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Article 2
Legal Opinion Concerning the Constitutional Matter
This concise legal opinion aims to respond, though briefly, to numerous
questions which have been repeatedly raised since 14 February 2002, the day the New Constitution was promulgated. The questions, either in form or substance, revolved around the legitimacy of the document enacted on that day, and was officially titled “ The Amended Constitution”. Was it a response to the National Action Charter that attained the consent of the people of Bahrain in the referendum held on 14 and 15 February 2001? did the New Constitution violated what was stipulated in the Charter? Did it affirm the principles and rights that the Constitution of 1973 conferred upon the people of Bahrain, particularly the principles relevant to the composition of the legislative power and its prerogatives, or did it retrogress from such prerogatives?
In order to answer these questions, and any others, which could arise amid the elaboration, would require the examination of the following topics;
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The 1973 Constitution: the process of its framing; its formal characteristics; the substantive characteristics relating to the composition and prerogatives of the Legislative Power. |
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The National Action Charter and the Referendum thereon. |
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The Document of February 14th, 2002(the constitution of 2002) and its Explanatory Memorandum. |
Section One: Bahrain’s Constitution of 1973
The issue of framing a constitution for Bahrain in order to regulate its governance, define the form government it needs and the manner of political participation its people can play in the administration of its affairs, had always been an issue of struggle in the political history of this country. Since the thirties of the twentieth century, Bahrain witnessed persistent public demands for reform. At first demands were expressed to establish a shura (consultative) council to help the ruling family in the administration of the country’s affairs. In 1938, repeated demands were once again put for establishing a legislative council in which the public would share the ruling family in the decision-making process and in running the country’s affairs.
In the mid-1950s, Bahrain witnessed the first democratic movement in its history, in which people of all sects and political affiliations united behind the High Executive Commission, and later renamed the National Union Commission (NUC) which consequently gained government recognition as the first political organization. The NUC put forward several demands which focused on framing a constitution for the country, establishing a legislative council, allowing the workers to form their own associations and trade unions, modernizing the governmental bodies, reforming the judiciary and Bahrainizing jobs.
At the beginning of the 1970s, Bahrain entered a new stage in its history after gaining independence from Britain on 14 August 1971. The people of Bahrain also confronted Iran’s allegations of sovereignty over Bahrain, and they people rallied behind the ruling family when they responded to a referendum held by the Fact-Finding Committee chaired by Mr. Jino Spardy, the representative of the UN Secretary General. The people of Bahrain explicitly expressed their wishes to have an independent Arab state under the rule of the late Amir with a democratic form of government.
On the 20th of June 1972, the late Amir, Shaikh Isa Bin Salman Al Khalifa, issued the Decree Law No. (12) of 1972 establishing a Constituent Council to draft a constitution for the State. The preamble of that Decree Law states the following:
“ having reviewed our Statement issued on 16 December 1971, and the Decree No. (2) of 1971 concerning the reorganizing of the administration of the State, and out of desire to establish the rule of the country on sound principles of democracy and justice, based on constitutional and parliamentary system consolidating the rules of shura (consultative) conducive to the country’s circumstances and its Arab and Islamic tradition, and upon the presentation by the Council of Ministers, and with the concurrence of the Council of Ministers, we hereby decree the following “ Article No.1 of the Decree Law states as follows:
“ A Constituent Council shall be established to draft a proposed constitution for the country, which will comprise of 22 members to be elected by the people in a universal suffrage by secret ballot, and of no more than ten members to be appointed by decree, and the ministers shall be members of the council ex-officio.”
Hence, the Constituent Council was established, and entrusted with the task of drafting a constitution. It consisted of forty two (42) members; of whom twenty two (22) members were elected by the people; eight (8) were appointed by decree, and twelve ministers as ex-officio members.
It is of importance to note, that although the Decree allowed the appointment of ten members in the council, the late Amir opted to appoint eight (8) members only, which made the majority in the Constituent Council for the elected members.
In the inaugural session of the Constituent Council which was held on the 16th of December 1972, the late Amir delivered a speech, in which he said:
“In the name of the Almighty, and with his blessings, I hereby inaugurate the Constituent Council that is entrusted with drafting a constitution for the country… I thank Allah, Almighty, for being able to fulfill the promise I made to my people to work with them to draft a constitution that complies with their aspirations and to widen the horizon before them all to participate in bearing the responsibility for this beloved country and lay its foundations on proper and sound grounds.”
On 30 December 1972, the Constituent Council approved its bylaw which was subsequently published in the Official Gazette.
On June 9th, 1973 the Constituent Council passed the Constitution of the State of Bahrain and submitted it to the Amir, who ratified and promulgated it on December 6th, 1973. Subsequently, the Constitution was published in the Official Gazette on December 6th, 1973. It included (109) articles and its last article states as follows:
“This Constitution shall be published in the Official Gazette and shall come into force as from the date of the meeting of the National Council, which must not be later than the sixteenth day of December 1973.” On 16 December 1973, the National Council convened, and since then the Constitution came into force.”
This Constitution, which we will hereafter refer to as the “1973 Constitution,” was obviously influenced by the Constitution of the State of Kuwait that was enacted in 1962. The 1973 Constitution has formal and substantive characteristics, which we will summarize as follows:
First: The Formal Characteristics of 1973 constitution
The 1973 Constitution is a written constitution, as opposed to the unwritten constitution, which is also known as “ customary constitution” (constitution coutumier). In terms of origin and framing, it is a contractual constitution, i.e. it was enacted as a contract between the ruler and his people. The Original Constituent Power (the Constituent Council) composed of appointed members representing the ruling family and representatives elected by the people through universal suffrage and by secret ballot. After being passed by the Original Constituent Power, the Constitution was submitted to the Amir for ratification, who did not alter what was approved by the Constituent Council, hence enacted the constitution and promulgated it.
Also, the 1973 Constitution is a rigid constitution which stipulates specific procedures for its amendment that are more stringent than the provisions required to amend ordinary laws. ( For Methods of framing Constitutions see, Dr. Othman Abdul Malik Al Saleh, Constitutional System and Political Institutions in Kuwait, Chapter One, 1989 edition, page 197 – Dr. Tharwat Badawi, The Constitutional Law, page 44, Dr. Ramzi Al Shaer, The General Theory of Constitutional Law, 1972 edition, pp.112-115).
The rigidity features characterizing the 1973 Constitution are evident in many stipulations that appears in the following provisions:
A) Clause (F) of Article (1) of the Constitution reads as follows: “This Constitution shall not be amended except in part and in the manner provided for therein, and no amendment thereto shall be proposed before the expiry of five years from the effective date of its commencement.” The jurists of constitutional law define this provision as a temporary ban or a time ban, according to which the constitutional framers banned any amendments to the Constitution before the lapse of five years from the date of its commencement. Additionally, that article bans any amendment to the Constitution except in accordance with the specified procedures maintained therein, provided that such amendment shall be partial and not comprehensive. We therefore, shall elaborate on the procedures and the scope of amendment in details, later, in a consequent section.
B) As part of the substantive ban, afore mentioned, clause (C) of Article (104) states as follows:
“Under no circumstances shall the principle of the hereditary rule of Bahrain, the principles of liberty and equality set forth in this Constitution, as well as Article (2) thereof, be proposed for amendment”. This text imposes an absolute and perpetual substantive ban on amending the three principles: (1) the hereditary rule; (2) the provisions of liberty and equality set forth in the Constitution; and (3) Islamic Shari’a as a source of legislation, Islam as the religion of the State, and Arabic as the official language. Accordingly, amendments in the sense of abolishing or derogating, these three principles must not be proposed. However, in this same context, the prevailing opinion among the constitutional jurists in Kuwait, who commented on a similar text in the Kuwaiti Constitution to that of paragraph (C) of Article (104) in the Constitution of 1973,concluded that the substantive ban, relevant to the hereditary rule and the principles of liberty and equality, which are established under the Constitution, do not affect the amendment of the name of the state from an emirate to a kingdom because it does not change the nature or the essence of the hereditary rule in principle. This opinion evidently permits the change of the name of the state and the post of the Amir, from emirate and amir to kingdom and king, and it logically permits extending more guarantees for liberty and equality, but does not allow any retrogression from such guarantees. ( See Dr. Othman Abdul Malik Al Saleh, ibid, p. 189), also Non-Retrogression Principle in Constitutional Law)
C) Another temporary substantive ban is expressed in clause (D) of Article (104) of the constitution of 1973, which states as follows: “The powers of the Amir, specified in this Constitution, may not be proposed for amendment while a Deputy Amir is acting for him.
(Cf. Cases of Temporary Rigidity and Absolute Rigidity of Constitutions, Dr. Othman Abdul Malik Al Saleh, ibid, pa. 187; Dr. Adel Al Tabtaba’i, The Constitutional System in Kuwait, Third Edition, 1998, p. 428).
Second: The Substantive Characteristics of 1973 constitution
Since that, the objective of this opinion is to shed light on the retrogressive nature of the provisions pertaining to the legislative power in the document issued on 14 February 2002, we therefore, would review the substantive characteristics corresponding to the powers of the Legislative Authority i.e. the National Assembly which are set forth under Section Two – Part Four of the 1973 Constitution, with a brief reference to the basic doctrines expressed in this Constitution with respect to the system of government and the powers of each branch, which may be summarized as follows:
1) Source of sovereignty and method of its exercise
Clause (D) of Article (1) of the 1973 Constitution states the following:
The system of government in Bahrain is democratic, under which sovereignty lies with the people, the source of all powers. Sovereignty shall be exercised in the manner specified in this Constitution
The constitutional jurists agree that methods of exercising sovereignty by the people differ according to each constitutional system. Some systems adhere to the Presidential Rule, wherein the executive power lies in the elected president. In such a system, the ministers report directly to the president, and they are directly responsible before him. But even in this system there are different forms of co-operation between the powers under what is known as the check and balance doctrine, and all offices are elected to represent the sovereignty of the people. The other is known as the parliamentary system of government. The most common form of this system is in the UK, where the head of the state is the King who reigns but does not rule, and exercise ceremonial powers, while the actual powers lie with the elected government formed by the House of Commons. Hence the cabinet is responsible before the parliament. In addition, this system is based on the separation and co-operation of powers. This system balances the powers of the parliament which can withhold confidence from the government, by the powers of executive branch which can dissolve the parliament (Adel Al Tabtaba’i, ibid, pp. 447-451).
However, both systems of government that are mentioned above share four common principles, which are as follows: (1) a parliament is elected by the people; (2) the member of parliament is a representative of the entire people and not only the voters who elected him; (3) the parliament is independent of the electorate; and (4) the parliament represents the people for a certain period of time.
The Constitution of 1973 drew its principles from these two systems. The Amir, for example, exercises political power, because he is the head of the executive power, since he appoints, through an Amiri Order, the Prime Minister and relieves him of his duties. He also appoints the ministers and dismisses them by an Amiri Decree. The Amir also exercises his powers through his ministers, and the ministers are jointly responsible before him for implementing the policies of the government. At the same time, he is inviolable, and not responsible before the National Assembly that enjoys legislative and supervisory powers over the conduct of the cabinet.
2) The Relationship Between the Powers
Article (A) of Article (32) of the 1973 Constitution provides that “the system of government shall be based on the principle of separation of the legislative, executive and judicial powers, functioning in co-operation with each other in accordance with the provisions of the Constitution…etc”. At the same time, clause (B) of the same Article states as follows: “The legislative power shall be vested in the Amir and the National Assembly in accordance with the Constitution, and the executive power shall be vested in the Amir, the Cabinet and the ministers. Judicial judgment shall be passed in the name of the Amir, all in accordance with the provisions of the Constitution.”
As mentioned above that the 1973 Constitution borrowed certain characteristics of the presidential system of government and combined them with characteristics of the parliamentary system of government. Therefore, we note that the Amir shares with the National Assembly the power of enacting legislation, particularly constitutional legislation, i.e. ratification of the constitutional amendments approved by the legislative power. As such, one of the forms of co-operation provided for in the Constitution between powers is that the head of state shares legislative power with the National Assembly. But, the National Assembly enjoys a high degree of independence vis- a -vis the Cabinet, even though the ministers are ex-officio members of the National Assembly.
With this brief reference to the substantive characteristics of the 1973 Constitution, we return now to the provisions of the legislative power in the 1973 Constitution.
3) The Legislative Power
A) The Composition of the Legislative Power
Article (43) of the 1973 Constitution provides that;
The National Assembly shall be composed of:
a) Thirty members elected directly by universal suffrage and secret ballot in accordance with the provisions of the electoral law. The number of these members shall be increased to forty with effect from the elections for the second legislative term. Electoral constituencies shall be determined by the law.
b) the Ministers by virtue of their portfolios.”
Clause (C) of Article (33) states as follows: “Ministers shall not be appointed from amongst the members of the National Assembly in the first legislative term, but they may be appointed from amongst the members of the National Assembly or others with effect from the second legislative term. Ministers appointed from amongst outsiders shall become ex-officio members of the National Assembly. The total number of ministers shall not exceed 14.”
The mentioned above texts show that the percentage of the appointed members in the National Assembly, in the first legislative term, are less than one third of the total number of members comprising the legislative power. While this percentage is even lesser than that in the second legislative term, whereby the voting power of the appointed members does not exceed 25.9 percent of the total number of the members of the National Assembly.
B) Prerogatives of the Legislative Power
The prerogatives of the National Assembly are divided into legislative and supervisory authorities, both are briefly explained as follows:
1) Legislative Authorities.
Both of the National Assembly and the Amir hold legislative authority according to Article (42) of the Constitution that states:
“No law may be promulgated unless it has been passed by the National Assembly and ratified by the Amir.”
The provisions of exercising the legislative powers by the Amir and the National Assembly, according to the 1973 Constitution which essentially was adopted from the Constitution of Kuwait, differentiate between what constitutional law defines as stoppage authority and ratification right.
The legislative power exercised by the Amir with the National Assembly in respect of ordinary legislation, even though requires the Amir’s power of ratification of the law submitted to him by the National Assembly, yet this power of ratification is, in effect, a stoppage authority, and not a ratification power in the technical sense of the word.
The intent of the framers in this respect is evident in Article (35) states; (a) The Amir shall have the right to initiate bills, and he alone shall ratify and promulgate the laws.
(b) A bill shall be considered to have been ratified and shall be promulgated by the Amir if a period of thirty days from the date of its submission by the National Assembly to the Amir has expired without the Amir returning it to the National Assembly for re-consideration.
(c) If, within the period prescribed in the preceding clause the Amir returns the bill, by a decree stating the grounds therefore, to the National Assembly for re-consideration, then it shall be decided whether such re-consideration should take place during the same or the next session.
(d) If the Assembly reconfirms the bill by a majority vote of its members, the Amir shall ratify and promulgate the bill within one month from the date of the reconfirmation.”
The abovementioned provisions clearly indicate that if the Amir returns a bill to the National Assembly, it may, during that same session or the next, approve the same bill returned by the Amir. In that case, the Amir has to ratify the bill into law and promulgate it within one month from the date of its reconsideration by the National Assembly. This is known as stoppage authority, which means that the Amir’s power to delay the enactment of a law for a certain period which may not, under any circumstances, exceed the date on which the National Assembly had reconsidered that bill. (Cf. stoppage objection power and ratification power , Dr. Othman Abdul Malik Al Saleh, ibid, p. 473).
