This post is really long, please feel free to only read the bolded section - the gist of the argument. The rest is simply evidence and background information which is central in backing my argument.
There is a wide discrepancy between what is obligatorily taught as Islamic legal theory and the reality of Kuwait’s legal system and it's constitution. I will analyze the divergence between the theoretical ideal proposed by the education system and the political reality and the implications that this discrepancy has on our society. Specifically, I will address the Hudood laws.
The official relationship between the Islamic Shariah and Kuwaiti politics is defined in the constitution of Kuwait: “The religion of the State is Islam, and the Islamic Shariah shall be a main source of legislation” (Part 1, Article 2). The use of “a main source of legislation” as opposed to the main source of legislation is a formulation that merely indicates a vague ‘mission statement’ but lacks precise political direction;
Furthermore, despite establishing the Shariah early on as a "factor in legislation", it is not mentioned ever again in the Constitution. This is most obvious in the articles that refer to the judiciary and the legislation which are never explicitly related to the Shariah. Article 79, which outlines the legislative, states that “no law may be promulgated unless it has been passed by the National Assembly and sanctioned by the Amir”. It does not mention the relevance of the Shariah and whether and to what extent it should be taken to account. The same issue arises in the judiciary branch which according to Article 53, “[judicial power] shall be vested in the Courts, which shall exercise it in the name of the Amir within the limits of the Constitution” – and not within the limits of the Shariah. This, along with the vagueness of the phrase “shall be a main source” further reinforces the idea that the second article is more of a mission statement and is not meant to have direct political influence.
(Remember the Constitution of Kuwait has 183 articles! The Sharia is mentioned only that one time. Islam is mentioned another time in article 18: "The State safeguards the heritage of Islam and of the Arabs and contributes to the furtherance of human civilization." Again, both articles are obviously in a 'mission statement' sense. )
While the Shariah’s role is vague in the constitution, the Kuwaiti Islamic Studies high school curriculum is much more elaborate and specific when it comes to it's role. These educational materials are authored and published by government institutions and are mandatory for every Muslim high school student. I am using Islamic studies books that I had when I went to high school - first half of the 2000's (see works cited).
According to the chapter “The Responsibilities of the Muslim Ruler”, “the implementation of the Islamic Shariah is one of the most important goals of a Muslim leader” (Al-Jamal, 227). But, the Shariah, other than being the path of God, is not explicitly defined in the curriculum; however, the basis of the Shariah is defined:
“The Halal and the Haram are the central basis of Islam, on which the Faith and the Shariah are built. For on its principles [the Faith and the Shariah], life flourishes, the legislation is set and the Hudood of God are applied.” (Al-Kandary, 67)
Here, the textbook explicitly attributes the Hudood to the Shariah.
A Had is defined as “a fair punishment that is mandatory, being the right of God” (Al-Jamal, 173). There are six Hudood laws and they apply to six different violations or Islamic sins namely, apostasy, adultery, drinking alcohol, theft, highway robbery and false accusation of adultery (Al-Jamal, 173). The Hudood for each violations differ, they include death (Al-Jamal, 182), stoning (Al-Jamal, 214), whipping (Al-Jamal, 211), amputation (Al-Jamal, 190) and the freeing of slaves (Al-Jamal, 188). Even though some of these Hudood and violations are archaic and cannot be strictly defined today, such as the freeing of slaves and highway robbery, they are still listed along with the others in the textbook and thus given equal importance. The Hudood can neither be pardoned nor appealed after being sentenced since they are God’s own right (Al-Jamal, 175).
Thus, according to this curriculum, the ruler, being obliged to apply the Sharia, must enforce the Hudood. Since, theoretically according to the textbooks, the main responsibility of a ruler is to apply the Sharia, this duty would include the implementation of the Hudood as well. But what is the legal reality of the Hudood in Kuwait?
Kuwait does not apply the Hudood, on constitutional grounds. On March 1996, then Hussein Qambar Ali, a Kuwaiti , formally announced to the world that he had converted to Christianity. Following this announcement, a lawsuit was launched in an Islamic court by independent Islamist lawyers to denounce him as an apostate and strip him of his civil rights. The Had for apostasy is death (Al-Jamal. 182), and yet these lawyers did not request such a punishment. The Islamic court declared him an apostate and he lost the case. When the residing judge was asked about the possibility of the death penalty, he noted that even though that is possible under the Shariah, it would be unconstitutional and in violation of Kuwaiti criminal law. In fact Ali appealed by claiming that the Islamic court had no jurisdiction over him using the 35th article of the constitution,
“Freedom of belief is absolute. The State projects the freedom of practicing religion in accordance with established customs, provided that it does not conflict with public policy or morals.”
To further demonstrate this point, there has never been an incident of neither stoning nor amputation in Kuwait’s legal history. The constitution was put above the Islamic Shariah in this case and in all others - when it comes to the Hudood as explained by the education system.
The fact that the notion of applying the Had of apostasy was disregarded by an Islamic judge as unconstitutional and that it was not even mentioned by the Islamist lawyers as a viable retribution in this case, illustrates the discrepancy between the political reality and the theoretical ideal relationship between the state and the Hudood Laws as defined by the Islamic studies government curriculum.
The government publishes mandatory books that demand a ruler that governs under the Shariah and thus must enforce the Hudood. In reality, however, they are not implemented on constitutional grounds. There is an obvious contradiction here: either the law and the constitution is to change or the education system. This contradiction (one of many between the Islamic studies curriculum and the constitution), I believe, is one of the main reasons for the success of Islamist politics in Kuwait, an issue that many fail to see the significance of.
In 1992 after the liberation of Kuwait and the return of parliamentary elections, the Islamic Salafist group in Kuwait convened in a conference named the “Popular Islamic Conference” to set an agenda; they were about to officially announce their political platform for the first time. The first two goals included in the conference’s final report were:
“1. Changing the second article of the constitution making the Shariah the main source of legislation.” (Report of Popular Islamic Conference)
“2. Changing all current legislation that violates the Islamic Shariah.” (Report of Popular Islamic Conference)
These goals have yet to be achieved, but an enforced education system that challenges the constitution’s legitimacy only augments the possibility of achieving these goals; it leaves us Kuwaitis with the choice between our constitution and our religion, as we are made to understand it through this curriculum! This education system places us all in an interesting position: Are we to apply the Hudood, or stick to the constitution and infringe on God’s rights (as we have been made to understand them) ?
This is exactly what is paving the way for the Islamist agenda above.
Works Cited:
The Constitution of the State of Kuwait.
Al-Jamal, Ahmed A. Islamic Studies for the Tenth Grade. 1st ed. Kuwait City: Kuwait Ministry of Education, 2004.
Al-Kandry, Fahed A. Islamic Studies for the Ninth Grade. 1st ed. Kuwait City: Kuwait Ministry of Education, 2006.
Hussein Qambar 'Ali: Death Threats. Amnesty International. 1996. 14 Dec. 2006
The Report of the Popular Islamic Conference on the Implementation of the Sharia. Popular Islamic Movement ( Al-Tajamu' Al-Islami Al-Sha'Bi). Kuwait, 1992. Secondary Source: http://www.alqabas.com.kw/Final/NewspaperWebsite/NewspaperPublic/ArticlePage.aspx?ArticleID=222934
*Also, note that in the past few year there have been additions to the mandatory requirements. Now, I believe, one has to take both Islamic Studies and Quran - two separate subjects. At least that is the case in my high school.
*It would be interesting to look at Islamic Studies books of the 1960's and 70's. Anyone have any idea?
