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Litigating Women’s Rights in Gulf Monarchial Systems: The Kuwait and Bahrain Constitutional Courts as Case Studies

In: Arab Law Quarterly
Author:
Salma Waheedi Harvard Law School 1563 Massachusetts Avenue, Cambridge, MA 02138 USA

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Abstract

This article is an inquiry into the ability of the constitutional judiciary in Arab Gulf monarchial systems to act to protect women’s rights and the conditions that enable such autonomous exercise of judicial powers. Looking specifically at Kuwait and Bahrain, the empirical findings of this article demonstrate that one must look beyond constitutional or legal text in conducting this analysis. In these largely comparable political systems with very similar constitutions, subtle contextual political differences can lead to divergent outcomes when it comes to the practical exercise of constitutional judicial power. The experiences of Kuwait and Bahrain are insightful as they shed light on the different dynamics that may exist in similar monarchial systems and how even a limited divestment of political power, as in the case of Kuwait, can enable judicial institutions to carve a role for themselves in protecting citizens’ rights.

1 Introduction

Western academic literature on constitutional judicial review is often preoccupied with the ‘counter-majoritarian’ nature of constitutional courts and what is described as the problematic exercise of authority by an unelected judicial institution over the will of elected representatives of the people. In authoritarian or non-democratic states, the absence of viable elected institutions renders the counter-majoritarian critique less relevant. Recent literature on judicial review in authoritarian states suggests that it is the most common scenario for the judiciary in a non-democratic system to act as a subsidiary of a ruler or ruling elite, but at the same time adds more nuance to the picture, demonstrating that the judiciary may, under certain conditions, take positions that represent certain challenges to the ruling elite.1 And while there is no unified theory to fully explain the emergence of either outcome, many case studies have delved into the historical and political context that enable courts to act autonomously to protect citizens’ rights despite the will of a ruling elite.2

This article is an inquiry into the ability of the constitutional judiciary in Arab Gulf monarchial systems to act to protect women’s rights and the conditions that enable such autonomous exercise of judicial powers. Looking specifically at Kuwait and Bahrain, the empirical findings of this article demonstrate that one must look beyond constitutional or legal text in conducting this analysis. In these largely similar political systems with very similar constitutions, subtle contextual political differences can lead to divergent outcomes when it comes to the practical exercise of constitutional judicial power.

Arab Gulf monarchies have historically long suffered from a weak institutional culture. This is not a new phenomenon but rather a product of decades of dynastic rule and decision-making practices, both in pre-colonial times and under British colonial rule, where power was concentrated in the hands of a few.3 Broadly speaking, political systems in Arab Gulf countries remain dominated by strong executive branches that overshadow other political actors, particularly given that the position of the Prime Minister has always been reserved to senior members of each country’s royal family. The exercise of political power remains highly personalized, with dynastic and tribal exercises of power and influence permeating all state institutions. This tradition of weak institutional checks continues to dominate the political systems of all Gulf monarchies, despite the creation of partially elected legislatures and an ostensible constitutional commitment to separation of powers.4

Notwithstanding these systemic limitations, the jurisprudence of the Kuwaiti Constitutional Court demonstrates that a judicial body — even if unrepresentative by nature — could muster sufficient public legitimacy to enable it to act as a conduit of constitutional rights enforcement. The Kuwait Constitutional Court has been the more successful amongst its counterparts in the region in asserting a stronger claim to legitimacy and ability to act autonomously to protect the rights of citizens. In spite of an imbalanced power structure tilting heavily towards the executive — and maintained largely through a rentier state system financed by oil revenues5 — the Kuwaiti political system has retained its historical tradition of balancing interests and maintaining a relatively active public participation in decision making.6 The relatively wide discretion which the executive appears to have granted the Court (compared to other Gulf countries) has enabled the court to manoeuvre carefully and assert just enough autonomy to build some degree of public trust without directly confronting the executive or disrupting the existing power structure. Notwithstanding recent rulings that have increasingly fallen in line with the will of the executive and arguably have served to weaken Kuwait’s elected institutions,7 Kuwaitis of diverse socio-economic backgrounds and political views have continued to resort to the Court in disputes that involve citizenship rights. As this article will show, one of the defining features of the court’s jurisprudence is its careful treatment of political disputes, with an outlook to avoid direct confrontation with the executive over highly sensitive controversies, while striving to maintain its position as a publicly respected institution. This is a complicated task, and its success remains tenuous and contingent on the executive’s willingness to cede at least some power and divest some decision making to state institutions, including the judiciary.

In Bahrain, by contrast, the concentration of political power within a smaller circle of ruling elites with largely undisrupted control over state institutions has practically rendered the Court largely irrelevant. In spite of a rich history of grassroots political and civil society activism,8 the current political climate in the country is characterized by undisputed executive control over state institutions, further exacerbated by an extremely weak and fragmented civil society.9 Combining its constitutional and extra-constitutional sources of power, the executive has been able to retain a firm hold on political decision-making and subvert the risk of any other state institution exercising effective control. Unlike in Kuwait, the absence of any popular contestation of executive will — or in other words, the full alignment of interests among the ruling institutions — eliminates any real need to delegate arbitration powers. Instead, the constitutional court appears to act as another enforcing arm of executive will, seemingly unconcerned with any critiques of its popular legitimacy. Given the lack of survey data on the legitimacy of the court, one can observe the number of rights cases brought before the court as a proxy of the public’s faith in the independence of the court. One telling statistic is the number of cases involving women’s constitutional rights adjudicated by the Bahraini Constitutional Court since its establishment in 2002: zero.

Finally, in both contexts, women remain vastly underrepresented in the judiciary, including both ordinary and constitutional courts. Bahrain has thus far been the more progressive of its Arab Gulf counterparts, having been the first among Gulf monarchies to appoint a female judge in 2006 by a top down decision of political leadership.10 The first female Bahrani Constitutional Court judge was appointed by the King in 2007, and the current composition of the Court also includes one female judge, appointed in 2016.11 The overall percentage of female judges in Bahrain remains at 9% as of 2016.12 In Kuwait, there has never been a female Constitutional Court judge and up until recently, the judiciary as a whole was the exclusive domain of male judges. It was only in July 2020 that the High Judicial Council approved a breakthrough proposal by the Kuwaiti Attorney General to promote eight women prosecutors to the position of judges. The eight new judges were among twenty-two Kuwaiti women appointed as prosecutors in 2014.13 In contrast to Bahrain, however, where appointments of women to the judiciary took the form of a top-down decision by political leadership, these appointments of Kuwaiti women both to the office of public prosecution and then to the judicial bench came after a long court battle by women challenging the Ministry of Justice’s gender-based discriminatory hiring practices and was won at the Administrative Chamber of the High Civil Court.14

This article focuses on the two case studies of Kuwait and Bahrain as two Arab Gulf monarchies with functioning constitutional courts and a body of constitutional jurisprudence to permit an analysis of the role of constitutional judiciary in protecting and enforcing women’s constitutional rights.15 It analyzes the institutional structures and jurisprudence of the two constitutional courts in order to better understand the conditions under which they operate and the divergence that may explain differences in outcomes. The article begins with a description of the constitutional frameworks of women’s rights and equality protection in Kuwait and Bahrain, followed by an examination of the institutional structures tasked with the interpretation of constitutional provisions and ensuring the compatibility of legislation with these constitutional protections. As part of this examination, the article will consider challenges of institutional and personal independence that impact the independent administration of justice by the constitutional judiciary. The article then moves to analyze key constitutional cases that illustrate the approaches of these courts to women’s rights cases, and the approaches of advocates to use litigation as a tool to claim rights.

2 The Broader Frameworks of Constitutional Women’s Rights Protection

The inclusion of specific provisions that guarantee gender equality and protect women’s rights is a relatively recent phenomenon in constitutional design, having gained strong momentum only roughly since 1945.16 Nonetheless, it is now a rare exception to find a constitution that does not protect gender equality. Constitutional guarantees of gender equality may come in different forms, including general provisions guaranteeing women’s equal rights, anti-discrimination provisions, protections of specific rights applicable to women, such as reproductive rights, and — less commonly — specific affirmative action clauses.17 And while the value of constitutional provisions and their impact are highly context-dependent, it remains important to include these rights protections in a constitution, both for their practical usefulness as rights protection tools — in terms of legislation and constitutional rights litigation — as well as for their normative and symbolic value.18 This section examines the textual provisions in the Constitutions of Kuwait and Bahrain and the extent to which they provide a basis for women’s equal rights under the law.