As for constitutional legislation, the Amir’s enjoys ratification power in its technical sense, and it is a true legislative power, because the Amir has to ratify every constitutional amendment passed by the National Assembly, and without such ratification the amendment is null and void. To this effect, clause (A) of Article (104) of the 1973 Constitution, states the following;
“Notwithstanding the provision of Article (35) of this Constitution, for an amendment to be made to any provision of this Constitution, it is stipulated that it shall be passed by a majority vote of two-thirds of the members constituting the Assembly and ratified by the Amir.”
This is another provision that confirms the contractual nature of the 1973 Constitution.
2) Supervisory Authorities.
The instruments of supervisory authority of the National Assembly are represented in the following:
* Questioning: Article (66) of the Constitution states the following;
“Every member of the National Assembly may put to the Prime Minister and to Ministers, questions with a view to clarifying matters falling within their competence. The questioner alone shall have the right to comment once on the answer, and if the Minister adds something new, then the right of the member shall be renewed”.
* Expressing wishes: This is governed by Article (73) which states; “The National Assembly shall express its wishes to the Government regarding public matters. If the Government cannot comply with these wishes, it shall state to the Assembly the reasons therefore. The National Assembly may comment on the Government’s statement.
* Interpellation: This right is guaranteed by Article (67) which states the following; “Every member of the National Assembly may address to the Prime Minister and to Ministers interpellations with regard to matters falling within their competence. The debate on such interpellations shall not take place until at least eight days have elapsed after its presentation, unless the Minister concerned agrees to hold the debate earlier. An interpellation may lead to the vote of confidence being put to the Assembly in accordance with the provisions of Article (68) and (69) of this Constitution.
* Discussion of Public matters: This right is governed by Article (72) of the Constitution stating the following; “Upon a request signed by at least five members, any subject of general interest may be put to the National Assembly for discussion with a view to securing clarification of the Government’s policy and to exchange views thereon. All other members shall also have the right to participate in the discussion.
* Setting up committees of enquiry. This right is governed by Article (74) which states as follows; “The National Assembly shall at all times have the right to set up committees of enquiry or to depute one or more of its members to investigate any matter within the Assembly’s competence as prescribed in the Constitution. Ministers and all Government officials must produce testimonials, documents and statements requested from them.
· Setting up special committee to deal with citizens’ petitions and complaints. Article (75) of the constitution regulates this right. It states as follows; “The National Assembly shall set up, among its annual standing committees, a special committee to deal with petitions and complaints submitted to the Assembly by citizens. The committee shall seek explanations thereon from the competent authorities and shall inform the person concerned of the result. A member of the National Assembly shall not interfere with the work of either the judicial or Executive Powers.
* Vote of No Confidence: Article (68) Clause (a) of the 1973 Constitution defines the accountability of each minister for his ministry before the National Assembly. Clauses (b) & (c) of this article state the following; (b) The question of confidence in a Minister may not be raised except upon his request or upon demand signed by ten members, following a debate on an interpellation addressed to him. The Assembly may not make its decision upon such a request before the lapse of seven days from the presentation thereof.
(c) If the National Assembly passes a vote of no confidence against a Minister, he shall be considered to have resigned his office as from the date of the vote of no confidence, and shall submit his formal resignation immediately. Withdrawal of confidence from a Minister shall be by a majority vote of the members constituting the National Assembly excluding ministers. In all cases, Ministers shall not participate in the vote of confidence.
* Non-cooperation with the Prime Minister: The Constitution regulates this form of the supervisory control of the legislative power over the conduct of the executive power. Article (69) states as follows:
(a) The question of confidence in the Prime Minister shall not be raised before the National Assembly, unless, out of necessity, he holds a portfolio with the premiership, and then he may be questioned about the affairs of such portfolio like any other Minister.
(b) If two-thirds of the members of the National Assembly decide in the manner specified in Article (68) of this Constitution, that they cannot co-operate with the Prime Minister, the matter shall be submitted to the Amir for settlement. The Amir may either relieve the Prime Minister of office and appoint a new Cabinet or dissolve the National Assembly. If the National Assembly is dissolved and the office of the said Prime Minister is renewed but the new Assembly decide by a majority vote of the members constituting the National Assembly that it cannot co-operate with the said Prime minister, he shall be considered to have resigned his office as from the date of the decision of the Assembly in this respect and a new Cabinet shall be formed.”
That was a rapid and concise review of the provisions of the 1973 Constitution in connection with the Legislative Power. But before we turn to the second section of this opinion, we have to deal with the consequences of the first parliament in the history of Bahrain, which ended with the dissolution of the National Assembly on 26 August 1975.
* Dissolution of the National Assembly and suspending the articles pertaining to the Legislative Power.
On 26 August 1975, the late Amir issued Amiri Decree No. (14) of 1975 dissolving the National Assembly. The Decree states as follows:
“ We, Isa Bin Salman Al Khalifa, the Amir of the State of Bahrain,
Having perused Article (65) of the Constitution, and the grounds contained in the resignation letter submitted by the previous Cabinet, and the reply, thereto, forming the incumbent Cabinet relevant to the cooperation between the National Assembly and the Government, and upon the submission of the Prime Minister,
and upon the approval of the Cabinet,
We Hereby Decree As Follows:
Article 1
The National Assembly shall hereby be dissolved.
Article 2
The Prime Minister shall implement this Decree, which shall come into effect as of today. Tuesday, the 20th of Sha’ban 1395 Hijra, corresponding to the twenty sixth of August 1975, and shall be published in the Official Gazette.
On the same date, the Amiri Order No. (4) of 1975 was issued, which states as follows:
“We, Isa Bin Salman Al Khalifa, the Amir of the State of Bahrain,
Whereas we found the reasons for which we deemed it fit to order the dissolution of the National Assembly, a threat to the national unity and the security of the country, that requires an amendment to be made to the electoral law.
and upon the submission of the Prime Minister,
and upon the approval of the Cabinet,
We hereby Decree as follows
Article 1
The election of the members of the National Assembly shall hereby be deferred until a new electoral law is issued.
Article 2
The provision of Article (65) of the Constitution shall hereby be suspended, together with other articles that conflict with the provision of the foregoing article.
Article 3
The Cabinet shall assume with us the legislative power during this period.
Article 4
The Prime Minister shall implement this Order, which shall come into effect as of the date of its issuance, and shall be published in the Official Gazette.
Regardless of the real causes for the dissolution of the National Assembly and the issuance of the Amiri Order No. (4) of 1975, obviously, the authority to dissolve the legislative power is granted to the Amir by Article (65) of the 1973 Constitution. Nonetheless, this authority is restrained by two conditions;
1) The Amiri Decree dissolving the National Assembly must specify the grounds leading to its dissolution. In essence, Decree No. (14) of 1975 did not specify those grounds, and only referred to the reasons contained in the letter of the resignation rendered by the Cabinet, which contravene the intent of the framers of the constitution, who stipulated that the grounds for dissolution are explicitly expressed, to ensure that the grounds on which the National Assembly was once dissolved are never repeated again.
2) The period during which the National Assembly is dissolved must not exceed, under no circumstances, two months from the date of the dissolution, in order that such dissolution may not be used as a pretext to suspend any of the provisions of the Constitution.
Accordingly, the Amiri Order, No. (4) of 1975, was un-constitutional in terms of form and substance, because it led to the suspension of the provisions of Chapter (Two) of Part Four of the Constitution pertaining to the legislative power. This explicitly contravene the provision of Article (108) of the Constitution, which states as follows:
No provisions of this Constitution may be suspended except when martial law is in force, within the limits specified by the Law. Under no circumstances shall the meetings of the National Assembly be
suspended, nor shall the immunities of its members be interfered with, during such period.”
We conclude this review with the following;
1. The 1973 Constitution is a contract between the ruler and the people of Bahrain. It is a rigid and entrenched constitution that requires specific procedures to be followed for it amendment, which are provided in the text of the Constitution in Article (104) thereof.
2. The legislative power (the National Assembly) enjoyed genuine legislative and supervisory powers, wherein the elected representatives constituted a majority of nearly 74% of the membership, while the ex-officio members, who were the ministers, constituted approximately 26% of the membership of the National Assembly.
3. The Constitution established a balanced system in terms of the separation of powers, despite the ex-officio membership of the ministers in the legislative power.
4. The Amiri Order No. (4) of 1975, that deferred the election of the National Assembly, and suspended the provisions pertaining to the Legislative Power in the Constitution, and mandated the exercise of the legislative power jointly to the Amir and the executive branch, was un-constitutional.
Section Two
The National Action Charter
The political and constitutional situation in Bahrain, resulting from the above-mentioned Amiri Decree and Order of 1975, and the subsequent dissolution of the National Assembly and the suspension of parliamentary life, continued for more than a quarter of a century. During this period, demands for the activation of the constitution and the return of the parliamentary life were continuous, and took the forms of petition at the beginning of the 9th decade of the twentieth century. At the beginning a petition was submitted to the Amir, which was signed by a large section of personalities and individuals, which was later known as the “petition of the elite.” It was soon followed by another petition signed by a great number of citizens, that was called the “popular petition.”
However, in the face of these repeated demands, the government proposed the Shura Council, by virtue of Amiri Decree No. (9) of 1992, establishing the Shura Council (a council of advisory nature). However, this form did not meet the acceptance, or the credibility, by the people of Bahrain. For this reason, the calls for constitutional life and the return of the parliament, with the resistance by the Government, starting from 1994, took certain forms of violence.
In March 1999, His Highness Shaikh Hamad Bin Isa Al Khalifa acceded to the throne following the demise of his father, the late Shaikh Isa Bin Salman Al Khalifa. Since then, signals were sent by the state indicating some changes and the beginning of a new era. This culminated by the Amiri Order No. (36) issued on 22 November 2000, forming the Supreme National Committee for Drafting a National Action Charter. The committee consisted of an appointed 44 members and was chaired by the Minister of Justice and Islamic Affairs.
This Committee, the members of which were all appointed by the Amir, included a number of the ruling family, ministers, government officials, members of the existing Shura Council, professionals and civic society representatives and university professors.
The Committee discussed a first draft that was proposed by the government and encountered considerable objections from within and without, thus it was replaced by another version. The new draft included an introduction entitled “The Historical Character of Bahrain, Civilization and Development,” and seven chapters, entitled: Basic Characteristics of the Society, System of Government, Economic Bases of the Society, National Security, Parliamentary Life, Gulf and Foreign Relationships, and a Conclusion that is entitled “Future Prospects.” The conclusion contained two parts, the first relates to the future name of the State of Bahrain, while the other was concerning the “Legislative Power.” This chapter was mainly concerned with the future amendments of the existing constitution and it specifically delineated the scope and topics of the anticipated amendments.
However, for the purposes of this opinion, we will only discuss in brief the parts of the National Action Charter which relate to the system of government, parliamentary life and future prospects, deferring the discussion of the binding (obligatory) force of the Charter itself to section three of this opinion.
It is significant to note that the Amiri Order forming the Supreme Committee for drafting the National Action Charter states, in its Article no. (5) stated that “the drafted National Action Charter shall be presented to a General Public Conference representing all segments and categories of the society to approve it. We shall issue an order to form the Public Conference and invite it to convene”. Meanwhile, Article (6) of the same Amiri Order states as follows: “The National Action Charter shall be submitted to us after being approved by the General Public Conference for ratification.” These two articles were meant to grant the Amir solely, a popular mandate to amend the existing
constitution without referring the whole matter to a publicly elected body. However, due to public remonstration concerning the legitimacy of such a step, and the resignation of four members of the committee, that idea was substituted by the referendum.
The Amiri Order No.(8) for the year 2001, was issued on 23 January 2001, inviting the citizens to participate in a referendum on the National Action Charter. Implicitly, this meant the revocation of Article (5) and Article (6) of the Amiri Decree No. (36) for the year 2000. Such change requires us to shed light on the referendum in terms of its importance and legal nature.
First: A Brief Summary of Certain Provisions of the National Action Charter.
Many principles and phrases of the National Action Charter adopted the same provisions of the 1973 Constitution. Indeed, many of the chapters contained in the National Action Charter were only a repetition of what is contained in the 1973 Constitution. This could be easily noticed by reviewing certain parts of the National Action Charter, which is as follows:
1) Introduction Entitled: Bahrain’s Historical Character, Civilization and Development
The major part of this introduction is a brief historical review of the periods which Bahrain passed through, culminating in the rule of Al Khalifa family, of the Bahrain archipelago, and the affirmation of the people of Bahrain of the Arab character of the country and its independence under the rule of the late Amir, through the referendum held by the United Nations by its Fact-Finding Mission.
In this context, the introduction notes that the late Amir responded positively to the supportive stand of the people of Bahrain, by “issuing the Constitution of the State of Bahrain as a replica of the most modern constitutional and democratic principles. ”The introduction also emphasizes that the decision taken by the late Amir, “to commence constitutional life, hold free elections to form the National Assembly in accordance with the Constitution, was a bench mark in the history of Bahrain.” The introduction then affirms that the people of Bahrain inspire to a bright future, filled with freedom and equality, and based on justice, shura (consultation) and public participation of all the people in the governance”.
In a brief reasoning with the conclusion of that introduction, we find a repetitive reference to the Constitution of the State of Bahrain, which is of course the 1973 Constitution. Considering the fact that it is the main pillar on which the principles of a modern state were based, which is found in quote attributed to the Amir who “is very keen to have a democratic system that lay down a balanced set up affirming constitutional political partnership between the people and the government, and the separation of the three powers…”. The introduction then notes that the outcome of political and economic experienced by Bahrain over the past three decades, “requires the consideration of the political, economic, social and legislative developments which had taken place.”
The introduction concludes that in view of that it has been established “to rely on the national, political and constitutional principles of the identity of the State, which confirm the constitutional, democratic, hereditary monarchy as a system of government, whereby the monarch serves his people and constitutes a symbol of their independence and their aspirations for progress, and the modernizing the country’s Constitution to benefit from the democratic experience of different peoples to expand the base of public participation to shoulder the responsibilities of governance and administration. For, the experience of the bicameral parliament in legislative affairs, combine the advantage of the interaction of the wisdom, experience and knowledge of the members of the Shura Council with those of the members who are directly and freely elected to the house of representatives, who reflect public opinions of all affiliations”.
2) Chapter Two: The System of Government
This chapter of the Charter emphasizes a number of principles and basics, expressed in the “system of government in the State of Bahrain is a constitutional, hereditary monarchy, in the manner defined in the Constitution and the Amiri Decree for succession”. The chapter also emphasizes that in relation to the constitutional form of the state, “it had become appropriate for Bahrain to occupy its position among constitutional monarchies having democratic system that accomplish the people’s aspirations for progress ”, that the system of government is democratic, and the people are the source of all powers, and that the exercise of sovereignty shall be in the manner prescribed in the Constitution. In addition, the system of government is based on the principle of separation of the three powers, with their co-operation in accordance with the provisions of the Constitution. It also affirms that the rule of law and the independence of the judiciary are two prerequisite guarantees to safeguard rights and liberties, and that citizens, both men and women, shall enjoy the right to participate in public affairs and full political rights.
3) Chapter Five: Parliamentary Life
This Chapter defines the anticipated parliamentary life, after noting that “numerous modern democracies adopt the bicameral parliamentary system, in which the legislative body consists of two chambers; one representing various trends, thought and views of the public on contemporary matters, while the other chamber acts as a council of professionals and the experienced”.
