managed to achieve the pure threefold SOP that, according to the author, exists only theoretically, 145 and this results in both risks and benefits for citizens. Similarly, Daughterly points out that separating the judicial branch from the executive one is a necessity, but one that is not always possible, providing an example of a politically-influenced case of criminal prosecution.146 Therefore, the issues that are experienced by Kuwait do not indicate the impossibility of change and, in fact, signify a room for improvement.

The Past Influence of British Jurisdiction and the Continuing Impact of French, Egyptian, and Islamic Law on the Criminal Justice System of Kuwait in Terms of Separation of Powers

The current criminal justice system of Kuwait is based on contrasting principles of British Jurisdiction (as a past influence) as well as French, Egyptian and Islamic law (that can be described as continuing influences). This feature makes the criminal justice system in Kuwait rather unique in its diffusion and dependence on several different patterns, including the reference to civil codes and Islamic views.147 Farran, Gallen, and Rautenbach148 offer a collection of chapters that are devoted to different cases of law diffusion. One of them is Williamson’s work,149 which refers to Kuwait and considers the way that a variety of legal concepts are diffused within its legal system.

The author also points out that scholars do not tend to have a unanimous opinion concerning the classification of the Kuwaiti legal system, which is common for the subject 150 but which results in very different appraisals of the share and influence of different sources of Kuwaiti law. The author mentions that some scholars, for example, Palmer, choose to highlight civil and Islamic law while, for example, the Central Intelligence Agency, which also devotes reports to the topic, emphasises common and French civil law.151. According to Williamson, the country’s history (in particular since colonisation and the restoration of independence) is responsible for the process of diffusion, and this process may explain “the discrepancies between these classifications.”152 The present section will consider all the pertinent influences that have had a major impact on Kuwaiti law.

British Jurisdiction (Past Influence)

Kuwait used to be under the influence of the British Jurisdiction since 1925 and until the country became independent in 1961. 153 Technically, however, Kuwait was not colonised by Great Britain; instead, the two countries entered an Anglo-Kuwaiti Treaty, in which it was specified that Great Britain would provide protection but would not interfere with the internal affairs of Kuwait.154 Great Britain had entered such treaties with multiple other countries, including, for example, Bahrain.155 The treaties affected the external politics of the Gulf states,156 but they were intended to have no consequences for their internal affairs, including positive ones.157 It is noteworthy that the level of democracy in Bahrain158 is considered to be lower than that in Kuwait.159

For instance, in both countries, there is a constitution, a king (Bahrain) or Amir (Kuwait), a cabinet of ministers appointed by the king or Amir, and a National Assembly elected by the people. However, in Bahrain, the ministers constitute half of the government,160 and in Kuwait, ministers can only take up one-third of it,161 providing more power for the representatives of the people. Thus, the two countries that share similar history have moved in the same direction (towards complete independence and democracy), but Kuwait has moved further. It has been suggested that the activities of colonising countries could have been either beneficial or harmful for the development of democracy in a country.162 Possibly, the lack of direct colonisation and the presence of only treaties reduced the potential negative impacts of outside influence on Kuwaiti democratic growth.

Thus, in Kuwait, the British Jurisdiction operated separately from the National one. In other words, between 1925 and 1961, the country had two separate and very different Jurisdictions, 163 the latter of which applied to predominantly to Kuwaiti citizens while the former was applicable to other groups, mostly British, Americans, Greeks, and some others. 164 According to the literature of the time, the National Jurisdiction was “ relatively semitribal” 165 and had “no written laws, no procedure and no defined courts”166 with the exception of the “personal status matters, which were and still are governed by Islamic law.” 167 The British Jurisdiction was based on English legal principles and mirrored the procedures and court functions of England.168

The two Jurisdictions worked together for mixed cases, but in general, the existence of two different jurisdictions led to problems and confusion.169 Given the advantages of a system with written laws and defined procedures, the British Jurisdiction became popular in Kuwait, but consequently, it was also attacked by the nationalists because it was symbolic of potentially colonialist issues.170 Again, Kuwait was not a colony; it was a party in a treaty with Great Britain, but at the time, the presence of the British Jurisdiction in Kuwait caused unease, especially among the nationalists.171 As a result, in 1959, it was established that the British Jurisdiction in Kuwait would be repealed after a new working system would have been implemented,172 and in 1961, the British Parliament officially fulfilled that promise. 173

After removing themselves from the

The British Jurisprudence legacy is multidimensional. According to Abdullah Alnafisi, who is a former Parliament member, the influence of British specialists like John Richmond, George Middleton, Edward Heath, and William Loose illustrates that legacy. In particular, the named figures prompted the Amir to pursue democratic principles and freedom of press.174 On the other hand, there have been cases in which Britain hindered the development of SOP and democracy, for example, by ensuring the dissolution of the first Shura Council in Kuwait.175 The Jurisdiction that was developed for Kuwait in the years following the decision to repeal British Jurisdiction was not based on the principles of the latter, which limits its impact on Kuwaiti legislation. However, it can be argued that the reason for choosing non-British legislation for Kuwaiti laws might be connected to colonialism and subsequent rejection of British Jurisdiction.176 Thus, the choice of non-British legislation for Kuwait may have been the result of its presence in the country, which demonstrates that British Jurisdiction is an important influence on Kuwaiti laws.

French Civil Law in Kuwait (Latin Civil Law)

The French law has served as an inspiration for the codified law of Kuwait in the majority of areas that do not cover personal status or financial matters (in particular, banking and tax legislation), which are governed by Islamic law.177 This outcome was achieved indirectly: the legal system of Kuwait that was developed to supplant the British system was based on the Egyptian law, and the latter is noticeably inspired by the French law. 178 Other influences have also been noted; for example, the Kuwaiti Law of Commerce was created with the help of Iraqi law, which is also based on French legal principles.179 In turn, a major source of the French law is the Roman law, which is associated with the prioritisation of functional codification.180 Thus, the French law has influenced the Kuwaiti law indirectly through multiple sources while also bringing its own sources to have an impact as well.

According to Williamson, French law tends to be viewed as relatively less flexible and convenient than the British law. For example, the author notes certain French law-related drawbacks that can affect economic development. In particular, the British law is considered to be more business-friendly (providing “more adequate institutions for financial markets”) and implies less governmental interventions than the French law.181 Williamson amends that this idea is supported by limited evidence and can be contested, but the author also suggests that the Kuwaiti legal system might have inherited the issues related to the French law. 182 The author exemplifies this statement using the comments of the Oxford Business Group regarding the restrictive legislation in Kuwait that may result in challenges for the economic development of the country.

Admittedly, the report mentions some information about restrictive legislation, for example, that pertinent to insurance.183 However, it also highlights some achievements in the field, including the movement of the tax legislation towards a more liberal one.184 Therefore, it is difficult to assess the impact of French law on Kuwaiti legislation, but it is clearly present.

Egyptian Law and the Kuwaiti Civil Code Used by Judges

The Egyptian law was particularly important for the development of the Kuwaiti legislation because the working system that was meant to supplant the British Jurisdictions in Kuwait was based on it. Indeed, Dr Abdel-Razzaq al-Sanhouri (a famous and accomplished185 specialist from Egypt) was invited to develop the new Kuwaiti legislation, and since he was Egyptian, he used the Egyptian legal system for inspiration.186

Thus, the Egyptian Law assisted in the development of the codified Kuwaiti law in the non-personal status matters along with the French Law.187 The Kuwaiti Civil Code was enacted in 1980.188 It incorporates the general rules of Kuwaiti law; the more specific cases (for example, commercial transactions) are regulated by specific laws (for example, Commercial Code).189

The new system developed by Dr al-Sanhouri was based on non-Kuwaiti legislation rather heavily and was also implemented in a very short time,190 which is why it was not assimilated easily and is sometimes described as unnecessarily complicated and cumbersome, as well as inflexible.191 Williamson suggests that such a conclusion is largely warranted and uses the example of the ease of conducting business in the country to demonstrate that the process is more complicated in Kuwait than in New Zealand.192 The lack of judges and lawyers in Kuwait was resolved by attracting Egyptian specialists, which is a decision that must have been necessary at the time, but which also required a different long-term solution. 193 In summary, the development of the new system was not very smooth, and some of the issues related to it have remained topical to this day.

Muslim Jurisprudence in Kuwait

As mentioned, the Islamic law (Shari’a) dominated Kuwait until the middle the previous century. 194 In fact, in the 1930s, the people of Kuwait petitioned for the introduction of a Shari’a-based political system. 195 The influence of the Muslim jurisprudence on modern Kuwait is notable; 196 in fact, it is explicitly stated in Article 2 of Constitution that the Islamic Shari’a is supposed to be a primary source of Kuwaiti legislation.197 However, according to Williamson, Islamic Shari’a is a major but not the main source of Kuwaiti legislation; the author points out that it is used predominantly for personal-status matters and financial services (Islamic banking is very well-developed in the country).198 In the end, the result of the law diffusion in Kuwait is a combination of Muslim law and French-Egyptian-based civil law.199 In summary, the diffusion of law in Kuwait is the result of its history, the investigation of which can help to pinpoint and comprehend some of the challenges faced by the system nowadays.