2.1 Kuwait

Article 29 of the Constitution of Kuwait provides for dignity and equality in public rights and obligations in the eyes of the law, and prohibits discrimination on the basis of sex, origin, language or religion.19 Other relevant articles include Article 7, which states that justice, freedom and equality are the pillars of society; Article 8, which mandates that the state shall preserve ‘the pillars of society and shall guarantee security, tranquillity and equal opportunity to all citizens’, and Article 9, which pays homage to the integrity of the family and protection of motherhood and childhood within a family unit built on a foundation of religion, morality, and patriotism.20

Apart from specific provisions on equality and non-discrimination, women’s rights in Kuwait — quite expectedly — are often discussed in the context of Article 2, which states that Islam is the religion of the state and that Islamic Sharīʿah is a principal source of legislation.21 The Sharīʿah provisions in the Constitution are of broad applicability — that is, they were not necessarily intended to limit the scope of women’s rights protection in the constitution.22 The Government of Kuwait, however, has taken the position that gender equality is subject to the limits of Islamic Sharīʿah. This was expressed, for instance, in the reservations Kuwait entered to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) at the time of accession to the Convention in 1994.23 Specifically, with regard to Article 16(f) on the commitment to eliminate discrimination against women in matters related to marriage and the family on the basis of equality in rights and responsibilities in ‘matters of guardianship, wardship, trusteeship and adoption of children, or similar institutions […]’, Kuwait stated that it did not consider itself bound by these provisions ‘in as much as it conflicts with the provisions of Islamic Sharīʿah, Islam being the official religion of the State’.24 Kuwait also took reservations to Article 9(2) with respect to granting women equal rights with men with respect to the nationality of their children and Article 29(1) with regards to arbitration between states.25

To advise on Sharīʿah interpretation, Kuwait established a specialized directorate, Dār al-Iftāʿ, within the Ministry of Endowments and Islamic Affairs.26 Dār al-Iftāʿ is responsible for issuing fatwās — advisory opinions that do not hold the power of law and generally follow the Mālikī school of fiqh. Dār al-Iftāʿ responds to Sharīʿah-related questions and inquiries from other government institutions and from ordinary citizens in writing and by telephone and e-mail. The influence of Kuwaiti Dār al-Iftāʿ is limited, first because its opinions are not legally binding and also due to the practical fact that it does not figure prominently in the region and its scholarly reach is limited to Kuwait. The Salafī movement, for example, which emerged as a strong actor in Kuwait starting in the early 1990s often turns to Salafī scholars in Saudi Arabia for fatwās, and the Shīʿa minority in Kuwait — representing about 20% of the population — largely turn to Shīʿa Maraji’ (sing. Marjaʾ), scholars with recognized authority to issue Sharīʿah opinions and interpretations, primarily in Iran, Iraq, and Lebanon.

Notwithstanding the constitutional commitment to a Sharīʿah role in lawmaking, nothing in the Kuwaiti Constitution or law requires that the Government, National Assembly, or courts consult Dār al-Iftāʿ before passing a legislation or issuing a ruling. The court system in Kuwait is unified, in the sense that there are no specialized Sharīʿah courts, and all courts are staffed by professionally trained judges, who may have Sharīʿah training as well, but are not required to pursue any specific Sharīʿah education other than the basic requirements of the law curriculum in Kuwait, although judges are required to be Muslim.27 The Kuwaiti Constitutional Court in turn has reserved for itself the power to rule on issues pertaining to Article 2 of the Constitution as a matter of constitutional jurisprudence, as discussed further below.

2.2 Bahrain

Article 1 of the Constitution of Bahrain guarantees the right to exercise political rights to all citizens, men and women. Article 18 provides that people are equal in human dignity and citizens are equal before the law and there is no discrimination on several bases including sex.28

Bahrain’s constitutional framework closely follows that of Kuwait in terms of declaring Sharīʿah to be a principal source of legislation in Article 2 but adds more specific language that permits the conditioning of certain women’s rights protection specifically in accordance with the provisions of Sharīʿah. Article 5 of the Constitution of Bahrain commits the State to guarantee ‘the reconciliation of the duties of women towards the family with their work in society, and their equality with men in political, social, cultural, and economic spheres without breaching the provisions of Sharīʿah’.29 On its face, this provision could be read to permit the passage of legislation that may undermine the political, social, cultural, or economic equality of women based on Sharīʿah arguments.

The Government of Bahrain has also taken a more conservative stance with it comes to its international commitments to eliminating discrimination against women in CEDAW, which it ratified only in 2002 following the present King’s ascension to power and his 2001 announcement of broad political reforms.30 In addition to mirroring Kuwait’s reservations to Articles 9(2), and 29(1), Bahrain has taken reservations to the whole of Article 2 (guaranteeing broad protections to women against discrimination in the law), Article 16 (with respect to eliminating discrimination against women in all matters relating to family and marriage), and Article 15(4) (guaranteeing women equal rights in the law with respect to freedom of movement and the freedom to choose their residence and domicile), stating that they would be observed only as far as they do not ‘breach the provisions of Islamic Sharīʿah’.31

The function of providing guidance on Sharīʿah matters is highly decentralized in Bahrain, following a historic pattern owed to Bahrain’s diverse sectarian makeup. The Ministry of Justice includes a Directorate of Irŝād (Guidance), which provides answers to Sharīʿah-related inquiries in accordance with Sunnī Mālikī school of fiqh. Bahraini Shīʿa, which comprise roughly 70% of the population,32 rely on recognized Shīʿa Maraji’. In a departure from the Kuwaiti model, Bahrain’s court system is divided into ‘secular’ (non-religious) courts staffed by professional judges, with jurisdiction over all civil, criminal, and commercial law matters, and Sharīʿah courts staffed by Sharīʿah graduates, with the exclusive jurisdiction over personal status matters, including marriage, divorce, and custody, with the exception of inheritance disputes, which fall under the jurisdiction of civil courts. The Sharīʿah courts, in turn, are divided by sect into separate Sunnī and Shīʿa courts, each staffed by judges trained in the appropriate school of fiqh.33 With respect to constitutional disputes involving Sharīʿah questions, however, Bahraini law was silent. Similar to Kuwait, the Bahraini Constitutional Court as a matter of fact treated all such challenges as part of its natural mandate, and this exercise of jurisdiction was never explicitly challenged by other courts or political actors.

3 Adjudicating Rights: Constitutional Courts and Challenges of Independence

Constitutional guarantees, in spite of their importance as the foundational elements of the legal system, are by themselves insufficient to guarantee equality under the law and rights protection for women. The effective implementation of constitutional guarantees is highly context-dependent and is a result of a complex interaction of various legal, social, and political elements in any given society. Before turning to constitutional jurisprudence and a discussion of how the constitutional judiciary treated challenges based on gender equality arguments, it is necessary to examine the institutional structures through which these rights are litigated.

This section will discuss the structure of the Kuwait and Bahrain constitutional courts, assess the constitutional and legal challenges to their independence, all crafted carefully and through conscious choices by the executive in each state to drive certain outcomes. Therefore, while it is important to understand the institutional design mechanisms summoned to empower or limit the exercise of judicial autonomy, once must keep in mind the broader political context that is driving these institutional design and legal drafting choices.

3.1 Kuwait

The Constitution of Kuwait mandates the establishment of a judicial body to settle constitutionality disputes.34 The Introductory Memorandum to the Constitution further clarifies that a specialized court is to rule on constitutional disputes.35 The Kuwaiti Constitutional Court was not established until 11 years later, in 1973, with the enactment of Law No. 14 Establishing the Constitutional Court.36 The Kuwaiti Constitutional Court Law defines the court mandate as ‘interpreting constitutional test, adjudicating disputes related to the constitutionality of laws, decrees, regulations, and National Assembly election disputes’.37

The text of the Kuwaiti Constitution incorporates several provisions that emphasize the independence of the judiciary. Article 50 provides that Kuwait’s system of governance is based on the ‘separation of powers’. Article 53 provides that judicial powers are vested in the courts, which exercise these powers in the name of the Emir and within the bounds of the Constitution. The organization, jurisdiction, and functions of courts is left to ordinary law.38

Kuwait also exhibits the most expansive system of constitutional court access among Gulf monarchies. Under the Kuwaiti system, disputes can be raised to the Constitutional Court in three different ways. First, legislation may be referred to the court by a Cabinet Minister or the National Assembly prior to enactment (pre-enactment or abstract review), in order to rule on validity. Second, specific cases may be referred to the court by any of the lower courts, or by any party to a case, if the lower court determines there was a constitutional issue with the applicable law or regulation (concrete review). Third, a natural or a juridical person may dispute the constitutionality of a law, decree, or regulation before the constitutional court, provided that the concerned individual has a specific interest that is impacted by the law in question.39 This third venue in particular was used by several women’s associations and activists to challenge discriminatory laws, as demonstrated below.