This chapter concludes by stating that “ to enhance the people’s participation in public affairs … , and out of the belief of the right of all the people, and their duty, to exercise their constitutional political rights, similar to the inveterate (modern) democracies, it is for the benefit of the state of Bahrain to form the Legislative Power of a bicameral parliament; a freely and directly elected council, vested with the legislative tasks, beside an appointed council, which includes those who have knowledge and experience, to benefit from their opinion in what the shura (consultation) requires in terms of experience and knowledge. This dual, balanced formation of the Legislative Power has the advantage of providing, at one time, a number of combined properties. It allows public participation in the legislative affairs, and permits the interaction of all opinions and views within one legislative chamber. Thus, the proposed formation of the legislative assembly, which would require a constitutional amendment, would provide it with experience and knowledge on one hand, incorporate all the views of Bahraini elector, on the other. Doubtless, this amendment would extent the horizon widely for democracy in order to achieve construction, development, stability, and prosperity, democracy that sustain social peace and national unity”.
4) Future Prospects
The concluding chapter of the National Action Charter which is titled “Future Prospects,” states that “this Charter, which has won concurrence of all on its content, both the government and people, and bearing in mind that it represents a future action document for the country, and that activating the thoughts contained therein require certain constitutional amendments. That requires:
First: Name of the State of Bahrain. The constitutional amendment specifies the official name of the State of Bahrain in the manner agreed upon by the Amir and his people.
Second: Legislative Power: The provisions of Chapter Two of Part Four of the Constitution, pertaining to the legislative power, shall be amended to conform to the global democratic and constitutional developments, to establish a bicameral parliament. The first chamber is elected via direct and free public election, whereby the citizens elect their deputies, and it is vested with the legislative tasks. The second is an appointed chamber that comprises those of knowledge and experience to utilize their opinions in what the shura (consultation) requires in terms of knowledge and experience.
Laws shall be passed in the manner prescribed in the Constitution, in accordance with the constitutional rules and norms that are practiced in the inveterate (modern) democracies.”
After this brief review of certain provisions of the National Action Charter, dealing with the system of government and parliamentary life, we will now briefly review the referendum in terms of its importance and legal nature, in order to establish the importance and the binding legal nature of the public referendum held on 14 & 15 February 2001, in which the people of Bahrain overwhelmingly approved the National Action Charter, by high percentage of 98.4%.
Second: Referendum
Jurists of constitutional law differentiate between three types of referendums, namely:
Personal Referendum: That means the public are asked to give their opinions on whether to elect, or not, a person in particular, as head of state. Some constitutional experts call this type of referendum as “presidential” (referendum on the president). This process is initiated usually by the person who has actual power in the state, seeking to ask the people to appoint him as a president, and to exclude his rivals or to chose between him and others.
Political Referendum: Referendum is political when it is intended to sound the views of the people on a certain controversial issue, which does not involve legislative rule. In other words, it is sounding the views of the people on a certain issue for the purpose of involving the people on what the referendum is held for. (Referendum in the Egyptian Constitutional System, Dr. Qadri Hassan, p. 30, 1991 Edition).
What is meant here, is that the referendum does not include a general abstract legislative rule, meaning that the referendum does not contain a
definite technical form of legal texts for intended for implementation and enforcement.
In the constitutional jurisprudence, there are many examples of political referenda, which include, but not limited to, the referendum on choosing the system of government, such as the referendum on the establishment of the Islamic Republic of Iran in April 1979, or the referendum on self-determination, such as the referendum by the Egyptian and Syrian peoples on the unification of the two countries in 1958, and the referendum on the country’s supreme interest, such as the referendum held in Egypt on the October Document submitted by the Egyptian President Anwar Al Sadat in May 1974. This referendum was held in accordance with the provision of Article (152) of the Egyptian Constitution, which allows the president of the republic to hold a referendum on important issues pertaining to the country’s supreme interest. For this type of referendum, it is stipulated that its issue must not be contrary to the provisions of the constitution (Dr. Mohammed Qadri Hassan, ibid, p. 34).
Legislative Referendum: The third type of referenda is the legislative referendum which could be defined as “sounding the opinion of the people on a law that has been put to the vote before the parliament, in order to approve or reject it. This referendum is usually held after the parliament had voted on the law. There is nothing to prevent holding legislative referendum on an issue that has not yet been approved by the parliament. (Dr. Mohammed Qadri Hassan, ibid, p. 35).
Constitutional jurists divide this type of referenda, in terms of subjects, to a constitutional referendum and legislative referendum. For the constitutional referendum, the jurisprudence is unanimous that certain conditions should be fulfilled, in order for the referendum to be considered an effective democratic instrument that prevents the monopoly of any of the State’s powers. The most important conditions are as follows:
1- The referendum must be held within the ambit of the constitution. For example, no referendum may be held on a matter that is inconsistent with the provisions of the Constitution, such as abolition of certain personal liberties, expanding the prerogatives of the Head of the State or the Executive Power, or threatening and undermining the constitutional and democratic life at its roots (Dr. Mohammed Qadri Hassan, ibid, p. 122).
2- The unity of the referendum subject-matter. This condition means that the subject of the referendum must be “simple, not compound, and very accurately and specifically defined, because the multiplicity of the subjects of a referendum make the will of the electors restricted by accepting the subjects proposed for referendum, either voting for them or rejecting them entirely, by not being able to approve one issue in exclusion of the other.” (Dr. Mohammed Qadri Hassan, ibid, p. 122). A professor of constitutional law expresses this opinion in a different way, and adds another component, by saying that “a referendum must be on a certain idea or a general principle. In other words, it must be on the general principles contained in the Constitution, in order to enable the people to understand the issues subject to referendum. (Dr. Ramzi Al Shaer, The Egyptian Constitutional System, p. 277, 2000 Edition).
3- The referendum must not be held on a subject that is prohibited explicitly in the Constitution. “The referendum must not be inconsistent with the provisions of the Constitution which has given a certain party this right, and therefore this party must not violate the rules which have given it the right to hold referendum, or else the Constitution itself may be amended without following the procedures provided therefore under the pretext of public referendum, or in other words, the will of the people. (Dr. Mohammed Qadri Hassan, ibid, p. 124). Some jurists believe that political referendum “is used to sound the views of the people on an issue related to the status of the Constitution, in a manner that makes it imperative for the people to decide on what they are asked, where public sovereignty has only a negative role represented in accepting the constitutional status without deliberating them, since they in most cases cannot do otherwise. In this way, this type of referendums differs from the constitutional referendum, that is held in a way giving the people full freedom to approve, or disapprove, the constitutional document. (Dr. Ramzi Al Shaer, General Theory of the Constitutional Law, 1972 Edition, p. 136).
The above was a brief review of referenda, in terms of their legal nature and the conditions controlling them. We end up this section stating the nature of the referendum on the National Action Charter, held on 14 & 15 February 2001. In this context, we may conclude as follows;
1) We must emphasize, first, that the 1973 Constitution does not in any way provide for the referendum as an instrument of semi-direct democracy, or being a forms of people’s participation in public affairs. Therefore, the referendum that was held on the National Action Charter, from a mere constitutional perspective, is a referendum that is outside the ambit of the provisions of the 1973 Constitution, and has no basis in these provisions. Hence, the referendum, held on the National Action Charter cannot be termed a “legislative referendum “ because such referenda is regulated by specific constitutional provisions and the aim, thereof, as been explained, obtaining the consent of the people on a constitutional amendment, or obtaining the people’s approval of a proposed bill.
2) The most controversial issue is paragraph (2) of the concluding chapter of the National Action Charter, that is entitled “Future Prospects”.
It had been argued that the people of Bahrain, by approving the Charter,
had in effect, granted legislative powers to the appointed chamber equivalent to those established for the elected chamber. But, even so argued, with which we totally disagree, neither the said paragraph nor any other paragraph of the Charter, does establish, either explicitly or implicitly what indicates that the appointed chamber has legislative powers equivalent to that of the elected Chamber. That also applies to the formation of the both Chambers in terms of the equal number of their members.
In essence, the mere reference in the Charter to the elected Chamber as having powers “to conform to the global democratic and constitutional development ” is, sufficient per se, to define the framework of the legislative power as similar, and equal to, its counterparts in the other democratic systems. Additionally, it is evident that when the text of the Charter referred to the appointed chamber, it decided that the aim is to “utilize their opinion” i.e., the opinion of the appointed members. Accordingly, seeking the consultation of some body does not at all mean being obliged to follow it.
Therefore having the appointed chamber under the part titled “Legislative Power,” in the “Future Prospects.” does not at all mean equal legislative powers for both chambers. That is very clear from the phrase at the end of that part which states eloquently that “laws shall be passed in the manner detailed in the Constitution in accordance with the established constitutional norms and traditions in the inveterate (modern) democracies.” It is also our view that this provision, which confirms the doctrine that laws shall be issued in the manner detailed in the Constitution, has been qualified by the subsequent phrase i.e., “in accordance with the established constitutional norms and traditions in the inveterate (modern) democracies ”. But such norms and traditions which are well-known to the public at large, have been violated by the New Constitution.
Evidently, the shura as a concept, provided for in the National Charter, does not extend beyond expressing opinion and providing advice. Evidently, this is found in what was decided by the Head of the State and the Government of Bahrain, in respect of the understanding and practice of Shura in all the official documents and legislations issued since 1992. The Amiri Order No. (9) of 1992 establishing the Shura (consultation) Council, states in its preamble that “ inspired by our conviction that our people is able, with the grace of Allah, and relaying on its civilized heritage, to deliberate various opinions and recommend the most suitable of them, and suggest the best, and assist the government with sound opinion and advice, to be the finest aide in realizing our aspirations and achieving our objectives”. Hence, Shura, according to this Amiri Order, is recommending the most suitable of opinions, suggesting the best policies, and assisting the Government by providing it with sound opinion and advice. These meanings have nothing to do with the legislative power and passing laws. Concurrently, Article No. (2) of that Amiri Order provides that “the(shura) council shall provide opinion and advice on the following matters…” On the other hand, Article (3) of the Order states that “the Council shall, upon the recommendation of at least ten of its members, submit to the Cabinet draft laws or express wishes as part of its prerogatives.”
In a striking comparison, it is worth noting that article no (92) of the New Constitution does not grant the elected Deputies the right to submit draft laws to their Chamber but only the topic of the law, and if accepted by the Chamber, the draft law shall be prepared then by the Cabinet.
Article (4) of the same Amiri Order also states the following “after discussing what is presented before it, the Council issues recommendations expressing its opinion and the chairman (speaker) of the council shall communicate that to the Cabinet to do what it considers fit.”
The Amiri Order No. (12) of 1996 which amended some provisions of the Amiri Order No. (4) above-mentioned, affirmed the same understanding of the concept of “shura” . Which , as we said above, does not extend beyond expressing opinions, wishes and recommendations. Such meanings are the same that are expressed in the National Action Charter, and voted for, by the people of Bahrain in the referendum in February 2001. The New Constitution, without any sound basis, furnished new meanings to those terms. It extended to them the meaning of representing the people on equal footing with the elected deputies, the exercise of legislative power on behalf of the people, which violates what has been established in the National Action Charter, and consented to by the people.
2) It is of importance in this context, to consider the prevailing
circumstances at the time, when the Amiri Order No. (36) of 2000 was issued forming the Supreme Committee for drafting the National Action Charter, and the Amiri Order No. (8) of 2001 inviting the citizens to vote on the drafted National Action Charter. The state of political instability which continued throughout the period that followed the dissolution of the National Assembly in 1975, and the suspension of the provisions of Chapter Two of Part Four of the 1973 Constitution, in respect of the Legislative Power, were pressing for national reconciliation and political compromise.
The careful review of the text and phrasing of the National Action Charter, attest to the fact that it is a political document that contains general principles and political ideas, the purpose of which is to define the future course of national action, including the direction pinpointing the scope and nature of the constitutional amendments, that the National Action Charter devised. Therefore, the referendum on the National Action Charter is a sort of political referendum that was intended to reflect the views of the people on these general thoughts and principles, and pave the way for reconciliation. But it certainly does not contain any legal rule of any legislative nature, particularly what relates to a mandate that empowers the Amir to amend the constitution, alone.
In respect of the binding force of the National Action Charter, we will defer discussing this issue until the next chapter, which is Section Three, of this opinion, which is devoted to the New Constitution.
Section Three
The New Constitution and its Explanatory Memorandum
On 14 February 2002, the Amir, without the consent of the people or their deputies, issued a document called the “Amended Constitution.” The preamble of this document states as follows;
“We, Hamad Bin Isa Al Khalifa, the Amir of the State of Bahrain,
By virtue of the provisions of the National Action Charter which was overwhelmingly endorsed by the people in the referendum,
And having taken cognizance of the Constitution,
And the Amiri Order No. (17) for the year 2001 ratifying the National Action Charter,
And on the basis of the brief presented by the Chairman of the Committee for amendment of certain provisions of the Constitution, that was formed by Decree No. (5) for 2001,
And after notifying the Council of Ministers,
We have ratified this amended Constitution, together with its explanatory memorandum, and we have promulgated it.”
Before expressing our view concerning the legitimacy of the Document issued on February 14th, 2002 , particularly its lacking the consent of the ruled, we would commence by commenting on the explanatory memorandum. The introduction of the “Amended Constitution” as it officially is called, considers what is contained in the explanatory memorandum a reference for the interpretation of the provisions of the “Amended Constitution”.
But the importance of the Explanatory Memorandum, in our view, extends beyond that, since it contains a chapter entitled “the method of amending the Constitution”; meaning the 1973 Constitution. This makes the memorandum an important element in any discussion of the constitutional matter in Bahrain. Therefore, we would begin, in this chapter, by discussing what is contained in the first part of the Explanatory Memorandum under the title “the method of amending the Constitution,” and we will then discuss the provisions contained in the said document.
It should be noted, at the outset, that we will be using the term “ New Constitution” to refer to the document issued on 14 February 2002, to distinguish it from the 1973 Constitution. In this context we would point that the Charter did not include issuing a fully new constitution, nor it did allow for such constitution to be issued without the prior and explicit consent of the people. But even so, albeit the significance of such a prerequisite for political legitimacy, and regardless of the names, the most important issue is whether the constitutional text actually guarantees the constitutional rights that are well established in the political and legal thinking. This is what we will be dealing with in following pages.
First: The Method of amending the Constitution.
Before discussing content of the Explanatory Memorandum in this respect, we prefer to shed light, in brief, on the principles regulating the amendment of constitutions and the requirements for such amendments in accordance with what is established in the jurisprudence of the constitutional law.
1) In Respect of Amending the Constitutional Base
We concluded, above, in the course of discussing the 1973 Constitution, that it was a rigid constitution the amendment of which required certain procedures which are different from those established to amend ordinary laws. These procedures are provided for under clause (a) of Article (104) of the 1973 Constitution, which states as follows: “Notwithstanding the provisions of Article (35) of this Constitution, for an amendment to be made to any provision of this Constitution, it is stipulated that it shall be passed by a majority vote of two-thirds of the members constituting the Assembly and ratified by the Amir.
We have to stress at the very outset that constitutions are legal texts, not sacred scripts or sacrosanct, that cannot be amended or abolished. They are the fruits of human effort at a certain period of time, and the people who formulated such provisions through their representatives can amend them or add thereto. That is why all nations amend their constitutions when they find them no longer conducive for the political, economic and social changes taking place in life.
There is no argument with this logic. However, this principle is governed by the supreme nature of the constitutional provisions, wherein the will of the people is expressed, which makes these provisions superior and sublime in the hierarchy of the legislative system, in any given country.