The Kuwaiti Constitution as the Guarantor of Democracy and Citizens’ Equality before the Law

The Kuwaiti Constitution is the guarantor of democracy in the country, which can be proven with the help of Article 6, which states that the country’s governmental system is democratic.200 The rights of the population of Kuwait are proclaimed by Articles 27-46, which includes rights to privacy,201 freedom,202 trade unions,203 freedom of religion,204 expression,205 opinion and press,206 and so on. Also, the freedom from torture and the principle of no “punishment without law” are included in the Constitution. 207 Apart from that, the citizen’s equality is directly stated in the Constitution’s preamble and supported by Article 8, 208 which is concerned with equal opportunities, and Article 29, 209 which specifically points out the equality of the people of Kuwait “in the eyes of the Law.” In summary, the Kuwaiti Constitution guarantees human rights, democracy, and citizen equality.

The Three Divisions of the Criminal Justice System in Kuwait

The Police as the Law Enforcement Body and Divisions within the Ministry of Interior

Within the Ministry of Interior, which is responsible for enforcing the law, the Directorate of Police and Public Security210 represents the law enforcement body. 211 Its divisions include those working with criminal investigation, civil defence, traffic, immigration, and so on, which corresponds to the typical activities performed by a law enforcement agency. 212

There are some issues related to Kuwaiti police that can be found in literature. The recent report on Kuwaiti criminal justice suggests that there is no effective SOP with respect to investigative power when police and prosecutors are concerned.213 Apart from that, the Ministry of Interior demonstrates a lack of control over the national police, its sub-divisions, and the National Guard in relation to investigations and guaranteeing public security.214 This is the result of the existence of a rather complicated net of agencies that are responsible for internal security, which results in their responsibilities overlapping.215 Consequently, citizens’ rights can be violated when individuals are unfairly imprisoned or held in police offices for more than four days without prosecution. The criminal justice system must respect human rights and freedoms,216 but the inefficiency of the system can pose a threat for them.

Naturally, the Penal Code of Kuwait contains Article 184, which states that imprisoning or arresting a person “without observing the procedures” must be punished.217 Moreover, the Constitution also contains Article 31, which establishes that people cannot be “arrested, detained, searched, or compelled to reside in a specified place” unlawfully.218 Finally, the Prison Regulation Act 26/1962 establishes the need for a legal authorisation for imprisonment.219 Thus, there are multiple legal safeguards, but they might not be entirely successful in achieving the desired level of protection of human rights.

Prosecutors as Part of the Criminal Justice System and Details of the Prosecutorial Process

Prosecutors are a part of the judicial system of Kuwait, appearing in the courts of different levels.220 Public Prosecution221 members defend the interests of the community of Kuwait. 222 The decision regarding the appointment of the candidates is made by a body called the Supreme Judicial Council.223 The latter is comprised of the Heads and Deputies of Kuwaiti Courts (including Court of Cassation, Court of First Instance, Court of Appeal, and Supreme Court of Appeal), as well as the Public Prosecutor. 224 A representative of the Ministry of Justice is also present in the Council, but they are prohibited from voting.225 The activities of the Council are governed by the law. 226 The appointment decision is carried out by the Minister of Justice through decrees.227 Thus, since the decision is made by the Council, which consists of the representatives of the judiciary, it can be suggested that the appointment of prosecutors does not depend on the Minister.

Liability to prosecution is governed by the Kuwait Penal Code. 228 According to a recent report, the prosecutors that were interviewed for it “appeared not to fully understand their role during the trial process.”229 Apart from that, the problem of insufficient SOP between police and prosecutors seems to be problematic.230 Thus, the literature on the topic identifies some pertinent procedures and issues, but in general, Kuwaiti prosecution does not receive sufficient coverage in modern research. As a result, no reliable source was found that would critique the details of the prosecution processes in Kuwait.

The Kuwaiti Judicial System and the Responsibilities of Judges

The Judicial system of Kuwait consists of the Courts of First Instance, the Courts of Appeal, the Supreme Court or Court of Cassation, and the Constitutional Court.231 The courts of the first two degrees are comprised of three judges, and the Supreme court consists of the court’s heads, deputies, and Consultants. The Constitutional Court is comprised of five Consultants.232 The first- and second-degree courts and the Supreme Court also incorporate multiple circuits dedicated to particular law branches. 233 The Constitution points out that the Military courts are “restricted to deal with military offenses committed by members of the Armed and Public Security Forces within the limits prescribed by Law.”234

According to the recent report, the judicial supervision is crucial for Kuwaiti criminal justice, but no direct guidelines on this process exist. 235

The independence of judiciary is established Articles 50, 53, and 163 of the Constitution. The Kuwaiti judiciary is supposed to be completely separated from the Amir, since “no Authority may wield any dominion over a Judge.” 236 But the judges are expected to perform their duties in the name of the Amir. Also, it is apparent that a country’s judicial system is unlikely to be completely immune to varied external forces.237 Still, it can be stated that the Constitution of Kuwait postulates and demands the independence of the system from the direct influence of external forces, including the executive power.238

The effectiveness of Articles may be undermined by the fact that senior judicial officials are appointed by the Minister of Justice (who belongs to the administrative branch of power) through decrees. 239 However, the Minister has to consult the Supreme Judicial Council before the appointment,240 and the decision should belong to the Supreme Judicial Council,241 which is comprised predominantly of the representatives of the judicial branch of power.242 The rest of the officials are appointed by the Supreme Judicial Council. However, as pointed out by Brown, the Council includes the mentioned senior officials and is not independent in its funding. 243 Moreover, foreign judges are appointed after requests by the Ministry of Justice, without any discussions with the Council.244 Apart from that, the Minister is lawfully vested with the power to supervise the judiciary system.245 Thus, certain aspects of judiciary-related procedures appear to undermine the independence of the judiciary.

Some of the historical developments in the field of judicial independence can be regarded as adversely affecting the SOP. There was a notable attempt to make the justice system less dependent in the 1980s, which was curbed as a result of the suspension of Parliament in 1986 and reintroduced in the 1990s in the form of new proposals. 246 In particular, the 1990s saw a decree limiting the independence of the judiciary;247 it prevented the Courts from considering acts of sovereignty.248 The decree was not repealed to this day. Thus, there is a need for continuous development of SOP to ensure the independence of Kuwaiti judges.

Other issues pertinent to the judges of Kuwait may also pose threat to human rights. They may include transparency issues.249 Moreover, although judgements are usually declared to be in line with the principle of equality of all citizens before the law, they tend to take a lot of time to “move their way through the court system,”250 which implies the existence of red tape.

According to Liebesny, challenges in the Kuwaiti legal system “arose initially since the courts, staffed by lawyers from Arab countries whose systems had been modernised many years ago, were not familiar with the background of the Kuwaiti system,” and moreover, “the Kuwaiti court clerks and police officers on their part found the precipitous introduction of a largely alien system hard to cope with.”251 Williamson also agrees that “the strong presence of foreign (mainly Egyptian) judges working in the Kuwait judiciary” creates a challenge for the system.252 The fact that judges in Kuwait are often non-citizens can undermine a sense of their legitimacy when they need to be regarded as the highest authority in determining punishments. Brown points out that the need for foreign judges is typical for some Arab countries due to their shorter legal history, which may result in less-established law schools.253

He emphasises, however, that Kuwait’s legal history is sufficient to avoid employing foreign lawyers and that Egyptian lawyers can only take overseas contracts (through which they are recruited in Kuwait) for a limited number of years, which, in his view, makes the problem less acute but still present. 254 Currently, Egyptian judges are appointed for four years (with a possible two-year extension) through an Egypt-approved request from the Kuwaiti Ministry of Justice; as of 2011, there were 300 Egyptian judges working in Kuwait.255 The appointment of foreign judges would be expected to reduce the issue of the elitism of the judiciary, but it should be pointed out that Kuwaiti judges hold their posts for a lifetime, even though they can be removed from this position in the case of misconduct.256 Thus, it can be suggested that Kuwait suffers “from unnecessarily complicated, inflexible and sometimes outdated laws and procedures, not to mention frustrating bureaucracy.”257 As a result, the authority of the courts becomes questionable. In this context, there is the possibility of the introduction of the jury system in Kuwait to increase the potential for fair trials, but researchers state that the criminal justice system of the state is not prepared for this pattern.258

It should be pointed out that the judicial independence and transparency appear to be commonly challenging to achieve, while corruption is difficult to avoid in a variety of countries, indicating that the problems are not unique to Kuwait and its SOP.259 For example, Ashworth considers the topic of the separation of powers and responsibilities in the field of restorative justice, highlighting the role of government in ensuring the independence of justice, and pointing out that state-led justice tends to have flaws and can result in failures.260 In particular, Ashworth states that “the list of failures of state justice is a lengthy one.” 261 Still, Brown asserts that since the 1990s the process of increasing judicial independence in Kuwait has been in motion.262 This process illustrates the fact that the government tends to develop and evolve together with the evolution of the SOP. 263

Resources Available for the System’s Functioning

The criminal justice system requires resources for functioning just like any other system. In particular, funding, human resources, equipment (for instance, police cars or computers) are necessary. 264 However, according to the recent report on Kuwaiti criminal justice system, resources in it are not distributed adequately.265 Therefore, at least one issue pertinent to the topic can be encountered in relevant literature. However, the topic of resources within the criminal justice system of Kuwait appears to be otherwise uncovered by recent and less recent literature, which limits the ability of the current study to draw conclusions on it.

