Popular symposium about
The phenomenon of the constant increase in the cases of checks without balance and its negative impacts on the individual, society and economy, held on Saturday evening corresponding to 6/7/2002 A.D, at Al-Thoraiya Hall, Meridian Hotel.
The organizing Committees: Kuwaiti Economic Society, Kuwait Society and Specialized researches, Kuwait Social Work Group.
Proceedings of the popular symposium about the phenomenon of the constant increase in the cases of checks without balance and its negative impacts on the individual, economy and society on Saturday evening, corresponding 6/7/2002 A.D.
Name of the Attendees:
· Mr. Amer Al-Tamimy,
Head of Kuwait Economic Society
Chairman of the Symposium
Addressed by a wife of one of the prisoners of the cases of checks.
The Opening Speech,
· Mr. Faysal Maziad Al-Masaud,
The Social Aspect in the cases of checks without balance
· MP Dr. Ahmed Al-Rab'ee
Review for the social aspect and remedial proposals
· MP Dr. Walid Al-Tabtabaee
The legislative role of the Nation Council in the amendments of the law
· Colonel Dr. Hussain Abdul Salam, assistant general manager for the reformatory institutions in the Ministry of Interior
The Security aspect in the cases of checks without balance
· Mr. Ali Mousa Al-Mousa
· Ex-minister of planning
The Economic aspect in the cases of checks without balance
· Attorney Mr. Riyadh Al-Saegh,
Head of Kuwait Lawyers Society
The Legal aspect in the cases of checks without balance.
In the name of Allah, the Most Merciful, the Most Compassionate,
Let's start the proceedings of our popular symposium about the phenomenon of the constant increase in the cases of checks without balance and its negative impacts on the individual, society and economy. First of all, let's listen to the opening speech delivered by a wife of a prisoner.
A speech by a wife of a prisoner:
Ladies and Gentlemen, peace and blessing of Allah be upon you all,
Only Allah the Almighty knows that but for the calamity I have suffered and still suffering with my family due to the phenomenon posed for discussion in your symposium, that is the phenomenon of cases of checks without balance, I would not have stood before you like this to sadly and in grief tell my own and my family's tragedy resulting from a severe punishment in our account though the case is merely a financial one.
Ladies and Gentlemen,
Does the tragedy end in prison only? No, it doesn't. This is because problems are related to one another, coming in consequence to the person who is involved in the case called "checks without balance". Any punishment is a stigma that offends man when, by virtue of this punishment, the person is called " a perpetrator" and his case has the classification of "criminal cases".
Do you know, ladies and gentlemen, what is meant by the felonies of murder, abduction and drugs. By God, is this fair that such a punishment becomes equal to those criminals who offend the society?
What is more severe and agonizing in such a case is that when the individual is imprisoned, his punishment will not be but a physical and psychological one on his family and household. As soon as the punishment ends, which is long years for the one check, justices takes its real course through claming him to enforce Commercial Law.
When, then, wasn't this law resorted to priorly? Is it required to case physical injury and cut off the livelihood of people and then come to a person who is physically and psychologically destroyed to claim the civil right according to the law and that what had happened is irrelevant. By God, is this fair?
I address you all in the name of thousands of wives and children who are powerless in facing their cruel and painful destiny to reconsider the issue of incriminating the check and set the decisive solution that differentiate between the victims of checks and the beneficiaries and exploiters of the criminal protection of the check to get not only involved but their family and society are involved as well.
Ladies and Gentlemen, it is time to participate in protecting future generations, Kuwait's generations; Kuwait, the country of integration, welfare and love.
May Allah help you succeed in doing the best for the citizens of Kuwait and safeguard its safety, security, solidarity and cooperation.
Peace and blessings of Allah be upon you all.
Now, the social aspect in the cases of checks without balance; presented by Mr. Faysal Maziad Al-Saud.
A Word by Mr. Faysal Maziad Al-Saud:
First of all, we would like to express our thanks and gratitude for everyone who honored our symposium with attendance. I also thank those attendees who responded to our participation in the discussion of "The Phenomenon of the constant increase in the cases of checks without and its negative impacts on the individual, family, society and economy" to keep the lights shed on the legal, economic, social and security aspects in an attempt to encounter such a negative phenomenon and put an end to it to keep the entity of family and society intact and achieve peace and stability of society. I also seize the opportunity to express my abundant thanks to the concerned authority for their cooperation to achieve the field study conducted by the Kuwait Social Work Group. In my name and on behalf of the organizing committee, I pray God to help us to do our best for the good of Kuwait under the shade of the sponsor of our renaissance His Royal Highness and the Crown Prince. Now we have a review and brief for a field study on the cases of checks without balance and the impacts of this phenomenon on the prisoners in the Central prison and Talha prison, on their wives and families for only ten minutes.
The review started and after the end of the review, it time to listen to the speech of the participants in today's symposium.