Therefore, when a Constitution is promulgated, the will of the nation is contained in the authority that has formulated its provisions, which is called the original constituent power. This authority is entrusted with the task of deliberating and scripting the provisions of the constitution. If the people elect their deputies to the original constituent power, and they act on the basis of popular mandate, their approval would be sufficient to guarantee the people’s interests, their sovereignty and consent.
In the Bahraini constitutional model, this authority was represented in the Constituent Assembly, in which the will of the people, represented by their elected representatives to the Assembly, coincided with the will of the ruler, represented by his appointees and the ministers, and resulted in a contractual constitution. The promulgation of the contractual constitution, laid down the foundations of the political system and the legitimacy of its institutions. It also defined the form of such institutions and their powers.
Thus, certain procedures were stipulated, to guarantee the legitimacy of any future amendments. Accordingly, the authority to amend the constitution is vested in the two parties of the original contract, i.e. the people, represented in their deputies, and the ruler, through the mechanism specified in Article (104) of the 1973 constitution.
One of the postulated facts in the jurisprudence of constitutional law is that no constitutional provision can be amended except in the manner contained in the constitution, and within the ambit allowed by it, and by the authority designated in the constitution to effect such amendment. Complying with the requirements and restrictions provided for in the text of the Constitution is a prerequisite of contract that exist between the parties to the original constituent power which issued the Constitution. Therefore, amendments must be in accordance with the provisions of the contract, because the contact binds the contracting parties, and no party to the contract may, unilaterally, effect the amendment, otherwise it will be considered a prejudice to the provisions of the contract and the rights of the other contracting party. (Cf. Dr. Mohammed Kamel Laylah, The Constitutional Law, Second Edition of 1962, p. 88).
Dr. Laylah states that “the wisdom behind the rigidity of the constitution is to safeguard its provisions. Being rigid with the way to amend the constitution protects it from temperament, and so that the provisions of the constitution become sacrosanct unlike ordinary laws. In this way, the constitution is supreme to other laws.” (Cf. also in the same meaning Dr. Tharwat Badawi, The Constitutional Law, p104 – Dr. Ramzi Al Shaer, The General Theory of the Constitutional Law, 1972 Edition, p. 667 – Fathi Fikri, The Constitutional Law, Book One, 2001 Edition, p. 322 and subsequent pages).
In essence, such point of view is based on the maxim set by Jean Jacques Rousseau concerning parallelism and similarity of shaps. That maxim establishes a rule action may not be amended or abolished except by similar procedures followed initially. The application of this maxim in the constitutional law leads us, as Dr. Badawi says, to “ make the task of amending the constitution the prerogative of a power formed similar to the original constituent power which put the constitution, and should follow the same procedures followed by the latter authority. ” (Dr. Tharwat Badawi, The Constitutional Law, p. 104).
For more explanation of that maxim, we point to what is stated by Article (174) of Kuwait’s Constitution, which reads as follows “the Amir and one third of the members of the Assembly shall have the right to propose amending this Constitution by adding or deleting one or more of its provision, or by adding new provisions thereto. If the Amir and the majority of the members constituting the Assembly agree to the amendment and its topic, in principle, the Assembly shall debate the proposed text one article at a time, provided that two-thirds majority of the members constituting the Assembly approve it. The amendment may not become effective except after the Amir ratifies and promulgates it, with the exemption from the provisions of Article (65) and (66) of the Constitution,
Commenting on this Article, Dr. Tharwat Badawi says: “one of the modern applications of the maxim of similarity or parallelism of forms, what is established in the Constitution of the State of Kuwait, that it is not permissible to amend any of the provisions of the Constitution except after the Amir approves the amendment in principle first, and then its topic. The Amir participated with the representatives of the nation in drafting the Constitution, and the Constitution states, in Article (174), that the Amir has to approve the amendment of the Constitution if the proposal is made by the
Assembly. Then it stipulates his approval also on what is decided by the Assembly in terms of the topic of the amendment. The fact is, the said Constitution did not stipulate, in order to effect an amendment, the election of a new constituent assembly similar to the Constituent Assembly that drafted the Constitution, but it did stipulate that the Amir sanctions the amendment. Therefore, it can be said that amending the Constitution of the State of Kuwait is not possible, except by following the contractual manner or the agreement between the Amir and the representatives of the nation. Which is the same manner by which the Constitution was drafted.” (Ibid, pp.105-106). It is very clear how similar is the provision established in Article (174) of Kuwait’s Constitution to that of Article (104) of the 1973 Constitution.
In respect of the ambit of amendment, we referred above to what the jurists of constitutional law concurred upon, that there are two types of the constraints which the framers of the rigid constitutions use to imposed to prevent haphazard amendments. One of such restraints is the “time ban” or interdict, i.e. the constitutional document contains an article that prevents any amendment thereto within a certain period of time. As an example of the time ban, we refer to what is provided by clause (f) of Article (1) of the 1973, which states as follows: “This Constitution shall not be mended except in part and in the manner prescribed therein, and no amendment thereto shall be proposed before the expiry of five years, effective the date of its commencement.” We find that the time ban, according to this text, is five years. The same clause also imposes a constraint of another nature, i.e. the “substantive ban” which is apparent in one of the two following forms: the first is the absolute ban of amending certain provisions. An example of such is clause (c) of Article (104) of the 1973 Constitution, which states as follows: “Under no circumstances shall the principle of the hereditary rule of Bahrain, the principles of liberty and equality set forth in this Constitution, as well as Article (2) hereof, be proposed for amendment.” The provision of this Articles deals with the religion of the State, and that Islamic Shari’a is a main source of legislation, and that its official language is Arabic. The other form of the substantive ban is that which stipulate a definite period of time. An example of which ban is clause (d) of Article (104) of the 1973, which states as follows: “The powers of the Amir, specified in this Constitution, may not be proposed for amendment when a Deputy Amir is acting for him.
The third form of the substantive ban is not contained in any provision of the 1973 Constitution. Nevertheless, it is derived from the doctrines of the constitutional law, and in fact it is one of its postulated facts. The reason is that the Constitutional Law is “ a set of basic doctrines which define the form of the State and the system of government, and specifies its general powers and its relationship with each other and the relationship with the individuals. These doctrines also establish the rights and liberties of the individual and the safeguards of these rights and liberties.” (Dr. Mohammed Kamel Laylah, Ibid, p. 18).
Consequently, if the constitutional document contains definite provisions in respect of the rights of the members of the public towards the public authorities, and the role of the general will in establishing the legitimacy of the authorities, such rights may not be prejudiced or undermined; if the intention of the framers of the constitution is to amend an existing constitution, such amendment must be related to granting more rights and the safeguard of their exercise, and must not retrogress from or limiting such rights or safeguards.
Another form of the substantive ban in the 1973 Constitution is the provision of clause (d) of Article (1) which states as follows: “Bahrain shall have a democratic form of government, with sovereignty vested in the people, the source of all powers. Sovereignty shall be exercised in the manner prescribed in this Constitution.” The provision of clause (e) of the same Article, which states as follows: “The citizen shall have the right to participate in the public affairs of the State and enjoy all political rights, beginning with the right to vote, in accordance with this Constitution and the conditions and procedures prescribed by law.”
The above-mentioned articles establish general rules, or what is known in jurisprudence as comprehensive or objective provisions defining the total and final objectives of the constitutional organization. These provisions are that the people are the source of all powers, and that exercise of sovereignty shall be in accordance with the detailed provisions decided by the Constitution, and that the people shall have the right to participate in public affairs and enjoy political rights. The remaining provisions of the Constitution decide the manner with which the people exercise their right to participate in public affairs, in accordance with the detailed provisions contained under Chapter Two of Part Four of the Constitution pertaining to the Legislative Power. All these provisions establish rights included under a substantive ban which may not be amended except in a manner which increase, and not decrease them, and any amendment leading to decreasing these rights is null and void, and is considered as undermining the Constitution itself.
This opinion on this form of the substantive ban is based on the following principles:
1st)The idea of constitutional rights is based on the principles of human rights, on which basis a human being acquires them by virtue of his human nature, which are in the opinion of jurisprudence political rights that an individual may not enjoy his life within the society without being respected. These rights, though originally natural rights which are determined by common sense, are considered, in addition to this, international legislative provisions represented in international conventions and treaties. Therefore, they are one of the elements of the legitimacy and legal basis of the state in this age. As a result, no political system should encroach on these rights, whether by undermining them or by reducing them. That is the reason for establishing such rights and providing for them in the texts of constitutions as basic elements of constitutional as well as the rule of law of any state. The idea of human rights has moved from its moral or human scope to the scope of legal system regulating the political system entirely, which is the constitution (Cf. Dr. Ahmed Fathi Suroor, Constitutional Protection of Rights and Liberties, Second Edition, 2002). The High Constitutional Court in Egypt confirmed this principle by stating that “the content of the legal rule which
runs supreme in the legal State and comply with it, is defined in view of the levels to which the democratic states are committed in a steady way in their societies, and thus it becomes an established rule to follow them in their different forms. In this content, and in view of which, the legal state may not, in its different organizations, fall, in the protection it provides to the rights and liberties of its citizens, below the acceptable minimums in the democratic countries in general, and may not impose restrictions on their enjoyment or exercise of such rights which can be considered contrary to what is considered commonly applied in democratic systems (Rule of the High Constitutional Court in Egypt, 4 January 1992, Case No. 22 of 8, Judicial “Constitutional.” Source: Constitutional Encyclopedia Containing all the Ruling of the High Constitutional Court, Husam Mahfooz, p. 383).
This essence of this principle is to give absolute protection to the constitutional rights and to nullify any encroachment upon them.
2nd)It is also stipulated in jurisprudence that the constitutional provisions are integrated texts in which the detailed texts are tied to the general text. If the detail of the exercise of public sovereignty is in conflict with the right of exercise, the detailed text is nullified. If a text in the detail of the principle of separation of powers is in conflict with the principle of the separation of powers itself, the detail itself is nullified. Integration of constitutional texts and that they are not in conflict with each other is one of the prerequisites of the constitutional system and its constitutional documents. To this effect, the Egyptian High Constitutional Court in Egypt states as follows: “constitutional provisions are not in conflict or in contradiction with each other, but are integrated within the organic unity they represent through conciliation between the totality of their provisions and tying them to the supreme values in which the community believes throughout its various stages of development. These provisions should always be relied upon as in harmony with each other, which do not contradict with each other but their meanings and complement each other, and therefore there is no basis for an argument that they cancel each other in as much s they
conflict with each other, because the enforcement of the constitutional document and its provisions to those it addresses assumes that it is applied in its entirety, and the condition for this is their harmony and integration and that they are viewed in a way that each text of which has an inherent meaning that is not separated from or dissociated from the other texts and is not in conflict or condition with, but supports them, governed in this by the final objectives and total intentions which unify them. (Ruling of the High Constitutional Court in Egypt on 5.2.1994, in Appeal by Cassation No. 23 of the year 15 Judicial “Constitutional.” Source: Constitutional Encyclopedic, Advisor Hassan Al Fakhani, Chapter Three, p. 1223).
There is no doubt that the foregoing principle means that the exercise by the people of their actual powers in legislation is the minimum requirement of the exercise of actual sovereignty and that the exercise of this sovereignty is a final and entire objective that nullifies every detailed ruling that contradicts this objective or intention or restricts it.
3rd)The constitutional rights established under the 1973 Constitution of Bahrain, one form of which is represented in the exercise thereof, in an original way of the authority to legislate through their representatives elected in a universal suffrage, by secret ballot, who represent a majority of nearly 75% of the members constituting the National Assembly, are accomplished rights which may not be revoked or undermined.
Perhaps, it goes without saying, and needless to emphasize, that acquired rights must be immune from prejudiced or negation. If a certain person has acquired a right in any way established by the law, such as contract or agreement, he may not be usurped this right nor may it be withdrawn from him. We find many applications of the concept of accomplished right in different subjects. One of them, for example, is in the form of the material or intangible rights which the employer is in the habit of giving to his employees, which he may not retract, if there are conditions to give, although there are no provisions on them in the contract of employment regulating the relationship between the two parties. One of them is also the legal protection given by different legislation to the accomplished rights under legal organization which has been abolished by immediate effect of the laws and that they may not be backdated. Such rights may not be usurped after being established to one person under the previous legal law under the pretext that the new legislation does not allow for accomplishing such rights.
The application of this rule to the subjects of the constitutional law leads inevitably to the fact that constitutional rights established under a constitutional document are rights which may not be usurped or undermined in any constitutional amendment that affects the provisions establishing such rights.
The jurisprudence of constitutional law is established on this principle when dealing with the issue of the effect of grant on the constitutional document. It is known that there are different forms of the issue of the constitutional document. One of them is that the constitution is issued in a form of grant by the ruler to his people. Is it acceptable for the ruler to withdraw the constitution after granting it? The jurisprudence answers, in a semi-unanimity, to this question in the negative. A ruler may not withdraw a document after granting it, because “the issue of the constitutional document in the form of grant does not mean that the ruler may withdraw it afterwards. Jurists explain this by saying that the people’s right are related to the constitution granted once it is issued, and so this constitution may not be prejudiced or undermined by the ruler, because the rulers usurped power in the first place, and if they give the people some of their rights through the constitution, they may not retract them. Otherwise, such withdrawal is a renovation of this usurpation of power. In addition, the grant is considered an obligation by unilateral will, and the rule established in this respect is that obligation by unilateral will restricts the person making the obligation, and therefore he may not retract it. (Dr. Ramzi Al Shaer, The General Theory in Constitutional Law, 1972 Constitution, p. 119).
Dr. Ramzi Al Shaer notes that this trend is represented in the majority opinion of the jurists of the constitutional law in Egypt and France. In Egypt, he refers to Dr. Othmn Khalil, General Constitutional Principle, p. 18, Dr. Fuad Al Attar, Political Systems and Constitutional Law, p. 207, Dr. Othman Khalid and Sulaiman Al Tamawi, Constitutional Law, 1951 Edition, p. 90.)
This opinion is also confirmed by Dr. Mohammed Kamel Laylah, by saying: “The assumption in the case of the issue of constitution by way of grant is that the power is concentrated in the hand of the ruler (the ruler may be King, an Amir, an Emperor or Caesar), and that the ruler intends to relinquish some of his rights, and to involve the people in the rule with him. To realize this objective, the rule grants his people a constitution, and constitution in this case is issued by virtue of the unilateral will of the ruler, and it is considered a donation from him to his people. Although the constitution is considered a grant, the ruler has no right to withdraw it once it is issued, nor may he amend it unilaterally, because once the constitution is issued, the rights of the people are associated with it, and therefore it may not be prejudiced or amended except by following certain procedures determined by the Constitution itself.” (Dr. Mohammed Kamel Laylah, The Constitutional Law, Second Edition, 1962, pp. 63, 64). Since this is the ruling in respect of the grant constitution, compliance with it in the contractual constitution is the more so.
The conclusion which we derive from the above is that the scope of amendment in the constitutional provisions is governed by the rule of the acquired constitutional right which may not be prejudiced except by what increases and enhances such rights, and that if the amendment contradicts this rule, it is null and void.