The Role of Article 50 in the System

Article 50 of the Constitution which requires SOP, as well as cooperation of powers, states that “No Authority shall be allowed to waive all or part of its jurisdiction.”266 Therefore, the Article guarantees SOP and implies that each of the components of criminal justice of Kuwait must act in accordance with their authority. The significance of establishing SOP has already been mentioned, 267 which suggests that the implications of Article 50 for the functioning of the criminal justice system should be notable and beneficial. However, as it was mentioned above, the cases when the authority of the elements of the criminal justice system was underdefined268 or waived do occur.269 Consequently, the literature indicates that Article 50 is not always followed, but following it is crucial for ensuring SOP and the lack of power abuse.

Summaries

The significance of SOP is easily established by the literature, but criminal-matters SOP is less extensively covered. As a result of the present literature review, no studies that would consider the criminal justice SOP in Kuwait were found, but the research and reports on the aspects that can be included in the discussion were encountered. In particular, the majority of the significant aspects of the criminal justice system can be described relatively well, which offers the opportunity for analysis. Similarly, the diffusion of law has been discussed relatively extensively. Also, the issues experienced by the criminal justice system in Kuwait appear to have received some coverage. The fact that the topic is understudied limits the ability of the literature review to respond to the research questions, but still, the following conclusions can be made.

The history of the development of Kuwaiti legal system has defined its features and some of its problems. Kuwait had experienced the impact of British Jurisdiction for a long period, but when the country gained independence from the United Kingdom in 1961, the civil law system, based on the Egyptian law, which, in turn, is developed in accordance with the French law, was established in the country in addition to traditional Islamic law. However, the hasty introduction of the new legislation, as well as some of its inefficiencies, and the introduction of Egyptian lawyers into the Kuwaiti legal system have caused some long-lasting issues. The Constitution of Kuwait requires SOP and independence of the judiciary while also granting the citizens all the necessary rights and proclaiming them equal in the eyes of the law. However, the mentioned issues, especially those related to transparency and red tape, might endanger those rights. Moreover, there is some evidence indicating that the independence of judiciary being limited legislatively. Apart from that, the literature on the topic indicates other inefficiencies in various elements of the criminal justice system of Kuwait.

As shown by Barkow’s article, which is the framework of the present study, the development of criminal-matters SOP is a crucial element of Kuwaiti’s democratisation, and it is an important guarantee of the protection of the freedoms and rights of Kuwaiti people, which is especially evident in the light of the issues and barriers mentioned above. As a result, the proposed research aspires to investigate SOP, primarily by considering its constitutional and historical roots, and discussing its effectiveness from the point of view of human rights’ protection.

Methodology

The research will be conducted with a focus on the review of primary sources and laws that provide the basis for the development of the criminal justice system in Kuwait. The main sources include the Constitution of Kuwait and the series of laws determining the principles of the country’s judiciary system. In addition to the overview and analysis of primary sources, it is also necessary to work with secondary sources, such as journal articles and studies that have been conducted by researchers in the field of world criminal justice and in the area of the criminal justice and legal systems of Kuwait. Finally, qualitative interviews will be employed to complement the missing data from the primary and secondary sources. The present section will consider the key elements of the methodology, justifying the chosen methods and offering definitions for them.

Research Philosophy

The present investigation is guided by the postpositivist perspective. It is an approach to research philosophy that aims to upgrade positivism (which can be described as the “philosophy of science”) by incorporating some of its ideas and rejecting other ones.270 From the postpositivist perspective, knowledge is perceived as replicable, sharable, and capable of being accumulated, which is reminiscent of positivism.271 Similarly, in post-positivism, objective reality is believed to exist,272 and people are expected to be capable of constructing knowledge based on high-quality evidence.273 However, the evaluation of the quality of evidence is not limited by its quantification, which is characteristic of positivism, and the contexts of studied phenomena are taken into account in post-positivism the way they would be considered in non-positivist approaches.274 Thus, the postpositivist perspective upgrades positivism in a way that would help it acknowledge and effectively frame qualitative research studies.

Qualitative Research

Qualitative research refers to an approach to investigation that works with qualitative data: words and meanings.275 The choice of the qualitative approach for the present study can be justified through multiple factors. First, this approach has been employed in legal research with success, which implies that it can be selected for the present study as well.276 Second, qualitative methodology is supported by the postpositivist philosophy.277 Third, the phenomenon that is being studied can benefit from qualitative research since the evidence to the existence of SOP and its guarantees, as well as their contribution to the protection of human rights, is most likely to be qualitative. Similarly, the determination of the ways to ensure human rights protection, which needs to be explored, is also going to require the collection and analysis of qualitative information (expert opinions). Some of the phenomena that the present study is going to consider can only be traced through qualitative means, including, for example, the diffusion of law in Kuwait. This idea can also be supported by the SOP criteria discussed above.

Indeed, the SOP criteria, which have been developed based on the literature review, predominantly focus on the analysis of procedures related to appointment and supervision of the judiciary, case management details, specifics of police conduct, and so on. All these criteria would require qualitative evidence. Consequently, the criteria can only be applied within a methodology that incorporates qualitative methods.

The nature of the research questions is also noteworthy: most of them are exploratory and require the in-depth investigation of phenomena, which is typically done through qualitative research.278 Therefore, in order to answer the research questions of the study, it would be necessary to employ qualitative methods. Thus, qualitative research can generate and analyse the required evidence for the study while also being capable of responding to the research question and being in line with the work’s philosophy.

In the present study, qualitative research is carried out in two forms. First of all, a literature review is carried out to determine the already existing knowledge on the topic. Then, interviews are conducted to potentially cover some of the gaps in the current knowledge. Both approaches can be viewed as types of qualitative research in legislation.279 For example, the report of the Kuwait International Legal Research Centre on criminal justice in Kuwait employed a similar combination of methods.280 The use of several methods is one of the approaches to triangulation, 281 which improves the rigour of the study. Apart from that, given the scarcity of literature on the topic, the use of interviews with specialists allows expanding data sources. Thus, the chosen approaches complement each other and help to investigate the phenomena of interest in greater detail.

Semi-Structured Interviews

Interviews are a particularly popular, commonly-used, well-established, and well-described qualitative method.282 The present study chooses them for their ability to contribute the data that would provide insights into phenomena and connections between them. 283 Interviews are also an appropriate method from the postpositivist perspective.284 Interviews can assist in employing the knowledge of experts in studies, which the present study intends to do in order to complement the literature review results.

There are several approaches to interviews. On the one hand, there are individual and group interviews.285 The former are more effective in bringing out personal perspectives while the latter are usually used to discuss shared experiences,286 but can have the drawback of silencing individual voices.287 Since the study does not focus on group experiences and is mostly interested in individual expertise, individual interviews were chosen for it.

On the other hand, interviews vary in the level of their flexibility.288 There are structured interviews, which are the least flexible and require direct answers to direct questions with little possibility for additional remarks.289 Also, there are unstructured interviews, which have almost no structure and require a participant to express their view on particular phenomena with few prompts from the interviewer.290 Finally, there are semi-structured interviews that have a structure (typically, a set of questions) but also offer flexibility and allow the interviewee to deviate from the planned discussion with the aim of gaining more insights on the topic.291 In this case, the interviewer is required to prompt both the answers to the required questions and the exploration of the additional topics that an interviewee mentions. The latter interview version offers a balance,292 which seems to be beneficial to the current research: the interviewees will be guaranteed to respond to the prompts that are necessary to answer the research questions due to the structure of the process. However, they will also have enough flexibility to provide additional insights that the researcher might not have predicted due to personal bias and limitations. As a result, the latter option was chosen.

Certain limitations of semi-structured interviews should be mentioned. First, like the majority of qualitative research methods, they produce the evidence that cannot be replicated and that can be viewed as “subjective” (biased).293 However, these limitations can be disputed: replicability issues can be resolved through the rigorous planning of the procedures,294 and bias is a problem that is not interview-specific. In fact, no research is actually free from bias since the results are interpreted by the researcher.295 Consequently, it is necessary to acknowledge the issue and review the findings while taking into account this limitation.

The interviews took between 45 and 60 minutes with the average time amounting to a little over 50 minutes (see Appendix A). The development of the interview tool is also a noteworthy topic. The questions for it were created in order to provide all the information that is necessary for the study, including the data that would help to respond to the research questions and that which would assist in identifying the interviewees’ ability to perform the task. The SOP criteria considered above were also used to guide the tool development, and an extended question is devoted specifically to their analysis. Triangulation296 was used to improve the tool: five independent people with researcher backgrounds (University educators) were involved in the process to ensure that the final product is understandable, focused, well-structured, and lacks redundant questions. As a result, 14 questions were chosen for the final tool, which is attached in Appendix B.

