From a jurisprudential perspective, it is noticed that there is a serious contradiction between the legislation related to regulating freedom of belief. It does not seem to those who study Kuwaiti laws that there is a clear legislative position that resolves the dimensions and controls of an individual’s exercise of his freedom of belief. On the contrary, we find that freedom of belief succeeds in reaching the space of expression once, but falls under legal accountability and criminal charges several times.
And due to the fact that this legal vacuum/legislative deficiency exists, the law jumps to penalize practitioners of this right, and because there are no clear explanatory memorandums, resolutions and definitions that recognize certain religions, or tackles the nature of freedom of belief, or even a clear definition of the practices of different sects and religions, the intervention of the penal law comes without a reference controlling this process and without a constitutional basis.
I see that this interference is misplaced and contrary to the provisions of article 35 of the constitution of Kuwait, which grants the freedom of belief to everyone. Is it reasonable for a law to regulate an inevitable and fateful issue such as belief? Or determine what can be practiced and what prevents its practice? If there were legal provisions regulating this right, the penal law would not have taken such an accidental stance.
Going back to the constitution of the state which is the source of all rights and freedoms, the legal vacuum is seen by a lack of laws and executive resolutions that grants all religions the right to establish worship houses, the right to the judiciary with regards to personal and marital status or inheritance, or the right to have a specialized department before the ministry of justice which shall have the jurisdiction to view their religious documents and apply the constitutional principle to assist people in obtaining their rights.
Moreover, while the country, Kuwait, adopted great efforts to establish family courts, the departments functioning in this authority do not tackle all religions or sects.
Therefore, it is not surprising that the rest of the legislation in the legislative hierarchy follows a contradictory pattern, as the text of the second article of the constitution mentions that it is a civil state whose religion is Islam. But combining secular and religious principles leaves the implementation of this concept with a huge ambiguity and leads to contradictions.
The laws must be transparent with the people, either by choosing civil or religious concepts, so that individuals can practice freedom of belief without the fear of being chased by criminal charges.
Atyab Al-Shatti is a bilingual Kuwaiti lawyer who currently operates the international department at one of the leading law firms in the country. She brings ten years of rich experience and a bachelor’s degree in law from Kuwait University to the firm. She specializes in corporate law, commercial law, and employment and labor, and she is admitted to practice before all courts in Kuwait including the Constitutional and Supreme Courts.