Dr. Ahmed Al-Rab'ee, member of the Nation Council, Dr. Walid Al-Tabtabaee, member of the Nation Council, Colonel Dr. Hussain Abdul Salam, assistant general manger of reformatory institutions in the Ministry of Interior, Mr. Ali Mousa Al-Mousa, ex-minister of planning, Mr. Riyadh Al-Saegh, the lawyer and head of Kuwaiti Lawyers Society. In addition, His Honor the Sheikh Dr. Khalid Al-Madkour will join us later. Of course all the participants are well known and are aware of what they are going to talk about; let's get started.
MP Dr. Ahmed Al-Rab'ee will start delivering his speech about the social aspect and the remedial proposals.
Dr. Ahmed Al-Rab'ee:
Ladies and Gentlemen,
First of all, I would like to express my thinks to Mr. Faysal Al-Masaud and both Committee members for this invitation. Of course, you remember Mr. Mohamed Al-San'ousi; he is the one who threw this big stone in such a once dormant lake for a long time. This program ended with possibly ending all the program. Instead that high-sounding scream find listening ears, it was naively interpreted and was interpreted in such a way that should not pose the issue in this manner despite what Mr. Abu Tarek proved in his program. He proved decisive evidences about the gravity of such an issue today. On such occasion, I have brought a guest to the Legislative Committee in the Nation Council. I was very sad to hear the opinion of the government experts, with my respect for all. I have no discrimination against anyone; all of them our Arab brothers whom we respect and esteem. However, it is clear that I had to say to them in the Committee that it seem they are unaware of the volume of the problem. They discuss it without knowing the circumstances of the hundreds or even the thousands of families. Today, mothers, children, wives and persons outside Kuwait escaping from the enforcement of the punishment. We should not confuse between two aspects in this case; we should not confuse between persons who took fraud as a profession in the sense that they took checks without balance as a profession and other persons who, as the overwhelming majority, fall victim to a group of illusions which are either quick enrichment, that is the person imagines becoming a millionaire quickly or sees such banks and institutions giving loans. This person takes loans from banks; he finds himself unable to solve this problem. So, he takes a second loan, liquidates cars to take money. He finds himself unable to solve his problem. Some persons who are parties in such cases came to me to discuss their cases; they were greatly involved their cases. Those people are victim of lack of awareness; they are victims of law, victims of obtaining money easily in such a manner. You know the state of mothers whose sons sign checks without balance and the states of wives who know nothing but that while they were buying, the merchant told them to sign and they, unknowingly, signed four or five checks or a check book and its story ended in prison. Another story is that of a poor mother whose son got her to sign checks without balance. Here, we are facing a very difficult problem which needs us to find effective solutions.
The problem is that there are some affected parties; these parties are companies and institutions which have no sin. Those institutions have the right to claim for their money. We have a great number of people involved in imprisonment, the overwhelming majority of whom are the victims of illusion, quick enrichment and victims of law. We have two problems which we have to pay attention to. We should not confuse both problems; the problem of those who are imprisoned at the present time and that of those who are ready or who are on their way to prison and those are less in number and still there are many victims.
For the first group, we have to call for establishing a national fund in which to mention what happened during the days of climate. The law was nullified more than once and the Parliament convened till one o'clock in the morning and called for solving the problem. It is a problem similar to that of the climate; in this problem, there were professional criminals who were less in number but have a very great number of victims. We amended laws again and again for those people; it is time to try to solve this problem. It is time support this stratum of our society, these disintegrated families. We have to establish a fund; who shall participate in such a fund (the affected companies, car companies, banks, public utility societies and men of charity). We have to make some sort of clearinghouse between people and these affected companies. The company which claim a person for twenty thousand dinars and threaten to imprison this person if he does not pay. They will take nothing from him because the man is no longer in possession of any money and thus this person won't get out of prison. Therefore, there must be a compromise, individual solutions, a possibility to make some sort of scheduling for debts from one hand or clearing from another hand. I think we can solve this problem but this problem is related to the fact that we mainly nullify this flawed law, the law of check without balance. This is the 1978 lie, the source of the law. Originally, there was no means for differentiation; today in the internet age, the check has become of the ten modes of payment.
