Between Sovereignty and Freedom:‘Decoding a Supreme Court Verdict’

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The Kuwaiti Court of Cassation’s recent pronouncement, as published in Alqabas on 29/8/2023, marks a pivotal moment in our constitutional journey. It brings to light the age-old tension between individual rights and state security, an issue that resonates not just within our borders but on a global scale.

While it is customary not to overly praise our judiciary, I believe it is crucial to emphasize its role. Time and again, the Court has emerged as a bastion of justice, safeguarding our rights and upholding the tenets of the law. This verdict stands as a testament to that unwavering commitment.

At its core, the case posed a simple yet profound question: Can administrative authority overshadow an individual’s constitutional rights? My interpretation leans strongly towards a no. This judgment reinforces the judiciary’s steadfast dedication to fairness, highlighting its role in maintaining societal balance.

Article 31 of the Kuwaiti Constitution enshrines the right of movement, stating that no one shall be restricted from the freedom of movement except within the limits of the law. This fundamental right is not merely a national sentiment; it finds roots in international law and human rights and has been integrated into many constitutions worldwide. However, its clarity often becomes obscured, especially when pitted against security apprehensions.

There exists a nuanced yet crucial distinction between a state’s sovereignty and an individual’s right to movement. From my perspective as a scholar and practitioner, I find it imperative for our officials, especially those within the Ministry of Interior, to discern this subtlety. The right to movement, safeguarded by our constitution, underpins our freedoms. While states possess certain prerogatives, they must always be in harmony with established legal frameworks.

The case prompting this verdict revolved around withdrawing a citizen’s passport due to alleged misdemeanours abroad, specifically in Germany. While I recognize the state’s prerogative to ensure security, it is paramount to emphasize that any administrative measures impinging on fundamental rights should be measured and justified in line with the protections of Article 31. Indefinitely curbing someone’s mobility without compelling rationale is troubling.

In my years of practice, the delineation between state sovereignty and an individual’s movement rights has, at times, become ambiguous. I strongly encourage our state’s apparatus to meticulously review the principles laid out by the Court of Cassation and the explicit provisions of our constitution. Protecting rights and freedoms transcends mere legal formalities; it is a societal imperative. Upholding them not only adheres to legal standards but promotes the collective well-being, propelling our nation towards unparalleled progress and prosperity.

This precedent, while unique in its specifics, sends a powerful message in the broader dialogue on rights, freedoms, and our shared responsibilities. As I and many of my distinguished colleagues delve into its nuances, I am hopeful that the weight of this ruling, its intricacies, and its overarching significance are not only grasped but also revered.

By Dr. Fawaz Khaled Alkhateeb
Attorney and Visiting Professor at Kuwait International Law School
[email protected]

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