Dr. Saqr Eid Al Ruwais
Associate Professor of Public Law
College of Law, University of Bahrain

Abstract:

This research paper dealt with the comment on the ruling of the Kuwaiti Constitutional Court in Case No. (5) of 2021, issued on February 16, 2022, regarding the unconstitutionality of Article (198) of Penal Code No. 16 of 1960 concerning “imitating the opposite sex in any form” as a sensitive topic in Kuwaiti society, in Arab and Islamic societies, and in all conservative societies, regardless of their religion, in terms of the basis on which the court issued its judiciary and the problems it contains, within the framework of the established legal rules and principles to find out the reality of the guidelines and philosophy of the Constitutional Court in this regard, compared to the previous guidelines of the same court.
The research concluded that the court did not examine whether imitating the opposite sex or not is legitimate from the Islamic point of view and did not base its ruling on personal freedom in its broad sense but based it on the narrow concept of personal freedom. Therefore, the specific details of its judgement were limited to the necessary legal formulation of the principle of legality of criminalization and punishment, while the court had wide discretion when considering appeals in evaluating the text in terms of its suitability for rigid or flexible wording. The court also had another logical option, legally speaking. In conclusion, the ruling reached by the court according to its merits does not preclude the criminalization of the act by other legislations.

Key words: the Constitutional Court, the crime of imitating the opposite sex, personal freedom, legality of crime and punishment, Islamic law.

Read Full PDF Text (Arabic)