What is required now is to nullify this law. What does it mean by the call of those economists who told us today in the Legislative Committee that this will destroy national economy and that Egypt was forced in the year so and so to do so and so, because of danger to the economy and this was irrelevant to this issue. For this issue, some of us lived in western countries and others lived in the USA and Europe. You get out your check book and write a check in million dollars for any person. Nobody argues with you; it is up to you. You are mad and unconscious but the conscious is the one who is the money owner when I say this is a check which I have to make whether it is right or wrong. Now, we are facing two types of problems: the big check, the cashing check, the car check, to buy a villa or house now in Kuwait. Of course, there are many modes of payment. The responsibility is shouldered by the person who is ignorant or who is the victim. I think the nullification of this law is of overriding importance. The problem now is that despite some problems of the Public Prosecution studies we have conducted, there is the response of the Central banks whose official show that they are unable to assimilate the volume of the problem. In addition, our brothers in the Chamber of Commerce, I don't know who convinced them that this is a catastrophe on the national economy. Personally, I am not a specialized economist nor I am a specialized jurist but from my own simple ordinary understanding I think that this is an untrue exaggeration. The legal exaggerations do not agree to any number from 1997 till now. There are 23856 crimes of checks without balance; in these cases, there are real problems of disintegrated families. Which economy will be affected by nullifying the punishment of the check without balance in the light of volume economy? In fact, with the presence of specialized jurist, I think we have to pay as much as we can to solve both problems: first is the declaration of the national fund in which the government and everybody participates to help this group victims find a way out and the second is the nullification of the law. We are today in the Legislative Committee; unfortunately, the concerned minister seems to have his own excuse. We have not made use of the opinion and replies. In fact, I heard one of the brothers who were present in the session from the Legislative Committee that all we have heard from the experts is irrelevant and when we compare our economic conditions, we are economically better than the American economy or the British economy. I wish that we, as legislators, and you as a society to do what we can and exert our utmost effort to nullify this flawed law. This is because a decisive decision shall be issued in this case in a law amendment if there is a justification for the reason for it was issued. So long as there are many modes of payment, I think there bank specialists in this room, psychology specialist and we can get a new opinion. A new remark, Faysal, please, any more meeting make it in a public utility society so that we can save an amount for the benefit of this fund. Today, I admired an advertisement in the Middle East; you saw the late Sheikh Sulaiman Al-Alian, the most prominent businessman in Saudi Arabia, number 43 of the world rich men whose obituary was in the newspaper and "the family of so and so expresses its sadness for the death of the man and anyone who would like to advertise in any paid newspaper has to send the amount of this advertisement to the Disabled Society in Riyadh, telephone so and so." We wish that we shall follow in the footsteps of that rational thinking.
Dr. Walid Al-Tabtabaee:
In the name of Allah, the Most Merciful, the Most Compassionate
Also, we would like to thank Mr. Faysal Al-Masaud and our dear colleagues the members of the Social Work Committee for their social effort or the great voluntary effort they exert. There is a difficult issue in Kuwait; it is the issue of amending the law. These issues are not that easy; our dear colleagues have pointed out that these issues are in need of a great media effort in the first place then a content from both parties not only member but also the government. Unfortunately, we found that the government has is hesitated because of more pressure on the one hand in fear of the consequences of nullifying this punishment, as our dear colleagues pointed out that the case of checks without balance is multi-faceted . I think it has four aspects: informative, social, administrative and legal aspects. As for the informative aspect, it is assumed by the Social Work Committee; it issues warnings and enlighten for the gravity of issuing checks on both parties, the issuer who might be imprisoned and the one to whom the check is issued. This might mean the destruction of a family and the latter might not get his money back. Whereas for the social aspect, the Ministry of Social Affairs provides care for the families of the imprisoned persons and the house of Zakat as well as people of charity. For example, this is similar to what some brothers had done in the helping idea and also the popular committees such as the committee in which Mr. Mohamed Al-San'ousi has volunteered. In addition to this social aspect, there is the administrative and operational aspect. This is what we began to comprehend its sides such as the Central Bank which began to put some people in the black list preventing them from issuing checks to protect people who issue checks. The cheating of those fraud is now, as mentioned by the governor of the Central Bank, numbered more than one thousand accounts were put under black list in administrative aspects that should be established before entering into the legislative aspect. In the legislative aspect, we noted today in some newspapers that the Commercial bank instantly ratified the check by phone which is a natural aspect in other procedures. These procedure must be present including not allowing to open a current account or not to give a check book except for the account which spent six months so that it can be proved that the person is serious and also not to give more than five papers. Whereas the present situation is fifty papers at once or twenty five papers, which means twenty five felonies that have disastrous consequences. Some think that the problem, after spreading awareness and taking some measures, is on its way to drop down in the number of cases. This is true but it still constitutes a big phenomenon. I think the efforts of spreading awareness and social efforts have led to these results in decreasing the number which reached, in 1998, 7000 defendant annually. Now, the number is 4000 defendants and it is in constant decrease but there is still a number of 4000 defendants in one year which means 4000 families. This means that the situation is still within the dangerous limits. As for the legal aspect, there is a role to be assumed and of course the Nation Council has been presented a proposal that the punishment shall not exceed 3 years, that is from a felony to a misdemeanor. In another proposal for Mr. Mukhallad Al-Azmi, Dr. Mohamed Al-Busairi, Mohamed Al-Khalifa, Mubarak Al-Haify, Khalid Al-Adwa, referred on an urgency basis, this