Kuwait Court of Cassation principle number 156

Summary: - Criminalisation of acts involving attacks on the Amir's rights and powers, disparagement of the Amir's person, and affronts to the seat of the Emirate. Article 25 of Law No. 31 of 1970 amending certain provisions of the Penal Code. Publicity is their first element; no criminalisation occurs until the opinion is made public. Reason therefor. Criminal intent is their second element. Inferred from the facts constituting the criminalised act. Their third element is an attack on the Amir's rights and powers, disparagement of his person, and affronts to the seat of the Emirate. The protection is intended for the Amir's person against possible attacks on his rights and authority. This encompasses all criticism involving denigration that impairs prestige, hurts feelings, and includes attacks and verbal disrespect likely to weaken the authority of the Head of State and diminish the right he derives from the Constitution. No effect thereof on freedom of opinion and criticism of government actions. Reason therefor. - Meaning of disparagement and affronts to the seat of the Emirate. - Assessment of acts and statements involving attacks on the Amir's rights and powers, disparagement of his person, and affronts to the seat of the Emirate. A matter for the trial court. Condition thereof. Rule: Article 25 of Law No. 31 of 1970 amending certain provisions of the Penal Code criminalised acts involving attacks on the Amir's rights and powers, disparagement of the Amir's person, and affronts to the seat of the Emirate, prescribed their punishment, and made publicity their first element. Thus, no criminalisation occurs until the opinion is made public. If the element of publicity exists together with the remaining elements of the offence, punishment is warranted. The underlying reason is clear, since every individual has freedom of opinion and expression, and there is no punishment for thinking and forming an opinion; rather, punishment is for publicly declaring an opinion contrary to law and proclaiming it by any of the means of publicity enumerated illustratively in the aforementioned article. There is no basis for invoking the guarantee of freedom of opinion under Article 36 of the Constitution, since freedom of opinion differs from other freedoms in that its effect is not confined to the individual, and some of its forms aim at influencing others. Its regulation was therefore permissible because, if exercised absolutely, it leads to strife, chaos, disturbance of security, and fragmentation of authority. The Constitution was careful to affirm it while referring to the role of the laws regulating it. Criminal intent is the second element and is necessarily inferred from the facts constituting the criminalised act. The third element is an attack on the Amir's rights and powers, disparagement of the Amir's person, and affronts to the seat of the Emirate. The intention is to protect the Amir's person against possible attacks on his rights and authority. This encompasses all criticism involving denigration that impairs prestige, hurts feelings, and includes insinuation and verbal disrespect likely to weaken the authority of the Head of State and negate the right he derives from the Constitution. This does not affect freedom of opinion and criticism of government actions; rather, that freedom is always guaranteed, provided that the Amir's name is not dragged into or thrust into it. Criticism of government actions can be directed only at those constitutionally responsible for them. Disparagement means an attack likely to constitute a violation of or encroachment upon the respect owed to the person of the Head of State. Affronts to the seat of the Emirate mean casting aspersions on the system of succession to the Emirate and the structure of the existing Amiri system. The intention is not to protect the Amir's person, since it is protected by Article 54 of the Constitution; rather, it encompasses everything likely to impair the dignity of the Emirate so as to weaken people's respect for it or diminish its prestige and moral influence among the nation. Accordingly, assessment of whether acts and statements involve anything prohibited by the aforementioned Article 25 rests with the trial judge, who derives it from his understanding of the facts of the case and identification of the true nature of the expressions and words constituting attacks on the Amir's rights and authority, disparagement of his person, and affronts to the seat of the Emirate. This is, however, conditional upon making no error in applying the law to the incident presented to him and upon his judgment being free of defects in reasoning.