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"I told the general prosecutor `I don't think you have the right to discuss this with me. I am a professor and you are not educated in this. Have you read the Quran and the Hadith?'"
-- Dr. Ahmad al-Baghdadi, expert in Islamic law and history, and then-chair of Kuwait University's department of Political Science, describing his interrogation on charges that his reference, in a student newspaper article, to the Prophet Mohammad's early failure to spread Islam defamed Islam147
The Kuwaiti government asserts that "the right to express opinions freely is guaranteed under the Kuwaiti Constitution and legislation."148 However, while article 36 of the Constitution guarantees "freedom of opinion and of scientific research," it restricts the individual's "right to express and propagate his opinion" to those actions taken "in accordance with the conditions and procedures specified by law."149 Article 37 of the Constitution similarly restricts "freedom of the press, printing and publishing," requiring that it be exercised "in accordance with the conditions and manner specified by law."150
In practice, "the conditions and procedures specified by law" are provisions in Kuwait's Printing and Publications Law and Penal Code which include criminal punishments for a large number of vaguely worded offenses, and provisions for prior censorship. These restrictions on expression far exceed those allowable under the ICCPR.
Article 19(2) of the ICCPR states that "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." States are only allowed to restrict freedom of expression in very limited circumstances: the right to freedom of expression may be "subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."151 Even when these conditions are met states do not have unlimited power to impose restrictions on expression, as the Human Rights Committee has made clear: "when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself."152
In addition some provisions of the Penal Code appear to incorporate a presumption of guilt, creating situations where the accused may be required to prove his or her expression meets "accepted rules of science or art," or that it was undertaken with "good intentions." Such requirements violate the ICCPR's guarantees that all persons facing criminal charges receive a fair hearing by a competent, independent and impartial tribunal established by law.153 A fundamental guarantee of the right to fair trial is the presumption of innocence, specified in article 14(2), which states "[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."
As the cases discussed below illustrate, Penal Code and Printing and Publications Law provisions are frequently used to stifle legitimate expression. In particular, journalistic expression deemed to insult the Amir of Kuwait, Islam or Islamic morality, and non-journalistic expression perceived to challenge a conservative interpretation of Islamic orthodoxy and morality are common targets of prosecution. A defendant engaged in research on religion is additionally required to prove his or her "good intentions." Even without resorting to prosecution, the Council of Ministers has extensive powers to suspend administratively publication of periodicals or revoke their permits under vaguely worded provisions, including having policies that "conflict with national interest."154 Such administrative actions are not subject to judicial review.
The provisions of Kuwait's Penal Code and Printing and Publications Law discussed below violate the right to freedom of expression in article 19(2) of the ICCPR. Furthermore, those provisions that require defendants to prove good intentions or that their expression meet "accepted rules of science or art" contravene the principle of the presumption of innocence in article 14(2) of the ICCPR.
In its Concluding Observations, the Human Rights Committee also expressed concern regarding "the limits imposed on freedom of expression and opinion in Kuwait, which are not permissible under article 19, paragraph 3, of the Covenant."155 The Committee was:
particularly concerned about the vagueness of Chapter III of Law No. 3 of 1961 on Printing and Publication (report, para. 240), and about restrictions imposed on academic and press freedom, the temporary closing of a newspaper, the banning of certain books; it is alarmed at the criminal prosecution, imprisonment and fining of authors and journalists in connection with their non-violent expression of opinion, and artistic expression....[and it] is concerned about the implications of penal proceedings against journalists requiring them to prove their good faith and reveal their sources, raising issues not only under article 19 but also with regard to the presumption of innocence guaranteed by article 14, paragraph 2, of the Covenant.156
Printing and Publications Law 3/1961
In June 2000 Kuwait's parliament, the National Assembly, began consideration of government-sponsored amendments to Printing and Publications Law 3/1961.157 Although a final draft was not made public prior to the parliament's July 2000 recess, press accounts suggest that the amendments will reduce government powers to close newspapers administratively but leave untouched other provisions that previously have been used to restrict peaceful expression. These include several vaguely worded provisions criminalizing expression deemed to offend public morality, disturb peaceful relations between Kuwait and other countries, foment dissent, or criticize God or the person of the Amir.