After this review of the procedures and scope of the constitutional amendment, we will move to the discussion, in a brief way, of an issue that has raised the interest of constitutional jurists. This issue is the legal value of the provisions that ban amendments to the constitution, whether such ban is temporary or substantive. Without delving into the detail of the different juristic trends on this issue, we are definitely certain that the majority view among the constitutional law professors is “that the view that recognizes the legal value of these provisions is the one that is in accord with the prevailing logic among the majority of jurists, which establishes that amending the constitution must be in accordance with the procedures provided for therein…. because the authorities in the State may not exercise their powers except in accordance with the provisions restricting it by the original constituent power in the constitutional document. As a result, the provisions specifying the method of amending the constitution and the necessary procedures therefor that lay down the restrictions on the exercise of the amendment are considered sound, legitimate and legal, to which the constituent power created when the constitution is amended must adhere to. As to the view that the provisions banning amendment to the constitution are illegal, and that the principle of the sovereignty of the nation is in conflict with the legality of such provision, it is rejected in that any attempt to amend the constitution in the cases in which it is banned leads to the demolition of the Constitution itself.” (Cf. Dr. Ramzi Al Shaer, The General Theory of the Constitutional Law, 1972 Edition, pp. 667, 668).
From the above, we find that the jurisprudence of the constitutional law is unanimous in that it is illegal to bypass the provisions of ban, whether they are dealing with time ban, substantive ban or procedures. Once these provisions are violated, it will inevitably lead to the demolition of the Constitution which is the basis of the legitimacy of any political system .
In confirmation of this, we refer, once again, to what the experts of constitutional law said that constitutional provisions which restrict the scope of amendment and the party competent to effect such amendment are binding provisions which all the authorities in he State should adhere to. If any of these authorities bypass these provisions in a manner contrary to what is established by the original constituent authority, this is considered an encroachment upon the constitution and it only merits nullification and invalidation. “It cannot be argued that the nation has the original competence to effect change, and so it is free to make any material changes in the existing constitution. If the nation has the original competence to make changes to the constitution, it exercises such right through certain powers created by the provisions of the constitution itself, to exercise, in its name and on its behalf such rights. If such parties decline to exercise this competence as a result of a provision in the constitution that they have to take an oath not to do it, who will express the will of the nation contrary to what it has dictated upon its representatives in the constitution? If the nation wants to change its view and allow such change, it has nothing expect to use its original authority, considering that it is an original constituent power, and brings a New Constitution that does not contain the restrictions of change on the parties it represents, which is called the derived constituent authority which must comply with the provisions decided by the original constituent authority.” (Dr. Ramzi Al Shaer, The Egyptian Constitutional System, 2000 Edition, p. 280).
These are the prerequisites which are established in the constitutional jurisprudence in respect of amendment of constitutions. In view of these requirements and procedures, we will move now to discuss what is decided in the Explanatory Memorandum in respect of the manner in which the constitution was amended.
2) In discussing what is decided in the explanatory memorandum in respect of the manner in which the Constitution was amended:
We will begin this discussion by referring to the introduction in the Explanatory Memorandum that the National Action Charter “contained the changes which should be introduced to the existing constitution in order to activate the political ideas contained therein.”
This introduction then moves to indicate that “since activation of the principles mentioned in the National Charter require making such changes to the existing Constitution, His highness the Amir, by virtue of Decree No. (5) of 2001, assigned a consultative technical committee to draft the constitutional changes which the National Action Charter provided for making them…..etc.” Therefore, we believe that it is necessary to begin with discussion of this Decree and the provisions it contains, both in terms of form and content.
Decree No. (5) of 2001 was issued forming a committee to amend certain provisions in the Constitution. The Decree was issued on 28 February 2001, i.e. after less than two weeks from the announcement of the result of the popular referendum on the Charter.
The Decree provides as follows:
“We, Hamad Bin Isa Al Khalifa, the Amir of the State of Bahrain,
Having examined the Constitution,
and the National Action Charter,
and Amiri Order No. (17) of 2001 ratifying the National Action Charter;
whereas, we, since acceding to the throne, have undertaken to safeguard the trust vested in us by Almighty Allah, and which we are using to achieve good for our nation and follow the course which will lead to uplifting it and raising its status among civilized nations, and whereas, the people have unanimously agreed to the constitutional inclinations contained in the National Action Charter, and allowed us, through a popular will, to make changes to the Constitution of the country,;
and whereas, it is one of our most cherished wish for the country to live a constitutional life that is acceptable to it,
Hereby decree as follows:
Article 1
A committee shall be formed to prepare a draft amendment to certain provisions the Constitution in line with the constitutional inclinations contained in the National Action Charter.
The Committee shall be formed as follows:………………………………………………………………………………….
The Committee may seek the assistance, in its work, of whatever it deems necessary from among experts and experienced people and invite them to attend its meetings and participate in its affairs.
Article 3
The Committee may form, from among its members or from among those who have experience and knowledge, one sub-committee or more, to discuss definite issues or conduct certain studies and such sub-committees shall submit their reports and recommendations to the main committee.
Article 4
The Chairman of the Committee shall submit the draft amendments to certain provisions of the proposed constitution to us, accompanied with an explanatory memorandum of the project, together with all the studies and different legal opinions provided in respect of drafting the amendments.”
We notice that this Decree relied on each of the Constitution, i.e. the 1973 Constitution and the National Action Charter. Although the Constitution defined the manner in which it can be amended, in accordance with the provision of Paragraph (a) of Article (104) thereof, and there is nothing in this Paragraph that provides for forming a committee such as the one provided for in the Decree. Yet we believe that the Amir can, as he deems fit, form a committee to assist him in formulating the draft changes to the Constitution. However, what the Committee proposes is no more than a suggestion that must be submitted to the National Assembly to vote on it, either by acceptance or rejection. The last say in any constitutional amendments is for the people’s representatives, the members of the National Assembly, and the Amir. Nevertheless, the Decree is, in fact, an express violation of the National Action Charter, for two reasons: First, there is nothing in the provisions of the National Charter that provides, either expressly or implicitly, for allowing the Amir to make changes to the Constitution in the manner decided in the Decree. The second reason is that when the people of Bahrain approved the National Action Charter, they approved, in a political referendum, a document containing inclinations and principles defining the framework for constitutional change, and did not approve a document the purpose of which is to amend the Constitution without complying with the procedures provided for therein to make the changes.
We now come back to the discussion of what was decided in the Explanatory Memorandum in terms of the manner in which the Constitution was changed. The Explanatory Memorandum in this respect was based on the following principles:
1. The National Action Charter is a binding force, whether at a rank similar to that of the Constitution or at the same rank in term of its binding nature.
2. The people entrusted the Amir to take whatever action is needed to change the Constitution.
3. The mechanism of changing the Constitution, defined under Article (104) therein, is no longer applicable to change the Constitution there under.
Here below, we will discuss the three principles:
A) In Respect of the Binding Nature of the National Action Charter
The logic of the Explanatory Memorandum in respect of this principle is summed up in that the Charter has a binding nature, based on the fact that it was issued as a result of the outcome of the popular referendum of the people who have the sovereignty in the State, and that the format in which the principles contained therein imply the binding nature, thus making the Charter a sound basis to change the Constitution.
There is no doubt in our mind of the veracity of what is contained in the Explanatory Memorandum that the Charter has a binding nature, considering the principles and bases contained therein. This binding nature is based on the people’s approval of the document. However, the Explanatory Memorandum in the course of confirming this rule, ignored one basic thing: that the binding nature established for the National Action Charter, is a feature that added to all the provisions of the Charter, and is not restricted to certain parts thereof in the manner decided in the Explanatory Memorandum when it was restricted in this respect to certain phrases contained under the Chapter entitled “Future Prospects,” in a selective manner, but ignored all other provisions in the Charter which were contained, for example, in the introduction an the Second Chapter in respect of the system of government and such other provisions which we will discuss later when dealing with the New Constitution. They are provisions leading to something opposite to what is decided in the New Constitution in terms of many provisions, the most important of which are those dealing with the Legislative Power.
B) In Respect of the claim that the people have empowered the Amir to amend the Constitution
The explanatory memorandum claims that the people have empowered the Amir to effect the constitutional amendments. The memorandum justifies such a claim on the following three pretexts:
1) That the wordings contained in the Charter imply that the people have empowered the Amir to effect the constitutional amendments; and
2) That the letter submitted by the Chairman of the Supreme Committee for drafting the National Action Charter, to the Amir states as follows: “The Committee has decided, at the conclusion of its meetings, to submit this draft National Action Charter to His Highness the Amir, as a trust put between his hands, to decide whatever is necessary and suitable to the country’s interest.” The Explanatory Memorandum claims that this “confirms that the Committee in charge of drafting the National Action Charter and the people who approved what is contained therein empowered the Amir to take whatever action is necessary to activate what is contained in the Charter, and that amongst these procedures the manner of effecting the constitutional amendments.”
3) The people’s will, which was expressed in the national referendum, and the Amir’s ratification of the National Charter, show that the people empowered the Amir to take whatever action is necessary to amend the Constitution within the framework of the principles and provisions contained in the National Action Charter.
We decide that all what the Explanatory Memorandum has claimed, is refuted by one short sentence: that all the provisions of the Charter have no mention, at all, of any word or phrase that expresses such a claim either explicitly or implicitly, that the people have empowered or authorized, in any manner, the Amir to conduct constitutional amendments. What the Explanatory Memorandum says in this respect are only mere allegations which are not contained in the Charter, neither in the letter nor in the spirit of the Charter, and it cannot pinpoint the words or provisions of the National Action Charter that states so. What we state as a proof of our position is indisputable. The first draft of the National Action Charter, which met with strong opposition and protest and led to the resignation of four members of the committee, there was such mention. That draft, which was later disregarded, contained a text that authorizes the Amir “to take whatever action is necessary at each of the stages of the national march and at a time deemed necessary by him to serve the country’s supreme interest.” The interpretation that such wording would mean the empowerment of the Amir to affect the constitutional amendments caused trouble to the committee and it was dropped. The revocation of this part of text of the draft of the Charter during the working of the committee is an indelible proof of the cancellation of the authorization claimed in the Explanatory Memorandum. Not only that but that the minutes of the meetings of the committee do not show any mention of such an empowerment. This may not be changed by what the Explanatory Memorandum claims the letter submitted by the Chairman of the supreme Committee for drafting the National Action Charter to the Amir contains, and that the letter was under the masses’ eyes at the time of the referendum. An evidence of this is that the text of the Charter, which was approved by the Amir and was issued in the Official Gazette No. 2465 on 21 February 2001, has no mention of this letter to which the Explanatory Memorandum refers, at all. In addition, neither the Chairman of the Supreme Committee for drafting the National Action Charter nor its members have any parliamentary capacity, or constitutional powers, on behalf of the people, so that any of their words or deeds become expressive of the general will of the people, and hence become binding to that will.
It is legally right that the Minister of Justice and Islamic Affairs, the Chairman of the Supreme Committee for drafting the National Action Charter, is the representative of the Executive Branch and therefore what he issues becomes binding to that branch of the government, but to no one else. In essence, what is binding for him in his capacity as a minister is the public statement that he issued on February the 9th, 2001 in which he stated unequivocally “the parliamentary chamber elected in a free and direct public election, which is mentioned in the Draft National Charter, is the chamber entrusted with the legislative powers in the State, and that the appointed chamber will be providing opinion and advice and that the National Action Charter does not abolish the Constitution but activates it and that the Charter does not contain any phrase or provision that contradicts the Constitution (Statement by the Chairman of the Higher Committee for drafting the National Action Charter, published in the local press on 9 February 2001).
C) In Respect that the Constitution May Not be Changed in Puissance of Article (104)
The Explanatory Memorandum, in justifying that Article (104) is no longer suitable as a basis to change the Constitution, relies on two issues:
1. That the National Assembly was dissolved, and that the Amiri Order No. (4) of 1975, provided for suspending the provisions related to the National Assembly, and accordingly, the Assembly is non-existent from a constitutional point of view, and that referring to this Assembly to change the Constitution is contrary to the will of the people expressed by them in the course of approving the National Action Charter.
2. That the National Assembly is non-existent from a practical and actual point of view, because its term, even if Amiri Order No. (4) of 1975 was repealed, had expired, and that the return of the same assembly in its old form is impossible from a legal point of view. In addition, no elections for a new assembly can be held for a new assembly to change the Constitution by following the procedures provided for under Article (104), because these principles contradict the principles contained in the National Action Charter.
These justifications cited by the Explanatory Memorandum are refuted as follows:
A) The Explanatory Memorandum’s position is based on confirming an issue that is not disputable, i.e. the National Assembly, entrusted with making constitutional changes, is not existent in real life, and that this non-existence, in the view of the Explanatory Memorandum, is “a constitutional non-existence,” and a “real non-existence.”
In respect of the allegation that the constitutional or legal non-existence of the National Assembly, this is serious statement which reveals that the Explanatory Memorandum is based on a completely wrong assumption, namely negating the existence of the constitutional text in the first place, because the non-existence of the National Assembly from a practical point of view does not negate its constitutional existence. The claim that the Assembly is non-existent from a constitutional point of view is a negation of all he provisions related to the Legislative Power’s Assembly provided for in the Constitution, and as a result a negation of existent constitutional provisions which the provisions of the New Constitution were made to change.
It is established in the jurisprudence of constitutional law that the right to dissolve the parliament is the strongest tool in the hand of the Executive Power towards the Legislative Power , as opposed to the established right, in traditional parliamentary systems, of the Legislative Power to withdraw confidence from the government. Our constitutional lawmakers confirmed this right in Article (65) of the 1973 Constitution, by putting it in the hand of the Amir, but attached three conditions to this right:
* that dissolution must be by a justifiable decree in order to inform the members of the public of the reasons for the dissolution;
* that the Assembly may not be dissolved for the same reason twice; and
* that if the Assembly is dissolved, elections for the new Assembly must be held within no more than two months, in order not to suspend the elections of the new Assembly indefinitely.
If we return to the same point we are discussing, namely that the National Assembly, which is the party entrusted with the task of changing the Constitution, in conjunction with the Amir, was dissolved 27 years ago, the return of the same Assembly requires compliance with the provisions of the Constitution in respect of the formation of the Assembly of the Legislative Power. The members of the public must be invited to elect their representatives, and then the elected Assembly will be presented with the constitutional changes, wherein the people’s representatives have to adhere to the principles and bases approved by the people’s will represented in the National Action Charter. Accordingly, the Constitution is changed in accordance with these principles and bases and in compliance with the procedures specified under Article (104) of the Constitution.
What is decided in the Explanatory Memorandum that the Amiri Decree No. (4) of 1975 implied that the National Assembly is non-existent constitutionally makes the said Amiri Order in a position higher and loftier than the Constitution and the National Action Charter, which is contrary to the most fundamental constitutional principles which those who drafted the Explanatory Memorandum should have referred to and complied with. The reason is that dissolving the National Assembly ion 26 August 1975 was made in pursuance of the Amiri Decree No. (14) of 1975, and not by virtue of Amiri Order No. (4) of 1975. The dissolution Decree was based on the Constitution, and in particular on Article (65) thereof, whereas the Amiri Order was not based on the Constitution, neither when it was issued nor in throughout its active period of more one quarter of a century, and the only basis on which it relied was no more than the logic of force, and not the logic of law.
Nevertheless, the Amiri Order, which was based on this logic of force, provided in Article 1 as follows: “Election of the members of the National Assembly is hereby deferred until a new election law is issued.” This means that the matter did not annul the constitutional existence of the National Assembly, as claimed by the Explanatory Memorandum and this Order cannot, in the first place, annul the constitutional existence of the Assembly of the Legislative Power. All that the Order did in Article (1) is to defer elections for the new National Assembly after dissolving the previous Assembly. Needless to say, deferment means a temporary period of time, which may be short or long, but the ultimate result is to hold elections for the members of the new National Assembly in accordance with the provisions of the Constitution.