proposal requires that the criminal aspect shall be nullified and the imprisonment punishment of this crime shall be nullified. This is in terms of the term of imprisonment as in terms of the date of the proposal, both proposals agree, in regards of Article 532 of the Commercial Law which stipulates that the check shall be payable upon reading it and if the check is submitted for payment before the date indicated therein as an issuance date, the amount thereof shall be paid on the day it is submitted, i.e., consideration is given to the date of submitting the check rather than the date indicated therein. This is in the present stipulation; our colleagues suggest that this stipulation has to be replaced for another stipulation and that the check shall not be payable for the amount thereof except as from the date indicated therein as an issuance date. This means that taking the date of issuance into consideration is mentioned in both proposals in terms of nullifying imprisonment, nullifying taking the issuance date into consideration and not the date of submitting the check, i.e. the date of deposit as both colleagues have mentioned. They mentioned that governmental authorities have unfortunately moved at decreasing speed, which delayed the work of the Legislative Committee in sending its reply. The governmental reply is still fluctuating between approval of the amendment and commuting. This means the amendment of law whether by reducing the punishment or nullifying it or the penal aspect. They promise us to attend and come late as if the issue of no importance; they reached no result though the volume of the problem is very clear and its impacts are clear and destructive for the family. It is a disaster that we might be about to encounter, similar to the disaster of the climate in the light of the present situation in some ideas proposed by the Public Prosecution in regards of the check and some of this ideas might be put forward for study. The Public Prosecution reached one of the ideas that call for finding the legitimate reason and making a condition of issuing the check based on legitimate reason. The judge has to make sure that the check was issued for a legitimate reason, i.e. if the reason was, God forbid, gambling, drugs, etc., the check shall not be approved; therefore, there should be a legitimate reason for issuing the check. In addition, some ideas talk about the non-suit due to prescription that if three months have elapsed since the issuance date of the check, it shall be null. However, this proposal faces some difficulties; some people write a very far date so that there shall not be a non-suit for prescription. I think, we should a great responsibility in the Legislative Committee in regards thereof to reconsider this law. We are just awaiting the government's approval or that the government might issue an opinion; so when the opinion reaches the Council, the government asks for withdrawing the draft bill or postponing it because of not taking to its opinion. However, there is an intention for commuting the punishment or nullifying it or its penal aspect.
We also call those who referred, in the very beginning, to the fact that there are four trends not to focus on the amendment of law but banks, social authorities, informative authorities and the Central Bank all have responsibility and none shall deny its own responsibility.
Again, I would like to thank all the colleagues in the Social Work Committee and I hope, Inshallah, that we become all in the service of this important issue.
Thank you, Dr. Walid Al-Tabtabaee, member of the Nation Council for this useful review about the legislative role of the Nation Council regarding the amendment of the law. Now, it is time to talk about the security aspect in the cases of checks without balance and the speaker is Colonel Dr. Hussain Abdul Salam, assistant general manager of reformatory in the Ministry of Interior.
Dr. Hussain Abdul Salam:
In the name of Allah, the Most Merciful, the Most Compassionate
First of all, I would like to address the security aspect. I would like to comment on some statements mentioned about the rights creditors. Of course we are taking about living with the reality of those who are involved in the cases of checks whether in prison or after they get out of the prison and the reflections of ruling issued against them. Of course, we view that the creditor is the first one whose right is wasted whether this creditor is an institution, company or ordinary person. When a person is imprisoned, he loses his job and the source of his livelihood; he begins to make settlements with the creditor who knows that this person is not going to pay. Of course the rights of creditors are wasted. I would like to comment on this point from the point of view of the practice we live with; I go back to the security aspect. When prisoners get into prison, we divide them into two main divisions. The first division is the ones who have deviation in human character, whether psychological, behavioral or social. We start to set a special program for this division to remedy them. This is because the aim of the modern philosophy is to reform. The second division includes the normal persons who commit a legal mistake we give a nomination. Then those persons, by fate, were taken into custody. Those ones are the persons who issue checks without balance. We have to keep the mental health of those people so that they do not get out of prison with a feeling of indignation against society and authority because they feel oppressed and feel that this punishment has destroyed the future and families and there children were lost. This is what we are considering and from living with the problems of those convicted with cases of checks. I am not addressing affection; rather I am addressing minds with figures and statistics through the four years I have spent in reformatory institutions. Of course, we have 21% of divorce cases, 25% who are about to get divorced and there are still cases under consideration in courts. I am approximately talking about 46% of those whose fate will be family destruction and divorce will be their destiny because of the absence of family provider. Of course, theses figures are an indicator showing destruction and the destructive impact of the rulings issued against those who are involved in cases of checks. We said in the very beginning that we consider those people normal and without any behavioral deviation, but this disintegration occurring to them the impact which as its security reflection. There are many cases of such kind but one of the cases that occurred in the last crime was that one of them has his father dead and his mother is imprisoned a case of check without balance. There are also wives who tend to deviation when their husbands serve ten, seven or eight years in prison and there are children who deviate when their fathers are imprisoned. Sometimes, man resorts to criminal ways to pay back his debt to get the amounts of the debt. We say that the right of the creditor shall not be wasted. How come that we demand this and imprison the person who shall pay this debt and we deprived him of his work and source of livelihood. Of course any punishment has its aim whether