Because of a constitutional suspicion and five other reasons
The law violates many articles in the Kuwaiti Constitution and contradicts the Civil State concept and the diversity of our society.
• It is unacceptable to impose religious duties on non-Muslims and force them to refrain from behaviours not related to their beliefs.
• Punishing those breaking the fast contradicts the states’ plans on promoting the diversification of Kuwait’s economy and its aims of attracting foreign companies through the direct investment laws as such law creates a negative work environment.
Dr Fawaz AlKhateeb from Taher Group Law Firm called for reconsideration of the Kuwaiti law, regarding fast-breaking in public during Ramadan, considering it a non-human, non-logical law in addition to the constitutional suspicion surrounding it.
Al-Khateeb stated that Law No. 44 of 1968 regarding breaking the fast in public during Ramadan punishes by imprisonment for a period of up to a month. “This punishment is applicable whether the person is a Muslim, non-Muslim, or with no religion at all,” he said, clarifying that the Explanatory memorandum of the Law brought justifications based on that the state’s religion is Islam and that public order must be observed by all Kuwaiti residents, and that the Law came to preserve the feelings of the people of Kuwait and adhere to the religion and Islamic values, and that breaking the fast in public places hurts Muslims feelings, adding that the Law is applicable even if this is for someone who has an excuse and illness!
Al-Khateeb indicated that this law is repeatedly applied on non-Muslim foreigners, recalling what happened years ago to a non-Muslim foreign doctor “who came in Ramadan to the State of Kuwait for the first time to work, and after leaving the airport, she was eating in the taxi, so a policeman stopped the taxi and referred her for investigation because of breaking the fast and she was imprisoned in view of the case. After her release, she decided immediately to leave Kuwait as she was surprised with the measures that were taken against her and because of her ignorance of Islam as a religion and the lack of awareness of such a law. He said that this case and many other similar cases make us as jurists call for the abolition of this legislation,” indicating that there are five reasons why this law must be reconsidered.
The first reason is that “This law violates the Constitution in Articles 7, 30, 35, 36 and 175, as this legislation contradicts the principles established by the constitution which stress on the importance of guarantying personal freedom, and that the purpose of the constitution is to achieve justice, and guarantying freedom of absolute belief to religions and even if the person does not believe in any religion, stressing that the constitution is indivisible and the principles of freedom and equality are applied to all persons of different religions and that there is no amendment except for more guarantees and freedoms,” Alkhateeb said pointing out that the central argument in this law is flawed when the aim of the rule of law is to impose religious beliefs on a non-Muslim, which constitutes a kind of exaggeration in imposing doctrine using the law.
Regarding the second reason, AlKhateeb stated that the Law contradicts with the concept of the civil state and the nature of the diverse society, indicating that Kuwait is a civil state, meaning that it protects and preserves all members of society equally regardless of their different religious and intellectual affiliations, and it urges their unity and cohesion, as it is a constitutional state of institutions that accommodate the foreign element and does not exclude it, pointing to the existence of traditional (usurious banks) as well as insurance companies in Kuwait, and that the state contracts with a non-Muslim foreign army to impose protection along with other aspects that confirm the openness of the state and its acceptance of global diversity.
Alkhateeb added that the third reason revolves around the law’s violation of common sense, as it is unacceptable to impose religious obligations on non-Muslims and forcing them to refrain from behaviours that are not related to their beliefs, explaining that “our feelings as Muslims will not be harmed if a non-Muslim eats food in front of us. As Kuwaiti people travel to foreign countries, fast and perform their acts of worship, and I believe that imposing Islam on a non-Muslim is in fact contrary to the concept of religious and moral peace and the valuable Islamic messages and values that we describe as having the universal validity for the human being, and assumed calling and preaching without the use of coercive means in imposing belief as we are members of a civil state,” he said.
Alkhateeb also dealt with the subject of religious excuses of not fasting such as travel, sickness, and other excuses, pointing out that Kuwait does not impose the pillars of religion, such as prayer on time, and does not prevent usury, wondering how “we force Non-muslims to perform Islamic duties because of feelings that will not be affected in any way because of fasting, adding that the aim of fasting is to feel how the poor feels and be patient”. Al-Khateeb also indicated that there is a difference between the doctrines of the Islamic religion in the state such as the difference in the date of the start of Ramadan among the followers of the Jaafari (shia) school and the followers of the Sunni school, and the time of fasting and breaking the fast may also differ between the schools.
Fourthly, Alkhateeb asserted that the law violates the economic and developmental goals, especially since the state calls and encourages direct investment from foreign companies. “In Kuwait, we have up to three millions expatriates, many of them are non-Muslims and from various countries, and therefore a suitable work environment must be created especially in light of the Kuwaiti financial deficit to pay salaries and the high risk of not diversifying sources of income and the scarcity of foreign expertise in the specialized labor market,” he said, indicating that many non-Muslim expatriates work in public places under the sun and at high temperatures during the day of Ramadan for long hours, and It is illogical to prevent them from drinking and eating even though they are non-Muslims, especially those who work in building bridges, contracting and cleaning, indicating that the authority’s issuance of decisions regarding the closure of restaurants and the prevention of delivery during the day in Ramadan is unjustified; wondering “So do such laws and decisions provide an appropriate and encouraging environment for companies, investors and non-Muslim foreigners in the State of Kuwait? Rather, it is a work environment that repels skilled foreign workers and investors.
Concerning the fifth justification to reconsider the Law, AlKhateeb stated that many comparative laws in the Islamic countries do not criminalize this act or at the least is less burdensome in criminalizing it, citing countries such as Oman as according to its Penal Law No. 7/74 in Article (312), the maximum penalty is imprisonment (10 days) or the fine and the law only applies on Muslims that do not have a legal excuse. Also in Morocco, the law punishes everyone who is known to embrace Islam and break the fast publicly during the day in Ramadan without an excuse. Furthermore, in Bahrain, according to Decree-Law No. 15 of 1976, Article (309) the punishment is applicable only to Muslims. Alkhateeb added that the Kingdom of Saudi Arabia mitigated the role of the Committee for the Promotion of Virtue and Prevention of Vice and followed a policy of economic openness and promoting tourism and entertainment in general.
Al-Khateeb added, that all human beings are morally equal and enjoy independence. The duty from which the duty of obedience is derived can be a general moral duty that promotes justice and impartiality. It is clearly unfair to punish a non-Muslim for eating in a public place because of what is called hurting the feelings. The imposition of religious laws is one aspect of compulsion that causes the emergence of hypocrisy in society. It is a compulsion in showing a religious practice other than what the person believes or other than what he chooses which leads to a state of hypocrisy and stubbornness. Acts of worship should not be regulated by laws, as the rule of law is not forcing beliefs. Rather, the only right could be to apply social criticism to Muslims who break the fast without an excuse.
AlKhateeb also pointed out that the justifications for obeying the law and coercing it and using force are based on applying the principle of fairness, justice, freedom and support for national institutions and interests in the context of the broader value, and limiting the potential negative consequences of disobedience to the political system, considering that all of the above “are absent in this moody, fruitless law,” accordingly, a shift must be made from the ideological centrality of religious belief to the pluralism rooted in social and cultural manifestations and the tremendous societal diversity.
AlKhateeb concluded that this opinion remains within the limits of dialogue and constitution that guaranteed every human being’s right of expression, “and we believe that the current law does not concern itself with the larger view of the issue, still, it is an obligation of involuntary compliance and respect and is binding on all unless it is amended or repealed.”