The tool was developed in English, but it was translated into Arabic and checked by five experts to ensure that nothing could be lost in translation. The choice to use Arabic was made because although the interviewees speak English, their native language is Arabic. This decision was made predominantly to make the interviewees comfortable and capable of expressing their ideas without any language barriers. In summary, the convenience considerations were a significant element of the development of the tool.

Sampling

The justification of its sample is crucial for the quality of a qualitative study. 297 The sampling process was guided by the quota approach, which refers to a non-probability method that consists of choosing a specific number (quota) of people from particular subgroups within the sampled population.298 As a non-probability method, quota sampling is not appropriate for generalisation purposes, but since the study does not intend to provide generalisable results, this fact does not appear to be a major hindrance.299

The method was chosen because the sample attempted to ensure the equal representation of the subgroups of the participants. The participants included the people who are familiar with Kuwaiti legislation: judges, lawyers, parliament members, legal professionals, and academic legal specialists (university academics). It is apparent that the first three groups represent the three powers of the SOP; as for the latter, they are particularly well-familiar with the topic of interest.

Another inclusion criterion was based on the need to recruit specialists: only people between 35 and 55 were recruited. This decision was aimed at ensuring that the participants have some sufficient experience with Kuwaiti law. As for the maximum age criterion (55), it was necessary to avoid recruiting the elderly population, which might result in ethical difficulties since the elderly can be viewed as a vulnerable group.300 In summary, participant selection was geared by the ability of the participants to respond to the research questions, which would be based on their expertise and experience with Kuwaiti criminal justice system, as well as some ethical considerations.

The checklist that summarises the information about the participants can be found in Appendix A. It demonstrates that all the quotas required recruiting 5 representatives of each position that was targeted by the study. Apart from that, it indicates that seven of the participants were female (28%) and only five of the participants (20%) were younger than 40. The checklist presents the basic information about the participants that may be of consequence for the study.

The sampling quotas were also connected to the fact that qualitative data requires more time to analyse than quantitative; consequently, the researcher needed to take into account the resources, especially time constraints of the research, to make sure that the sample is feasible.301 Smaller samples have the problem of not being very representative or generalisable,302 but for the present study, it need not be a problem. Indeed, the study does not intend to make generalizable conclusions about the population it samples; in fact, it does not study the population. Rather, the participants are employed to gather expert knowledge and opinions.

The procedures that were completed to ensure the protection of the rights of the participants should also be mentioned due to their utmost significance for any research. 303 The participation is fully anonymous and confidential; while the study requires the collection of the data that can demonstrate the expertise of the interviewees, no identifying information was obtained. The participants were anonymised with the help of codes (Participant Identification Numbers). The audio-recordings of the interviews are only available to the researcher and kept in a secure location (the researcher’s home) on an electronic device under password protection. Other researchers might be granted access to the transcripts, and the final report will contain some quotations, but no personal or identifying information will be present in either transcripts or quotations.

The participants were informed about all the study procedures in their participant information sheets (see Appendix C), along with the risks and benefits of participating. The sheet expressly stated that the participation had to be voluntary and highlighted the fact that withdrawal could occur at any moment. Having read the participant information sheet, the participants were presented with the informed consent forms (see Appendix D), which repeated some of the crucial details from the information sheet, including the need to tape the interview, the use of anonymised information and quotes in the report, and the fact that the anonymised transcript might be reviewed by people other than the researcher. The participants were only interviewed if and after they had signed the consent form. Copies of the information sheet and informed consent forms were provided to the participants.

The participants were contacted with the help of e-mails or through a visit to their office with the aim of scheduling an interview. The latter option was a requirement for judges and parliament members due to their workload; they were also exceedingly difficult to schedule for the same reason. However, the enthusiasm of the participants helped in getting interviews with them.

Data Analysis

The present study is going to employ thematic analysis for its data. The choice of the type of analysis is defined by the needs and specifics of the study, as well as the features of the approach to analysis. Thematic analysis can be defined as an approach to data analyses that focuses on determining and investigating “patterns (themes) within data.”304 A theme, in turn, is a pattern that appears in the data and that is pertinent to the research question; its size or frequency of appearance can vary since a flexible approach to the term can benefit the study.305 Themes are associated with codes, which are the basic elements of data that might be pertinent to the research question; themes unite the multiple codes.306 If a study aims for a rich description of the data set, the prevalence of themes is going to need to be considered as well.307

Thematic analysis is a particularly widely used approach, which might be viewed as the “foundational method” of qualitative analysis because the identification of themes in qualitative data is a core component of many qualitative analyses.308 It is also relatively accessible, flexible and compatible with a wide variety of philosophies and epistemological stances.309 Therefore, it is applicable to the present study.

In the present study, which combines literature review methodology with the interview analysis, the thematic analysis is likely to be classified as “theoretical”: in other words, it employs the existing coding frames and focuses on a specific, well-developed research question. However, the flexibility for a more inductive approach is also present.310 Apart from that, the present study focuses on explicit themes that appear at the semantic level.311 This choice is guided by the postpositivist approach and aims at limiting the possibility of the misinterpretation of the gathered data, which is a relatively common concern for thematic analysis.312 Since the study provides the participants with direct questions in order to draw upon their expert opinions, it appears more reasonable to focus on the semantic level.

The key stages of thematic analysis include the processes of familiarising with the data, initial code generation, theme search, theme review, theme definition and naming, and the organisation of the report of the themes.313 Additional activities may also be singled out, but the key actions are defined as presented.314The identification of themes is continuous and starts before the analysis, for example, with the determination of research questions and literature review.315 The presentation of results can take the form of a table, and the present study intends to use this form. In particular, the specifics of the collected data are going to be organised in a table that presents the themes, codes that they incorporate, and the prevalence of themes in different groups of participants. Thus, by employing a well-established method of data analysis, the present study will be able to answer the research questions using the themes identified in them, as well as additional ones/

Summaries

The methodology of the study can be summarised in the following way. The adopted philosophy consists of the postpositivist perspective, which incorporates some of the positivist ideas and expands them with other ones. The work employs the qualitative approach to study design, using the methods of literature review and semi-structured interviews. Thematic analysis is chosen to process the data due to the fact that it is a well-established and convenient method that can be applied to the data collected by the study. The recruitment of the participants (a total of 25 people) was carried out with the help of quota sampling to ensure the representation of the key occupations that are expected to indicate expertise (belonging to branches of SOP, the criminal justice system of Kuwait, or the academic community). All the ethical considerations pertinent to carrying out a study with participants were reviewed, and anonymity, confidentiality, and voluntary nature of participation were ensured. The specific methods fit into the chosen approach and are in line with the postpositivist perspective, which means that the study’s methodology is consistent.

Provisional Table of Contents

Chapter One: Introductory Chapter

  • 1.1 Introduction
  • 1.2 The Role of Separating Powers between Institutions in the Criminal Justice System
  • 1.3 The Concept of a Criminal Justice System and its Patterns
  • 1.4 The Criminal Justice System of Kuwait
  • 1.5 Separation of Powers in Kuwait and Article 50 of the Constitution
  • 1.6 Conclusion

Chapter Two: The Past Influence of British Jurisdiction and the Continuing Impact of French, Egyptian, and Islamic Law on the Criminal Justice System of Kuwait in Terms of Separation of Powers

  • 2.1 Introduction
  • 2.2 British Jurisdiction (past influence)
  • 2.3 French Law in Kuwait
  • 2.4 Egyptian Law and the Kuwaiti Civil Code Used by Judges
  • 2.5 Muslim Jurisprudence in Kuwait
  • 2.6 The Kuwaiti Constitution as the Guarantor of Democracy and Citizens’ Equality before the Law
  • 2.7 Conclusion

Chapter Three: The Three Divisions of the Criminal Justice System in Kuwait

  • 3.1 Introduction
  • 3.2 The Police as the Law Enforcement Body and Divisions within the Ministry of Interior
  • 3.3 Prosecutors as Part of the Criminal Justice System and Details of the Prosecutorial Process
  • 3.4 The Kuwaiti Judicial System and the Responsibilities of Judges
  • 3.5 Resources Available for the System’s Functioning
  • 3.6. The Role of Article 50 in the System
  • 3.7 Conclusion

Chapter Four: Reforms to the Criminal Justice System of Kuwait – Article 50. Summary and Conclusion

  • 4.1 Article 50 and the Role of Separating Powers in Protecting the Rights of Citizens
  • 4.2 The Outcomes of Adopting Three Legal Frameworks (French, Egyptian, and Islamic) in the Criminal Justice System of Kuwait
  • 4.3 The Impact of Criminal Justice Structures on the Fairness and Effectiveness of the Criminal Justice System
  • 4.4 Recommendations to Guarantee a Focus on Democratic Principles in the Criminal Justice System of Kuwait

Appendix A

Responded Table (Check List)