special deterrence, general deterrence or general reform. Of course the Reform philosophy is one of the new schools and we have adopted it in the managing the reformatory institutions. As for general deterrence, we say that from 1996, as mentioned by our colleagues, crimes or rulings are in constant increase that reached the climax in 1998 – 1999. Then, they began to decrease not because of deterrence of this article but because of other factors such as spreading awareness and establishing some funds and aids provided from the outside. Before a person gets into prison, his debts shall be repaid by the understanding from the part of the creditors that if this person gets into prison, the right of the creditor will be lost this is what really happens. And the opposite is also true of prisoners who are convinced by their predecessors to make settlement and call the creditor after two months telling him that they will lose nothing because they are staying in prison and tell him to take half or quarter the amount. This is true because the prisoners loses nothing because he is socially destroyed in terms of his source of livelihood which was lost, his lost job and his lost trade if he was a merchant. When we see that the annual number is 400 increase to 450 multiplied by 5 because from where the wife can live. How can the wife live with the aid taken from the Ministry of Social Affairs? How can she and what shall those children stigmatized with the imprisonment of their father do? This imprisoned person will also go out of prison with a stigma, the stigma of prison. Let me say that commuting the punishment from five years to three is of no use. How can we regain his esteem and the stigma he was given. I am one of the people who demand that incrimination shall be completely nullified. We are now in a modern age of telecommunications which are present for 24 hours. This check as it happened today, there is an advertisement for the Commercial Bank. I transact in this check and call the bank to make sure this person has balance. From the very first time, the person is classified as a black list to deal with any other place. Nobody takes the check because the problem of the check owner is like that of the one who has been drowned in moving sand trying to survive but sinks more and more, writes a check, tries to cash and want to repay the debt. We have the special intent and the general intent. I might not interfere in the specialization of our colleagues but we have the general intent. Now we are talking in terms of security; a good intentioned man is made equal to a fraud and cheater. Why shall we make them equal? A person takes a loan to repair his house, cure his children is not like a person who takes loans to buy a car for himself or for one of his children and became unable to repay the debt. Shall the first one be the same as the second one? Shall we make the one who takes loans for urgent needs to a one who takes loans and get imprisoned then pay money go out with money in stock and without paying for the creditor. And the other one who has no money to pay remains in prison. This is the security impact which incurs burdens upon the State including the deviation of children, wives. All these crimes cost the state very considerable amounts of money per year. These expenses include food, medicine, clothes, guards who take monthly salaries; all these a very considerable amounts which if invested in another aspect would be very beneficial. Why shall we spend them in these problems which we have caused ourselves? When we talk about security aspect, ten minutes won't be enough and we would need ten hours to talk about this issue. We are, thanks God, in a progressive country and we are not weak to see this problem when we say the general deterrence or special deterrence. The security aspect of the crime or the rulings issued against the cases of checks without balance are very destructive. I am talking out of experience and saw people and kept in touch with them for 4 years and saw the impacts and statistics presented by these figures. I multiplied the number by 5 in addition to those who are pending judgement. I am sorry I kept the one who are to deliver their speech waiting for a long time. I say that incrimination shall be nullified and that we have Article 235 which is the replacement of six months and less. We have people who are imprisoned for one month and we know that a person who is imprisoned for 15 days is fired from his work for only 15 and how come that the one who serves a year or two is the same.
Thank you, Colonel Dr. Hussain Abdul Salam for this useful review about the security aspect in the cases of checks without balance. It seems that the phenomenon of the mobile phone is worse than that of checks without balance. Please switch off your mobiles because they are really annoying. Now, we move to the economic aspect in the cases of checks without balance. It is time for Mr. Ali Mousa Al-Mousa, the ex-minister of planning to deliver his speech.
Mr. Ali Mousa Al-Mousa:
Thank you, Mr. Chairman:
In the name of Allah, the Most Merciful, the Most Compassionate
First of all, I would like to express my greetings to the authorities organizing this meeting which are: Kuwaiti Lawyers Society, Journalists Society, Kuwait Society and Kuwait Society for Specialized Researches and Studies. I think there is collaboration of efforts and when these efforts are in agreement, the presence of the majority of the Council Nation Members who exert efforts to change the present bad situation which is related to the check without balance, this shows clearly that the issue has become a one which deserves a serious stance. In addition, there a professional attitude from all these organizing authorities to reach a correct understanding for the dimensions of this case and reach an effective and fair solution for this problem. I think all these parties have no interest that this bad situation continues or remains as it is; all they have in mind is to spread the right principles and developing the legislation for a case or an out-of-date legislation since we are considering the subject to reach an objective solution for the problem. As the Law, when amended in 1978, protects the check as an instant mode of payment, it is natural that the punishment shall be severe because this evaluation this time is that the check is a mode of cash in 1978. Do you have modes of payment; there is nothing but either cash or check. We can understand this incrimination or criminal protection but now this is completely untrue because we have several modes for guaranteeing the right of the check beneficiary who use it as a mode of payment and not as a guarantee certificate. The modes of payment used in electronic systems are credit cards as you have heard that one of the banks make propaganda to insert a system of electronic authentication on the check or spreading the electronic authentication on the check, which is applicable in all the countries of the world. This is a new thing and you see for example a card and its bearer who is abroad, his check is not acceptable. You will be asked for a guarantee card for the check where you are asked for a check within certain limits known by the bank. Now, the