Section I of the current law defines a publication as any "piece of writing or drawing or musical piece or photograph or any other of the means of expression if it is able to be circulated."158 The "sale or distribution in any place of publications is not permitted except with a permit from the Printing and Publications Office."159 Violations are punishable by a fine up to KD200 (US$650) and confiscation of the publication. In cases where the publication "includes anything that opposes the national interest or serves a foreign country or entity, or violates the political or social system in Kuwait," the law provides for a punishment of up to six months of imprisonment and/or a fine of up to KD200.160
The language of Section III of the law, "The Matters Whose Publication is Prohibited," is similarly vague and open to abuse.161 Article 23 prohibits publications that violate "by allusion, slander, sarcasm, or disparagement God or the prophets or the companions of the prophet Mohammad"; or "subject the person of the Amir to criticism";162 or "attribute statements to the Amir without obtaining special written permission from the Printing and Publications Office." Article 27 prohibits publication of anything that "incites committing a crime or foments hatred or spreads dissension among members of society."
Article 24 prohibits not only "publication of news about secret official communications," but also "publication of treaties and agreements undertaken by Kuwait prior to their publication in the Official Gazette except by special permission from the Printing and Publications Office. Also prohibited is the publication of anything touching on heads of state, or disturbing relations between Kuwait and Arab or friendly countries."
Article 25 prohibits the publication of "news that affects the value of the national currency, or disturbs ideas on the economy. Also prohibited is publishing news of bankruptcies of businesspeople, commercial stores, currency traders, or currency exchanges, except by special permission from the relevant court."
Article 26 prohibits any "publication that violates public morality or persons' dignity or personal freedom, as well as any publication that reveals a secret that damages a person's reputation or wealth or his business name, and the publication of any thing intended to threaten him or force him to pay money or provide a benefit to another or prevent him from working."
In cases where the materials prohibited by articles 23-27 have appeared in a newspaper, magazine or other periodical, both the editor of the publication and the author of the material in question are subject to imprisonment for up to six months and/or fines up to KD75 (US$245) for a first offense, and up to one year in prison and a KD150 (US$490) fine for a second offense. In cases where the editor or author have previous convictions under these articles, the court can order their imprisonment for up to one year and a KD150 (US$490) fine, suspend the publication for up to one year and confiscate the issue in question, and/or revoke the publication's permit. 163
Publications risk judicial suspension and revocation of their permits for a wide variety of transgressions under articles 29-35, which are subject to expansive interpretations and applications that may violate the ICCPR. These range from "incitement to overturn the ruling system in the country" to expression of "opinions that include sarcasm, contempt, or belittling of a religion or a religious school of thought." 164
Article 35 sets out the principle that no periodical can be suspended or have its permit revoked except in accordance with a final ruling issued by the criminal courts, and any suspension cannot exceed one year.165 The article makes an exception for "temporary stoppages," not to exceed three weeks, during a criminal investigation or trial, "when necessary," if ordered by the head of the court's Criminal Division after a request from the Prosecution Office. The law does not specify under what circumstances such stoppages might be necessary, but does provide that in cases of suspensions of publication or revocation of permits, the owner and editor of the publication must have been referred to the court as a result of an order by the Prosecutor General, after an investigation by the Prosecution Office based on a complaint referred to it by the Minister of Information.
Article 35(bis) states that:
Without prejudice to the procedures specified in this law or any other law, the Council of Ministers may issue a decision suspending publication of a periodical for a period not exceeding two years or revoking its permit if the Council established that the publication serves the interests of a foreign state or agency, or its policies conflict with national interest, or it is apparent that it obtained aid, help, or benefit from any foreign country or agency in any form or for any reason or according to any pretext or designation it received without permission from the Ministry of Information. Any appeal of the Council of Minister's decision to suspend or stop [publication] or revoke [a permit] must be presented to the Council of Ministers within two weeks of the owner's notification of the decision, and the Council's decision on the appeal is final.
Lastly, article 37 allows the head of the Printing and Publications Office to ban imported publications in order to "protect public order or morals or the sanctity of religions."
Penal Code 16/1960
The provisions in Kuwaiti Penal Code 16/1960 restricting expression are similar to those in the Printing and Publications Law but provide for harsher penalties. Unlike the Printing and Publications Law requirement that prosecutions under Section III be brought within three months of publication, there is no statute of limitations for these Penal Code offenses. In addition, an individual who has been prosecuted for a particular work or utterance under provisions of the Penal Code can be charged again under the same articles if the Prosecution Office decides that a separate phrase or images in the same work also violates the law.