In respect of what this Order decided, in Article (2), that “The provision of Article (65) of the Constitution, and other Articles which are inconsistent with the provision of the foregoing Article, are hereby suspended,” we can only reiterate that the Amiri Order No. (4) of 1975 was non-constitutional entirely, whether in Article (1) or Article (2) thereof. Deferring elections for the National Assembly and suspending certain provisions of the Constitution is an express violation of the provision of Article (108) of the Constitution, which provides as follows:
No provisions of this Constitution may be suspended except when martial law is in force, within the limits specified by the Law. Under no circumstances shall the meetings of the National Assembly be suspended, nor shall the immunities of its members be interfered with, during such period.”
The ultimate result concluded in the Explanatory Memorandum, namely that Amiri Order No. (4) of 1975 meant that the National Assembly became non-existent from the constitutional point of view, is null and void. It is summed up in that any ruler may suspend the constitution and usurp the constitutional rights of the members of the public and their exercise of the sovereignty, based on the law of force, and not on force of law, and this is a constitutional step that led to sound and correct results from a constitutional point of view. We do not know which constitutional principles were relied on by those who drafted the Explanatory Memorandum to claim this.
In respect of the claim by the Explanatory Memorandum that the people’s approval of the National Action Charter in view of the absence of the National Assembly shows that the role of the Assembly in the constitutional life is negated and that referring to it is considered a contradiction of the will of the people and that the Amir’s non-fulfillment of this will, our reply is that the people’s approval of the National Action Charter, as we earlier said, is an approval that was obtained in a political referendum on a political document, and that such approval did not contain a negation of any constitutional provisions or constitutional institution as the National Assembly. This cannot be detracted by the fact that the referendum on the National Action Charter was made in the absence of the national Assembly. Referendum was made in view of the provisions of the Constitution existing when the people approved the document. Nevertheless, the allegation by the Explanatory Memorandum that the Amir’s recourse to the National Assembly to make the proposed constitutional changes will be non-compliance, on the part of the Amir, with the popular will represented in the approval of the National Action Charter, is only an attempt to insinuate that the people approved the abolition of the 1973 Constitution, by approving the National Action Charter, and that the Amir has to respect this will and change, unilaterally, the Constitution. This is an allegation which, as we have said, lacks any basis in the National Action Charter, in addition to the seriousness of such logic for the entire system of government, which we cannot accept under any circumstances.
B) In respect of the claim by the Explanatory Memorandum that the National Assembly is non-existent from a practical point of view, because its term had expired, even if the Amiri Order No. (4) was repealed, and that as a result the National Assembly cannot be reinstated in its old form; in addition, the Explanatory Memorandum claims that no elections may be held for a new National Assembly, because this violates the provisions of the National Action Charter the approval of which by the people implied the abolition of the provisions contained in the Constitution in violation thereof with effect from the date of such approval.
We have no difficulty in replying to what is claimed by the Explanatory Memorandum, which explicitly, after implicitly, stated that the National Action Charter abolished the 1973 Constitution. What is left, then, of this Constitution after claiming the abolition of the most important of its principles, i.e. the National Assembly entrusted with the task of exercising the legislative power, considering that it is one of the constitutional institutions approved by the 1973 Constitution? The strangest thing in the logic of the Explanatory Memorandum in this respect is that it claims that the National Action Charter abolished the Constitution, but not the Amiri Order No. (4) of 1975, for one simple reason, as claimed by the Explanatory Memorandum, i.e. there is no demand in the National Action Charter to abolish this Order, and so it claims that the National Action Charter is only a list of petitions.
As regards the impossibility of the return of the National Assembly in its old structure due to the expiry of its term, the Explanatory Memorandum means the National Assembly which was dissolved on 26 August 1975, in its old structure at that time, which expired after a term of four years. This is a refuted plea, because the return of the National Assembly in its old structure is not constitutionally possible, because dissolving the parliament, as we have aside, is the method used by the Executive Power towards the Legislative Power. The principle is that after the parliament is dissolved, a new parliament must be elected, and not the old parliament must be reinstated in its old structure which the Executive Power said it is impossible to cooperate with, and thus dissolved. The rule reinstating the old parliament, if no elections for the new parliament are held within the term specified according to Article (65) of the Constitution, is only one of the restrictions stipulated in the constitutional organization of the Executive Power in exercising its right to dissolve the parliament, in order not to suspend the parliamentary life indefinitely, as happened in Bahrain over the past twenty five years. As a result, electors have to be invite to elect a new National Assembly.
To confirm what we say in this respect, we refer to the provision of Article (38) of the 1973 Constitution, related to the Amir’s right to issue decrees having the force of law in case of the intermissions between the sessions of the National Assembly or if it is dissolved, if necessity arises for urgent measures to be taken which cannot be delayed. This is what is known in the constitutional jurisprudence as “the necessary bills.” Paragraph Two of this Article provides that such decrees shall be referred to the National Assembly within fifteen days following their issue if the Assembly is in session. This means that the principle is for a new Assembly to be elected after the dissolution decree is issued, and there is no basis to discuss the reinstatement of the old Assembly in its old formation except in case the Executive Power bypasses the restriction provided for limiting its right to dissolve it by not holding election within the two months prescribed by law in Article (65) of the Constitution. Since this did not happen, because the Amiri Order (4) of 1975, which was unconstitutional, remained in force and existent, by force and not by the force of law, there is no alternative to holding a new National Assembly, as provided for in the 1973 Constitution.
As to the claim that the election of the new National Assembly is considered a violation of the principles contained in the National Action Charter, this has been adequately dealt with. The National Action Charter has not repealed any constitutional provision, and what is contained therein in terms of the bicameral system is only a definition of the framework of the next constitutional organization which will be defined, both in forms and powers, by the National Assembly and the Amir, as provided for in the 1973 Constitution, and as confirmed by the National Action Charter.
Finally, the Explanatory Memorandum, while confirming all that which we have reviewed, completely ignores the political and historical circumstances in view of which the draft of the National Action Charter was proposed by the Amir. The constitutional legislation in any country, and anywhere in the world, requires a thorough reading of such circumstances, in order to be suitable to them and responsive to their requirements. Bahrain has lived its first parliamentary experiment defined by the Constitution issued in 1973. However, this experiment did not succeed for many reasons, because in 1975 an Amiri Decree was issued dissolving the National Assembly. Another unconstitutional Amiri Order was issued deferring the election of the Assembly and suspending the parliamentary life, and the Amir and the Prime Minister took over the Legislative Power, after a Legislative Decree was promulgated in respect of state security measures which gave the Minister the Interior and the security forces in the country the upper hand in the country. As a result, liberties were confiscated, which were provided for in the Constitution, for more than twenty five years, and the country witnessed, as a natural result of such measures, a state of instability which focused on the return of parliamentary life, the return of liberties and the abolition of emergency laws. This situation continued until the Amir proposed the National Action Charter, which was received by many circles and sectors of the Bahraini public opinion with much apprehension and concern that it would be an attempt to bypass the 1973 Constitution the Bahrain people agreed on with the Amir. These circumstances, represented in many political, national, religious, professional and labour personalities, confirmed the supremacy of the Constitution and the constitutional principles considering that they are the basis which governs the constitutional changes. Therefore came the reply of the Amir, represented in the then Amir (His Majesty the King), the Crown Prince and the Minister of justice and Islamic Affairs, who is the Chairman of the Committee drafting the National Action Charter, confirming the principles outlined in the Constitution, and that the National Action Charter does not abolish the Constitution, but is only an introduction to its activation (C. Statements of His Highness the Crown Prince published in the local press on 27 January 2001 and 5 February 2001).
However, despite these criteria on the political and legal levels, the Amir issued the New Constitution unilaterally, contrary to what is required and provided for in the 1973 Constitution. The Explanatory Memorandum ignored all these facts and established, without any right, that the people of Bahrain, in approving the National Action Charter, abolished the 1973 Constitution and entrusted the Amir to take whatever action he deems necessary to implement the National Action Charter, contrary to all the principles on which the people agreed by adhering to the 1973 Constitution and by advocating the National Action Charter which was proposed by the Amir as an introduction to reform on all levels and to guarantee more forms of participation in public affairs.
The summary on what is stated in the Explanatory Memorandum in respect of the manner in which the Constitution was amended is a contradiction of all the principles established in constitutional jurisprudence in respect of the amendment of constitutional document, whether in terms of procedures, or scope, of amendment.
After this review of the procedural aspects surrounding the New Constitution, we will now review the provisions of this Constitution, in particular its provisions related to the Legislative Power.
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Second:
The News Constitution
We have reviewed the circumstances surrounding the promulgation of the New Constitution. We will now, for the purposes of this opinion, shed some light on this new constitution, in order to give definite answers to the questions which we raised at the beginning of this opinion.
We do not believe that we need to review the procedural features of the New Constitution, particularly in respect of being a grant constitution which the Amir unilaterally promulgated without obtaining the consent of the people ( the consent of the ruled) as a base for political legitimacy. We stress that this opinion would not be changed by what is claimed in the Explanatory Memorandum that the document issued in 2002 is an amended constitution in response to the general will expressed in the National Action Charter, and that the general will has authorized the Amir to make constitutional changes unilaterally. The Explanatory Memorandum itself contradicts what it establishes in this respect, by saying that the National Action Charter resulted in repealing all the provisions contained in the 1973 Constitution, which are contradictory with what is provided for in the National Action Charter (cf. item (4) of Paragraph (Second) of Section One of the Explanatory Memorandum). This abrogation, which is claimed by the Explanatory Memorandum, is not restricted, as we will explain later, to the provisions of the entire Chapter Two of Part Four of the 1973 Constitution, but extends to many of the provisions dealing with the King’s powers (after changing the name of the State) and the prerogatives of the Legislative Power, the form of the Legislative Power and its prerogatives, in addition to the final provisions of the Constitution. Where is, then, the amendment? And what is left of the 1973 if the new provisions have affected all these issues which were regulated by that Constitution?
Our review of the provisions of the New Constitution will focus on determining whether this Constitution has led to an improvement in the political life in Bahrain “in a way that achieves a sound democratic life for it in conformity with the democratic bases prevailing the world at present,” in the manner established in the Explanatory Memorandum, and whether this Constitution is in accord with the popular will which was expressed in approving the National Action Charter.
The features of the system of government and the sound democratic life defined by the National Action Charter in its provisions which were approved by the people of Bahrain, are represented in the following:
1. In respect of the powers, and in particular those of the Amir, being the Head of the State, the system of government in the State of Bahrain is a hereditary constitutional monarchy, in the manner defined in the Constitution and the Amiri Decree in respect of succession, and the Amir is the Head of the State and his character is inviolable, and he exercises his powers through his ministers, and the ministers are responsible before the Amir, who appoints the Prime Minister and ministers and relieves them of their duties in accordance with his powers specified in the Constitution ( Paragraph First, Chapter Two of the National Action Charter).
2. The constitutional form of the government is a constitutional monarchy “that occupies its niche among constitutional kingdoms following the democratic system which realizes the people’s ambitions for progress (Paragraph Second of Chapter Two of the National Charter).
3. The system of government in Bahrain is democratic, in which sovereignty is for the people, the source of all powers, and the exercise of sovereignty in the manner specified in the Constitution (Paragraph Four in Chapter Two of the National Charter).
4. The system of government is based on the principle of separation of the three powers: Legislative, Executive and Judicial, with co-operation between them in accordance with the provisions of the Constitution. His Highness the Amir is at the helm of these three powers (Paragraph Five of Chapter Two of the National Action Charter).
5. In respect of the Legislative Power, a bicameral chamber shall be introduced, comprising two chambers, the first to be directly and freely elected by the people where they elect their representatives to undertake legislative tasks, in addition to an appointed assembly that comprises knowledgeable and experienced people to benefit from their views and opinions on what the shura requires in terms of experience and knowledge. Laws shall be passed in the manner detailed in the Constitution in accordance with the recognized constitutional norms and traditions in well-established democracies. (Paragraph Two in the “Future Prospects” of the National Action Charter).
6. Personal freedom is guaranteed under the law. A person may not be arrested, detained, imprisoned or searched, or his place of residence specified or his freedom of residence or movement restricted, except under the provisions of the law and under judicial supervision.
In view of these principles, we will review the provisions of the New Constitution to see whether these provisions were responsive to the principles, within the framework of answering the questions which we rained at the outset of this opinion.
Owing to the fact that the principle related to the form of the government, i.e. constitutional monarchy based on a democratic system, and the second one related to the sovereignty of the people considering that they are the source of powers, and the principle pertaining to the form of the Legislative Power, are principles which contain common provisions, therefore we will review them collectively after reviewing the principle pertaining to Powers.
1) Powers
A)The Amir
In Paragraph One of Chapter Two, entitled “System of Government,” the National Action Charter provides that “the system of government in the State of Bahrain is a constitutional, hereditary monarchy, in the manner defined in the Constitution and the Amiri Decree for succession. The Amir is the Head of State, and his person is immune and inviolable, he is the supreme commander of the armed forces, and he is the symbol of the independence of the country and the main foundation on which the system of government in the State of Bahrain is based. The Amir shall exercise service is powers through his Ministers. The Ministers shall report to him, and he shall appoint the Prime Minster and the Ministers and relieve them of their duties in accordance with his powers specified in the Constitution.”
This provision is in fact a reiteration of certain provisions contained in the 1973 Constitution, namely Paragraph (a) of Article (33), which states as follows: “The Amir is the Head of the State, his person shall be immune and inviolable, and he shall service is powers through his Ministers who shall collectively report to him on the general policy of the Government, and each Minister shall be responsible fort the affair of his Ministry.”
According to this provision, the Amir is the Head of the Legislative Power to which the Cabinet constitutes the other party. The principle, according to this provision, is that the Amir exercises his powers through his Ministers by way of Amiri Decree which the National Assembly may hold the Cabinet and the Ministers to account for, in confirmation of the regulatory role played by the National Assembly in the 1973 Constitution. The exclusion to this principle is that the Amir exercise his powers directly through Amiri Orders, which are powers defined and contained specifically in the 1973 Constitution.
If we return to the New Constitution, we find that Paragraph (a) of Article (33) thereof provides as follows: ““The Amir shall service is powers directly and through his Ministers who shall collectively report to him on the general policy of the Government, and each Minister shall be responsible fort the affair of his Ministry.”
We believe that this provision exceeded what was provided for in the 1973 Constitution, because it considered that the principle is for the Amir to exercise his powers directly, i.e., through Amiri Orders. In addition, what the New Constitution decided in this respect is considered a bypass of what was provided for in the National Action Charter which provided, as we have said, that the Amir shall exercise is powers through his Ministers.”
B) Cabinet
The 1973 Constitution provides, under Paragraph (c) of Article (33) thereof, regulated the constitution of the Cabinet, by stating that “Ministers shall not be appointed from amongst the members of the National Assembly in the first legislative term, but they may be appointed from amongst the members of the National Assembly or others with effect from the second legislative term. Minister appointed from amongst outsiders shall become ex-officio members of the National Assembly. The total number of ministers shall not exceed (14).