The Kuwaiti Judiciary Law (Law No. 23 of 1990 Organizing the Judiciary) organizes the court system, the jurisdiction of different courts, and all matters of judicial appointment, responsibilities, immunities, and dismissal. Appointments and procedures of adjudication before the Constitutional Court are governed by the Constitutional Court Law. In terms of jurisdiction, Kuwait’s judicial system — unlike that of Bahrain — is a unified court system, with no separate Sharīʿah judiciary. Instead, within each of the three judicial levels — Courts of First Instance, Courts of Appeals, and Cassation Court — specialized chambers are created to adjudicate civil, criminal, commercial, administrative, and personal status matters (Sunnī and Jaʿfarī family courts).40 All these courts are staffed by professional judges.41 The Judiciary Law requires that a judge be Muslim with a good reputation, but no special training in Sharīʿah is required beyond what is taught at the Faculty of Law in Kuwait.42 Graduates of either the Faculty of Law or Faculty of Sharīʿah, or their equivalent, may serve as public prosecutors and judges.43

The Kuwaiti Constitutional Court Law empowers the Supreme Judicial Council to determine the composition of the Constitutional Court from amongst senior members of the Kuwaiti judiciary.44 It provides that the Constitutional Court is composed of five judges to be chosen by the Supreme Judicial Council from among the senior judges by secret ballot, in addition to two additional alternative judges to be appointed by Emīrī decree.45 All seven judges must be Kuwaiti, and they undertake their duties as Constitutional Court justices alongside their original appointments at the Court of Cassation or High Court of Appeal.46

It should also be noted that the Minister of Justice and Supreme Judicial Council share responsibility for appointing judges at all other court levels in Kuwait. Article 20 of the Kuwaiti Judiciary grants the Minister of Justice primary responsibility for nominating all new judges. New judges are generally nominated from amongst sitting public prosecutors and the High Judicial Council must then approve these nominations before an official appointment decision is issued by Emīrī Decree.47 Promotion of judges to senior judicial positions are also issued by an Emīrī Decree upon recommendation of the Minister of Justice and consent of the Supreme Judicial Council.48 In turn, these senior judges form the core elite of the Supreme Judicial Council who nominate Constitutional Court judges.49 The process of appointment to the judiciary thus cleverly grants the executive branch, represented by the Minister of Justice, substantial indirect influence on the composition of the Constitutional Court. Once appointments are made, however, the Constitutional Court Law includes important, and in the context of Arab Gulf states, unique provisions to ensure that justices on the Constitutional Court are shielded from undue influences on their decision-making. There are no term limits and judges are immune from dismissal except in accordance with disciplinary procedures outlined in the law.50 In addition, the requirement that all members of the court bench are tenured Kuwaiti judges serves as a further protection from external pressures on the person of a judge. While non-Kuwaiti Arab judges are regularly appointed to serve in the judiciary on the basis of temporary contracts, and may serve in their professional capacity on the Supreme Judicial Council, the Constitutional Court Law in particular ensures that only tenured Kuwaiti judges serve on the Constitutional Court.51

Financial autonomy and administrative self-governance are key assurances of judicial independence. Kuwait — like most Arab Gulf states — follows a largely civil law model that grants the executive wide powers to regulate and oversee the administration of judicial affairs through a Ministry of Justice. The Kuwaiti Ministry of Justice enjoys wide discretion to make financial and administrative policies and decisions with respect to the operation of courts at all levels. Articles 3 to 8 of the Kuwaiti Judiciary Law empower the Minister of Justice with the ability to exercise wide administrative powers over all courts, including the Constitutional Court. Financial compensation schemes of all judges are organized by the Cabinet of Ministers upon proposal of the Minister of Justice.52 The Ministry of Justice directly recruits and hires all support staff in courts and regulates their operation.53 Powers to issue and administer all human resources policies with respect to the courts, including dismissal of support staff, are also delegated to the Ministry of Justice.54 Courts continue to remain institutionally dependent on the budgetary allocations controlled by the Ministry and judges themselves are compensated and trained in accordance to the will of the executive.55

3.2 Bahrain

Bahrain established a specialized constitutional court only after the promulgation of the 2002 amended constitution.56 Article 106 of the 2002 Constitution established a Constitutional Court, composed of a president and six justices, that is empowered to watch over the constitutionality of laws, for which procedures are to be determined by law.57 The Constitution also specifies the available venues to raise constitutional challenges. These can be brought by the Government, by either chamber of the bicameral National Assembly (the legislature), by ‘notable individuals’, and by others, including lower courts.58 The King may also refer any legislation to the court prior to its enactment to rule on its constitutionality.59

The text of the 2002 Constitution of Bahrain guarantees separation of powers and judicial independence.60 Nonetheless, one central feature of the Bahraini system is the prevalence of vague provisions of law that enable direct or indirect executive interference with judicial functions. For example, while Article 33(h) of the Bahraini Constitution provides that the King appoints judges nominated by the Supreme Judicial Council, the Bahrain Constitutional Court Law provides that the court shall be composed of seven justices appointed directly by the King pursuant to a Royal Order, without mentioning any role for the Judicial Council in the selection of justices, nor does it offer guidelines with respect to selection criteria or process.61 Further, unlike lower judicial appointments which are issued by a Royal Decree,62 Constitutional Court judges are appointed by Royal Orders, issued directly by the King without the consent of Parliament.63 It should also be noted that the Supreme Judicial Council is appointed by a Royal Order, without specified consultation or nomination mechanism, for a limited term of 3 years that may be renewed once.64

In terms of guarantees of personal independence, Constitutional Court judges are granted a degree of protection during their tenure and may not be dismissed or transferred without their consent for the duration of their appointment.65 However, unlike the Kuwaiti court, the Bahraini Constitutional Court Law permits non-nationals — Arab judges working on temporary contracts — to serve on the bench of the court and sets a relatively short term limit of only 5 years, renewable once.66 The recruitment of expatriate judges on short-term contracts in particular raises concerns with respect to their ability to issue unfavourable rulings when their contracts, compensation, and immigration status are directly controlled by the Ministry of Justice, in absence of any legal protections or otherwise any specific guarantees of their independence.

The Bahraini Constitutional Court Law states that the Constitutional Court has ‘administrative and budgetary independence’, yet the budget allocation of the court is to be determined ‘in agreement with the Minister of Finance’ and in accordance to the guidelines issued by the Ministry of Finance.67 All judges’ financial compensation schemes are determined by the King pursuant to a Royal Decree, following approval of the legislature.68 It should be noted here that, considering the context of executive dominance over Bahrain’s bicameral legislature, this provision effectively translates into executive control of the judiciary’s salaries and all employment benefits.

4 Women’s Rights Jurisprudence

This section turns to examining the extent to which the constitutional judiciary in each case acts autonomously in exerting its judicial powers to further gender equality and the protection of women’s rights. The section begins by considering major court cases adjudicated by the Kuwaiti Constitutional Court, analyzing the Court’s approach to women’s rights protection. In all of these cases, the court weaves in its own analysis of the question of Sharīʿah, taking on the delicate and controversial role of an ultimate authority on the role of Islam in Kuwait’s legal system. It then moves to offer a similar analysis in the case of Bahrain.

4.1 Kuwait

It is now established in the jurisprudence of the Kuwaiti Constitutional Court that review of the constitutionality of legislation may include review with respect both to compliance with constitutional provisions relating to matters such as individual rights and liberties, as well as review of legislation for compatibility with Islamic Sharīʿah. Across different cases, the court engaged directly with two primary questions: first, a constitutional question regarding the meaning of Article 2 and the constitutional bounds it sets on Sharīʿah application in the law; and second, a Sharīʿah law question, whereby the court interprets Sharīʿah in the context of any given issue. And while Kuwaiti law is silent on the subject of reviewability of the Sharīʿah provisions of the Constitution, the Constitutional Court established its jurisdiction over interpretation of Article 2 in 1992.69 This is of particular significance, considering that the Kuwaiti Constitutional Court is composed of professional judges trained in law, rather than Sharīʿah-specialized religious scholars. There is no special provision requiring the court to consult with an Islamic body or Sharīʿah scholars in ruling over Sharīʿah-related constitutional controversies.

In 1992, the Constitutional Court ruled on a case that challenged the constitutionality of a provision of the Kuwaiti Civil Code that permitted charging interest. The challenge argued that these provisions were inconsistent with Sharīʿah, which prohibits interest as a form of ribā (usury), and should therefore be struck down as violations of Article 2 of the Constitution. The court, however, held that Article 2 made Sharīʿah ‘a source’ and not ‘the only’ source and it ruled that the government may adopt rules even though they may be inconsistent with traditional interpretations of Islamic Sharīʿah.70 This line of reasoning was used by the Court in many cases that followed.

Kuwait’s Constitutional Court has since consistently held that Article 2 does not give it the duty or power to strike down laws simply because they may be deemed inconsistent with Sharīʿah norms. It has done so despite strong opposition by Islamists, who since the late 1970s have emerged as a major political force in Kuwait.71

The Kuwaiti Constitutional Court experience also illustrates political tensions that arise from the adoption of Sharīʿah provisions and subsequent efforts by civil, or non-Sharīʿah, courts to limit their reach. Islamists in Kuwait have repeatedly expressed their dismay at what they consider an inadequate commitment to Islamic Sharīʿah in the country’s Constitution and by the Constitutional Court’s restrictive interpretation of Article 2 of the Constitution. Islamists in Parliament, mainly the Muslim Brotherhood and the Salafī movements, have consistently argued that Sharīʿah should be made ‘the’ primary source of legislation in the Constitution, and several campaigns to amend the Constitution were organized, but have been unsuccessful to date.72

As previously mentioned, the Kuwait Constitutional Court has been the more successful court in terms of asserting a strong claim to legitimacy relative to its counterparts in other Gulf monarchies, in part due to the wide discretion delegated to it by the Emir. This by no means suggests that the Kuwaiti Constitutional Court is indifferent to political considerations. One of the defining features of the court’s jurisprudence is its conscious and careful treatment of political controversies, with an outlook to maintain stability and avoid stirring domestic or regional controversy. This exercise of self-restraint in turn can be understood in the broader context of the balance of powers in Kuwait and the interest of the court in maintaining its influence and manoeuvring space in the executive-controlled Kuwaiti political system.