system is that who joins to or tomorrow will guarantee his right as a merchant. The honest merchant's right is guaranteed as a mode of payment check and we have no problem. Therefore, the criminal protection is no longer important or of use. Let's be realistic, it is unfortunates that there are envisionments or fears non-stop, for example our colleagues are talking about the fact that there is a decline in the rates of check crimes. It was said that this has an impact, be calm and read all the statistics together for all types of crimes. We will find that all crimes are in a state of decline and this requires a look at the nature of these statistics. How were statistics written down? Sometimes even the statistical technique changes, which results in changing a situation which has nothing to do with the crime. However, we are talking about 4500 felonies per year; this I the second figure after the crimes of drugs. So, the case is a very serious one not just 400 prisoners kept in prison. It is a very serious case with its destructive social and human impacts, let alone 4000, a number which is neglected easily. Why did some colleagues say that if we nullify the check, people will use checks of their own which will not be certified and people will tend to use money. I say that is an exaggerated fear and there is digital evidence which states the complete opposite of this. In 1978, a law was enacted to incriminate the check without balance; it is supposed that when anything of this law is enacted if this law has influence on cash, at least the circulated source of cash shall not increase or decrease. The result is that there is an increase at a ratio of 22%. I read the figure for you; the exported cash circulated in 1978 was 188 million dinars, and in 1979 it reached 229 million dinars at an increase ratio of 20%. Nobody knows the mechanism of issuing cash, when it increases and decreases. This is a considerable increase and it is denied that the incrimination of the check without balance preserves the volume of exported and circulated cash and this categorically denies or otherwise it would decrease. We say that we are afraid that cash won't increase. This cash increased after incrimination. Then, there are reasons that we know. My experience in the field of central bank and I know that there are other reasons that lead to the increase of exported circulated cash, which are various. But not included among these reason is the non-incrimination of the check as a mode of payment. We shift now to a dangerous issue; we are now before a different law, i.e. the exploitation of check incrimination or issuing a check without balance as a mode of guarantee. Please read all the governmental and non-governmental reports from specialized authorities which addressed the subject and admit that there is a problem so-called "issuing a check without balance as a guarantee mode". The law was not meant to incriminate the crime of check without balance as a mode of payment. There are here lawyers who can provide correction if I am mistaken; the law did not incriminate the check as a guarantee mode because this is not the aim but what concluded is that using the check as a mode of guarantee and using the criminal protection as a tool for controlling and blackmailing in people whose aim is to collect money. What happened is that there are people who have a legal power by sending people to prison for purposes not related to the check as a mode of payment and the punishment is enforced because this is the law. For any reason, I tend to Dr. Hussein's opinion that it is better to completely nullify the law as a crime. Let's face reality and come to mutual understanding to whether these fears are true or exaggerated. What is required to be done? To protect the honest merchants; of course, we are supporting them and we have to provide all the means and methods to guarantee the right of anyone to whom a check is issued for legitimate reasons. They have to get their right and as we have said all the means are available. This present situation is very costly; we did not talk about 4000 cases as a felony so that the State's authorities take the measures for them. We have to attract the attentions of the State authorities to such an important case, that of checks without balance. There are 4500 felonies within the police, Prosecution and judiciary authorities; if the present situation changes, these won't be civil cases or claims. The most important disadvantages of the present situation is the destruction of the commercial structure in Kuwait , more than the advantages, because the rules of commercial transaction now are "Know you customer". You known deal with every Tom, Dick and Harry and you do not present a credit for a person without knowing his financial position. I think, in our commercial community, there is no belief in the case of incrimination and it has been established recently by banks in their transactions with the companies when they established companies that study the positions of borrowers before giving approval to the loan. This is in all countries of the world; I don't know why we are late in applying this. This is because we are not aware of the problem; everyone says if he does not pay, I will send him to prison. It has become clear with the elapse of time that this is a waste of money, a waste of time. We resorted to the civilized way, which is not to give a loan to a person except after knowing his ability to pay back and not to give a loan to a person with 60 cases in the court. This is what is applicable in all the countries of the world; people are not sent to prison and no families are destroyed by the bad economic aspects. This is because when merchants or companies do not pay the debts and do not get their rights, the cost of production becomes high for them and they lose customers and consequently the cost rises very high for us as consumers because when a merchant loses, he wants to compensate for his loss. These are the losses of all of us as a society. I think I am asking for an open discussion about this present situation; we are asking continuously why we, among the counties of the world, have felonies though we have that powerful economy. I think there is mistake in the law in purposes which are not related to payment and also if there is a suggestion, it is to accelerate completing the system of payment in all the countries of the world whatever it cost whether 10, 20 or 100 millions. There is no need for check; there is still a gap but we can bridge it for a short time and with a little effort but if we do not warn people, forget the check case issued and were sent to prison and become in company of others with whom they feel harmony. Despite all these harms and disadvantages, there will be some good result Inshallah. You have employees in the government with their equipments all are relatively free. I think this idea is out of date and we have to review it accurately and openly not for wounding others or offending others by giving negative descriptions but as you have seen statistics are very heart breaking and show a great deal of cost incurred under the pretext of protecting economy. I think this is not supported by neutral statistics.