For example, article 111 of the Penal Code provides for the imposition of up to one year of imprisonment and/or a KD75 (US$245) fine on "anyone who distributes, by any one of the public means specified in article 101, opinions that include sarcasm, contempt, or belittling of a religion or a religious school of thought, whether by defamation of its belief system or its traditions or its rituals or its instructions." 166
The language of article 112 is even more vague, and requires researchers working on religious topics to prove their good intentions: "there is no crime if research on religion or a religious sect is transmitted in a lecture, articles, or scientific books, in a calm, balanced manner without provocative phrases, and the researcher's good intention in conducting pure scientific criticism is proven."
Article 204 sets a punishment up to three years of imprisonment and/or a fine of up to KD3,000 (US$9,780) not only for "anyone who publicly incites in a public place immoral acts and prostitution," but also for anyone who "prints or sells or distributes or exhibits pictures or drawings or forms or anything immoral." The article also states that "there is no crime [committed] if statements were uttered or books or drawings or pictures published according to the accepted rules of science or art as that is the basis of participation in scientific and artistic advancement." Nevertheless, courts have repeatedly convicted authors of artistic and academic works of violating article 204, without making reference to this provision.167
Recent Prosecutions
The vagueness of Penal Code and Printing and Publications Law provisions provides judges with wide scope for interpretation, which has resulted in their adopting highly restrictive standards which effectively violate the right to expression contained in the ICCPR. However, even when a sentence is eventually reduced or overturned on appeal, the prolonged nature of these prosecutions, and the ever present threat of subsequent prosecutions for the same works, serve to multiply these laws' chilling effect on free expression.
The Cases of Dr. `Aliya Shu`ayb, Laila al-`Othman, and Yahiya al-Rubay`an
On March 26, 2000 the Misdemeanors Appeals Court found prize-winning novelist and short story writer Laila al-`Othman and publisher Yahiya al-Rubay`an to have violated article 204 of the Penal Code and fined them KD1000 (US$3260) each for distributing al-`Othman's novel, al-Rahiil (The Departure). The court also found al-Rubay`an and Kuwait University philosophy professor Dr. `Aliya Shu`ayb guilty of Printing and Publications Law violations for distributing Shu`ayb's collection of poetry, `Anakib Tarthi Jurhan (Spiders Bemoan a Wound), without a permit. They were each fined KD100 (US$326). Both books were ordered banned, although al-Rahiil had been published and circulating legally in Kuwait since 1984, and Anakib Tarthi Jurhan had been in circulation since 1993.
The March ruling overturned an earlier Misdemeanors Court ruling on January 22, 2000 which had resulted in Dr. `Aliya Shu`ayb, Yahiya al-Rubay`an and Laila al-`Othman being sentenced to two months in prison for writings that the court said "included expressions that violate God, and indecent and shameless expressions." However, the Misdemeanors Appeals Court did uphold the lower court's ruling that al-`Othman's book was immoral. The two rulings did not specify which references constituted illegal expressions. However, during pre-trial questioning prosecutors focused on a description of an apple in feminine terms in Dr. Shu`ayb's collection of poetry; a description of the "lustful" coming together of sea waves in al-`Othman's novel; and a passage in the novel where a male character, in an expression of the depths of his despair, tells his roommates they can rape him. Dr. Shu`ayb believes that the charges against her were brought because of her academic studies on sexuality and lesbianism among students at Kuwait University.168
The Case of Dr. Ahmad al-Baghdadi
On October 4, 1999 the Misdemeanor Appeals Court sentenced Dr. Ahmad al-Baghdadi, then-chair of Kuwait University's political science department and an expert on Islamic law and history, to one month of imprisonment for disseminating ideas that "contained an extreme insult to and great defamation of the Prophet of God (Praise Be Upon Him)." The ruling overturned earlier court rulings sentencing Dr. al-Baghdadi to six months in prison for writing an article in a student newspaper that was held to have contravened article 111 of the Penal Code.169
