The Kuwaiti Constitution Fifty Years On
The Kuwaiti Constitution Fifty Years On
If the independence of a state, which is an artificial person, is deemed to be its birth or a similar event, such birth requires proclamation and consolidation. The constitution performs part of this function, as it is closer to a certificate of birth, an important document which contains essential details of the newborn baby. However, the constitution is more important than the birth certificate, for the constitution serves as the articles of association for companies and societies which specify their functions, transaction of business and the duties and obligations of the annual general meeting people in this case.
The current constitution was promulgated on 11/11/1962, the second after Kuwait s independence, as Kuwait experienced a number of unwritten and written constitutional organizations (Kuwait, from a political entity to a state: Al-Arabi, February 2011). Since it was promulgated, the 1962 constitution has not been amended, though amendments to its provisions are allowed under certain regulations and procedures to protect a number of values and principles which the constitution writers deem basic. Readers may
wonder how this constitution remained unaltered for fifty years, something rare in constitutions. This is an important, relevant query, but not the only one that grabs the attention of observers, as the manner in which the constitution was drafted and its content are worthwhile matters too and help explain why the constitution withstood all amendments.
I- The manner of drafting the 1962 constitution: Constitutional law jurists specify four methods of the drafting of constitutions: gift, contract, constituent assembly and referendum. Each of these methods has its own significance and justifications, and their misuse leads to undesirable side effects. The first constitution in Kuwait after independence was called the basic system of government in the provisional period approved by law 1/1962 of 6/1/1962; independence was achieved on 19/6/1961. The said constitution was by definition a provisional one issued by an Amiri decree when the Amir held both executive and legislative powers, which means that the constitution in question was drafted using the gift method. On 26/8/1961, before the provisional constitution was promulgated, election of a Constituent Assembly was called to consist of twenty members, two of whom representing each constituency. Elections were arranged to be held on 1/11/1961 but were delayed to 2/12/1961 and once again to 30/12/1961. Article 1 of the provisional constitution provided that the Constituent Assembly shall draft a constitution which specifies the system of government on the basis of the democratic principles derived from the reality and purposes of Kuwait. The Assembly shall complete this task within one year of the first session thereof and the constitution which the Assembly adopts shall be submitted to the Amir for ratification and promulgation . In addition to the said task, Law 1/1961 authorized the Assembly to hold legislative power during the provisional period as well as certain tools of control over the executive.
Observers may wonder why the then Amir of Kuwait Abdullah Al-Salim adopted the contract method in drafting the permanent constitution instead of the gift method used in drafting the provisional constitution.
The gift method: Kuwait s independence and the desire to join the international community required that a constitution be drafted meeting minimum constitutional specifications, such as the effective organization of public authorities, ensuring a degree of popular power sharing, and basic rights and freedoms in accordance with the UN Universal Declaration of Human Rights. The Amir was alone able to draw up a constitution which would fulfil the said requirements, and if he had done that his action would have been acceptable, or at least unobjectionable, to most political forces in Kuwait. Moreover, the region s image worldwide made the drafting of a constitution to reasonable specifications, no matter how it was adopted, a positive step. Abdullah Al-Salim s insistence on the contract method was clear, as delaying the election date twice was meant to ensure the participation of all political forces at the time. Readers may enquire about such insistence.
The contract method: Two factors explain why the contract method was adopted in drafting the Kuwaiti constitution: history and political significance.
History: A review of the constitutional developments in Kuwait reveals that the constitutional rules observed prior to the discovery of oil, except during the reign of the late Shaikh Mubarak Al-Sabah, reflects power sharing between the ruler and his people, as an unwritten constitution adopts allegiance to the ruler, and shura (counsel) as a system of government, as the constitutional document agreed upon in 1921 stressed. In addition, the said rules affirmed that the community looked at shura as sharing by the people s representatives with the ruler in the administration of the country s affairs . The presence of elected members on the boards of directors of government departments may be regarded as a manifestation of power sharing, as reaffirmed by the 1938 constitution which was adopted using the contract method.
Political significance: It is to be noted that the notion of contract was closely related to political realism, as the constitution was not just what the people s representatives and the ruler agreed upon, but it had to involve as many political forces in the community as possible in adopting it so that they would defend it or at least be less able to fight it. We believe that such realism was the direct result of the experiment of the Legislative National Assembly and the constitution it passed. The 1938 constitution was the prey of its avant-gardism and few members, which resulted in lack of support when it was abolished.