Thanks, Mr. Chairman
Thank you, Mr. Ali Mousa Al-Mousa for this useful review about the economic aspect and I think he has given useful proposals about using the modern modes of payment which might make us do without checks without making sure of the validity thereof or that there is balance to achieve payment therein. Now, we listen to Mr. Riyadh Al-Saegh, the lawyer and head of Kuwait Lawyers Society to deliver a speech about the legal aspect of the cases of checks without balance.
Mr. Riyadh Al-Saegh:
First of all, I would like to express my gratitude for our colleagues who shared with us in organizing this symposium. They say you legal and want checks. We are originally the customers of checks; we get nothing. Rather, there are negative impacts because there is only one solution, which is settlement or compromise. We open the doors of offices to make compromises. All the lawyers try to play a more human than legal role; this is because the role is very determined and specific. There is no way for legal interpretative judgements except in limited few points. However, lawyers exerted a great effort over years and under an illusion we don't understand. From 1986, we have participated with committees saying that there will be impacts on national economy and the Chamber shall convene and submit a memorandum. Our brothers at the Central Bank and other banks come and turbulence occurs as if we were asking for one of the fatal sins. "Aren't we releasing people and helping them to get out of their crises?" In a committee in 1986, I mentioned the same and we replied in another committee to that situation. Every time the Central Bank objects and the government objects to our ideas and suggestion. What will happen then now; if you bring a person who has good goods or sells you a premise; if he does not tell you to bring a certified check at the moment, you can see the harm which will happen. The opposite happens; a merchant comes to you and he is the harming party. We can give you an example for foodstuff, he goes to buy an item with the price of unit amounting 20 or 30 dinars; he buys a trolley, which are in the cooperative society under 20 dinars and he wants to cash it; therefore, he sells it for 10 dinars. This one wants to sell it for 12 and he loses his credibility in the market. Then he loses everything. So, the aim intended from protection is the stability of the status of rights and achieving an economic interest. Now, the opposite happens; there is an economic harm. Who says there is economic interest? Is it the interest to read Al-Wasseet looking for a Group that lends you money saying that they are solving your financial problem and all these are lies. The person comes and takes 10 thousand dinars and writes a check for 100 thousand dinars. And the same happens developing from a status to another. The new results are that who wants his application to be cleared legally and to take a specific check without balance, has credit cards. All the companies when supplying goods or when you demand goods from them, they do not give you or you do not give them a check though they have balance at all banks and they deduct it on the same day or deposit it and tells you to follow up the goods so that the goods can arrive the destination. But all you see are those poor prisoners who are mistaken and they become victims for their ambitions and aspirations. In getting into market, any person might have ideas and these ideas are related to checks and checks are the end. Of course, the result is that the family is pulled towards that abyss. Therefore, I knew that if criminal protection is nullified, this market will end with the market checks. Believe me, it will end and the number, by Allah the Almighty, will go down to 10%. This thing we are sure of because most people who accept checks accept prison. Some specialized people say that a person with issuing a check is destroying his budget with debt through issuing that check without balance for a Kuwaiti better than registering it as non-existent debt or registering it on the account of a decaying goods. This is a customary; consider the foodstuff companies. He is firstly arrested but left for some time because there is still validity and accepts any check you give to him because he will dispose of the goods. In many issues, I don't want to take too much time but I want to say this out of experience. Basically, I know that this opinion even from the legal perspective, there are some who pay. But we can see reality and interest and reality is always the secret for the intervention of law which makes reality valueless and there is no way for investigating reality. The opposite is true; we, as a legislative authority, pay attention to the interest of the individual. Many times, 1000 persons become innocent after being convicted and no guilty is made mistaken and this is Sharia and law. We say keep aware and get away from suspicious acts. What happens is that everyone of you, just few steps, will become accused of a check and he who has a housing loan may become accused also. And instead of studying to graduate, a student may go to a car agency and take one with a check and the father does not pay the installment and the ignorant student instead of graduating, goes directly to the Central Prison. The disadvantages of the short-term imprisonment is that a person is put into a cell and tries out smoking cigarettes and goes out of prison after just having a check case, a respected man ends in 20 diseases. Believe me, there are tens and hundreds of families, including those who keep themselves away from people, who are weeping and suffering from this case of checks without balance. Sometimes, a husband and his wife are imprisoned because of borrowing a joint loan and their children are lost in between. I wish this draft law will be enacted on an urgent basis to put an end to this tragedy and reduce the number of prisoners to reduce the burden in order that everything goes to its right place. Every transaction is ended with a transaction and he who is careful for himself shall go in compliance with applicable rules and follow up with the system followed in banks.
Thanks.
Thank you, Mr. Riyadh Al-Saegh for this review about the legal aspects of the issue. Of course, we had the wish that Sheikh Dr. Khalid Al-Madkour shares us to talk about the religious and Sharia aspect in the cases of checks without balance but it seems that he has other appointments. We can allow for giving comments for quarter of an hour then there will be a dinner invitation. Now, it is time to listen to the speech to be delivered by Mr. Eid.
