Commentary on the Ruling of the Constitutional Court in Appeal No. 5 of 2021 issued on February 16, 2022, Regarding the Unconstitutionality of Criminalizing Imitation of the Opposite Sex
Dr. Ahmad Abdulatif Aljarallah
Assistant Professor of Criminal Law
Saad Al Abdullah Academy for Security Sciences
And Kuwait International Law School
Dr. Muaath Suleiman Almulla
Associate Professor of Criminal Law
& Director of the Law Diploma Program
Kuwait International Law School
Abstract:
The ruling of the Constitutional Court in Appeal No. 5 of 2021, issued on February 16, 2022, sparked great reactions in Kuwaiti society, which ruled that Article (198) of Penal Law No. 16 of 1960, as amended by Law No. 36 of 2007, was unconstitutional. The text included the criminalization of imitating the opposite sex. It relied on several reasons in which the court found a contradiction to the principles guaranteed by the Kuwaiti constitution, and contradicts the principles of freedom, and frees the hands of policemen without specific controls.
From this standpoint, the researchers wanted to comment on this ruling with a scientific methodology, in which they shed light on the reasons that the court relied on in its merits to cancel this phrase from the article, and the implications of the ruling after this cancellation, and the extent to which it is possible to stipulate the criminalization of the phenomenon of imitating the opposite sex, and to indicate what must be done. Stop with limits and controls.
In this comment, they concluded that the ruling was objectively defective. He opposes what was explicitly stated in Article (2) of the Constitution, that the religion of the state is Islam and Islamic law is a main source of legislation. The Constitutional Court also turned away from the rulings of the Court of Cassation related to the condemnation of imitation of the opposite sex, and finally the Constitutional Court turned away from the juvenile law, which considered that the imitated juvenile is liable to delinquency, and the ruling creates a dangerous effect, considering the act of imitation is permissible unless a law is issued criminalizing it.
Keywords: separation of powers, constitutional oversight, police powers, referral to the judiciary, rights and freedoms, and Article (198) of the Penal Code.