Parliament Member: PM

Judge: J

Lawyer: LW

Professional: P

Academic: AC

  • PM1 Age: 39 (Interview duration: 60 mins) Position: Parliament Member (Gender: M)
  • PM2 Age: 43 (Interview duration: 50 mins) Position: Parliament Member (Gender: M)
  • PM3 Age: 47 (Interview duration: 50 mins) Position: Parliament Member (Gender: M)
  • PM4 Age: 55 (Interview duration: 60 mins) Position: Parliament Member (Gender: M)
  • PM5 Age: 53 (Interview duration: 50 mins) Position: Parliament Member (Gender: M)
  • LW1 Age: 38 (Interview duration: 60 mins) Position: Lawyer (Gender: F)
  • LW2 Age: 42 (Interview duration: 45 mins) Position: Lawyer (Gender: M)
  • LW3 Age: 45 (Interview duration: 60 mins) Position: Lawyer (Gender: F)
  • LW4 Age: 50 (Interview duration: 50 mins) Position: Lawyer (Gender:M)
  • LW5 Age: 46 (Interview duration: 60 mins) Position: Lawyer (Gender:M)
  • P1 Age: 38 (interview duration: 45 mins) Position: Legal Officer at Ministry of Justice (Gender: F)
  • P2 Age: 35 (Interview duration: 45 mins) Position: Legal Officer at Ministry of Justice (gender: M)
  • P3 Age 48 (Interview duration: 45 mins) Position: Legal Officer at Ministry of Justice (Gender: F)
  • P4 Age 44 (Interview duration: 45 mins) Position: Legal Officer at Ministry of Justice (Gender: M)
  • P5 Age 36 (Interview duration: 45 mins) Position: Legal Officer at Ministry of Justice (Gender: F)
  • AC1 Age 48 (Interview duration: 60 mins) Position: Law Professor (Gender: M)
  • AC2 Age 51 (Interview duration: 60 mins) Position: Law Professor (Gender: F)
  • AC3 Age 46 (Interview duration: 60 mins) Position: Law Professor (Gender: F)
  • AC4 Age 45 (Interview duration: 60 mins) Position: Law Professor (Gender: M)
  • AC5 Age 56 (Interview duration: 60 mins) Position: Law Professor (Gender: M)
  • J1 Age 45 (Interview duration: 45 mins) Position: Judge (Gender: M)
  • J2 Age 48 (Interview duration: 45 mins) Position: Judge (Gender: M)
  • J3 Age 55 (Interview duration: 45 mins) Position: Judge (Gender: M)
  • J4 Age 41 (Interview duration: 45 mins) Position: Judge (Gender: M)
  • J5 Age 52 (Interview duration: 45 mins) Position: Judge (Gender: M)

Total of Participants: 25ю

Appendix B

Separation of Powers in the Kuwait Criminal Justice System: Interview Materials

Introductory Questions

  1. The present research is devoted to the separation of powers (SOP) from the criminal justice perspective. It will predominantly employ the illustration of the criminal justice system of Kuwait. Are you familiar with the topics, and which channels provide you with the information on them (for instance, personal experience or research)?
  2. Does your practical or theoretical experience imply that the topics (the Kuwaiti SOP or the criminal justice aspect of SOP) are sufficiently represented in modern research and paid sufficient attention in practice? If they are not, do you believe that they need greater coverage and attention?

Criminal Justice SOP

  1. Do you believe that SOP (in general and in the criminal justice system) has specific functions? In other words, why is SOP desired and what is it expected to achieve? Please consider the interrelationships between the SOP in criminal justice and citizen’s rights and describe them.
  2. Please check the provided assessment criteria for SOP (see below). Do you agree with them? If not, please feel free to suggest changes and explain them.
  3. Do you think that the separation of powers is an effective tool in achieving the protection of the population of Kuwait? Can you think of an alternative or a complementary measure (for example, the improvements in protecting human rights)?

Kuwaiti Legislation

  1. The Kuwaiti legislation has multiple origins (including, for example, the French law and the religion of Islam). Can this factor somehow distinguish the legislation from more homogenous ones (in a positive or a negative way) in your opinion? Feel free to consider the potential impact of mixed origin on criminal justice SOP.

Kuwaiti Constitution

  1. Consider the contribution of the Constitution of Kuwait (especially Article 50) to the development of criminal justice SOP.
  2. Do you think that criminal justice SOP is sufficiently guided by Kuwaiti Constitution?

Kuwaiti SOP and Criminal Justice System

  1. Consider Kuwaiti criminal justice system from the perspective of SOP. Do you think that SOP is executed effectively (if it is, it should be present and fulfil the functions that you have suggested above)? If you want to, you can employ the proposed assessment criteria for criminal justice SOP, but please feel free to offer your personal criteria. Among other things, please consider the division of functions within the system (for example, the functions of the police, prosecutors, and judges) and the potential for wrongful conduct (abuse of power). If you find inefficiencies or issues, please try to describe them specifically.
  2. When analysing the mentioned inefficiencies, consider their reasons. Can you trace the reasons for the existing issues or detect vulnerabilities that can become reasons for future issues?
  3. Consider the consequences of the inefficiencies (existing or potential) in Kuwaiti criminal justice SOP. Can you already witness these consequences in practice or in personal life?
  4. Can you pinpoint any safeguards (for example, legal or administrative ones) that are aimed at ensuring SOP in the Kuwaiti criminal justice system (or have the potential to do so)?

Change Efforts and Recommendations

  1. Do you witness, experience, or participate in any efforts that are aimed at improving the Kuwaiti criminal justice system separation of powers? If yes, please describe and evaluate them (for example, consider the level of their appropriateness and timeliness, assess the execution processes and outcomes, and so on).
  2. Do you think that the separation of powers in Kuwaiti criminal justice system should be improved? Please feel free to make recommendations and explain them and their feasibility.

Criminal Justice SOP Assessment Criteria

  1. Transparency of the judiciary.
  2. Independence of the judiciary:
    1. appointment and removal of judges;
    2. financing of the judiciary;
    3. miscarriages of justice;
    4. political crimes;
    5. rights of offenders and inmates;
    6. the work of the appeal system;
    7. police interrogation.

Appendix C

Participant Information Sheet

Separation of Powers in the Kuwaiti Criminal Justice System: a Case Study

You are invited to be in a research study of separation of power in the criminal justice. You were selected as a possible participant because you are specialised in the field. I ask that you read this form and ask any questions you may have before agreeing to be in the study.

Procedure

If you agree to be in this study, I would ask you to do the following things;

  • Sign a consent form
  • Participate in a one-on-one interview that will be audio recorded with the researcher and the time will be between 50-60 minutes

Risk and Benefit of being in the study

This research has a minimal risk to the participant. No one is being pressured to participate. There are no monetary benefits for participating in this study. The benefits are that you will know that you will be contributing to the body of knowledge regarding the separation of powers in the criminal justice system.

Confidentiality

The record of this study will be kept private and confidential in any sort of report I publish, I will not include any information that will make it possible to identify a subject. Research records will be sorted securely and only researcher will have access to the records. The records, notes and data from interviews and questions will be kept locked on the researcher’s flash drive or computer under password protection.

Voluntary nature of the study

Participation in this study is voluntary. You have the decision whether or not to participate. If you decide to participate, you are free to not answer any question or withdraw at any time.

How to withdraw from the study

You have the full right to withdraw from this study, and all information will be permanently deleted or erased. If at any time you feel uncomfortable, you may contact me.

Contacts and questions

You will be given a copy of this information to keep for your records.

Appendix D

­­­­­Participant Identification Number:

Title of Project: Separation of Powers in the Kuwaiti Criminal Justice System: a Case Study

Name of Researcher:

  1. I confirm that I have read and understand the information sheet dated……………….……………..…for the above study and have had the opportunity to ask questions.
  2. I understand that my participation is voluntary and that I am free to withdraw at any time, without giving any reason.
  3. I agree that the information I give during the study can be used in any related publications, such as reports and academic articles.
  4. I understand that my interview may be taped and subsequently transcribed (where applicable).
  5. I agree that anonymised quotes can be used in any publications related to the study (where applicable).
  6. I agree that the dissertation supervisor and associated examiners can review my anonymised interview transcript if required. I am assured that anonymity and confidentiality will be upheld in this case.
  7. I agree that if it is selected as part of audit processes to ensure quality assurance this form bearing my name and signature may be seen by a designated auditor
  8. I agree to take part in the above study.______________________________________________________

Name of participant Date Signature____________________________________________________________