Mr. Eid Hedal:
In the name of Allah, the Most Merciful, the Most Compassionate
Thanks be due to Allah, the Lord of the Worlds, blessings and peace be upon His Messenger Mohamed. First of all, we would like to express our thanks to all the participants in the organizing committee and all the attendance. I would like to ask a question: is there really this law, i.e., law of checks? Are there any laws which instead of protecting life create unnatural life? The law of checks, as mentioned by some colleagues, is not to be incriminated. It is no longer a protection for natural life and has become just a protection for unnatural life. There are many uses of checks in transactions either by usurers, cheating, fraud or suspicious transactions. We have heard many replies and I talk to you as a member in the Legislative Committee. All the replies and responses which came from governmental authorities are all loose replies like old books that are irrelevant to reality. Unfortunately, when we convened, we the members of the Committee, all the members viewed to postpone the issue and this was the majority of them. We feel the suffering of those people behind the bars and the suffering of those wives and children. I came to Mr. Walid Al-Tabtabaee to withdraw the proposal from the Committee and submit it to the Council to lift this punishment. We hope from our dear brothers whether the attendance and those who are not present to discuss this issue and agree in regards thereof. I am not to talk about a bond which has become some sort of nonsense. This means that a person gives another a bond in return for the money. There are 90% of bonds are exploited in unnatural matters. Anyway, this must be nullified and we wish that our Kuwaiti jurist brothers to be bold and try not to devote much procedures because jurists like many procedure, more non-sense, more problems. We hope the Kuwait Lawyers Society to attend and give a unanimous opinion because there are 4000 crimes of checks. These crimes caused many other crimes as a result. I don't want to take too much time talking but we hope from Allah and from our brothers at the Council to respond to our request to solve this problem before the current session is held.
Thanks very much
Mr. Mohamed Al-San'ousi:
In the name of Allah, the Most Merciful, the Most Compassionate
Good evening, everybody. I feel that all of you are happy because other authorities have been modest and responded with their feelings for what we have posed at that time. Let's start by saying that we have found that the Ministry of Justice is the one which is always working quietly without making any media propaganda or talking in public about holding two symposium to which it invites a lot of people for discussing this subject and making it know. This is very nice. Al-Qabas newspaper has attacked me on the first page in that program and which is called the strong opening. This newspaper began to talk about this subject on a daily basis and participate with people. This is one of the things that make me happy. More than this is that I see some members of the Nation Council and the Legislative Committee were present at that time and when the subject was posed for discussed none of them gave this subject its due attention. I was very sad that such an issue of such an importance which I have had experiences to see with my own eyes, was not dealt with in such necessary enthusiasm. And now I find them deal with it with some sympathy as happened with Mr. Al-San'ousi and many blessed members and this media exploitation or an issue I do not want to reiterate what was said about it or that it is dangerous. The issue is not one of sympathy; rather, it is an issue of families. I saw many stories which made me stop eating for days. A simple story is that a woman came to me in my office without permission with an eleven-year-old girl and a nineteen-year-old girl; she was pushing the girl forward by force and beating her. She said that the girl's father is imprisoned for a case of check without balance and this girl goes out in the evening. The girl said that they had nothing to eat and our father is in prison. So I go out to earn our living. I have experience with many stories like this and I can bring you volume so stories. There are many tragedies and many social issues that are not necessary to be talked about. This case of checks is an aspect in which we are backward. If we take the consult of some colleagues, as noted by Ahmed Al-Rab'ee, they covey to him and there is backwardness in their countries. Therefore, they have a completely different status. Here, if you entered with a date different from the one agreed upon, the judge refuses without your presence and asks, you as Mr. Riyadh said, one question is that the Prosecution asks you "Is this your signature? Yes, this is mine and I am the one who wrote this check. Ok, it is over and you are imprisoned. I had a meeting with one of the judges and said to him: "you as judges can and the law allows you to make it easy for a settlement agreement that reaches four or three months. Personally, I have made 1200 settlements between creditors and debtors in his office, house, or company or at banks; it is just an easy agreement. There were some persons who were sentenced and were in escape and I tried with my sponsorship that they do not take him and tried to solve his problem. Or that after he submits the check to the judge, he could give this person the amount back. It happened that one judge practiced that for a complete month; he calls upon the person and asks him in an attempt to make settlement and solve their problem within three months. This judge was attacked by a group of other judges and stopped him because they have no time because there are too many cases of that sort. Therefore, they have just time to give rulings and that is what happens every day. I think lawyers know this and this means that there is no spirit or wish to find solutions for such a situation or such a social issue we are talking about. And there is no attention paid to the bad consequences of such cases. The most evidence is when I discussed with some business, they were divided into several parties. A party of which has no mercy or affection in their hearts. We have nothing to say about those, let them go away. I say that this issue is in need of more attention. In the end, I would like to thank all the members of the Committee who gave us this opportunity for the members of the Nation Council. However, what is more important in this regard is that everyone takes decision in the subject according to his own abilities.
Thanks, |