Al-Khateeb: Deprtation of Expats without judicial supervision is unfair and contradicts the Constitution
Lawyer Dr. Fawaz Al-Khateeb said that the recent statement by the Ministry of Interior regarding the deportation of expatriates participating in support sit-ins for Jerusalem and Palestine;
This statement assures that the authority of deportation should be under judicial supervision rather than the authority of any individual. “Upon my experience in Law, I have seen many worrying deportation cases like the deportation of an expat for a tweet though the court declined to rendered a judgment of neither prison nor deportation. The accused was imprisoned for one month then was deported on an administrative basis; this is one of thousands of unfair cases.
Al-Khateeb pointed to the statistics issued by the Ministry of Interior in Kuwait 2013-2019 as 148 thousand expats from varied nationalities were deported though some of them wanted to travel at their own free will. He clarified that “deportation” is to legally expel an accused expat out of the country as this can’t be applied on citizens according to 28th article in the Kuwaiti Constitution.
Al-khateeb also clarified that deportation may be judicial or administrative, noting that the latter is so dangerous as the legislator gave the authority of deportation to the Ministry of Interior with no clear controls or judicial supervisions, nor minimal guarantees for the deported persons. Al-Khateeb pointed out that judicial deportation is necessary and important, and that it is likely to be an auxiliary and complementary punishment according to Articles 66 and 79 of the Kuwaiti Penal Code, “and that the Judge is free to decide the deportation after penalty execution, in general, but it is a must in cases of felony or if the punishment is restrictive of freedom for a crime that violates honor or trust.
Al-Khateeb stated that judicial deportation could be based on a judgment on a person's conviction with a specific penalty, such as the permissibility of the court rule on the prisoner who is serving the sentence in accordance with Decree-Law No. 48/1987 in respect of fighting psychotropic substances - Article 39 bis, as well as according to Law No. 74/1983 in the matter of fighting drugs, regulating their use and trafficking - Article 33 bis, as the court may order the suspension of the execution of the adjudicated punishment while deporting the foreign convict from Kuwait if it is proven that he has stopped addiction. He explained that the judicial deportation has the purpose of protecting society from criminals who pose a danger to the state in accordance with the two-level powers of the court and the supervision of the court of law, after the person submits his full defense; "which is totally absent in administrative deportation.
Al-Khateeb explained administrative deportation, indicating that it is issued by the Ministry of Interior and is subject to the absolute discretion of the authority without supervision or examination, and it is applied in the State of Kuwait in accordance with Decree-Law No. 20/1981 AD in Article 1 Paragraph 5, indicating that matters of residence and deportation for non-Kuwaitis are not subject to judicial supervision. Consequently, the Administrative Department has no jurisdiction over disputes relating to the deportation of non-Kuwaitis. "It is an individual decision by the administrative authority for public reasons such as (public interest, public security, or public morals) or if the expat has no apparent means of living in accordance with Article 17 of the Expat Residence Law No. 17 of 1959 AD.; the deportation decision may include the expat dependents too. " Al-Khateeb added that the explanatory memorandum gave examples and an explanation of cases in which the expat is subject to deportation, with regard to the public interest that the expat violates the social or economic order of the state, and on the reason for deportation related to public security if the expat has become accustomed to committing crimes that he fears security. “With regard to public morals, the memorandum of the law indicated that if the behavior of the expat contradicts the usual standards for the behavior of the common man, and it is strange that the law attributed the assessment of these inflexible reasons for deporting the expat to the Ministry of Interior in absolute terms, as it is the authority that assesses whether the expat has committed a dangerous act he should be deported, and these reasons for their general and seriousness must be subject to judicial examination and not be left to the opinion of the individual decision-makers.
Al-Khateeb also indicated that amending legislation has two justifications, the first is constitutional, the second is legal, pointing to five reasons for amending the legislation constitutionally: “The first of which is that it affects the right of jurisdiction, which is supposed to be guaranteed to all people regardless of nationality, according to the Kuwaiti Constitution - Article 166. Secondly, that it robs the Administrative Court of its comprehensive constitutional authority in the consideration of administrative decisions contrary to Article 169 of the constitution, and thirdly that administrative deportation contravenes the constitutional and legal principles of justice and equality that are among the basic components of Kuwaiti society, and fourthly that the deportation decision, even if it is an administrative decision and not a punishment that requires prosecution, as some of law novices point out with false claims that administrative deportation is not a punishment and therefore not it doesn’t need a trial. This can be answered by saying that an administrative decision may be appealed against in accordance with the constitution. Fifthly, the exclusion of judicial supervision from the deportation decision issued by the Ministry of Interior is one of the forms of infringement of the principle of separation of authorities and a violation on the judicial authority. “We all trust out fair honorable judicature, and that is the basis of ruling and the guarantee of rights and freedoms.
Al-Khateeb added that the judicial part has four reasons why the deportation decision should be subject to judicial review. The first reason is that it violates Article (13) of the Multilateral International Covenant on Civil and Political Rights adopted by the United Nations General Assembly in Resolution 2200 of 12/16/1966, and specifically violates the general principle regarding the deportation of expats, which stipulates enabling a person to defend and present reasons against deportation from the competent authority and from delegating someone to represent him before it. The second reason is that jurisprudence and comparative judiciary has clearly and explicitly decided the jurisdiction of the administrative judiciary to supervise decisions to deport expatriates, and considered the decisions issued regarding them among the administrative decisions that fall within the jurisdiction of the administrative judiciary. He indicated that some refer to deportation of expats in other countries such as the United States of America and the United Kingdom. - Without supervision – saying that “it is a false allegation, whereby the person to be deported can resort to the court to stop the administrative deportation order in accordance with the legal mechanisms available under the jurisdiction of the Immigration Court.
The third reason is related to the injustice that may occur on the residents. Any administrative decision that cannot be appealed against according to the United Nations report will inflict unjust and unfairly and it create a state of anxiety. A report has already been issued by the United Nations on Kuwait regarding administrative deportation according to a summary prepared by the United Nations Commission. The United Nations High Commissioner for Human Rights, pursuant to its mandate entrusted to it in Paragraph 15 (c) of the annex to Human Rights Council Resolution 5/1, and Paragraph 5 of the annex to Council Resolution 16/21, where it was stated on issues of deportation in Kuwait that they raise concerns of injustice in Item (C) ) Of the report under the title Implementation of International Human Rights Obligations in Paragraph (35). “The fourth reason is that Kuwait’s human rights reputation is important, and reports of international and domestic human rights organizations in this regard, including, for example, the statement of the Kuwait Human Rights Basics Association, which indicated that the deportation is unfair,” he said.
Al-Khateeb concluded by stressing that the Executive Authority must deviate from the policies of third world countries and that it should think in terms of principles of mercy, humanity and human dignity, recalling choosing His Highness the late Amir as the Emir of humanity in 2014 and choosing of the State of Kuwait as a center for humanitarian work "imposes on us all a greater commitment in order to improve the law and labor environment." calling for the amendment of the residency law to give expats the right to resort to the judiciary in case administrative deportation decision is taken, and allow them to present his defense to the judiciary, in addition to the abolition of the fifth paragraph of Establishing a Department in the Total Court Law to consider administrative disputes that exclude Judicial supervision over issues of deportation, residency, and nationality, with any case of exception being lifted from the judiciary’s consideration of administrative matters.