Coronavirus and martial law

By Dr Fatma Khaled Almohsen

With the fact that the number of coronavirus-infected cases in Kuwait continues to rise despite the curfew imposed and the prediction for this number to sharply grow with the expected arrival of evacuated citizens, voices have recently wondered if the government would declare martial law. These talks pushed me to write this article and demonstrate legal dimensions of the aforementioned law according to the Kuwaiti constitution with the hope the government will not feel compelled to use this serious authority.

Article no. 69 of the Kuwaiti constitution states His Highness the Amir shall proclaim martial law in case of a necessity which should be determined by a statutory law that is to be issued. Accordingly, in 1967, statute law no. 22/1967 was issued regulating the declaration of martial law. Its first article defines what the constitution calls a ‘case of necessity’ – martial law could be declared whenever general security is exposed to danger.

Here, I shall pause and ask those promoting placing the state under martial rule, whether the coronavirus pandemic in Kuwait now could be measured as threatening general security. For me, as I recall the legal consequences of this law, I wish the answer to the question would be ‘No’.

Article 3 of law no. 22/1967 lists expanded extraordinary authorities that can be practiced by the governor appointed by His Highness the Amir during martial rule. Closely examining those authorities can easily lead to the conclusion that they hinder the practice of the most important freedoms regulated by the constitution.

This law gives the martial governor the right to conduct full inspections of people and places at any time, restricting people’s travel to specific areas. It also gives the governor the right to ban any public gathering and reinforce it even by force. The governor can also deport non-Kuwaitis immediately and bring different means of transport and buildings that are privately owned into state possession.

What might be the most glaring among all these procedures (that are given just as an example) is that civilian courts would stop and be replaced by military courts. This all justifies the constitution’s approach in demanding the referral to the parliament within 15 days following the issuance of the martial law for a decision on its continuity.

Moreover, in case parliament is dissolved, it shall be referred to the new Assembly in its first sitting. In conclusion, although Kuwait twice declared martial law, I hope that the coronavirus pandemic will not spread to the extent that the government will repeat the experience for the third time in its history.

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