Below is an examination of some key constitutional cases in which women’s rights were invoked.

4.1.1 Women’s Political Rights and the ‘Famous’ Veil Case73

Kuwaiti women were granted the right to vote and run for office in 2005, and in 2009, four women were elected to the National Assembly for the first time in Kuwait’s history.74 Immediately following the announcement of election results, an election dispute petition was filed to the Constitutional Court challenging the election of MPs Aseel al-ʿAwadhi and Rula Dashti. The petition was filed by a competing candidate who argued that Al-ʿAwadhi and Dashti, both unveiled women, had violated the 2005 Amendment to the 1962 National Assembly Election Law, which stipulated that the exercise by women of their political rights was subject to the ‘accepted rules and conditions of Islamic Sharīʿah’.75 The petition cited a section of the Fiqh Encyclopaedia, issued by the Kuwaiti Ministry of Endowments and Islamic Affairs, as well as other publications of the Ministry, which declared ḥiǧāb to be mandatory under Sharīʿah, to support his claim that the two MPs were in violation of the law.

The Constitutional Court discussed in detail the meaning of ‘the accepted rules and conditions of Islamic Sharīʿah’ in the context of the Election Law. It emphasized that the term ‘Sharīʿah’ must be read only narrowly in line with the original intention of the legislature, which is deduced from an examination of the records of parliamentary debates at the time of enactment of the law. These records, the Court added, did not reveal any discussions of the specific meaning of Sharīʿah, thus indicating that the term ‘Sharīʿah’ is to be interpreted within the broader context of the Kuwaiti Constitution. The Constitution’s commitment to the principles of Sharīʿah, the Court added, was broad and intended to afford the legislature flexibility to use Sharīʿah — as defined by fiqh — as a basis for legislation or incorporate other sources of law as necessary and in accordance with public interest.76 The Court also laid down the principle that Article 2 of the Constitution cannot be read in isolation and must be interpreted within the broader context of constitutional guarantee of personal freedoms, freedom of conscience, and non-discrimination. Quite significantly, the Court emphasized that if any Sharīʿah law tenant is to have the binding force of law, it must be ‘expressly adopted in legislation’, thus implicitly subjecting all Sharīʿah law to the constraints of public policy and public interest considerations.77

4.1.2 Right to Travel and Free Movement

The full realization of a woman’s right to travel and free movement was realized essentially as a result of judicial activism. Article 15 of the Kuwaiti Passports Law of 1962 stated that a woman may not be issued a passport without her husband’s permission.78 This provision was challenged in 2008 in the context of a dispute between a woman and her husband, who had held his wife’s passport, along with the passports and other identity documents of their children, against her will.79 The woman, who could not apply for a replacement passport without her husband’s permission, brought a lawsuit before the lower civil court to recover her and her children’s passports and identity documents. The civil court judge recognized the harm inflicted by the husband and ruled in favour of the wife in November 2008.

The case did not end there. On his own initiative, the lower court judge temporarily abstained from issuing his final ruling and referred the case to the Constitutional Court to rule on the constitutionality of Article 15. The lower court’s referral petition indicated that Article 15 in fact violated Article 29 (non-discrimination), Article 30 (right to personal freedoms), and Article 31 (right to free movement) of the Constitution. The lower court argued that, while a wife owes her husband the duty of obedience, this duty is of a religious and moral character, and may not be enforced by coercive means against her will. The petition further emphasized that conditioning the issuance of a passport to a woman upon her husband’s unlimited and free discretion can cause significant harm to the wife and effectively negates her constitutionally protected right to free travel and movement. The husband, in turn, submitted a memorandum urging the Constitutional Court to deny the challenge, primarily invoking the concept of qiwāmah — roughly translated into a man’s guardianship over his wife — and arguing that it is necessary under Sharīʿah to maintain a husband’s authority over his wife and family in order to ‘preserve the family structure and its moral and religious fabric, and protect society from decay’. The wife later submitted a memorandum supporting the arguments to abolish Article 15.

The Constitutional Court ruled on the challenge in October 2009, invalidating Article 15 for violating Articles 29, 30, and 31 of the Constitution. The Constitutional Court discussed in detail the right to free movement as an integral part of personal freedoms, as defined in the Universal Declaration of Human Rights.80 Notably, the Court implicitly rejected the husband’s argument that Sharīʿah stands in opposition to a woman’s right to free movement. On the contrary, it opined that Sharīʿah guarantees men and women equal rights to free movement and travel, with restrictions acceptable only in exceptional circumstances where public policy, morals, or health dictate. A blanket, de facto restriction such as that of Article 15 was therefore unjustifiable in Islamic terms. The court opinion categorically rejected the argument that merely obtaining a passport can pose a risk to the family’s integrity or society’s moral fabric, stating that denying an adult woman her constitutionally mandated right represents nothing short of denying her free will and humanity. And while overwhelmingly progressive, the ruling nonetheless in its concluding paragraph stated that the invalidation of the article ‘does not prejudice the legislature’s right to issue guidelines for issuance of passports that balance a wife’s right to movement with the Constitution’s commitment to Islam as the religion of the State and Sharīʿah principals as a source of legislation’. No such legislation has since been issued and women have retained their right to obtain passports and therefore travel freely.

4.1.3 Equal Access to Government Housing

In the most recent women’s rights related constitutional case, eight women brought a direct petition to the Constitutional Court challenging the Housing Care Law and its implementing regulations.81 The petitioners sought to invalidate articles in the law that discriminate in the provision of housing benefits between a Kuwaiti man married to a non-Kuwaiti woman and a Kuwaiti woman married to a non-Kuwaiti man. The law states that a housing application may be submitted only by a Kuwaiti man who is the head of a household, and therefore de facto denies a Kuwaiti woman who is married to a non-Kuwaiti man the right to receive public housing benefits. The women argued that the law discriminated against women in relation to the ability to access government housing benefits and violated the constitutional guarantees of equality and non-discrimination on the basis of sex (Article 29). The women’s petition also argued that the law was in violation of Kuwait’s international commitments, including the Convention on the Elimination of All Forms of Discrimination against Women.

The Constitutional Court began its opinion by affirming its commitment to the constitutional principles of gender equality and non-discrimination yet departed from its former — rather progressive — stances on women’s rights and upheld the constitutionality of the law as is. The Constitutional Court opinion denied that the text of the law in any way amounts to gender discrimination. In its analysis, the court stated that the purpose of the Housing Care Law is to provide housing to Kuwaiti families, adding that a Kuwaiti man merely submits an application on behalf of his family as the recognized ‘head of the household’ in accordance with the law ad Sharīʿah. It therefore approached the requirement as a procedural technicality, stating that the submission of the application by the man does not in fact impact a woman’s ability to enjoy the benefits of government housing as a member of the Kuwaiti household.

Expectedly, this rather peculiar line of argument, which essentially ignores the housing rights of a Kuwaiti woman married to a non-Kuwaiti man, generated significant disappointment among women’s rights advocates. It was followed by calls to amend the Housing Care Law, as well as the Personal Status Law, which provides the legal basis for considering a man to be the head of the household in Kuwait.82 However, the likelihood of success of these efforts is uncertain. The ruling, while likely to be a product of the Court’s independent legal analysis, cannot be read in isolation of the general popular sentiment trend in Kuwait rejecting the idea, often under the pretext of controlling public spending.83 Amidst a growing wave of populist anti-foreigner sentiments in Kuwait, it would have been politically very difficult for the court to extend housing benefits, or any other social welfare benefits, to ‘non-Kuwaiti’ households.84

4.1.4 The Personal Status Law

Personal status matters remain the primary sphere of Sharīʿah influence in the Kuwaiti legal system as well as the law that impacts women’s rights the most. The Personal Status Law of 1984 governs all matters of marriage, divorce, custody, and inheritance, and is mainly applicable to the country’s majority Sunnī Muslim population. The law is based primarily on majority interpretations of the Mālikī school of fiqh but also incorporates a compilation of rules taken from all four Sunnī schools.85 Where the law does not sufficiently address a particular matter of personal status, it instructs judges to rule in accordance with the rules and general principles of the Mālikī school.86 Article 346 of the Personal Status Law specifies that the law applies to Sunnī Muslims who follow the Mālikī school, which represent the majority of Kuwait’s Sunnī population, whereas adherents to other schools, which practically means Kuwait’s Shīʿa minority, shall be governed by ‘their own rules’.87 It was not until 2019 that a separate codified Jaʿfarī Personal Status Law was issued to govern personal status matters of Kuwait’s Shīʿa population.88