The Constituent Assembly
A twenty-member Constituent Assembly was elected to prepare the 1962 constitution, and the cabinet consisted of fourteen ministers, eleven of whom from the ruling family and the rest chosen from the elected members. Under the provisional constitution the ministers were members of the Constituent Assembly and they shared in discussing the draft constitution but abstained from voting on the final draft leaving it to predominantly popular approval. According to Mr Ali Alradwan, Constituent Assembly Secretary General/Constitution Committee Chairman, election of the committee was delayed relative to the other committees so as to allowo ample time to elect major political forces from Assembly members.
The committee consisted of Justice and Interior Ministers and two members of the Assembly and was chaired by Assembly Speaker. The Interior Minister was the late Shaikh Saad Al-Abdullah, ex-Amin of Kuwait and the son of the then Ruler. He was not chosen because of that but through agreement among ruling family members, a strong indication of ensuring actual participation in drafting the constitution. Ensuring that as many political forces as possible were involved stemmed from the desire to protect and reinforce the experiment, which had its impact on the constitution, in a number of the provisions on which there was a large degree of agreement.
II- The content of the 1962: What are Kuwait s picture and identity like as drawn by the constitution? What is the system of government in terms of sovereignty and the relationship among the powers? How does the constitution address the issue of rights and freedoms? Answers to these questions help identify the content of the 1962 constitution and to what extent there was compromise on it.
Compromise implies different points of views which no party is able to determine, and the issue under consideration is worthwhile and can t be delayed. Each party offers a solution it does not consider ideal. Accordingly, compromise suggests realism.
Looking at the Kuwaiti constitution shows that proposed solutions to some issues were accepted despite queries and clarifications only, and certain provisions were approved despite some objections, in addition to certain matters on which there was a compromise agreement. Reviewing the content of the constitution illustrates such cases.
State: determining the form of the state (simple or unitary) is one of the traditional functions of the constitution, whereas establishing the identity of the state, or rather of the people or the majority, of is a new function which emerged with the rise of ideological and modern states following the disappearance of the idea of the state as the guardian, and charging the constitution will the task of specifying the new functions of the state. Noticeably, the Kuwaiti constitution addressed both issues: it specifies that Kuwait is a simple state, as there is no reference in it to federalism or regionalism. As for regional decentralization that rests with the law. The constitution also addresses the issues of nationalism and religion.
Nationalism: Article 1 of the constitution provides that Kuwait is an independent, fully sovereign Arab state. Neither its sovereignty nor any part of its territory may be relinquished. The people of Kuwait are part of the Arab nation.
As the Explanatory Notes to the constitution point out, the term the people of Kuwait , is used in this article to affirm that Kuwait has had its distinct political entity for centuries, thus making Kuwaitis a people in constitutional terms but part of the Arab nation, and the term the Kuwaiti people should not be used in order to avoid such specifity that contradicts the overall unity of this nation. Accordingly, the former term is better than the latter and is more responsive to Arab nationalism. Devotion to nationalism is found in other places in the constitution, as under Article 3 Arabic is the official language of the state, and Article 157 addresses the same issue and stipulates that peace is the aim of the state, and the safeguard of the integrity of the country which is part of the integrity of the greater Arab world is a trust devolving upon every citizen.
Freedom of Worship
Religion: Freedom of worship and performance of religious rituals is enshrined in Article 35 within the limits of public order, and Article 2 provides that Islam is the religion of the state and Islamic Sharia shall be a main source of legislation. It is noted that the phrase the religion of the state is figurative, as the state is an artificial person, while worship and religious rituals relate to natural persons only, and the state does not fast or pray, but citizens do though the constitution does not force them to. The phrase is common in Arab constitutions. The rest of the phrase generated a lot of discussion because the phrase proposed by the government read Islamic Sharia shall be the main source of legislation. The existing phrase was agreed as it gives lawmakers discretion to fulfil the legislative needs of the state, particularly as the phrase makes lawmakers adopt as many as possible of the principles of Islamic Sharia. The Explanatory Notes pointed out that the principles of Islamic Sharia are jurisprudential ones. This is logical as he sate may not impose a belief or worship on people through the legislature. If lawmakers are required within the limits of the constitution to apply the principles of Islamic Sharia to transactions matters, they may not use their discretion over inheritance which is a right governed by Islamic Sharia, as provided by the last paragraph in Article 18.
