Representatives of twenty-four Kuwaiti women, attorneys Areej Hamadeh, Bashayer Al-Ghanem, and Afrah Al-Sharad, filed an appeal with the Constitutional Court, arguing that the law on elections for National Assembly members is unconstitutional in its second paragraph. The lawyers sought the law’s invalidation. The case was filed under decree-law No. 120/2023. The appellants clarified that a formal error in the law’s phrasing has resulted in a constitutional problem in the second paragraph of article 16 of the decree-law No. 120/2023, which governs elections for National Assembly members.
This has no bearing on the National Assembly’s acceptance of this paragraph as written because it merely fixes the constitutional flaw that called for its issuance. The facts of the appeal state that law No. 120/2023 pertaining to the elections of National Assembly members was published in Kuwait’s official gazette, the Al-Youm daily, on August 27, 2023. The phrasing had a formal flaw that raised concerns about potential constitutional violations. Article 16’s second paragraph states that following the law, the Constitution, and Islamic law is necessary in order to exercise one’s right to elections and nominations.
In violation of paragraphs 2 and 6 of the Constitution, the execution of article 16’s second paragraph runs counter to the idea of the evolution of legal standards. Because Islamic Sharia is a primary source of the Constitution—that is, one of the sources, not the only source—and because the law has a lower status than the Constitution, it also included restrictions on personal freedoms and discrimination between citizens based on religion, which is against Article 29 and Article 30 of the Constitution, respectively.
The appellants contend that there is a formal flaw in the legal wording of article 16 (second paragraph) of statute No. 120/2023, which relates to elections for National Assembly members and clashes with multiple constitutional passages.
Thus, in accordance with the wording of article 173 of the Constitution, which states that “The law designates the judicial body responsible for adjudicating disputes related to the constitutionality of laws and regulations and its powers and the procedures it follows,” they addressed the direct appeal to the appropriate authority, which is the Constitutional Court.
The bill enhances the ability of the government and interested parties to challenge the legality of laws and regulations before that body. In addition to what is specified in legislation Establishing the Constitutional Court No. 14 of 1973, if the aforementioned authority determines that a legislation or regulation is unconstitutional, it will be deemed to have never been passed. It is important to note that the following people filed the appeal: Areej Hamada, Adila Al-Sayer, Laila Al-Ghanim, Lulu Al-Khaled, Noura Al- Arfaj, Mona Al-Ghanim, Moudi Al-Saghir, Ghada Al-Ghanim, Maha Al-Mojil, Fatima Al-Aqrouqa, Nawal Al-Rasheed, Ashwaq Al-Mudhaf, Zainab Boushahri, Diaa Al-Ghanim, Shifa Abdullah, Khadija Al-Qallaf, Hanan Al-Zayed, Sarah Al-Dalali, Fatima Al-Ali, Nadia Al-Othman, Reem Al-Aidan, and Nabila Al-Kharafi.