Substantively, both Personal Status Laws include provisions that arguably are discriminatory against women in the family sphere.89 Notwithstanding widespread criticism women’s rights advocates, there has not been a constitutional court case as of where a Personal Status Law provision was challenged specifically based on an alleged violation of constitutional guarantees of non-discrimination. While it is difficult to determine the precise reason behind this, several women’s rights activists have attributed the lack of rights-based litigation around women’s rights in the family to the widespread understanding that personal status legal provisions are based on Sharīʿah and a challenge would not hold in court.90 The Explanatory Memorandum of the 1984 Personal Status Law, for one, explains each provision with arguments rooted in primarily, but not exclusively, Mālikī fiqh.91

Constitutional challenges to date have focused on alleged non-conformity with Sharīʿah and violation of Article 2 of the Constitution. In 2012, in the context of an inheritance dispute,92 a woman challenged the constitutionality of Article 214 of the 1984 Personal Status Law, which included standards for proving the validity of a will that were not in line with the Sunnī Mālikī school of fiqh, which she argued was the generally applicable and mandatory standard in Kuwait, and therefore was in violation of Article 2 of the Constitution of Kuwait.93 The Constitutional Court rejected this challenge and affirmed its expansive and flexible interpretation of the constitutional commitment to Sharīʿah, clarifying that the Kuwaiti Constitution did not require the legislature to rely on any specific school of fiqh.

In the same year, the Court of Cassation referred a mahr (drowry) case to the Constitutional Court to rule on the constitutionality of another Article of the Personal Status Law, Article 130(b), which instructed court-appointed mediators to recommend that a wife returns her mahr to the husband in exchange for granting her a divorce if she was found to be at fault.94 The petitioner argued that this Article violated a Sharīʿah principle that a mahr may not be returned once a marriage is consummated. The Constitutional Court rejected this argument, and in a clear and strong reiteration of its interpretation of Article 2 of the Constitution, it stated that the current construction of the Article meant that Islamic Sharīʿah provided one basis for lawmaking ‘without precluding the legislature from deriving rules based on other sources of law in matters for which Islamic jurisprudence did not provide guidance’, or where it is favourable from a public interest perspective ‘to develop and reform its provisions as necessitated by natural [societal] development across time’. The Constitutional Court opinion further drew attention to the flexibility afforded by the constitutional text and its utility in empowering the legislature to make choices that are in the best interest of the public.

4.2 Bahrain

Since its establishment in 2002, the Constitutional Court of Bahrain has not adjudicated any cases that directly involved a question of gender equality, and only one case that bore incidental relevance to women’s rights, which will be discussed in the next sub-section. This is hardly a coincidence, given a prevalent view in the women advocates circles, and human rights activist circles more broadly, of the futility of constitutional litigation in Bahrain.95 In addition, the Constitutional Court Law itself offers only limited paths to raising constitutional disputes and grants broad discretion to lower courts in determining which dispute may reach the Constitutional Court.96 Broadly speaking, the human rights jurisprudence of the Constitutional Court Bahrain is limited. Further examination of the broader jurisprudence of the Constitutional Court of Bahrain also reveals a general tendency to avoid confrontation with the Government, despite having on occasions invalidated legislation passed by the Government that generally involved issues of minor political significance, such as the competence of individual government ministries to issue administrative regulations.97

In terms of Sharīʿah interpretation, the Bahrain Constitutional Court has generally followed a liberal approach similar to that of the Kuwaiti court. Article 2 of the Constitution of Bahrain provides that Islam is the religion of the State and that Islamic Sharīʿah shall be a principal source of legislation. This constitutional commitment to Sharīʿah mirrors its counterpart in the Kuwaiti Constitution and raises similar questions with respect to the role of Sharīʿah in lawmaking. The Constitutional Court of Bahrain’s analysis and interpretation of Article 2 also follows the Kuwaiti model closely, and coincidentally, it was also first established in a financial interest case. In a 2014 ruling, the Court upheld the constitutionality of the Bahrain Commercial Code that permits the charging of interest,98 affirming that Sharīʿah shall be considered as one among other sources of law, and that a conflict with Sharīʿah alone is not sufficient grounds to render a legal provision unconstitutional.

4.2.1 Women’s Financial Independence

In 2010, a Financial Disclosure Law was enacted to require that all high government officials and members of the legislature declare their financial assets. Implementing regulations of the law were not issued until 2012, and the commission tasked with reviewing officials’ financial disclosures was formed 2 years later in 2014.99 In 2015, the President of the Shura Council (upper chamber of the Legislative Assembly) challenged the constitutionality of Article 2 of the Financial Disclosure Law, which required officials to disclose both their personal assets as well as assets of their spouses and minor children.100 His claim alleged that this provision amounted to merging the financial personalities of a husband and wife in a manner that contravened the Sharīʿah guarantee of a woman’s independent financial personality.101 The claim also argued that this provision violated Article 5(b) of the Constitution, which requires the State to reconcile the duties and equal rights of women with the provisions of Sharīʿah.

The Constitutional Court overruled the challenge, emphasizing the principle that Article 2 of the Constitution did not preclude the legislature from enacting laws that are based on sources other than Sharīʿah. The Court approached his argument with respect to Article 5(b) of the Constitution with an analysis of the compatibility of the Financial Disclosure Law with Sharīʿah. First, the Court established a flexible meaning of Sharīʿah that emphasized the objectives of Sharīʿah and its ability to respond to social changes and the evolving needs of society. Second, the Court held that the Financial Disclosure Law — while requiring the disclosure of assets by spouses of government officials — in fact retained each spouse’s independence in managing his or her assets, and thus cannot be said to merge the financial personalities of spouses.102 At the conclusion of the ruling, the Court was careful to emphasize to the petitioner that, notwithstanding a ruling of constitutionality, the legislature is not precluded from using its discretion to amend the law as it sees fit. The law was subsequently revised in December 2016 to remove the requirement of disclosing assets of spouses.103

In examining this case, it should be noted that while the Court affirmed the right of a woman to her independent financial personality, this was not the central focus of the case. In arguing the case, the claimant focused nearly exclusively on Sharīʿah-based arguments, broadly seen as the ‘winning’ argument in court,104 rather than constitutional gender equality arguments. Essentially, this was a case that was driven primarily by the desire of wealthy officials allied with the ruling elite to restrict the scope of the Financial Disclosures Law, which ultimately was achieved.

4.2.2 On the Personal Status Law and Women’s Rights in the Family Sphere

I include the discussion of the Personal Status Law as an illustration of a significantly problematic area for women’s rights in Bahrain upon which the Constitutional Court has consistently been unable to exert any influence. In Bahrain, matters regarding marriage and family relations of the predominantly Muslim population are governed by the Family Law, which was recently enacted in July 2017 and applies to all Muslims in Bahrain. The law includes some unified provisions that apply to all Muslims regardless of their sects, as well as provisions that specifically apply to Sunnī or Shīʿa citizens.105 Despite the equality guarantee of Article 18 of the Constitution, the Family Law includes many provisions that are discriminatory. These provisions are typically justified in official government statements by invoking Islamic Sharīʿah.106 The Family Law claims to provide for a marital framework based on ‘reciprocal’ or ‘complementary’ rights (as opposed to ‘equal’ rights) between the two spouses, whereby in return for maintenance and protection from her husband, a wife is expected to obey him and care for the household.107 Discriminatory provisions extend to nearly all aspects of marriage life. All personal status matters, with the exception of inheritance, fall under the jurisdiction of separate Sunnī and Shīʿa Sharīʿah courts, staffed by Sharīʿah-specialized judges.

In turn, Sharīʿah courts in Bahrain are staffed exclusively by male jurists trained in Sharīʿah and fiqh who are notorious for their alleged bias against women and women’s claims.108 Jaʿfarī Sharīʿah court judges, in particular, are also frequently accused of corruption and extortion,109 a situation that has been enabled and exacerbated by the Government’s policy to avoid exercising any meaningful oversight over Jaʿfarī Sharīʿah courts and its apparent lack of interest in reforming these courts or offering adequate training to its judges. The Family Law grants wide discretion to individual judges to make determinations with respect to the ‘reasonableness’ of a woman’s claim, and the attitude of many judges is said to focus on preserving the unity of the family at all costs. For example, a number of local attorneys have stated that courts are reluctant to issue a divorce order in cases where a wife petitions for it based on domestic violence and are more inclined to only do so where the domestic violence was egregious and led to severe physical damage.110 Another problematic feature of the Family Law is the inequality of rights afforded to Sunnī and Shīʿa women on a variety of matters, including ability to enter a marriage contract, access to ḫulʿ (compensated divorce), and child custody rights.

