By Atyab Al-Shatti
Article 70 of the Constitution of Kuwait, states “HH the Amir approves conventions by a decree and refers them to the National Assembly for ratification, then to be published in the official gazette as a pillar point to announce the date of commencement of these provisions. After this fundamental legal procedure, conventions shall have the power of national laws and supersede national laws with regards to implementation in case of any conflict.”
Through this constitutional principle, conventions’ provisions become effective in the legislative system and the national judiciary, but in terms of practice, most of the verdicts issued by the court rely only on national laws as a source of laws and provisions. It is rare to have these verdicts based on conventions which Kuwait has signed, ratified and have become nationally binding. Also, it is rare to find verdicts issued according to the Committee on the Elimination of Racial Discrimination (CERD). This reflects the need to implement provisions of international conventions ratified by Kuwait in general and CERD in particular.
Today, it is crucial to harmonize national legislations with the Convention on the Elimination of All Forms of Racial Discrimination, considering the fact that Kuwaiti law combats discrimination and racism, yet does not define discrimination specifically to enhancing combating discrimination. Such a legislative vacuum creates a serious gap between the definition of discrimination as stated in our national regulations and the definition in article 1 of the Convention on the Elimination of All Forms of Racial Discrimination which Kuwait has signed and ratified.
Many relevant national legislations were not harmonized with the convention, particularly labor laws such as law 6/2010 concerning work in the private sector which does not ban direct and indirect discrimination based on reasons mentioned by International Labor Organization (ILO) convention no. 111/1958 concerning discrimination in employment and occupation in respect of all aspects of work, particularly prohibition of sexual harassment and discrimination on multiple grounds, like the sponsor (kafeel) system, lack of social security for female migrant workers and a shortage of providing an appropriate mechanism to help them get their legal rights.
The abovementioned law hasn’t been amended since it was enacted in 2010 with respect to discrimination in employment, occupation and the sponsorship system and its mechanisms. Civil service law no. 15/1979 hasn’t been amended to prohibit discrimination in employment according to gender, origin, language and religion. Moreover, a number of regulations and administrative decisions restrict the rights stipulated in certain laws, like law no. 15/1979. Article 2 of this law defines the employee as anyone who holds a civil job at a government authority regardless of the nature of their job, title, or being a citizen or migrant worker.
Non-Kuwaiti employees and migrant workers are usually appointed by contracts according to circular no. 6/1979 concerning the rules and provisions of temporary appointment. Such contracts restrict the rights granted to them by the Civil service law. For example, migrant teachers are appointed according to the second contract (B), therefore their salary is fixed based on item B of article 4 of circular no. 6/1979. So, the salary will not be raised periodically and there is no promotion to supervisory positions. Finally, we trust the humanitarian sense of our authorities to help amend these legislative gaps and enact just laws.