The article, entitled "An Opportunity to Solve the Oppression of Backwardness," had appeared in the July 1996 issue of al-Sho`ula, a Kuwait University student newspaper. Dr. al-Baghdadi noted in the article that "The Prophet (Praise Be Upon Him) failed in forcing Islam upon the society of Mecca for a period of thirteen years, whereas Islam entered the hearts of the Companions from the people of Yathrib or Medina before the arrival of the Prophet (PBUH) in Yathrib."170 He also noted a historical continuity between the politicization of Islam beginning with the wars of apostasy down to the modern Islamist groups, expressed disapproval of legislation to prohibit co-education at the university, and called on students to oppose the Islamic tendencies. The initial charges against Dr. al-Baghdadi were based on complaints by individuals associated with a conservative Islamic movement, who said the Dr. al-Baghdadi had "opposed the religious tendencies in the University and called upon the students to oppose the religious tendencies and that if they did not they would be considered backwards and [Dr. al-Baghdadi] opposed the matter of forcing Islam on society and said that the Prophet Mohammad (PBUH) had failed in forcing Islam on the society in Mecca for a period of thirteen years." 171
In each of the cases, the courts found Dr. al-Baghdadi's description of the Prophet Mohammad's proselytizing in Mecca as a "failure" to be decisive evidence of a violation of article 111. According to the Misdemeanors Appeals Court:
Whereas it is clear to the Court, from reading the whole article and the aforementioned phrases, that it [the article] contained a grave insult and gross defamation to the Prophet Muhammad, peace be upon him, `who was sent as a mercy unto mankind', [and who is] the seal of the prophets and messengers. For it is not proper that he should be described in terms applied to the common people, or be referred to in a manner that derogates from his status as the Messenger [sent by] of the Lord of the Worlds. The Almighty warned the believers that their deeds would come to nothing [would become vain], if they raised their voices above the voice of the Prophet: "Believers do not raise your voices above the voice of the Prophet, nor shout aloud when speaking to him as you do to one another, lest your deeds come to nothing [become vain] without your knowledge." (al-Hujurat, verse 2)
God Almighty also said, "We have sent you forth as a witness and as a bearer of good news and warnings, so that you (O men) may have faith in God and His apostle and that you may assist and honor Him, and celebrate His praise morning and evening." (al-Fath, verses 8-9) [If that is so,] how [much worse] would it be in the case of someone who disparages the life of the one who `does not speak out of his own fancy', but [speaks] from an inspired revelation.
The writer of the article was disrespectful to the Prophet, peace be upon him. He also regarded religion as a cause for corruption of mankind, which would necessarily imply discrediting the basic tenets of the Islamic creed. Consequently, the Court is convinced that the defendant has committed the crime attributed to him, which would necessitate punishing him for it. However, given the circumstances of the defendant, the Court is of the view that the punishment should be lessened and the challenged sentence be amended as indicated.... Therefore, the Court has decided: to accept the appeal in terms of procedure; reject the arguments submitted by the defendant; and with regard to the subject of the appeal, to amend the appealed sentence and reduce it to one month imprison.
Dr. al-Baghdadi, who was hospitalized during his imprisonment, was pardoned by the Amir after serving fourteen days of his sentence. This was one day before he would have forfeited his right to return to his university position on the grounds that he was absent without permission.
Actions against News Outlets
Actions taken against media outlets and journalists typically involve charges of damaging the national interest or insulting religion, morality, or the person of the Amir. For example:
On February 14, 2000 the Council of Ministers revoked the permit of the daily newspaper al-Siyassa and suspended publication of the daily newspaper al-Watan for two years after they reported on an Amiri decree raising salaries of members of the military and security forces. The government denied that it had issued the decree, which had been faxed anonymously to the newspapers. After strong criticism by members of parliament opposed to the intervention by the Council of Ministers, the Amir issued a decree revoking the Council of Minister's actions against the newspapers.
On October 18, 1999 the Council of Ministers suspended publication of the daily newspaper al-Siyassa for five days after the paper ran a front-page story quoting conservative Islamist figure Hamad al-Ali. Al-Ali's comments, which indirectly criticized Kuwait's Amir, Shaykh Jaber al-Ahmad Al Sabah, for issuing an Amiri decree granting women the right to vote, had been widely reported in other Kuwaiti news outlet, but al-Siyassa was the only paper to display the story prominently.
On June 19, 1999 Kuwait's Ministry of Information closed the Kuwait office of the Qatari satellite TV station, al-Jazeera, and revoked the permits of its staff in response to a live broadcast of a program on women's rights. During the broadcast a caller who identified himself as an Iraqi national criticized Kuwait's Amir. The ban was lifted on July 31 after negotiations with the station.
