Kuwait Court of Cassation principle number 486

Summary: - The principle of equality of rights before the law. It is not founded upon opposition to all forms of discrimination. The reason: some are based upon objective grounds and thus do not involve a violation of the principle of equality. The implication: the prohibited discrimination is judgment discrimination. - The principle of equality before the law. It is not a rigid, didactic principle contrary to practical necessity, nor is it an unyielding rule rejecting all forms of discrimination, and it does not guarantee the mathematical precision required by the scales of absolute justice between things. The implication: the State may itself take such measures as it considers appropriate to regulate a specific matter or avert an evil it deems necessary to repel. The condition: their application must not reveal its whims or indicate its adoption of unjust situations that arouse resentment or hatred or constitute aggression expressing the might of its authority, and its position must be moderate in its dealings with citizens, without differentiation among them. - Maintaining security and order within the country and ensuring the proper, orderly and regular functioning of public services, including the transport service, while preserving the traditions and customs distinguishing Kuwaiti society and its demographic composition. Among the most important objectives whose achievement is undertaken by State agencies. - Women’s participation alongside men in developing the earth and other forms and patterns of life. It must be compatible with women and appropriate to their nature. - Licensing women, irrespective of 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. Inconsistent with achieving the aforementioned objectives, as it conflicts with female nature and limits the State’s duty to preserve women’s security and safety. The implication: the administrative authority’s refusal to grant a request to license a woman for this purpose does not constitute its adoption of unjust situations tainting its conduct with arbitrary discrimination between men and women, or an absolute denial of her right to work; rather, it averts a potential evil it deems necessary to repel. No analogy may be drawn in this regard with women being permitted to drive private cars without distinction between them and men, or with other societies having different circumstances. The judgment’s adherence thereto 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 upon opposition to all forms of discrimination, since some are based upon objective grounds and thus do not involve a violation of the principle of equality, meaning 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, didactic principle contrary to practical necessity, nor an unyielding rule rejecting all forms of discrimination, nor a guarantee of the mathematical precision required by the scales of absolute justice between things. Accordingly, the State may itself take such measures as it considers appropriate to regulate a specific matter or avert an evil it deems necessary to repel, so long as their application does not reveal its whims, indicate its adoption of unjust situations arousing resentment or hatred whereby the restraints upon its conduct are cast off, or constitute aggression expressing the might of its authority, and so long as its position is moderate in its dealings with citizens, without differentiation among them by diktat or arbitrariness. That being so, and whereas maintaining security and order within the country and ensuring the proper, orderly and regular functioning of public services—including the transport service—while preserving the traditions and customs distinguishing Kuwaiti society, with its diverse demographic composition and the multiple nationalities of those residing on its territory, are among the most important objectives whose achievement is undertaken by State agencies; and whereas women’s participation alongside men in developing the earth and other forms and patterns of life must be appropriate to their nature and compatible with their innate disposition; and whereas licensing women, irrespective of their nationalities, to drive on-call taxis in the absence of specific controls protecting them and preserving their security against the difficulties that may be encountered or the dangers that may befall them owing to the nature of this occupation is inconsistent with attaining these objectives or achieving them fully, this occupation requires its practitioner to respond to the request of any customer without specification, irrespective of sex, to go to any place, even if remote, and at any time, even if late. These are all matters incompatible with female nature that limit the State’s duty to preserve women’s security and safety, which must take precedence over other considerations. Consequently, refusal to grant a request to license a woman for this purpose does not entail the responsible administrative authority’s adoption of unjust situations tainting its conduct with the prohibited arbitrary discrimination between men and women, or an absolute denial of her right to work. Rather, it averts a potential evil it deems necessary to repel, particularly since the country’s transport service has not been shown to need this at a time when it is not surrounded by controls guaranteeing its success in making a positive addition to that service without prejudicing attainment of the objectives previously explained. No analogy may be drawn in this regard with women being permitted to drive private cars without distinction between them and men, or being permitted to ride in taxis driven by men, as this is an analogy between different cases: in those situations, she controls her own will without another person’s will being imposed upon her in a manner that might expose her to what must be avoided. Nor may an analogy be drawn with other societies in this matter, given the different economic and social circumstances of each society. Since the challenged act was issued on the basis of the foregoing considerations, it is free of the defect of misuse or abuse of power. Having satisfied the conditions for its validity, it was issued in accordance 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.