Notwithstanding the fact that this provision does not bind the Amir to appoint ministers from amongst the members of the National Assembly, yet it is an expression of one form of the people’s exercise of their right in participation in public affairs the exercise, by some of its representatives of ministerial duties. This is a form that was repealed by the New Constitution although there is no provision in respect thereof in the National Action Charter.
2) The Parliamentary Democracy and the People’s Exercise of their Sovereignty Through the Legislative Power
To determine the extent of the response by the New Constitution to this principle which was confirmed in the National Action Charter, we have to review first the provisions of the Legislative Power as provided for in the Constitution.
Composition of the Legislative Authority and Its Powers in the New Constitution
The New Constitution regulated the Legislative Power under Chapter III of Part 4. It states that the Legislative Authority Assembly, the National Assembly, consists of two chambers: the Consultative Council and the House of Deputies. The Consultative Council shall be composed of forty members appointed by Royal Order, and the King hall appoint Chairman of the Consultative Council for a period equal to that of the Council, i.e. four years, and the Council shall elect two deputies to the Chairman. The Constitution also provides that the Consultative Council shall meet when the Chamber of Deputies meets, and the session terms shall be the same for the two Councils, and that if the Chamber of Deputies if dissolved, the sessions of the Consultative Council shall be suspended.
In Legislative Decree No. (15) of the year 2002, in respect of the Consultative Council and the House of Representatives, published in the Official Gazette, issue dated 10 July 2002, conditions were specified for a member appointed in the Consultative Council. One of these conditions is that the member must be from those who have experience and knowledge, or those who have rendered valuable services to the nation from among the following groups: (1) Members of the ruling family, (2) Ex-ministers, (3) Those who held positions of ambassadors and ministers plenipotentiary, (4) Ex-members of the judiciary bodies, (5) Senior retired officers, (6) Senior ex-civil servants, (7) Senior clergymen, businessmen and professionals, (80 Ex-members of the House of Deputies, and (9) Those who have the people’s confidence.
In respect of the House of Deputies, the New Constitution provides that it shall consist of forty members elected by direct, secret general ballot. It also specifies the term of the Chamber as four years, with the possible extension of the legislative term of the chamber for two years, when necessary, by a royal order. The Chamber shall elect from among its members, a chairman and two deputies to the chairman for the same term of the Chamber.
As regards the powers of the National Assembly, the New Constitution provides, under Article (70), that “No law shall be promulgated unless approved by both the Consultative Council and the Chamber of Deputies, or the National Assembly as the situation demands, and ratified by the King.” Articles from (82) to (85) defined the exercise of the legislative powers by the two chambers, and in case they differ twice over any bill or law, the National Assembly shall convene in joint session under the chairmanship of the Chairman for the Consultative Council to discuss those clauses in dispute. For the bill to be accepted, the decision of the National Assembly must be taken on a majority of the members of present (Article 85), and “decisions shall be taken by a majority of the votes of members present with the exception of the Chairman, who shall have the casting vote in case of a tie.”
Commenting on this Article, the Explanatory Memorandum decides that “this majority defines the majority which must be available to convene the national Assembly, in other cases than those in which the Constitution requires a special majority, to be the majority of each chamber separately, in order to guarantee the minimum representative of each. The Article also defines majority required to take decision in such events to be the majority of those present except the Chairman, and makes the vote of the Chairman the casting vote in case of a tie. The meaning of this is that the Chairman shall not give his vote unless the votes are in a tie on the proposed decisions, and in this event his vote is the casting vote to approve or reject the bill.”
This provision and its interpretation is a confirmation of the domination of the Executive Power, not only on the elected chamber of the elected legislative power, but also on its appointed chamber, because it gives the casting vote to the Chairman of the Consultative Council, who is appointed in this position, by the King, while his two deputies are elected by the members of the Consultative Council, according to Paragraph (d) of Article (45) of the new Consultation.
As regards the regulatory competence of the Legislative Power over the activities of the Executive Power, this competence is manifested in the following forms:
A) Putting questions. Article (91) of the New Constitution, which establishes the right of every member of the Consultative Council or the Chamber of Deputies to direct written questions at Ministers, but the question may not relate to an interest of the questioner or his relatives to the fourth degree, or be made by proxy.
B) Expressing wishes. This is governed by Article (68), which provides that the right of expressing wishes is established to the Chamber of Deputies but not the Consultative Council.
C) Investigation: This right is established in Article (69), which provides that the Chamber of Deputies may at any time form commissions of inquiry or delegate one or more of its members to investigate any matter coming within the powers of the Chamber, and the commission shall present the findings of the inquiry not later than four months from the date of commencement of the inquiry.
D) Questioning. This right is established under Article (65), and it is also confined to five members of the Chamber of Deputies. However the question must not pertain to a private interest of the questioner or his relatives to the fourth degree, or be made by his proxy. The question may lead to the matter of confidence in the Minister being put to the Chamber of Deputies under the provisions of Article (66) of the Constitution.
E) Vote of Confidence. In this context, Article (66) states that a question of confidence in a Minister may be put forward only at his own wish or upon an application signed by at least ten members of the Chamber of Deputies following the debate of the question put to him, and that a two-thirds majority of the members of the Chamber of Deputies is needed to give a vote of no-confidence in a Minister and thus he shall be regarded as having withdrawn from the Ministry from he date of the no-confidence vote.
F) Non-cooperation with the Prime Minister. This right is established by Article (67), and two-thirds majority of members of the Chamber of Deputies is needed to consider it not possible to co-operate with the Prime Minister, and the matter shall be referred to the National Assembly to consider it, after which the matter is to be submitted to the King for a decision, ether by relieving the Prime Minister of his post and appointing a new Government, or by dissolving the Chamber of Deputies.
After this brief review of the provisions of the New Constitution in respect of the prerogatives of the Legislative Power, and before we give our opinion on the responsiveness of these provisions to the principles outlined in the National Action Charter, we believe that it is necessary make a very brief comparison between what is established in the 1973 Constitution in terms of form and authority and what is established in the New Constitution in this respect.
A) In respect of the Formation of the Legislative Power Assembly
The Legislative Power Assembly consists, as per the 1973 Constitution, of 30 elected members in its first legislative term, and such number shall be raised to 40 members beginning with the second legislative term. In both cases, the number of the appointed members (Ministers by virtue of their portfolios) shall not exceed 14 members. We noted earlier that the percentage of the appointed members, i.e. the Ministers, does not exceed 25.9% of the total number of the members of the Council.
However, the New Constitution maintained the 40 elected members of the Chamber of Deputies and repealed the provision related to the membership of the Ministers in the Legislative Power Assembly, being 14, and replaced them with 40 members who are appointed by a royal decree in the Consultative Council, which is the appointed council in the Legislative Power, the chairmanship of which is held by the Chairman of the elected Council.
B) In Respect of the Legislative Competence
The people’s representatives exercise their legislative power with the Amir, in accordance with the 1973 Constitution, while this power is exercised in the New Constitution, on an equal footing, by an elected Chamber and an appointed Chamber, equal in number to the first Council, in conjunction with the King.
In addition, the Constitution introduced a new provision, under Article (87), which leads to restrictive time pressures on the Legislative Power in respect of the bills regulating economic and financial issues which the Government needs to debate on an urgent
basis. The provision of this Article requires a specific period of time which the Legislative Power should decide on bills regulating economic or financial matters, and in case they are not resolved within the specified period of time, the King may issue the bill as a Decree which has the force of a law. This enables the King to exercise the power of legislation unilaterally on matters which are related to certain things, like budget, imposition of public taxes, and such other matters which are regulated under Chapter V of the New Constitution related to financial matters. Practically, this will usurp the Legislative Power of its right to exercise its right of legislation on such matters, and there is no similar provision to this Article in the 1973 Constitution.
In addition, the 1973 Constitution provides, under Article (71), that “a member of the National Assembly shall have the right to initiate bills. A bill initiated by a member and rejected by the Assembly may not be re-introduced during the same session except with the approval of the Government.”
In the New Constitution, the initiation of bills is confined to the Government, and this is what is provided for under Paragraph (a) of Article (92), which states as follows: “……Any member of the two chambers is entitled to propose laws. Each proposal shall be referred to the relevant committee in the chamber in which the proposal was made, for an opinion. If the chamber deem it fit to accept the proposal, it shall refer it to the Government to formulate it as a draft…..or a draft law and present it to the Chamber of Deputies during the same or succeeding period.”
C) In Respect of the Regulatory Authority
Notwithstanding that the tools of regulatory authority in the 1973 Constitution are the same as those established in the New Constitution, yet there are material differences which are represented in the following:
* Putting Questions: This right is established to the member of the National Assembly without any exemption in the 1973, towards the Prime Minister and the Ministers (Article 66). In the New Constitution, it is a right established to the member of the National
Assembly towards only the Ministers, but not the Prime Minister, provided that the question must not relate to private issues or to his relatives to the fourth degree of relationship, or made by proxy.
* Expressing Wishes: Article (73) of the 1973 Constitution establishes the right to the National Assembly to express its wishes to the Government regarding public matters, and gives the National Assembly the right to comment on the Government’s statement if the Government cannot comply with these wishes. However, Article (68) of the New Constitution does not give the right to the Chamber of Deputies to comment on the Government’s statement.
* Questioning. This right, according to Article (67) of the 1973 Constitution, is given to any member of the National Assembly, without exception, may address to the Prime Minister and to Ministers interpellations. In the New Constitution, it is established to the Ministers only, but not the Prime Minister, by an application signed by at least five members of the Chamber of Deputies, and provided that the question may not relate to an interest of the questioner or his relatives to the fourth degree, or be made by proxy.
* Vote of Confidence. The 1973 Constitution stipulates an absolute majority to pass a no-confidence against a Minister. In other words, more than half of the number of the members constituting the National Assembly, while the New Constitution stipulates the approval of a majority of two-thirds to pass a no-confidence vote against the Minister.
* Non-cooperation with the Prime Minister. According to Article (69) of the 1973 Constitution, the question of confidence in the Prime Minister may be raised if two-thirds of the members of the National Assembly decide that they cannot co-operate with the Prime Minister, and the matter shall be submitted to the Amir for settlement. The Amir may either relieve the Prime Minister of office and appoint a new Cabinet or dissolve the National Assembly. If the National Assembly is dissolved and the office of the said Prime Minister is renewed but the new Assembly decide by a majority vote of the members constituting the National Assembly that it cannot co-operate with the said Prime minister, he shall be considered to have resigned his office as from the date of the decision of the Assembly in this respect and a new Cabinet shall be formed.
However, the New Constitution stipulates two-thirds majority of members of the elected Chamber (Chamber of Deputies) to consider it not possible to co-operate with the Prime Minister, and then the matter hall be referred to the appointed council (Consultative Council), after which the motion is referred to the King to either relieve the Prime Minister and appoint a new Cabinet, or dissolve the Chamber of Deputies.
We notice here that the New Constitution repealed the provision of Article (69) of the 1973 Constitution which concerns the resignation of the Prime Minister in case the new National Assembly, after dissolution, insists on non-cooperation with the Prime Minister. In addition, the New Constitution establishes that, in case of the King’s non-approval of relieving the Prime Minister, the dissolution of the elected Chamber (Chamber of Deputies) and not the two chambers (the Chamber of Deputies and the Consultative Council), although the decision of non-cooperation with the Prime Minister has been issued by the two Chambers separately. It is, no doubt, very strange and the Explanatory Memorandum does not say anything to clear this doubt.
* Regulatory Powers Repealed by the New Constitution
The New Constitution repealed two regulatory powers provided for in the 1973 Constitution, the first of which is established under Article (72), which states as follows: “Upon a request signed by at least five members, any subject of general interest may be put to the National Assembly for discussion with a view to securing clarification of the Government’s policy and to exchange views thereon. All other members shall also have the right to participate in the discussion.” The New Constitution also repealed the right of the Legislative Power’s Assembly to set up a special committee to deal with petitions and complaints submitted to the Assembly by citizens and the right of such committee to seek explanation thereon from the competent authorities and inform the person concerned of the results, as provided for under Article (75) of the 1973 Constitution.
* Financial Control
Before we conclude this brief comparison, we refer to the right of financial control established in the 1973 Constitution, as provided for under Article (97) thereof, which provides as follows: “a financial control and audit commission shall be established by a law, which shall ensure its independence. The commission shall be attached to the National Assembly and shall assist the Government and the National Assembly in controlling the collection of the State revenues and the disbursement of its expenditures within the limits of the budget……etc.”
The New Constitution provides, under Article (116), that “a Financial Control Office shall be established by law, and the law shall guarantee its independence. It shall assist the Government and the Chamber of Deputies in controlling the collection of State revenue and the disbursement of its expenditure within the budget limits.” This provision means that the Financial Control Commission will no longer be reporting to the Legislative Power Assembly. Then Legislative Decree No. (16) of 2002 was issued promulgating the Financial Control Bureau, published in the Official Gazette in the Issue dated 10 July 2002, which states, in Article (1) thereof, as follows: “There shall be established an independent bureau having a public juristic entity, called the Financial Control Bureau, which shall report to the King.” This provision fettered the hands of the National Assembly from exercising its control over the State’s financial affairs and making the Financial Control Bureau attached to the Executive Power, when it is supposed to be overseeing its affairs.
After this review, we answer the question represented in whether the provisions contained in the New Constitution are consistent with the principles defined by the National Action Charter which we referred to previously. Following is the answer to this question:
* In Respect of Powers
We said earlier that the New Constitution amended certain provisions in the 1973 Constitution related to the Amir’s powers (the King in the New Constitution), where it states that the King shall exercise his powers, first, directly, and then through his Ministers. This is contrary to the provisions of the National Action Charter in its respect.
* In respect of the People’s Exercise of the Legislative Power Through Their Deputies:
The National Action Charter provides that “it is now fitting for Bahrain to occupy its niche among constitutional monarchies following the democratic system which realizes the people’s ambitions for progress.” Therefore, it is also suitable to compare the provisions of the New Constitution with those established in “constitutional monarchies following the democratic government” in order to determine whether these laws, according to the New Constitution, are issued “in accordance with the recognized constitutional norms and traditions in well-established democracies (see Paragraph “Second” in the chapter entitled “Future Prospects” in the National Action Charter.
We believe that there is no doubt that what is meant by “constitutional monarchies of well-established democracies” and by “recognized constitution norms and traditions in well-established democracies,” as provided for in the National Action Charter, are the constitutional governments of well-established constitutional monarchies, such as Britain, the Netherlands, Spain, Japan, Denmark, etc. However, we also believe that comparing between the well-established constitutional governments of these monarchies with those of Bahrain is grossly unjust, for many reasons, first of all is that the royal families in these monarchies do not actually rule. For this reason, we will compare with two Arab constitutional monarchies, Jordan and Morocco, because the royal families in these two countries participate in rule through the King’s constitutional powers.
In Jordan, for example, laws are promulgated by a legislative power, the National Assembly, which consists of a bicameral chamber, comprising two assemblies: the Senate, the members of whom are appointed by the King, and the House of Deputies, whose members are elected by the people in universal suffrage, directly, and by secret ballot. Jordan’s constitution provides that the number of the appointed Chamber, including its Speaker, shall not exceed half the number of the members of the elected chamber. The contrition also stipulates that no member of any of two Legislative Power’s should be a relative of the King.