In January 1999 an appeals court overturned a weeklong suspension of the daily newspaper al-Qabas and six-month prison sentences imposed on Egyptian cartoonist Ibrahim Marzooq and the then-editor of al-Qabas, Mohammad al-Saqr. The two had been charged with insulting Islam after the newspaper published a cartoon in January 1998 depicting God evicting Adam and Eve from Eden for failing to pay rent. The appeals court fined Marzooq and al-Saqr KD50 (US$160) each after Kuwait's Constitutional Court had refused to hear their petition challenging the constitutionality of the Printing and Publications Law.
147 Human Rights Watch interview, Kuwait City, Kuwait, April 6, 2000.
148 Initial Report of the Government of Kuwait to the United Nations Human Rights Committee, CCPR/C/120/Add.1, December 3, 1999, (hereafter Report of the Government of Kuwait), para. 237.
149 Constitution of the State of Kuwait, article 36.
150 Constitution of the State of Kuwait, article 37.
152 U.N. Human Rights Committee General Comment 10, Freedom of Expression, Nineteenth Session, 1983, (hereafter, General Comment 10), para. 4.
154 Printing and Publications Law, article 35(bis).
155 Concluding Observations, para 20.
156 Concluding Observations, para 20.
157 On June 10, 2000 the chair of the National Assembly's Legal and Legislative Affairs Committee announced that his committee had returned a draft of the legislation to the government for further amendments, and expected to receive a final version in approximately one month. "The Legislative Branch gives the Government a One Month Deadline to Submit to it the Final Text of the Printing and Publications and Law before its Promulgation," al-Watan Newspaper, Kuwait City, Kuwait, June 11, 2000 (Arabic).
158 Printing and Publications Law, article 4.
159 Printing and Publications Law, article, article 7.
161 Section III includes articles 23 to 34.
162 The prohibition on criticizing the Amir may extend to include other members of the royal family. On February 7, 2000 Foreign Minister Shaykh Sabah al-Ahmad Al Sabah reportedly told editors of seven Kuwaiti newspapers that "Everything related to the post of the crown prince and prime minister is the duty of the emir....We do not accept press infringement on the regime. This is your country and doing any harm to the ruling family will eventually hurt the country." "Kuwait's FM Warns Newspapers Off Criticizing Ruling Family," Agence France Presse, February 8, 2000.
163 Printing and Publications Law, article 28.
165 The legal status of articles 35 and 35(bis) is disputed. Both were replaced by more restrictive articles by Law 73/1986. Although the government argues that Law 73 remains in force, it is widely considered to be illegitimate because it was issued as a decree by the Amir after he dissolved the parliament in July 1986 and suspended a variety of constitutional guarantees. The opposition position is based on Article 71 of Kuwait's constitution, which requires that decrees issued in the absence of parliament be confirmed at the first sitting of the next parliament, or retrospectively cease to have the force of law. In 1992 the first parliament to be constitutionally elected since 1985 failed to confirm the Amiri decree.
166 Article 101 specifies "speech, shouting, writing, drawing, pictures, or any other means of the means of expressing an idea."
168 Interview with Dr. `Aliya Shu`ayb, "`Aliya Shu`ayb: `I Don't Strive for Fame and Our Society is Afraid to Face its Problems'," Hamid al-Jasir, al-Hayat Newspaper, London, England, November 8, 1999 (Arabic).
169 On June 2, 1998 the Felonies Court sentenced Dr. al-Baghdadi to six months for the same article. The Higher Court of Appeals then ruled that the lower court lacked jurisdiction because the case did not come under the Printing and Publications Law and should have been heard by the regular Misdemeanor Court as a violation of Penal Code article 111. The court ordered the case turned over to the Prosecution Office to bring charges. The case was then heard before the Misdemeanor Court, which sentenced him on May 25, 1999 to six months imprisonment for violating article 111.
170 Quoted in the Misdemeanor Appeals Court ruling, Case 213/99, issued October 4, 1999 (Arabic).
171 From the ruling by the Higher Court, Misdemeanor Section, in Case 8/1996 Misdemeanor 34/1996 Press, Judge Jalal al-Sajii`ii presiding, issued May 25 1999 (Arabic).