Researcher Date Signature

1 copy for participant; 1 copy for researcher

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Footnotes

  1. David Samuels, ‘Separation of Powers’ in C Boix and SC Stokes (eds), The Oxford Handbook of Comparative Politics (OUP 2009) 703, 706.
  2. Aristotle, Politics (H. Rackham [transl]) (Cambridge University Press, 1932), at 1297b–1298a. See also Gerard Conway, ‘Recovering a Separation of Powers in the European Union’ (2011) 17 European Law Journal 304, 306.
  3. Jeremy Waldron, ‘Separation of Powers in Thought and Practice’ (2013) 54 Boston College Law Review 433, 441.
  4. John Locke, Two Treatises On Government (Industrial Systems Research 2009) at 188.
  5. Ibid.
  6. Charles Baron De Montesquieu, The Spirit of Laws (Cosimo 2011) at 151.
  7. Ibid. at 95.
  8. Ibid. at 151.
  9. Anthony Murphy and Alan Stoica, ‘Sovereignty: Constitutional and Historical Aspects’ (2015) 2 Bulletin of the Transilvania University of Braşov 219, 224.
  10. Myra Williamson, ‘The diffusion of Western Legal Concepts in Kuwait: Reflections on the State, the Legal System, and Legal Education’ in S Farran, J Gallen and C Rautenbach (eds), The Diffusion of Law: The Movement of Laws and Norms around the World (Routledge 2016) at 32.
  11. Sharifah Hayaati Syed Ismail al-Qudsy and Asmak Ab Rahman, ‘Effective Governance in the Era of Caliphate Umar Ibn Al-Khattab (634-644)’ (2011) 18 European Journal of Social Sciences 612, 620; see also Ata ur Rehman, Mazlan Ibrahim and Ibrahim Abu Bakar, ‘The Concept of Independence of Judiciary in Islam’ (2013) 4 International Journal of Business and Social Science 67, 68.
  12. Rachel Barkow, ‘Separation of Powers and the Criminal Law’ (2006) 58 Stanford Law Review 989, 989.
  13. Ibid. at 992.
  14. Steven Koven, ‘Separation of Powers, Rule of Law, and the Bush Administration’ (2009) 11 Public Integrity 347-361; see also Harold Bruff, Balance of Forces: Separation of Powers Law in the Administrative State. (Carolina Academic Press 2006) 1-526; Mohammad Hashim Kamali, ‘Separation of Powers: An Islamic Perspective’ (2014) 5 Islam and Civilisational Renewal 471-488; Laurence Tribe, ‘Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine’ (2016) 126 The Yale Law Journal Forum 86-106.
  15. Done Haljan, Separating Powers: International Law Before National Courts, (Springer 2013) 230-231; see also Tom Clark, ‘The Separation of Powers, Court Curbing, and Judicial Legitimacy’ (2009) 53 American Journal of Political Science 971-989.
  16. Matthew Hall, ‘The Semiconstrained Court: Public Opinion, The Separation Of Powers, And The U.S. Supreme Court’s Fear Of Nonimplementation’ (2013) 58 American Journal of Political Science 352, 352-353; see also Clark, supra (n 15) 971, 971-989.
  17. Andrew Ashworth, ‘Responsibilities, Rights, and Restorative Justice’ (2002) 42 British Journal of Criminology 578, 590.
  18. Ibid. at 591.
  19. Barkow, supra (n 12) 989, 1031.
  20. Constitution of Kuwait, 1962, art. 50.
  21. Nathan Brown, ‘Mechanisms of Accountability in Arab Governance’ (United Nations, 2001) accessed 25 December 2016, 1, 8; see also Ahmad Hijazi, ‘Kuwait: Development from a Semitribal, Semicolonial Society to Democracy and Sovereignty’ (1964) 13 The American Journal of Comparative Law 428, 437; Daniel Treisman, ‘The Causes of Corruption: A Cross-National Study’ (2000) 76 Journal of Public Economics 399, 403.
  22. Herbert Liebesny, The Law of the Near and Middle East: Readings, Cases, and Materials (SUNY Press 1975), 110; Nathan Brown, The Rule of Law in the Arab World, (Cambridge University Press 2006) at 132.
  23. Williamson, supra (n 10) at 41.
  24. Brown, supra (n 22) 159.
  25. Williamson, supra (n 10) at 36.
  26. Alkarama Foundation, ‘Kuwait: Report submitted to the Human Rights Committee in the context of the third periodic review of Kuwait’ (Alkarama Foundation, 2016) 12. Accessed 22 March 2017.
  27. Barkow, supra (n 12) at 990.
  28. Barkow, supra (n 12) 989, 1031.
  29. Brown, supra (n 22) at 159.
  30. Williamson, supra (n 10) at 35.
  31. Ibid. 41.
  32. Ibid. 33
  33. Ashworth, supra (n 17) 578, 595.
  34. Alejandro Carballo, ‘The Law of the Dubai International Financial Centre: Common Law Oasis or Mirage within the UAE?’ (2007) 21 Arab Law Quarterly 91, 93.
  35. The National Assembly of Kuwait, ‘The Progress of Democracy in the State of Kuwait’ (National Assembly, 2011), at 12.
  36. Ibid. 9.
  37. Barkow, supra (n 12) 989, 1031.
  38. Ashworth, supra (n 17) 578, 590; see also Barkow, supra (n 12) 989, 991.
  39. Barkow, supra (n 12) 989, 995.
  40. Fahad Al-Zumai, ‘Kuwait’s Political Impasse And Rent-Seeking Behaviour: A Call For Institutional Reform’ (Kuwait Programme on Development, Governance and Globalisation in the Gulf States, 2013) at 5; see also Mohammad Torki Bani Salameh and Mohammad Kanoush Al-sharah, ‘Kuwait’s Democratic Experiment: Roots, Reality, Characteristics, Challenges, and the Prospects for the Future’ (2006) 5 Journal of Middle Eastern and Islamic Studies (in Asia) 57, 66; Alfred Stepan, Juan J. Linz and Juli F. Minoves, ‘Democratic Parliamentary Monarchies’ (2014) 25 Journal of Democracy, 35, 45-47.
  41. Al-Qudsy and Rahman, supra (n 11) at 620; see also Rehman, Ibrahim and Bakar, supra (n 11) at 68.
  42. Rehman, Ibrahim and Bakar, supra (n 11) at 68.
  43. Ibid. at 69.
  44. Ibid. at 70-71.
  45. Ibid. at 72.
  46. Marco Goldoni, ‘Montesquieu and the French Model of Separation of Powers’ (2013) 4 Jurisprudence 20, 22.
  47. Ibid. 31.
  48. Michael Socarras, ‘Judicial Modification of Statutes: A Separation of Powers Defense of Legislative Inefficiency’ (1985) 4 Yale Law & Policy Review 228, 228-229; see also Samuels (n 1) 1; Conway, supra (n 2) at 306- 307.
  49. Murphy and Stoica, supra (n 9) at 224.
  50. Ibid. 224.
  51. Samuels (n 1) at 706; see also Matthew Hall, ‘The Semiconstrained Court: Public Opinion, The Separation Of Powers, And The U.S. Supreme Court’s Fear Of Nonimplementation’ (2013) 58 American Journal of Political Science 352, 352-353; Clark, supra (n 15) 971, 971-989.
  52. Barkow, supra (n 12) 989, 995.
  53. Barkow, supra (n 12) 989, 991.
  54. Ashworth, supra (n 17) 578, 590; see also Barkow, supra (n 12) 989, 991.
  55. Lawrence Travis and Bradley Edwards, Introduction to Criminal Justice (Routledge 2014) at 3.
  56. Ibid. at 20.
  57. Ibid. at 54.
  58. Ibid. 57.
  59. Ibid. 62.
  60. Barkow, supra (n 12) 989, 989.
  61. Ibid. 992.
  62. Ibid. 993.
  63. Ibid. 1031.
  64. Ibid. 993.
  65. Ibid. 1012-1013, 1028-1029.
  66. Ibid. 1032-1033.
  67. Ibid. 996.
  68. Ibid. 1053.
  69. Stepan et al., supra (n 40) 35, 46-47.
  70. Samuels, supra (n 1) 1-31; see also Al-Zumai, supra (n 40) at 5.
  71. John Morison and Brian Grimshaw, Investigation, Process and Legal Standards within the Criminal Justice System in Kuwait (Queen’s University Belfast, 2016) at 3.
  72. USA International Business Publications, Kuwait justice system and national police handbook (USA International Business Publications 2007) at 46.
  73. Kuwait, National Security Law No. 31/1970, art. 1-58.
  74. Ibid. at 3.
  75. Ibid. at 7.
  76. Ibid. at 7.
  77. Ibid. at 7.
  78. Morison and Grimshaw, supra (n 71) at 5.
  79. Gulf Cooperation Council, ‘Member States’ (Gulf Cooperation Council, 2018), para. 6.
  80. United Nations, ‘The UN System in Kuwait’ (United Nations, 2018), para. 1.
  81. United Nations, ‘Charter of the United Nations and Statute of the International Court of Justice’ (United Nations, 2018), para. 1.