It is therefore particularly striking that there has been no litigation involving women’s rights in the family sphere in Bahrain, given the extent of discrimination enshrined in the Family Law, and the extent to which women’s rights movements have been vocal in demanding reform. Beyond an observed reluctance to challenge the ‘perceived sacredness’ of the Family Law and discriminatory provisions based on certain interpretations of Sharīʿah, the judiciary in Bahrain, including the Constitutional Court, is often viewed with scepticism as institutions controlled by ‘insiders’. Across the board, women’s rights activists overwhelmingly expressed their conviction of the futility of constitutional litigation of women’s rights, indicating that only a committed and bold executive action can push the women’s rights agenda forward.

It is worth noting, finally, that in 2015, the Sharīʿah Court Procedures Law was amended to permit the appeal of Sharīʿah court rulings to the Cassation Court. This can be considered a significant step forward in instituting an additional layer of review and control over the formerly- exclusive power of Sharīʿah courts over personal status matters. However, the jurisprudence of the Cassation Court to date suggests that the Court remains committed to analyzing all claims within a Sharīʿah framework and to applying its reading of mainstream fiqh interpretations, with constitutional rights considerations generally absent from its deliberations.111

5 Conclusions

Constitutional protections of rights arguably serve an important declaratory function, enumerating a given state’s commitment to a specific set of higher values. This declaration alone, however, serves little practical purpose in absence of robust functioning state institutions capable of enforcing these rights. The experiences of Kuwait and Bahrain are insightful as they shed light on the different dynamics that may exist in similar monarchial systems and how even a limited divestment of political power, as in the case of Kuwait, can enable judicial institutions to carve a role for themselves in protecting citizens’ rights. Constitutional Courts will invariably remain unrepresentative institutions, even in established democracies. Yet, inversely, in non-majoritarian political systems with democratic deficits, a constitutional court that is able to act with a certain degree of autonomy from the centre of political power can serve as a tool to protect citizens’ interests against a ruling minority elite. The Kuwaiti experience in particular sheds light on the complex negotiations of power-control that occur in order to retain this function of a court that ultimately serves in the greater interest of political stability. This is contrasted by the Bahraini example of creating a nominal institution that practically and openly serves as another arm of the executive and following through with institutional design choices to ensure the certainty of this outcome. Whether this proves to be sustainable remains to be seen.

1

For a broad discussion of courts in authoritarian regimes, see T. Ginsburg & T. Moustafa (eds.), ‘Introduction: The Function of Courts in Authoritarian Politics’, in Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008), p. 1; M. Shapiro, ‘Courts in Authoritarian Regimes’, in T. Ginsburg & T. Moustafa (eds.), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008), p. 332. In the case of Bahrain and Kuwait, systematic challenge to the independence of the constitutional judiciary are discussed in more detail in S. Waheedi, ‘Guarantees and Challenges of Judicial Independence: The Constitutional Courts of Kuwait and Bahrain as Case Studies’, in A. Schoeller-Schletter (ed.), Constitutional Review in the Middle East and North Africa (Waldseestraße: Nomos Verlagsgesellschaft, 2021), available online at https://www.nomos-elibrary.de/10.5771/9783748912019/constitutional-review-in-the-middle-east-and-north-africa (accessed 1 February 2021).

2

See, e.g., E.C. Ip, ‘The Democratic Foundation of Judicial Review under Authoritarianism: Theory and Evidence from Hong Kong’, I•CON 12(2) (2014): 330–353; M. Lau, The Role of Islam in the Legal System of Pakistan (Leiden: Martinus Nijhoff, 2006); G. Helmke, ‘The Logic of Strategic Defection: Court — Executive Relations in Argentina under Dictatorship and Democracy’, American Political Science Review 96 (2002): 291–303; T. Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007).

3

Unlike British colonial rule in India, e.g., where the British Government established robust institutions based on private property rights and an English-style courts system, which outlived colonialism and were useful in forming the building-blocks of a constitutional system in India, local rulers in the Gulf States were historically left to manage the internal affairs of the state independently, thus maintaining the tribal hold on power. The British, in their bid to secure the trade routes to India, signed a series of accords with the ruler of Bahrain, starting with the 1861 Accord and the bilateral treaties of 1880 and 1892, according to which Britain pledges to defend Bahrain against any external attack, protect its citizens abroad, and manage its foreign affairs. These treaties instituted a system of ‘protection’ that Britain had implemented with respect to other Gulf Emirates as well, which maintained the independence of the local rulers in managing the internal affairs of the Emirates, while Britain retained control of its foreign policy, foreign relations, and any concessions to be granted with respect to oil or other natural resources. See H. al-Baharna, Duwal al-Khalīj al-ʿArabī al-Ḥadītha 101 (Beirut: Dār al-Kunuz, 1973).

4

None of the legislatures in the Gulf are fully elected, with Bahrain’s National Assembly consisting of two chambers, a lower elected chamber and a higher appointed one, and with Kuwait having the highest ratio of elected members (the ratio varies with the number of Government Ministers, who sit in Parliament as deputies).

5

See, e.g., L. El-Katiri, B. Fattouh & P. Segal, ‘Anatomy of a Welfare State: Rent Distribution in Kuwait’, LSE Global Governance 13 (January 2011), available online at http://www.lse.ac.uk/IDEAS/programmes/kuwait/documents/Fattouh.pdf (accessed 15 October 2020).

6

For a discussion on the process of enactment of the Kuwaiti Constitution of 1961 and the political dynamics that ensued, see N. Brown, Constitutions in a Non-Constitutional World (New York, NY: State University of New York Press, 2001), pp. 55–59; see also M. Herb, ‘The Origins of Kuwait’s National Assembly’, LSE Kuwait Programme Paper Series 39 (London: LSE, 2016). For a discussion of the political context and the legal debates surrounding the establishment of the Kuwaiti Constitutional Court, see, e.g., N. Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 2006), pp. 129–186.

7

See, e.g., the Kuwait Constitutional Court ruling that upheld the controversial one-vote decree: Naṣṣ ḥukm al-maḥkama ad-dusturiyya bi-sha’n masrum aṣ-ṣawt al-wahīd (17 June 2013), available online at http://www.kna.kw/clt-html5/news-details.asp?id=18116 (accessed 1 December 2021); for a discussion on the decree and its political implications, see A. Kadlec, ‘Kuwait’s Internal Discord is Likely to Intensify if the Court does not overturn the Emir’s Recent Electoral Decree’, Sada (3 April 2013), available online at https://carnegieendowment .org/sada/51415 (accessed 1 December 2021).

8

See, e.g., O. al-Shehabi, Political Movements in Bahrain: Past, Present, and Future, Jadaliyya (14 February 2012), available online at http://www.jadaliyya.com/pages/index/4363/political-movements-in-bahrain_past-present-and-fu (accessed 15 October 2020). F. al-Mudairees, Dirasah hawl al-harakāt wa-l-jama’āt as-siyassiyah fī l-Baḥrain (1938–2001), available online at https://gulfpolicies.org/2019-05-18-07-14-32/92-2019-06-25-12-45-40/676-1938-2001-1 (accessed 1 November 2020).

9

This weakness was exacerbated by the social divisions that ensued among Bahrain’s Sunnī and Shīʿa communities during the 2011 period of unrest and the subsequent Government crackdown on opposition political societies.

10

Bahraini Royal Decree 15 of 2006.

11

Current Members of the Constitutional Court, Official Website of the Bahraini Constitutional Court (in Arabic), available online at http://www.ccb.bh/ccb/Pages_ar/MemberList.aspx?encr=1B3A&mtype=TQ== (accessed 15 October 2020).

12

Women in the Judiciary in Arab States: Removing Barriers, Increasing Numbers, available online at https://undocs.org/pdf?symbol=en/E/ESCWA/ECW/2019/2 (accessed 15 October 2020).

13

H. Toumi, ‘Kuwaiti Women Poised to Become Judges’, Gulf News (24 October 2018), available online at https://gulfnews.com/world/gulf/kuwait/kuwaiti-women-poised-to-become-judges-1.2293191 (accessed 20 October 2020).

14

In 2012, Dalal al-Hamdan, a Kuwaiti female applicant to the position of public prosecutor, brought a case to the administrative chamber of the High Civil Court, challenging the Ministry of Justice’s rejection of her application. Despite fulfilling all prerequisites for the position, the Ministry declined to appoint her as prosecutor, with the justification that this position was reserved for men. The applicant brought her case to the Administrative Circuit of the High Civil Court, arguing that the Ministry’s practice was not justified by law and constituted gender-based discrimination in violation of the Constitution of Kuwait. The High Civil Court ruled in favor of Al-Hamdan in appeal, after having discussed in some detail the constitutional basis for the decision — including the language of Article 2 that limits the application of Sharīʿah as one amongst many sources of law — and an acknowledgment of the diverse views of Sharīʿah scholars with respect to the permissibility of the appointment of women to the judiciary. See Dalal al-Hamdan v. Minister of Justice and Undersecretary of Justice, Administrative Case 3134/2011; ‘Historic Ruling Paves the Way for Appointing Kuwaiti Women as Public Prosecutors’ (in Arabic), Al-Anbāʾ (23 April 2012), available online at https://www.alanba.com.kw/ar/kuwait-news/incidents-issues/286203/23-04-2012-حكم-تاريخي-يمهد-لتعيين-المراة-الكويتية-وكيلة-نيابة/ (accessed 20 October 2020).