It is noted that the constitution s position on Arab nationalism did not generate a lot of discussion, but that on religion did and was settled through shared conviction. Also noted is the fact that the Explanatory Notes were also voted on and ratified by the Amir, which is unusual in constitutions, but was by way of compromise which clauses alone cannot impart.
In addition to the fact that the constitution stresses the national and Islamic dimensions of the new state or its people, it carries signals which put these approaches in a human context that prevents the public from being nationalistic and religious fanatics. The preamble to the constitution reads: Desiring to use the means of democratic rule for our dear country; having faith in the role of this country in furthering Arab nationalism and the promotion of world peace and human civilization; striving towards a better future in which the country enjoys greater prosperity and higher international standing and citizens are provided with more political freedom, equality and social justice, a future which upholds the traditions inherent in the Arab nation by safeguarding the dignity of the individual, safeguarding public interest, and applying consultative rule, maintaining the unity and stability of the country. Article 12 connects Islam, pan-Arabism and human heritage more clearly as it specifies that the state shall safeguard the heritage of Islam and of the Arabs and contribute to the furtherance of human civilization.
As the constitution draws the picture of the state it also draws the system of government from all angles.
System of government: A discussion of the system of government of any state includes how the head of state assumes office, who has sovereignty or the relationship among the powers.
How the head of state assumes office: The exclusive right to be head of state vested in the descendants of the late Mubarak Al-Sabah is an amendment to an old unwritten rule, which the current constitution has adopted and got from the 1921 document the idea of having three nominees, and, as Article 4 provides Kuwait is a hereditary emirate the succession to which shall be in the descendants of the late Mubarak Al-Sabah.
The Crown Prince shall be designated within one year at the latest from the date of accession of the Amir. His designation shall be effected by an Amiri order upon the nomination of the Amir and the approval of the National Assembly which shall be signified by majority vote of its members in a special sitting. In case no designation is achieved in accordance with the foregoing procedure the Amir shall nominate at least three of the descendants of the late Mubarak Al-Sabah one of whom the National Assembly shall pledge allegiance to as Crown Prince. The Crown Prince shall have achieved his majority, be of sound mind and the legitimate son of Muslim parents.
A special law promulgated within one year from the date of coming into force of this constitution shall lay down the other rules of succession in the Emirate. The said law shall be of a constitutional nature and therefore shall be amended only by the procedure prescribed for amendments to the constitution. The family s representative on the Constitution Committee suggested that the matter be decided by an Amiri decree or order because it relates to the family, but the elected members wanted the matter to be governed by a special law because it concerns the state s system of government. Abdulla Al-Salim opted for the latter suggestion.
Sovereignty: The term sovereignty means the capacity to legislate and implement or control over implementation of the separation of powers. In democratic regimes the people have and may exercise sovereignty directly. Though logical in theory, this direct democracy is very difficult in practice. In parliamentary democracy, on the other hand, the people elect MPs who draw up legislation and have control over the executive.
The people may also elect a parliament and retain certain powers through referendums or popular proposals put forward by a number of citizens specified by the constitution a semi direct form of democracy. Article 6 of the constitution provides that the system of government in Kuwait shall be democratic, under which sovereignty resides in the people, the source of all powers. Sovereignty shall be exercised in the manner specified in this constitution. Two forms of democracy have been drawn: at the level of official institutions, the elements of parliamentary democracy are represented in the National Assembly which has legislative and control powers and is elected for a specified period, and its members have a free will and they all represent the national. In addition to parliamentary control the Explanatory Notes affirm that the network of public freedoms is as important as parliamentary control. Besides ministers political responsibility under the constitution there especially exists the public opinion s power of control which democratic rule should guarantee and promote and eventually make it the backbone of popular rule. These guarantees secure citizens political freedom, and, besides the right to vote, provide different ingredients of personal freedom (Articles 30-34 of the constitution), freedom of worship (Article 35), freedom of expression (Article 36), freedom of the press, printing and publication (Article 37), freedom of communication (Article 39), freedom of forming associations and unions (Article 43), freedom of assembly (Article 44) and freedom of the submission of petitions to the public authorities (Article 55).
