Kuwait Court of Cassation principle number 165

Summary: - The principle of equality of rights before the law. It is not founded on opposition to all forms of differentiation. The reason. Some are based on objective grounds and therefore do not entail a violation of the principle of equality. Its import: the prohibited discrimination is arbitrary discrimination. - The principle of equality before the law. It is not a rigid doctrinaire principle incompatible with practical necessity, nor an inflexible rule rejecting all forms of differentiation, and it does not guarantee the mathematical precision required by the scales of absolute justice between things. Its import. The State may itself adopt such measures as it sees fit to regulate a particular subject or to guard against an evil it considers necessary to avert. The condition thereof. Their application must not reveal its whims or indicate its adoption of unjust situations that arouse animosities or hatreds or constitute aggression expressing the might of its authority, and its position must be one of moderation in its dealings with citizens, without differentiation between them. - Maintaining security and order within the country and ensuring the proper functioning of public services, including the transport service, regularly and continuously and in a manner preserving the traditions and customs characterising Kuwaiti society and its demographic composition. Among the most important objectives State agencies work to achieve. - Women’s participation alongside men in developing the earth and other forms and patterns of life. It must be compatible with women and suited to their nature. - Licensing women, whatever their nationalities, to drive on-call taxis in the absence of specific controls protecting them and preserving their security owing to the nature of this occupation. It is incompatible with achieving the aforementioned objectives, because it is incompatible with the nature of the female and limits the State’s duty to preserve her security and safety. Its import. The administrative authority’s refusal to accede to a request to license a woman for this does not constitute its adoption of unjust situations tainting its conduct with arbitrary discrimination between men and women, or a denial of her right to work in its entirety. Rather, it is a precaution against a potential evil it considers necessary to avert. No analogy may be drawn in this regard with the fact that a woman is permitted to drive a private car without differentiation between her and a man, or with other societies having their different circumstances. The judgment’s adherence to this. It does not render it defective. Rule: It is established in the jurisprudence of this Court that the principle of equality of rights before the law is not founded on opposition to all forms of differentiation, since some are based on objective grounds and therefore do not entail a violation of the principle of equality. This means that the prohibited discrimination is that which is arbitrary. It is also established that the principle of equality before the law is not a rigid doctrinaire principle incompatible with practical necessity, nor an inflexible rule rejecting all forms of differentiation, nor a guarantee of that mathematical precision required by the scales of absolute justice between things. Accordingly, the State may itself adopt such measures as it considers appropriate to regulate a particular subject, or to guard against an evil it considers necessary to avert, so long as their application does not reveal its whims, or indicate its adoption of unjust situations arousing animosities or hatreds through which the controls on its conduct are lost, or constitute aggression expressing the might of its authority, and so long as its position is one of moderation in its dealings with citizens, without differentiation between them by imposition or arbitrariness. That being so, and as maintaining security and order within the country, and ensuring the proper functioning of public services—including the transport service—regularly and continuously, while preserving the traditions and customs characterising Kuwaiti society with its diverse demographic composition and the multiplicity of nationalities of those residing on its territory, are among the most important objectives State agencies work to achieve; and as women’s participation alongside men in developing the earth and other forms and patterns of life must be suited to their nature and compatible with their innate disposition; and as licensing women—whatever their nationalities—to drive on-call taxis, in the absence of specific controls protecting them and preserving their security against difficulties they may encounter or dangers that may befall them owing to the nature of this occupation, is incompatible with attaining these objectives or achieving them fully, this occupation requires those practising it to respond to the request of any customer without specification, whatever the customer’s sex, to go to any place, even if remote, and at any time, even if late. These are all matters incompatible with the nature of the female that limit the State’s duty to preserve her security and safety, which must take precedence over all else. Accordingly, refusal to accede to the request to license her for this does not entail the responsible administrative authority’s adoption of unjust situations tainting its conduct with prohibited arbitrary discrimination between men and women, or a denial of her right to work in its entirety. Rather, it is a precaution against a potential evil it considers necessary to avert, particularly since no need of the country’s transport service for this has been established, at a time when it is not surrounded by controls ensuring its success in making a positive contribution to that service without compromising attainment of the objectives explained above. No analogy may be drawn in this regard with the fact that a woman is permitted to drive a private car without differentiation between her and a man, and is also permitted to ride in taxis driven by men. It is an analogy despite a material difference, since in these cases she controls her own will without another person’s will being imposed on her in a manner that might expose her to what must be guarded against. Nor may an analogy be drawn in this matter with other societies, owing to the differing economic and social circumstances of each society. Since the challenged act was issued on the basis of the foregoing considerations, it is free from the defect of misuse or abuse of power. Having satisfied the conditions for its validity, it was issued in conformity with the correct application of the law. Since the challenged judgment adopted this view, it accords with the correct rule of law, rendering the present ground of challenge unfounded.