15

As of the date of writing, Qatar lacks a constitutional court despite passage of the Constitutional Court Law No. 12 of 2008, and Oman is yet to enact its draft Constitutional Court Law. The Basic Law of Saudi Arabia makes no mention of constitutional review. The UAE High Federal Court serves a dual function of a constitutional court and the federation’s highest court of appeals. To this date, its rights jurisprudence remains extremely limited and narrow.

16

L.E. Lucas, ‘Does Gender Specificity in Constitutions Matter?’, Duke Journal of Comparative and International Law 133 (2009): 134–136.

17

A. Cossola, A. Raub, D. Foley & J. Heymann, ‘Where do Women Stand? New Evidence on the Presence and Absence of Gender Equality in the World’s Constitutions’, Politics and Gender 10(2) (2014): 200–235, at 215, available online at https://www.cambridge.org/core/journals/politics-and-gender/article/where-do-women-stand-new-evidence-on-the-presence-and-absence-of-gender-equality-in-the-worlds-constitutions/79D677171422A49D369D4B5EEE2C625F (accessed 15 October 2020).

18

Ibid., p. 201.

19

Constitution of Kuwait (1962), Article 29.

20

Ibid., Articles 7–9.

21

Ibid., Article 2.

22

For a full archive of the Constituent Assembly discussions, including discussion of the place of Sharīʿah in the Constitution (in Arabic), see http://www.nationalkuwait.com/forum/index.php?threads/95593/ (accessed 15 October 2020).

23

United Nations Treaty Collection Website, CEDAW, available online at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en (accessed 1 November 2020).

24

Ibid.

25

Ibid.

26

Not to be confused with the Directorate of Iftāʿa and Taŝriʿ, which is responsible for the technical review and drafting of legislation, available online at http://site.islam.gov.kw/eftaa/Pages/aboutmanagement.aspx (accessed 15 October 2020).

27

Kuwaiti Judiciary Law No. 23 of 1990, as amended, Article 19.

28

Constitution of Bahrain 2002, Article 18.

29

Ibid., Article 5.

30

See, e.g., A. Hawthorne, ‘Bahrain’s National Charter and Political Reforms in Bahrain’, The Washington Institute, Policy Watch 514 (25 January 2001), available online at https://www.washingtoninstitute.org/policy-analysis/view/bahrains-national-charter-and-political-reform-in-the-gulf (accessed 15 October 2020).

31

CEDAW, supra note 22: This is a ‘milder’ 2014 amended version of the original reservations taken in 2002. See Decree Law No. 70 of 2014 Amending Some Provisions of Decree Law No. 5 of 2002 With Respect to Joining the Convention on the Elimination of All Forms of Discrimination Against Women.

32

CIA World Factbook, Bahrain demography, available online at https://www.cia.gov/library/publications/the-world-factbook/geos/ba.html (accessed 20 October 2020).

33

Bahrain Judiciary Law No. 13 of 1971, Article 10.

34

Constitution of Kuwait 1962, Article 173.

35

Introductory Memorandum to the Constitution of Kuwait 1962, Article 173. The Memorandum reveals a strong desire by the drafters to guarantee that an independent and centralized authority is empowered to review legislation, to avoid ‘conflict of opinions in interpreting legislation’ and confusion that may result from ‘exposing laws to [the risk of] being struck down without taking into account different arguments and considerations.’ Records of the discussions of the Constituent Assembly are available in Arabic at http://www.kna.kw/clt-html5/run.asp?id=1568 (accessed 10 October 2020).

36

For a discussion on the political context and the legal debates surrounding the establishment of the Kuwaiti Constitutional Court, see, e.g., Brown, supra note 6 at 129–186.

37

Kuwaiti Constitutional Court Law 1973, Article 6; Kuwait is the only Gulf country that grants its Constitutional Court the mandate to adjudicate election disputes.

38

Constitution of Kuwait 1962, Article 164.

39

Kuwaiti Constitutional Court Law No. 14 of 1973, Articles 4 and 4(R).

40

Kuwait Judiciary Law No. 23 of 1990, as amended, Articles 4, 6–8; Law No. 12 of 2015 Establishing the Family Court. Following the 2019 promulgation of the Jaʿfarī Personal Status Law, separate Jaʿfarī and Sunnī family court chambers were created, each to apply its respective legislation. See Kuwaiti Ministry of Justice Services Portal, available online at https://www.moj.gov.kw/AR/pages/DeptProcedure.aspx?ItemID=98 (accessed 15 October 2020).

41

As in other court chambers in Kuwait, judges in family courts are generally not expected to be Islamic jurists but may seek the expert advice of jurists or scholars trained in the relevant Islamic school of fiqh.

42

Kuwaiti Judiciary Law 1990, Article 19.

43

Ibid.

44

The Kuwaiti Judiciary Law specifies that the Supreme Judicial Council is composed of nine members, including: the President of the Cassation Court (who shall be the President of the Council); Vice-President of the Cassation Court; President of the Court of Appeals; the Public Prosecutor, Deputy of the Court of Appeals, President of the Courts of First Instance, the two longest-serving Kuwaiti judges, and the Undersecretary of the Ministry of Justice. The Public Prosecutor is appointed by an Emiri Decree upon nomination of the Minister of Justice. Kuwaiti Judiciary Law No. 23 of 1990, as amended, Article 16.

45

Kuwaiti Constitutional Court Law No. 14 of 1973, as amended, Article 2; senior judges include judges in the Cassation Court and High Court of Appeals.

46

Ibid., Article 2.

47

Kuwait Judiciary Law 1990, as amended, Article 20.

48

Kuwaiti Judiciary Law No. 23 of 1990, as amended, Article 20.

49

See Emīrī Decree (no number) of 1974, issued 13 May 1974 Issuing the Bylaws of the Constitutional Court.

50

Kuwaiti Judiciary Law No. 23 of 1990, as amended, Article 23; see Section VI of the Law on Disciplinary Procedures.

51

Kuwaiti Constitutional Court Law No. 14 of 1973, as amended, Article 2.

52

See, e.g., ‘Maǧlis al-ḫidmah al-madiniyyah ‘yabtaliʿ’ nisf mukafaʾat al-qaḍā al-intiḫabiyyah’, Ar-Rai (31 March 2017), available online at https://www.alraimedia.com/Home/Details?Id=96509530-a961-4328-96bb-cec9760ba4a4 (accessed 10 October 2020); see also ‘Al- mustashar ar-rashid: Natamanna ʿalā l-ummaʾ surʿat iqrār qānūn istiqlāl as-sulta al-qaḍa’iyyah’, Kathima (n.d.), available online at http://www.kathima.com/v/5406 (accessed 10 October 2020).

53

Kuwaiti Judiciary Law No. 23 of 1990, as amended, Article 67.

54

Ibid., Article 70; The budget of the judiciary in Kuwait is allocated by the State as part of the budget of the Ministry of Justice. Under Article 69 of the law, the proposed budgetary allocation is then submitted to the Ministry of Finance for inclusion in the draft State budget, which requires approval of the National Assembly as with all items in the State budget.

55

The National Assembly is considering an amended Judiciary Law, which seeks to provide greater institutional and personal independence of the judiciary. There does not seem to be significant progress in the discussions, however, available online at http://www.aljarida.com/articles/1462219661155004600/ (accessed 15 October 2020).

56

The 1973 post-independence Constitution of Bahrain was suspended unilaterally by the Emīr and Bahrain has practically been ruled as an absolute monarchy. It was not until 2002, 3 years after the present King came to power, that a new constitution was enacted as part of sweeping political reforms, and not without controversy [cite background on Bahrain current constitution and enactment process].

57

Constitution of Bahrain (2002), Article 106.

58

Ibid.

59

Ibid.

60

Ibid., Article 32.

61

Article 3, Bahrain Constitutional Court Law No. 27 of 2002, as amended, available (in Arabic) at: http://www.legalaffairs.gov.bh/LegislationSearchDetails.aspx?id=4314#.UZAtP5Wsjdk (accessed 10 October 2020). The term limits for Constitutional Court judges was originally 9 years but were reduced to 5 years in the 2012 amendments to the law, see Law No. 38 of 2012 Amending Law No. 27 of 2002 on the Constitutional Court (‘Bahrain Constitutional Court Law’), available (in Arabic) at: http://www.legalaffairs.gov.bh/LegislationSearchDetails.aspx?id=5595#.UZAscpWsjdk (accessed 15 October 2020).

62

Decree No. 42 of 2002 Promulgating the Judicial Authority Law (‘Bahrain Judicial Authority Law’).

63

Royal Orders are issued directly by the King with no requirement for Parliament ratification.

64

See, e.g., Royal Order No. 56 of 2016 Forming the Supreme Judicial Council.

65

Bahraini Constitutional Court Law No. 27 of 2002, as amended, Article 9.