Such an environment of freedom does encourage political awareness and fosters public opinion. In the absence of such guarantees and political freedom, grumble and unease grow and can t be resolved in a constitutional or peaceful manner, which stirs up unrest and disturbances in the state. The signs of popular control as perceived in the Explanatory Notes allow balance between the two forms of democracy and makes the term sovereignty of the nation restore its meaning.
The relationship among the powers: the separation of powers is a key feature of modern systems of government, but the kind of separation marks different systems, the most common of which are the parliamentary and the presidential. Some countries combine elements of these systems in a special mix envisaged as the most appropriate by the constitution writers.
A middle ground (compromise) between the parliament and presidential systems
Did the 1962 constitution adopt one of the standard models? Did it tailor a system to meet the characteristics of Kuwait? According to the Explanatory Notes: Preserving the country s unity and political stability required that the constitution adopt such a democratic system that is a middle ground between the parliamentary and presidential systems, leaning more heavily on the former system, as the latter relates primarily to republics in which heads of state are elected by the people for certain years and are responsible to the people and even their representatives. Moreover, the approach adopted by the constitution ensures the nature of popular rule through parliamentary control and preserves our heritage of shura (counsel) and immediate comment on the system of government and rulers practices. Evidently, slack opinion and late shura are often ineffective in guiding the government and administration alike.
However, such parliamentary advantages do not hide the shortcomings of the parliamentary system revealed by constitutional experiments or the advantage of the presidential system in terms of stability. The problem with the parliamentary system in the world may be ministerial collective responsibility before the parliament, which is feared to make the government the target in a relentless battle among parties and even a main reason for joining a particular party. This deviation represents the most serious threat to democratic rule when it forms the basis for political parties in the state instead of programmes and principles, and rule is the end rather than a means of achieving a sounder rule and a better life. If democratic rule becomes like that, rights and freedoms are lost in the name of protecting them, political action is corrupted and becomes business in the name of patriotism, ministerial solidarity collapses as a result of hidden personal interests and he popular bloc inside and outside the parliament disintegrates, which undermines the power of parliaments and the unity of the people. That s why it is necessary to consider other countries experiments and adopt the necessary features of the pure parliamentary system, though the Emirate s system is hereditary.
Considering the features of the parliamentary and presidential systems and deciding the position of the Kuwaiti constitution as a middle ground between them, ran into the difficulties of theoretical considerations as well also local requirements and practical reality, the former being a jurisdictional matter, the latter a political problem. The last constitutional system reconciles both matters and, meanwhile, solves both problems.
As the above text clearly shows, the matter was not easy to settle, which is also clear in the minutes of meetings of the Constitution Committee and the Constituent Assembly, each of which had its arguments. In addition, negotiation techniques, such raising the ceiling of demands highly and the adopted formula demonstrates how the parties were ready to compromise.
Between realism and gradation
Kuwaiti-style parliamentary system has adopted the idea of realism and gradation. The Amir appoints a prime minister, and the cabinet may be formed from the homogeneous or coalition parliamentary majority. However, the head of state may choose a cabinet through a prime minister he appoints which he deems appropriate in the light of the composition of the parliament and after soliciting the views of the popular forces. If there is no clear or identifiable majority in the absence of political parties, e.g., appointment of a cabinet from outside the majority is logical. As the above analysis shows the Kuwaiti constitution does not object to getting too closer to the traditional parliamentary system, and the Explanatory Notes even consider this something to be hoped for and be a certain distance away at the same time, all of which is subject to the political reality. In the traditional parliamentary system there is both collective cabinet responsibility and individual political ministerial responsibility, but this is different under the Kuwaiti constitution: The National Assembly may vote on a motion of no confidence in a minister, but the Prime Minister s case is governed by Article 102: The Prime Minister does not hold any portfolio, nor shall the question of confidence in him be raised before the National Assembly. Nevertheless, if the National Assembly decides in the manner specified in the preceding article that it cannot cooperate with the Prime Minister, the matter is submitted to the head of state. In such a case, the Amir may either relieve the Prime Minister of office and appoint a new cabinet or dissolve the National Assembly. In the event of dissolution if the new Assembly decides by the above-mentioned majority vote that it cannot cooperate with the said Prime Minister, he shall be considered to have resigned as from the date of the decision of the Assembly in this respect, and a new cabinet shall be formed.