  82. United Nations, ‘A Kyoto Protocol to the United Nations Framework Convention on Climate Change’ (United Nations, 2018), para. 1.
  83. United Nations, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (United Nations, 2018), para. 1.
  84. Kuwait, National Security Law No. 31/1970, art. 53, 56.
  85. Williamson, supra (n 10) 43.
  86. Stepan et al., supra (n 40) at 45-47; see also Salameh and Al-sharah, supra (n 40) 57, 57-58.
  87. Rosemarie Zahlan, The Making of the Modern Gulf States (Routledge 2016) at 24-27.
  88. Maria O’Shea, Michael Spilling and Marshall Cavendish, Kuwait (Routledge 2010) at 66-67; see also Michael Herb, The Wages of Oil (Cornell University Press 2014) 1-14; see also Jill Crystal, Kuwait: The Transformation of an Oil State (Routledge 2016) at 66-67.
  89. Michael Casey, The History of Kuwait (Greenwood Publishing Group 2007) at 70.
  90. Salameh and Al-sharah, supra (n 40) 57, 58.
  91. Salameh and Al-sharah, supra (n 40) 57, 59.
  92. Hijazi, supra (n 21) 428, 436.
  93. Constitution of Kuwait, 1962, art. 27-28.
  94. Kuwait, Nationality Law, 1959, art. 1-2.
  95. Ibid. art 3.
  96. Ibid. art. 4-5.
  97. Barkow, supra (n 12) 989, 990. See Constitution of Kuwait, 1962, art. 50
  98. Salameh and Al-sharah, supra (n 40) 57, 58.
  99. Hijazi, supra (n 21) 428, 437.
  100. Ibid 437.
  101. Constitution of Kuwait, 1962, art. 6, 7.
  102. Ibid. art. 8.
  103. Mashael Alhajeri, ‘Judiciary and the Administration of Justice in Building and Construction Disputes Under Kuwaiti Law’ (2008) 22 Arab Law Quarterly 199, 199-200.
  104. Barkow, supra (n 12) 989, 1017; see also John Manning, ‘Separation of Powers as Ordinary Interpretation’ (2011) 2 Harvard Law Review 1939, 1945.
  105. Abdul Reda, ‘A Summary of the Legal and Judicial System in the State of Kuwait’ (1991) 6 Arab Law Quarterly 267, 270.
  106. Constitution of Kuwait, 1962, art. 51.
  107. Ibid. art. 52.
  108. Ibid. art. 53.
  109. Ibid. art. 56, 80.
  110. Freedom House, ‘Kuwait’ (Freedom House, 2016), para. 3. accessed 12 January 2017
  111. Stepan et al., supra (n 40) at 45.
  112. Constitution of Kuwait, 1962, art. 71-73.
  113. Constitution of Kuwait, 1962, art. 56.
  114. Ibid. art. 80.
  115. Ibid. art. 82.
  116. Salameh and Al-sharah, supra (n 40) 57, 65.
  117. Al-Zumai, supra (n 40) at 2.
  118. Freedom House, supra (n 110) para. 3.
  119. Al-Zumai, supra (n 40) at 3; see also Kjetil Selvik and Ghanim Alnajjar, ‘Kuwait: The Politics Of Crisis’ in Kjetil Selvik and Bjørn Olav Utvik (eds), Oil States in the New Middle East: Uprisings and stability (Routledge 2015) at 100.
  120. Fadi Nader, ‘Kuwait: Human Rights Under the Constitution’ (2000) 7 YB Islamic & Middle EL 267, 267.
  121. Selvik and Alnajjar, supra (n 119) at 98.
  122. Constitution of Kuwait, 1962, art. 163.
  123. Hall, supra (n 51) at 364.
  124. Alkarama Foundation, supra (n 26) at 12.
  125. Al-Zumai, supra (n 40) at 1, 3.
  126. International Monetary Fund, Kuwait: Selected Issues and Statistical Appendix (International Monetary Fund 2012) at 51.
  127. Al-Zumai, supra (n 40) at 1, 3.
  128. Stepan et al., supra (n 40) 35, 46-47.
  129. Al-Zumai, supra (n 40) at 5; see also Salameh and Al-sharah, supra (n 40) 57, 66.
  130. Ibid. at 2.
  131. Petra Schleiter and Valerie Belu, ‘The Decline of Majoritarianism in the UK and the Fixed-term Parliaments Act’ (2016) 69 Parliamentary Affairs 36, 36-38.
  132. Brown, supra (n 22) at 159-160.
  133. Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (OUP 2013), 26.
  134. Matthew Hall and Joseph Ura, ‘Judicial Majoritarianism’ (2015) 77 The Journal of Politics 818, 823.
  135. Andrew Ashworth, Lucia Zedner and Patrick Tomlin, Prevention and the Limits of the Criminal Law (OUP Oxford 2013), 89.
  136. Omar Dajani, ‘The Middle East’s Majority Problems: Minoritarian Regimes and the Threat of Democracy’ (2015) 38 Ethnic and Racial Studies 2516, 2527.
  137. Kristian Ulrichsen, ‘Politics and Opposition in Kuwait: Continuity and Change’ (2014) 4 Journal of Arabian Studies 214, 214-217.
  138. Meir Hatina and Christoph Schumann, Arab Liberal Thought after 1967 (Springer 2015) at 4-8, 102-103
  139. Brown, supra (n 22) at 158.
  140. Executive Board of the United Nations Development Programme, the United Nations Population Fund and the United Nations Office for Project Services, ‘Draft Country Programme Document for the State of Kuwait (2015-2017)’ (United Nations, 2014).
  141. Saikal A, ‘Authoritarianism, Revolution and Democracy: Egypt and Beyond’ (2011) 65 Australian Journal of International Affairs 530-544. See also, UNDEF, ‘Doers of Democracy – Asia & Pacific’ (UNDEF, n.d.).
  142. His Highness Sheikh Naser Al-Mohammad Al-Ahmad Al-Sabah, Prime Minister, ‘Statement Before The Sixty-Fifth Regular Session Of The United Nations General Assembly’ (United Nations, 2010).
  143. Ibid. 2.
  144. Ibid. 1.
  145. Conway, supra (n 2) at 322.
  146. Donald Daugherty, ‘Separation of Powers and Abuses in Prosecutorial Discretion’ (1988) 79 Journal of Criminal Law and Criminology 953, 994.
  147. Liebesny, supra (n 22) 110.
  148. Sue Farran, James Gallen, and Christa Rautenbach, The Diffusion of Law: The Movement of Laws and Norms around the World (Routledge 2016), 1-235.
  149. Williamson, supra (n 10) 25-41
  150. Ibid. at 41. More discussion in the subject see Esin Örücü, ‘What is a Mixed Legal System: Exclusion or Expansion’ (2008) 12 Electronic Journal of Comparative Law 1, 3.
  151. Williamson, supra (n 10) 34. See aslo V.V. Palmer, ‘Mixed legal system’ in Bussani and Matei (eds) , The Cambridge Companion to Comparative Law ( Oxford University Press, 2012) at 381.
  152. Williamson, supra (n 10) 34-35
  153. Ibid. 27-28.
  154. Ibid. 34.
  155. Anthony Cordesman, Bahrain, Oman, Qatar, And The UAE: Challenges of Security (Routledge 2018) at 34.
  156. Carol Gillespie, Bahrain (Infobase Publishing 2009) at 35-36.
  157. Ibid. at 37-38.
  158. Freedom House, ‘Bahrain’ (Freedom House, 2016), para. 1. accessed 18 March 2018.
  159. Freedom House, supra (n 110) para. 3.
  160. Freedom House, ‘supra (n 158) para. 5.
  161. Ibid. art. 56, 80.
  162. Cathy Elliot, Democracy Promotion as Foreign Policy (Routledge 2017) at 18-19; see also Ewa Atanassow, ‘Colonization and Democracy: Tocqueville Reconsidered’ (2017) 111 American Political Science Review 83, 83-96.
  163. Hijazi, supra (n 21) 428, 429.
  164. Williamson, supra (n 10) 35.
  165. Hijazi, supra (n 21) 428, 429.
  166. Ibid. 429.
  167. Ibid. 429.
  168. Ibid. 429.
  169. Ibid. 429-431.
  170. Miriam Joyce, Kuwait (Cass 1998) at 57.
  171. Williamson, supra (n 10) 36.
  172. Joyce, supra (n 170) 57.
  173. Hijazi, supra (n 21) 428, 434-435.
  174. Joyce, supra (n 170) at 57.
  175. Salameh and Al-sharah, supra (n 40) 57, 62.
  176. Joyce, supra (n 170) at 57.
  177. INTERVIEW.
  178. Williamson, supra (n 10) 36.
  179. Isa Huneidi, ‘Twenty-Five Years of Civil Law System in Kuwait’ (1986) 2 Arab Law Quarterly 216, 217.
  180. Eva Steiner, French Law (OUP 2018) at 28-30.
  181. Williamson, supra (n 10) 38.
  182. Ibid.
  183. Oxford Business Group, Kuwait, 2013 (Oxford Business Group 2013) at 93.
  184. Ibid. at 206.
  185. Huneidi, supra (n 179) at 216.
  186. Williamson, supra (n 10) 36.
  187. Williamson, supra (n 10) 34.
  188. Kuwait, Decree Law No. 67 of 198, 1980, art. 1-3.
  189. USA International Business Publications, supra (n 72) at 44.
  190. Hijazi, supra (n 21) 428, 434.
  191. Williamson, supra (n 10) 36, 39.
  192. Williamson, supra (n 10) 36-37.
  193. Hijazi, supra (n 21) 428, 434.
