Prof. Yusri Mohammed ElAssar
Professor of Public Law
Kuwait International Law School and Cairo University

Abstract:

This study includes a comment on the ruling of the Kuwaiti Constitutional Court issued on February 16, 2022 that Article (198) of the Penal Code is unconstitutional, as it stipulates the criminalization of imitating the opposite sex in any way, based on the fact that this article did not include an objective and disciplined criterion for determining legally sinful behavior, and that its formulation is very general and broad, and it can be interpreted in more than one sense. It was necessary to expand the scope of the study and refer to the rulings issued by the Constitutional Court on the occasion of its control over the drafting of penal texts, in order to monitor the court’s trends, and to show the legal point of view regarding the extent of agreement or disagreement between its directions in this regard.
The study showed that the legislative drafting of the text of Article (198) of the Penal Code does not differ from the legislative drafting of other criminal texts in which the court preferred to interpret the text of the legislation in a manner consistent with the constitution and ruled its constitutionality. Therefore, the text of this article could have been interpreted in a manner consistent with the provisions of the constitution as the court did in other similar rulings. On the other hand, the court could have ruled that Article (198) is partially unconstitutional – with regard to the controls which it did not include and that the court deems necessary in order to be considered in accordance with the provisions of the constitution, such as the public prosecution directing instructions to judicial officers that include more detailed criteria for the offending acts, and the lack of intervention, unless the actions attributed to the accused are considered definitive evidence of open reincarnation of the opposite sex. This method is called: control over the constitutionality of legislative regulation deficiencies (or legislative omission).
The court could also have ruled on the constitutionality of Article (198) of the Penal Code according to controls and reservations that the authorities entrusted with its application should take into account in practice, and this is followed by constitutional courts in many European countries, such as the French Constitutional Council. This approach is applicable in the State of Kuwait, and it is consistent with the practical nature of the constitutional judiciary in the flexible interpretation of the texts of legislation and regulations, and not ruling that they violate the constitution unless it is not possible to interpret it in a way that agrees with its provisions. Practical problems will not arise from the application of this method in issuing judgments, because the three public authorities base their actions on the texts of laws with the rulings of the Constitutional Court and refer at the same time to these texts and rulings.
The study was divided into three sections, the first of which dealt with the policy of the constitutional judge in favoring the interpretation of the legislative text in a manner consistent with the constitution, the second dealt with the discretionary power of the constitutional judge to complete the deficiency in the legislative text, and the third dealt with the discretionary power of the constitutional judge in ruling the constitutionality of a legislative text according to controls in application.

Keywords: the discretionary power of the constitutional judge, the drafting of legislation, the shortcomings of legislative organization, legislative omission, ruling on the constitutionality of a law with controls in application.

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