Rights and freedoms: At the start of the work of the Constitution Committee the government proposed a special chapter for public rights and freedoms inspired by the Universal Declaration of Human Rights, which the Constituent Assembly adopted with minor alterations in wording, as confirmed by the Explanatory Notes in their clarifications of the content of Articles 29 and 31. The Assembly noted that the organization of rights and freedoms in the Declaration followed an individual approach as agreed by all countries, but it did not clearly address economic and social rights which require an obligation to interfere in the face of the state. This failure on the part of the Declaration led the Assembly to include the said rights in a special Part Two The fundamental constituents of Kuwaiti society , with individual rights in Part Three Public rights and freedoms .
Moreover, the constitution specifies how cases of violations of such basic rights and freedoms are heard in constitutional courts, as under article 173 The law specifies the judicial body competent to decide disputes relating to the constitutionality of laws and regulations and determines its jurisdiction and procedure. The law ensures the right of both the government and the interested parties to challenge the constitutionality of laws and regulations before the said body. If the said body decides that a law or a regulation is unconstitutional it is considered null and void.
The economic philosophy of he constitution: Upon drafting the constitution it was logical to include in it the state s attitude to common economic approaches: the capitalist approach without state intervention, leaving economic activity to natural rules; regulating economic activity alone, practising its main aspects; regulating such activity, giving individuals a significant share according to objectives set by the state. We believe that the constitution adopted this attitude for two reasons: First, countries took the same position in their constitutions to allow lawmakers and the government to adopt a certain approach and a plan of action; second, those who drafted the constitution wanted to make the state play an effective role in securing real equality through commitment to social welfare for all citizens. In this way, the constitution adopts neither interventionism nor sheer capitalism.
The provisions of Articles 16 and 20 specify this approach clearly: Property, capital and work are fundamental constituents of the social structure of the state and of the national wealth, all of which are individual rights with a social function as regulated by law. (Article 16). The national economy shall be based on social justice. It is founded on fair cooperation between public and private activities. Its aim shall be economic development, increase of productivity and improvement of the standard of living and achievement of prosperity for citizens, all within the limits of the law. (Article 20).
III-Constitutional amendment: The constitution strikes a balance between the need for amendment and a certain degree of stability. Article 174 specifies the method of constitutional amendments which is more difficult than legal amendments, providing that certain provisions should remain unchanged because of their extreme importance. In this regard, Article 175 provides that the provisions relating to the Amiri system in Kuwait and the principles of liberty and equality provided for in this constitution may not be proposed for revision, except in relation to the title of the Emirate or to increase the guarantees of liberty and equality.
The constitution was suspended twice and then reactivated, and there were thoughts of amendment which didn t materialize for two reasons:
-Compromise: compromise, which is necessary to amend the constitution, is difficult to reach, noting that the birth of the constitution was not easy either, and that led Abdullah Al-Salim, the Father of the Constitution, to intervene on several occasions.
-Multiplicity of solutions: As far as the relationship among the powers is concerned, the constitution paints more than one scenario and puts forward more than one solution, which makes the party concerned with the application of the text try all the solutions under the constitution before attempting to amend it.
As the fact that the constitution has withstood amendment is
remarkable and analysable, its role in protecting political stability and social
peace is unquestionable. This success may also be attributed to the belief of
the members of the political community in Kuwait in the need to respect it as a
yardstick in case of disagreement, a long-held belief after a number of
experiments which confirmed its validity.
(Translated by Dr Shaaban Afifi)
The late Amir of Kuwait Shaikh Abdullah Al-Salim Al-Sabah
Abdul Latif Althunayyan, Constituent Assembly Speaker presents the Constitution of the State of Kuwait to the late Amir of Kuwait Shaikh Abdullah Al-Salim Al-Sabah
HH Shaikh Abdullah Al-Salim Al-Sabah inaugurates the Constituent Assembly on 20 January 1962
The Constituent Assembly and National Assembly constitutional law expert Dr Othman Khalil Othman
An Arab Parliamentarian Union meeting at the National Assembly
Old National Assembly building (Municipality now)