  194. Mohammad Al-Moqatei, ‘Introducing Islamic Law in the Arab Gulf States: A Case Study of Kuwait’ (1989) 4 Arab Law Quarterly 138, 138-139.
  195. Ibid. 140.
  196. Williamson, supra (n 10) 25-41.
  197. Constitution of Kuwait, 1962, art. 2.
  198. Williamson, supra (n 10) 34.
  199. Williamson, supra (n 10) 34.
  200. Constitution of Kuwait, 1962, art. 6.
  201. Constitution of Kuwait, 1962, art. 36.
  202. Constitution of Kuwait, 1962, art. 42.
  203. Constitution of Kuwait, 1962, art. 43.
  204. Constitution of Kuwait, 1962, art. 35.
  205. Constitution of Kuwait, 1962, art. 36.
  206. Constitution of Kuwait, 1962, art. 37.
  207. Constitution of Kuwait, 1962, art. 32.
  208. Constitution of Kuwait, 1962, art. 8.
  209. Constitution of Kuwait, 1962, art. 29.
  210. Anita Burdett, Records of Kuwait (Archive Editions 2003) at 394.
  211. Jill Crystal, ‘Criminal Justice in the Middle East’ (2001) 29 Journal of Criminal Justice 469, 471.
  212. Travis and Edwards, supra (n 55) at 54.
  213. Morison and Grimshaw, supra (n 71) at 7.
  214. Crystal, supra (n 211) 469, 471.
  215. Ibid. 474.
  216. Ashworth and Horder, supra (n 133) at 48; see also Ben Emmerson, Andrew Ashworth and Alison Macdonald, Human Rights and Criminal Justice (Sweet & Maxwell 2012), 1-5.
  217. Kuwait, Penal Code 16/1960 (as amended), article 184.
  218. Constitution of Kuwait, 1962, art. 31.
  219. Kuwait, Prison Regulation Act 26/1962, art. 17-18.
  220. Travis and Edwards, supra (n 55) at 60.
  221. Constitution of Kuwait, 1962, art. 167.
  222. USA International Business Publications, supra (n 72) at 31-32.
  223. Kuwait, Decree Law No. 67 of 198, 1980, art. 61.
  224. USA International Business Publications, supra (n 72) at 32.
  225. Alkarama Foundation, supra (n 26) at 12.
  226. Constitution of Kuwait, 1962, art. 164.
  227. Kuwait, Decree Law No. 67 of 198, 1980, art. 61.
  228. USA International Business Publications, supra (n 72) at 46.
  229. Morison and Grimshaw, supra (n 71) at 7.
  230. Ibid. at 7.
  231. USA International Business Publications, supra (n 72) at 31.
  232. Kuwait, Law No. 14 of 1973, 1973, art. 1.
  233. USA International Business Publications, supra (n 72) at 31.
  234. Constitution of Kuwait, 1962, art. 168.
  235. Morison and Grimshaw, supra (n 71) at 7.
  236. Constitution of Kuwait, 1962, art. 163.
  237. Hall, supra (n 51) at 364.
  238. Alkarama Foundation, supra (n 26) at 12.
  239. USA International Business Publications, supra (n 72) at 32.
  240. Alkarama Foundation, supra (n 26) at 12.
  241. Kuwait, Decree Law No. 67 of 198, 1980, art. 61.
  242. USA International Business Publications, supra (n 72) at 32.
  243. Brown, supra (n 22) at 158.
  244. Alkarama Foundation, supra (n 26) at 13.
  245. Kuwait, Decree 23/1990, article 35, 1990.
  246. Brown, supra (n 22) at 158-159.
  247. Brown, supra (n 22) at 159. See Kuwait, Decree 23/1990, art. 32 and 35, 1990.
  248. Kuwait, Decree Law No. 23 of 1990: Regulation of the Judiciary Law, 1990, art. 2.
  249. Williamson, supra (n 10) at 36.
  250. Ibid.
  251. Liebesny, supra (n 22) at 110.
  252. Williamson, supra (n 10) at 36
  253. Brown, supra (n 22) at 159-160.
  254. Ibid. 160.
  255. Alkarama Foundation, supra (n 26) at 12.
  256. Ibid. 12-13.
  257. Williamson, supra (n 10) at 36.
  258. Ibid 54.
  259. Stephan Rosiny, ‘Power Sharing in Syria: Lessons from Lebanon’s Taif Experience’ (2013) 20 Middle East Policy 41, 43; see also Ashworth, supra (n 17) 590-592; see also Omar Azfar and William Robert Nelson, ‘Transparency, Wages, and the Separation of Powers: An Experimental Analysis of Corruption’ (2007) 130 Public Choice 471, 471-490.
  260. Ashworth, supra (n 17) 578-579, 595.
  261. Ibid. at 590.
  262. Brown, supra (n 21) 8.
  263. Jon Michaels, ‘An Enduring, Evolving Separation of Powers’ (2015) 115 Columbia Law Review 515, 515-597.
  264. Travis and Edwards, supra (n 55) at 22.
  265. Morison and Grimshaw, supra (n 71) at 7.
  266. Constitution of Kuwait, 1962, art. 50.
  267. Samuels (n 1) at 706; see also Clark, supra (n 15) 971, 971-989.
  268. Morison and Grimshaw, supra (n 71) at 7.
  269. Kuwait, Decree Law No. 23 of 1990: Regulation of the Judiciary Law, 1990, art. 2.
  270. Adam Frane, Measuring National Innovation Performance (Springer 2014) at 5.
  271. Ann Cunliffe, ‘Crafting Qualitative Research’ (2011) 14 Organizational Research Methods 647, 655.
  272. Ibid. 660.
  273. Frane, supra (n 270) at 6.
  274. Ibid. at 6.
  275. Tim May, Social Research: Issues, Methods and Research (Open University Press 2011) at 132; see also Paivi Eriksson and Anne Kovalainen, Qualitative Methods in Business Research (SAGE 2015) at 4.
  276. Ian Dobinson and Francis Johns, ‘Qualitative Legal Research’ in M McConville and W H Chui (eds), Research Methods for Law (Edinburgh University Press 2007) at 16.
  277. Frane, supra (n 270) at 6.
  278. May, supra (n 275) at 132; see also Eriksson and Kovalainen, supra (n 275) at 4.
  279. Dobinson and Johns, supra (n 276) at 22-23.
  280. Morison and Grimshaw, supra (n 71) at 6.
  281. Joseph Hair, Mary Celsi, Arthur Money and Michael Page, Essentials of Business Research Methods (Routledge 2015) at 289.
  282. Rosalind Edwards and Janet Holland, What Is Qualitative Interviewing? (2013) Bloomsbury Academic 1, 1.
  283. Ibid. 91.
  284. Cunliffe, supra (n 271) 647, 655.
  285. May, supra (n 275) at 137.
  286. Hair, Celsi, Money and Page, Frane, supra (n 281) at 191.
  287. Ibid. at 192.
  288. Edwards and Holland, supra (n 282) 1, 29-30; see also Eriksson and Kovalainen, supra (n 275) at 94.
  289. Hair, Celsi, Money and Page, Frane, supra (n 281) at 191.
  290. May, supra (n 275) at 136-137; see also Eriksson and Kovalainen, supra (n 275) at 94.
  291. May, supra (n 275) at 134-135; see also Eriksson and Kovalainen, supra (n 275) at 94.
  292. Hair, Celsi, Money and Page, Frane, supra (n 281) at 191.
  293. Edwards and Holland, supra (n 282) 1, 92-93.
  294. Ibid. 92.
  295. Hamza Alshenqeeti, ‘Interviewing as a Data Collection Method: A Critical Review’ (2014) 3 English Linguistics Research 39, 43.
  296. Hair, Celsi, Money and Page, Frane, supra (n 281) at 289.
  297. Dobinson and Johns, supra (n 276) at 34.
  298. May, supra (n 275) at 100; see also Hair, Celsi, Money and Page, Frane, supra (n 281) at 176.
  299. May, supra (n 275) at 100.
  300. Maria Lahman, Ethics in social science research (Sage 2017) at 228.
  301. Dobinson and Johns, supra (n 276) at 35.
  302. May, supra (n 275) at 102.
  303. Ibid. at 61.
  304. Virginia Braun and Victoria Clarke, ‘Using Thematic Analysis in Psychology’ (2006) 3 Qualitative Research in Psychology 77, 86; see also Eriksson and Kovalainen, supra (n 275) 222-223; Mojtaba Vaismoradi, Jacqueline Jones, Hannele Turunen and Sherrill Snelgrove, ‘Theme Development in Qualitative Content Analysis and Thematic Analysis’ (2016) 6 Journal of Nursing Education and Practice 100, 100-101.
  305. Braun and Clarke, supra (n 304) 77, 87; Vaismoradi, Jones, Turunen and Snelgrove, supra (n 304) 100, 100-101.
  306. Braun and Clarke, supra (n 304) 77, 95-96; Vaismoradi, Jones, Turunen and Snelgrove, supra (n 304) 100, 104.
  307. Braun and Clarke, supra (n 304) 77, 88.
  308. Ibid. 78.
  309. Ibid.78-79.
  310. Ibid. 89.
  311. Ibid. 90.
  312. Edwards and Holland, supra (n 282) 1, 93.
  313. Braun and Clarke, supra (n 304) 77, 92-100.
  314. Vaismoradi, Jones, Turunen and Snelgrove, supra (n 304) 100, 102.
  315. Braun and Clarke, supra (n 304) 77, 92.
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