In Morocco, on the other hand, the “parliament” consists also of two chambers: the House of Deputies, whose members are elected directly, and the Chamber of advisers, three fifths of whose members are members elected in each region of Morocco by an election body consisting of representatives of local communities, while the remaining two fifths of its members consist of members elected also in each region of the country by election bodies consisting of elected members in professional chambers and members elected on the national level by an election body consisting of the representatives of employees (workers). This means that the members of each of the two chambers are elected, the first directly elected by all members of the public, while the second is elected indirectly by the representatives of professional bodies and labour unions and other private institutions and organizations.
By comparing the two constitutional monarchical systems, in terms of principles related to the form of the Legislative Power, with the government provided for in the New Constitution, we find a world of difference. For example, the number of the members of the appointed chamber in Jordan is not more than half the number of the members of the elected chamber, while in Morocco both chambers consist of members who are elected, either directly or indirectly.
Therefore, what is provided for in the National Action Charter, in respect of the constitutional monarchy which will occupy its niche among well-established constitutional monarchies of democratic governments, where laws are promulgated in accordance with the norms and customs of well-established democracies is, no doubt, not achieved in the New Constitution, even by way of comparing it with two constitutional Arab monarchical governments.
As regards the system of government in Bahrain that it is a democratic government in which the people will be the source of all powers, and that sovereignty, in the way described in the Constitution, in the manner established in the National Action Charter, what is meant by the principle that sovereignty is for the people is that their will is the supreme will which has an equal or higher will in the State, and that exercising this sovereignty, as provided for in most constitutions, is in accordance with the provisions of the Constitution. In other words, it is not a sovereignty
free of any restriction. The methods of exercising this sovereignty differs between one constitutional government and another. Without delving into the details of these methods, we believe that the 1973 Constitution adopted a democratic parliamentary government where the people elect their deputies who are members of parliament that exercises actual powers in the State, in particular the power to initiative and issue legislation, while combining certain aspects of the presidential rule, as we earlier said, in addition to the flexible separation between powers.
As to the New Constitution, while it has used certain foundations contained in the 1973 Constitution, in respect of the Head of the State and the organization of the Executive Power, and also in respect of the Legislative Power, yet it established a government which is far from the democratic parliamentary system. The element chosen in the National Assembly, represented in the House of Deputies, does not constitute majority, but is similar in number to the appointed element, i.e. the members of the Consultative Council, which exercises legislative power in addition to exercising certain aspects of the regulatory power.
The role of the appointed Consultative Council, according to the provisions established in the New Constitution, is not restricted in the exercise of the power of enacting legislation, but extends to include participation by the elected Chamber of Deputies in constitutional amendments. In this respect Paragraph (a) of Article (120), of the New Constitution, states as follows: “Exceptionally to clauses (b), (c) and (d) of Article (35) of this Constitution, for any provision of this Constitution to be amended, the amendment must be approved by a two-thirds
majority of the members of whom both the Consultative Council and Chamber of Deputies are composed, and the amendment must be approved by the King.” This provision means that a two-thirds majority of the appointed Council must approve any recommended amendment to the New Constitution. This means a restriction of the role of the elected Chamber of Deputies in respect of making amendments to the Constitution. This fact may not be changed by saying that even under the 1973 Constitution any amendment to it would have required the Amir’s approval to become effective. The reason is that the Amir and the National Assembly were participating in making constitutional amendments was dictated by the contractual nature of the 1973 Constitution. As to the provision established in the New Constitution in this respect, apart from being restrictive of the people’s will and power of expression through their elected deputies as far as constitutional amendments are concerned, it added a third power the approval of which is required to the constitutional constitution, i.e. the members off the elected Council, who have been given the capacity of representing the people as a whole. There is no doubt that this provision makes any amendment to the New Constitution is unattainable in theory and near to impossible in practice. As a result, saying that the people are the source of powers in the New Constitution is not consistent with what is established in the provisions of the Constitution in terms of provisions, or with the provisions of the National Action Charter.
* Safeguard of Personal Liberties
The provisions of the National Action Charter, contained in Chapter One, established safeguards for the personal liberties being a main pillar of the society, and that a person may not be arrested, detained, imprisoned or searched, or his place of residence specified or his freedom of residence or movement restricted, except under the provisions of the law. It also affirmed the inviolability of residences and that they may not be entered upon or searched without their occupants’ permission, but that this may be exempted in extreme emergencies specified by the law. The fact is that these provides reiterated the provisions contained in the 1973 in this respect. These general provisions are provided for under Paragraph (b) of Article
(36) of the 1973 in respect of the proclamation of martial law, which states as follows: “Martial law shall be proclaimed only by law, unless otherwise dictated by urgent necessity to be by a decree giving the justification therefor, provided that the matter shall be referred to the National Assembly within two weeks for decision. In all cases, the period of martial law shall not exceed three months, but this period may be renewed in whole or in part once or more, provided that approval by a majority of votes of the members constituting the National Assembly has been obtained. If the proclamation or renewal of martial law takes place during the period in which the National Assembly is dissolved, the matter shall be referred to the new Assembly at its first meeting.”
Martial law can be defined as “a legal system of rule put in place in advance to meet the requirements of certain necessities, such as invasion of the country by hostile forces, outbreak of disturbances and internal instability threatening in a serious manner public security and order. The imposition of such martial law leads to suspension of certain provisions of the Constitution and suspension of certain constitutional guarantees for individuals’ liberties and rights, and to the domination of the Executive Power and giving its extraordinary authority that limits the general liberties of individuals and organizations which are usually guaranteed by each constitution to citizens and to the population at large.” (Dr. Othman Abdul Malik Al Saleh, Constitutional System and Political Institutions in Kuwait, Chapter One, 1989 edition, page 451).
Although the New Constitution affirmed the principle of safeguarding public rights and liberties under Chapter III, yet in the detailed provisions related to the proclamation of martial law, it seriously undermined the safeguards provided for in the National Action Charter which stipulated that such liberties should not be violated or prejudiced except in accordance with the law. It also abrogated the safeguards provided under Paragraph (b) of Article (36) of the 1973 Constitution above-mentioned. The New Constitution states, in Paragraph (b) of Article (36), as follows: “A
state of national safety or martial law shall be proclaimed only by Decree. In all cases, martial law cannot be proclaimed for a period exceeding three months. This period may not be renewed except with the consent of the majority of members of the National Assembly present.” This provision has serious consequences, as follows:
1. The proclamation of martial law shall be by a Decree issued by the King and the Cabinet, and not by law issued by the Legislative Power in the manner defined in the National Action Charter and as provided for in the 1973 Constitution.
2. The Decree proclaiming martial law does not require justification as it was required in the 1973 Constitution, considering that justification is meant for the control over the Executive Power in case it proclaims martial law.
3. For a martial law to be proclaimed, it does not require an extreme case required by it, and hence the Executive Power is given free hand in this respect, without any supervision or control.
4. The extension of martial law does not require the absolute majority of the members of the Legislative Power, but the majority of the members present is enough, or that it shall be approved by the simple majority of the total number of the two chambers, including the appointed members.
The above clearly shows how serious the provisions contained in the New Constitution are in this respect, which may lead to infringement on liberties and the usurpation of public rights.
This provision does not only contravene the provisions of the National Action Charter and nullify the safeguards established in the 1973 in this respect, but it is also a null provision due to its express contravention of the unequivocal constitutional provision of Article (31) of the New Constitution itself, which states as follows: “The public rights and freedoms stated in this Constitution may only be regulated or limited by or in accordance with the law, and
such regulation or limitation may not prejudice the essence of the right of freedom.” Article (36) above-mentioned infringes on these rights and freedoms by virtue of a Decree issued by the Executive Power and not by virtue of a law issued by the Legislative Power, as provided for in Article (31) above.
* Separation of Powers
Finally, separation of the ether powers, while co-operating with each other in accordance with the provisions o the Constitution, requires first that a Legislative Power enjoying actual independence from the two parties to the Executive Power, i.e. the Head of the State- the King, Amir or President, and the Cabinet or Government, whether in terms of the formation of the Legislative Power or in terms of the exercise of its authorities and the nature of such authorities. As we explained above, and in accordance with the New Constitution, the King’s appointment of half the members of the Legislative Power negates independence from this Power. This may not be changed by the provision of Paragraph (a) of Article (89) of the New Constitution, which states as follows: “A member of either the Consultative Council or the Chamber of Deputies represents the people and cares for public interest. He shall not come under the sway or any authority in his work in the either chamber of its committees.” Representing the public is a capacity that is not given to a person not elected by the people to represent them, and the fact that half the members of the Legislative Power are appointed negatives independence of the Legislative Power. As to the provision that the member of the Consultative Council shall not come under the sway of any authority in his work in the Council or its committees, this is only a theoretical statement which has nothing to do with the provisions of the New Constitution. Since the appointment of the member of the Consultative Council and the continuation of his membership of the Council is contingent upon the King’s will, this member has no power of himself, because his presence is left to the one who appointed him. The best proof of this is the provision of Paragraph (f) of Article (33) of the New Constitution, which states that “The King appoints and dismisses members of the Consultative Council by Royal Order.” The authority of dismissal here is absolute.
On the other hand, the independence of the Legislative Power from the King and the Executive Power is not limited only to its constitution, but extends to its authorities and prerogatives. Although it is true that the separation of powers cannot be understood to be an absolute and rigid separation, particularly in the constitutional government which takes certain aspects of the parliamentary system in addition to some aspects of the presidential rule, yet the flexible separation of the powers or co-operating between them requires that legislation is left to the Legislative Power, while the Executive Power has the right to participate in the issue of legislation through the recommendation of laws and the right to approve them by the Head of State.
However, we find that the New Constitution has violated this principle or co-operation, because its gives the right to the King to bypass the Legislative Power by virtue of his right to issue decrees which has the force of law, in accordance with Article (87) related to economic and financial matters, which are decrees that may not be submitted, after being issued, to the Legislative Power for approval. This is one example of bypassing the Legislative Power. The other example is the provision of Article (43), which states as follows: “The King may conduct a popular referendum on important laws and issues connected with the interests of the State. The issue on which the referendum has been held is considered to have been agreed upon if approved by a majority of those who cast their votes. The result of the referendum shall be binding on all and effective from the ate it is declared, and it shall be published in the Official Gazette.” According to this provision, participation by any number of people of those who have the right to vote from among the people of Bahrain, without any minimum, in the referendum will make the approval by the majority binding and effective against all and bypasses the Legislative Power. This is a prejudice to the principles of parliamentary principles.
In addition, the New Constitution gives the King the authority to extend the legislative term of the Chamber of Deputies, when necessary, by a Royal Order, for a period of two years (Article 58), while Article (45) of the 1973 Constitution does not allow the extension of the legislative term of the National Assembly except
under emergency circumstances, provided that such extension of the legislative term is by law approved by the Assembly by a two-thirds majority of its members. Article (58) of the New Constitution leads to the suspension of the right of the electors to elect new deputies in accordance with the principle of the regularity of elections.
As regards the relationship between the Legislative Power and the second party to the Executive Power, i.e. the Government, the role assigned to the Government, according to the New Constitution, has reduced drastically the role of the Legislative Power in exercising its authorities, in addition to the domination of the Government over this Power. Following are examples:
Article (64), Paragraphs (b) & (c)
(a) Notwithstanding the preceding paragraph, the King may defer election of the Chamber of Deputies if there are compelling circumstances whereby the Council of Ministers considers holding elections is not possible.
(c)If the compelling circumstances mentioned in the preceding paragraph continue, the King, taking the opinion of the Council of Ministers, may restore the dissolved Chamber of Deputies and invite it to convene. This Chamber of Deputies shall be regarded as extant from the date of promulgation of the Royal Decree restoring it. It shall exercise its full constitutional powers. The provisions of this Constitution shall apply to it including those pertaining to completion of the Chamber’s term and dissolution. The session the Chamber holds in such a case shall be regard as its first session irrespective of the date of its commencement.
The above-mentioned provisions lead to many results, the most important of which being the suspension of the role of the Legislative Power indefinitely, without this Power having any means to confront this suspension, contrary to what is provided for in Article (65) of the 1973 Constitution which states that in the event of dissolution, elections for the new Assembly shall be held within a period not exceeding two months from the date of dissolution. In addition, Article (64) of the New Constitution makes the Cabinet party to
determining the fate of the Legislative Power in addition to the King, while this dissolution was restricted only to the King in the 1973 Constitution, without the Cabinet having any role in this.
Article 81
This Article states that priority of debate, whether in the Chamber of Deputies or the Consultative Council, shall always be given to bills and proposals put forward by the Government, and accordingly the Legislative Power cannot debate any bill submitted by its members except after the bills and recommendations submitted by the Government are resolved.
Article 92
Irrespective of what is provided for in this Article in respect of the right to propose any amendment to the Constitution, the provision of this Article does not differentiate, in respect of proposals to amend laws, between the right to propose a bill and formulating a draft bill. It decides that any member of the Consultative Council or the Chamber of Deputies is entitled to request proposing a law, but the format of the draft bill, after it is accepted, shall only be made by the Government, which has the discretionary power to submit it to the Chamber of Deputies within the same term or in the next term. This provision means that the proposals made by the Legislative Power on laws are not debateable unless they are submitted by the Government which, through its advisers and staff, shall formulate bills and laws.
Conclusion
The final conclusions which we can make from this discussion are as follows:
First: The provisions contained in the New Constitution, whether related to powers or the principle of the people’s exercise of their right to sovereignty through an independent Legislative Power that initiates legislation and exercises control over the Legislative Power, have demolished the principles and bases provided for in the National Action Charter. They added to the constitutional organization things which are not dealt, either directly or remotely, by the National Action Charter.
Second: The National Action Charter is a political document which laid down general bases and principles for the form of the Government and the system of Government and its principles, by introducing the bicameral system of Legislative Power where one of the two chambers is elected directly and freely by the members of the public, and which unilaterally undertakes legislative tasks, while the second chamber is appointed from among those who have knowledge and experience to seek their assistance in providing non-binding opinions to the elected Chamber. The New Constitution expressly contravened the principles and bases.
Third: There is nothing in the National Action Charter that says, either explicitly or implicitly, that it is a means of amending the 1973 Constitution or a bypass the procedural or substantive provisions established in the Constitution. There is also nothing in the National Action Charter that provides, either explicitly or implicitly, that the people’ approval of it means that the people have vested in the Amir the trust of making the constitutional amendments without complying with the procedures required for such amendment as provided in the 1973 Constitution.
Fourth: The New Constitution is a grant Constitution, which has prejudiced the constitutional rights which were established to the people in the 1973 contractual Constitution. In addition, it has robbed the general and total principles and provisions of their contents and actual objectives. Despite that the New Constitution provides that the system of Government in Bahrain is democratic, in which sovereignty is for the people who are the source of powers, and that the system of government is based on the principle of separation of the powers and their co-operation with each other, yet its detailed provisions robbed these principles of any actual content.
Fifth: The claim in the Explanatory Memorandum that the National Action Charter has repealed the constitutional provisions contrary to it is a serious statement, which leads to serious consequences, the first being cancellation of the constitutional organization made by the 1973 Constitution, and the most serious of which being the undermining of the legitimacy of the system of Government.
Sixth: The provisions related to the New Constitution decide certain procedures for its amendment, being the approval of such amendment by the two-thirds majority of the members constituting the Consultative Council and the Chamber of Deputies. They also put a substantive ban on not allowing any proposal to be made to amend the bicameral system established in the Constitution, which makes any amendment or improvement to the Constitution an impossible thing in the framework of the organization of the Legislative Power Assembly established in this Constitution.
Almighty Allah is the purveyor of success.