66

Ibid., Article 3. The term limits for Constitutional Court judges was originally 9 years but were reduced to 5 years in the 2012 amendments to the law, see Law No. 38 of 2012 Amending Law No. 27 of 2002 on the Constitutional Court, available online (in Arabic) at http://www.legalaffairs.gov.bh/LegislationSearchDetails.aspx?id=5595#.UZAscpWsjdk (accessed 10 October 2020).

67

Bahraini Constitutional Court Law No. 27 of 2002, as amended, Article 8R.

68

See Royal Decree No. 40 of 2012 Specifying the Salaries of Members of the Constitutional Court.

69

See Kuwaiti Constitutional Court Case 3/1992, 28 November 1992.

70

Ibid.

71

See, e.g., N.J. Brown, ‘Pushing Towards Party Politics? Kuwait’s Islamic Constitutional Movement’, Carnegie Papers 79, available online at http://carnegieendowment.org/files/cp79_brown_kuwait_final.pdf (accessed 15 October 2020); S.L. Monroe, ‘Salafis in Parliament: Democratic Attitudes and Party Politics in the Gulf’, Middle East Journal 66(3) (2012): 409–424.

72

See M. Nasser, ‘Tarikh al-muṭālabat bi-taʾdīl al-madda 2 min al-maǧlis at-taʾsisi ḥattā ʿummat 2012’, Al-Anbāʾ (16 February 2012), available online at https://www.alanba.com.kw/ar/kuwait-news/267830/16-02-2012-تاريخ-المطالبات-بتعديل-المادة-المجلس--التاسيسي-حتى-امة-/ (accessed 10 October 2020).

73

Kuwaiti Constitutional Court, Case 20/2008, 28 October 2009.

74

See, e.g., R.R. Worth, ‘First Women Win Seats in Kuwait Parliament’, New York Times (17 May 2009), available online at https://www.nytimes.com/2009/05/18/world/middleeast/18kuwait.html (accessed 1 November 2020); for a discussion of women’s struggle for political equality in Kuwait, see F. al-Nakib, ‘The Constitutionality of Discrimination: A Search for Women’s Political Equality in Kuwait, in A. Khalaf & G. Luciani (eds.) Constitutional Reform and Political Participation in the Gulf (Dubai: Gulf Research Center, 2006); see also M. Shalaby, Women’s Political Representation in Kuwait: An Untold Story, Women’s Rights in the Middle East Program (Houston, TX: James A. Baker III Institute for Public Policy of Rice University, 2015), available online at https://www.bakerinstitute.org/media/files/files/f812567d/WRME-pub-PoliRep-Kuwait-091515.pdf (accessed 15 October 2020).

75

Kuwait National Assembly Elections Law No. 35 of 1962 was amended by Law No. 17 of 2005, giving women the rights to suffrage.

76

Kuwaiti Constitutional Court Case 20/2008, 28 October 2009.

77

Ibid.

78

Law No. 11 of 1962 on Passports, Article 15.

79

Kuwaiti Constitutional Court Case 56/2008, 20 October 2009.

80

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 13, available online at https://www.refworld.org/docid/3ae6b3712c.html (accessed 1 November 2020).

81

Specifically, the petition challenged Articles 16, 19, 22, 25, 28, 30 of the Kuwait Housing Care Law No. 47 of 1993, and Articles 3 and 7 of its implementing regulations issued by the Minister of Housing in Order No. 31 of 2016.

82

A. Lazim, ‘Al-Dusturiyyahʾ Tarfīd at-taʿn bi-qānūn ‘al-riʿayah al-sakaniyyah’: Lā farq bayn ar-rajul wa-l-maraʾa … Wathiqat al-bayt bi-ism al-Zawjayn’, Al-Rai (28 December 2017), available online at https://www.alraimedia.com/Home/Details?id=d3757d98-79ce-46e9-8ef3-34ad6351085c (accessed 10 October 2020).

83

See, e.g., K. al-Khalidi, ‘Lā Riʿāyah Sakaniyyah li-l-Maraʾah al-Kuwaitiyyah’, Al-ʿArabī al-Jadīd (15 January 2018), available online at https://www.alaraby.co.uk/society/2018/1/14/لا-رعاية-سكنية-للمرأة-الكويتية-1 (accessed 10 October 2020).

84

The Kuwaiti Nationality Law does not permit a woman to pass on her nationality to her foreign husband or children from a foreign husband. Nationality Law No. 15 of 1959, as amended, Article 9.

85

Mālikī, Ḥanbalī, Ḥanafī, and Shafiʿī.

86

Kuwaiti Personal Status Law No. 51 of 1984, as amended, Article 343.

87

Ibid., Article 346; Article 346 also states that the law shall apply to cases of non-Muslims if different parties to a case adhere to different religions or sects.

88

Kuwait Jaʿfarī Personal Status Law No. 24 of 2019.

89

See, e.g., Joint Report on Article 16, Muslim Family Law and Muslim Women’s Rights in Kuwait, Musawah and Abolish Article 153, submitted to the 68th CEDAW Session, November 2017, available online at https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/KWT/INT_CEDAW_NGO_KWT_29225_E.pdf (accessed 10 October 2020).

90

Discussion with four Kuwaiti women’s rights activists, 1 November 2017.

91

Explanatory Memorandum to the Kuwaiti Family Law No. 51 of 1984.

92

Kuwaiti Constitutional Court Case 10/2012, 28 November 2012.

93

Article 343 of the Personal Status Law No. 51 of 1984 provides that any matter not addressed specifically in the law shall be governed by the jurisprudence of the Mālikī school.

94

Kuwaiti Constitutional Court Case 13/2012, 26 June 2012.

95

Reem Khalaf (independent Bahraini journalist), in discussion with author, 26 February 2020; interview with Bahraini attorney, 2 March 2020; interview with Bahraini attorney and women’s rights activist, 15 March 2020.

96

Bahraini Constitutional Court Law No. 27 of 2002, as amended, Article 18.

97

Bahraini Constitutional Court Ruling O53D, 5 November 52007; Bahraini Constitutional Court Ruling 103D, 26 April 2004.

98

Bahrain Commercial Code No. 7 of 1987, Article 81(1).

99

Decree No. 82 of 2012 Issuing the Implementing Regulations of Law No. 32 of 2010 on Financial Disclosure; Royal Order No. 26 of 2014 Forming the Commission to Examine Financial Disclosures. The Commission functions as part of the Supreme Judicial Council.

100

Bahrain Financial Disclosure Law No. 32 of 2010, Article 2.

101

Bahraini Constitutional Court Case 1/2015 of Judicial Year 13, 27 January 2016.

102

Law No. 19 of 2016 Amending the Financial Disclosure Law. The requirement to disclose the assets of spouses was removed, but disclosure of the assets of minor children continues to be required.

103

The original version of the law was passed but with significant resistance in the Shura Council in particular, especially among members who hold sizable business interests and assets. Members of the Legislative Assembly fall under the jurisdiction of the law and were not exempt from the Financial Disclosure Law.

104

Khalaf, supra note 94.

105

The law abolished a formerly dual system in Bahrain, where a codified Family Law (19/2009) applied only to the country’s Sunnī minority, while family matters of the Shīʿa majority were governed by individual court rulings handed down by Jaʿfarī Sharīʿah judges who generally followed rules of Jaʿfarī jurisprudence (fiqh). Marriage and family relations of Bahraini’s non-Muslim minority communities such as the Jews and Christians are governed by their own laws. Bahrain State Party Report, UN Doc. CEDAW/C/BHR /2 (2007), para. 325, available online at http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawin dex.aspx (accessed 1 October 2020).

106

See Bahrain Reservations to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), available online at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en; Bahrain State Party Report, UN Doc. CEDAW/C/BHR /2 (2007), para. 325, available online at http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx (accessed 1 October 2020).

107

Family Law No. 19 of 2017, Articles 5, 38–40, and 50.

108

See, e.g., H. Hussein, ‘Nisā’ muʿallaqāt fī l-maḥākim: at-tanāzul muqābil al-ḥurriyah’, Al-Waṭan (21 September 2019), available online at https://alwatannews.net/article/846671/Bahrain/نساء-معلقات-في-المحاكم-التنازل-مقابل-الحرية (accessed 20 October 2020); J. Fawaz al-Hasan, ‘Nisā’ al-Baḥrain muʿallaqāt fī l-maḥākim al-Jaʿfariyyah’, Irfa’ Sawtak (22 October 2015), available online at https://www.irfaasawtak.com/corruption/2015/10/22/-نساء-البحرين معلّقات-في-المحاكم-الجعفرية (accessed 20 October 2020).

109

Ibid.

110

Interview with Bahraini attorney, 2 March 2020; interview with Bahraini attorney and women’s rights activist, 15 March 2020.

111

See, e.g., Bahraini Cassation Court (Civil) Case 70/2018, 20 February 2019 (inheritance); Cassation Court (Civil) 83/2018, 20 February 2019 (divorce); Cassation Court (Civil) Case 97/2018, 6 March 2019 (obedience of wife); Cassation Court (Civil) Case 98/ 2018, 8 May 2019 (divorce).

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