The Constitutional Law and the Legal system of the Kingdom of Bahrain
By Khalil Mechantaf
Khalil Mechantaf is an Attorney at Law in Beirut, Lebanon. He is currently a Legal Associate in private practice with a main focus on international law and agreements, and a member of the Editorial board of the Journal of Arab Arbitration. He has previously worked at the International Criminal Court and has published several studies on the judicial system in Lebanon.
Published April 2010
Table of Contents
Bahrain is a constitutional/central monarchy ruled by Al Khalifa family and transferred from the King to his oldest Heirs, unless the King appoints before his death one of his other Heirs to exercise his powers. The current king is Hamad Ibn Isa Al Khalifa.
The Kingdom of Bahrain gained full independence from Britain in August 1971. Since then Bahraini law has followed similar pattern to other Arab states legislation, particularly Egyptian codes. The system of Governance is Democratic. Islam is the religion of the Kingdom and the legal system is based on the Islamic Sharia, codified systems and the English common law. The Islamic Sharia is the major source of legislation, followed by custom; natural law or principles of equity and good conscience.
The Constitution entered into force on December 6, 1973 and was suspended in 1975. A national charter was declared following a referendum undertaken on the 14 and 15 of February 2001. As a consequence, the King rendered the Constitution after incorporating the amendments according to the provisions of the national charter.
The Constitution refers, among others, to the right of vote for every mature citizen regardless of his sex (article 1); justice, freedom and right for education as the fundamental constituents of society (art. 4); equality between man and woman without violating the rules of Islamic Sharia (art. 5); the creation of two legislative councils: an elected Parliament and an Advisory Council; the freedom of worship, private work, movement of capitals and the respect of private properties (art. 9 and 22); equality of citizens towards the rule of law regardless of sex, race, language, religion or ideology (art. 18); prohibition of torture, of arbitrary detention, and protection of personal freedom (art. 19); principles of nullum crimen sine lege (art. 20) and trias politica (art. 32).
The King enjoys a broad legislative and executive mandate. He assumes the Executive Power with the Council of Ministers, and the Legislative Power with the National Council. In addition, the judicial decisions rendered by the State courts are rendered in his name. The King appoints the Prime Minister, the Ministers, and members of the Executive power. He is the Supreme Commander of the Armed Forces and defines the Kingdoms foreign policy.
According to the Constitution, the King is the protector of the legality of the government and the supremacy of law. He can propose constitutional amendments and initiates laws, and he alone ratifies and promulgates the laws.
A bill is considered to have been ratified and promulgated by the King if a period of six months from the date of its submission from the Advisory Council and the Parliament without the King returning it to any of the those councils for reconsideration.
If the Parliament or the Advisory Council reconfirms the bill by a majority vote of two thirds of its members, the King shall ratify and promulgate the bill within one month from the date of reconfirmation.
The King signs and ratifies treaties as well by a decree and transfers them to the Advisory Council and the Parliament. A treaty can have the force of a law upon ratification and publication in the official Gazette. As for peace treaties and alliances, treaties concerning the territory of the State, its natural resources or sovereign rights, or public or private rights of citizens, trade treaties, navigation or residence and treaties that cause additional expenditures not provided for in the budget of the State or which include amendments to the laws of Bahrain, those treaties can only come into effect when made by a Law. A treaty may never include, under any circumstances, secret provisions that contradict its declared conditions.
The King may, should a necessity arise for urgent measures to be taken without delays while the Advisory Council or the Parliament are not in session, or in case the latter is dissolved, issue decrees in respect of the treaties which shall have the force of a law, provided that they are not contrary to the Constitution. Those decrees shall be referred to both Councils within one month from the date following their issue if the Advisory Council or the Parliament is in session or within one month from the first meeting of any of the new Councils if it is dissolved or its legislative term has expired. Any failure in such referral, it will automatically cease to have the force of a law. The same goes if they are referred and the Councils do not confirm them.
Also as part of his legislative mandate, the King may grant a pardon or commute a sentence by a decree. Amnesty can only be granted by a Law for crimes committed prior to the proposal of the Amnesty.
The King may dissolve the Parliament according to a motivated decree. The Parliament cannot be dissolved a second time for the same reasons.
As being the Supreme Commander of the Armed Forces, the declaration of defensive war is made by a decree issued by the King himself and instantly referred to the Parliament following the declaration. The latter will decide on the fate of such declaration. Offensive war is prohibited by the Constitution. National peace and Martial laws are proclaimed by a decree for a maximum period of three months, and can only be extended upon the approval of the majority of the members of the Parliament who are present during the vote.
The king appoints and removes civil and military employees and diplomatic representatives at States and international organizations. He also accepts credentials of the representatives of States and organizations.
The Executive power is assumed by the King along with the Council of Ministers, and composed of the Prime Minister and the Ministers.
The Council of Ministers formulates the general policy of the Government, pursue its execution and supervise the functioning of the Governments departments. The King presides over the meetings of the Council of Ministers.
The mandate of the Bahraini Prime Minister is similar to that of most Arab Prime Ministers. According to the Constitution, the Prime Minister supervises the functions of the Council of Ministers, implements its decisions and coordinates the activities of the various ministries in order to ensure that their functions are integrated. The resignation of the Prime Minister would lead to the resignation of all the Ministers. The resigned Prime Minister or Minister continues to deal with urgent matters until a successor is appointed.
Every Minister supervises the affair of his Ministry and executes therein the general policy of the Government. He formulates directives for the Ministry and supervises their execution. While in office, a Minister cannot hold any other public office, nor can he practice, even indirectly, a profession or undertake any industrial, commercial or financial business. He is not entitled to participate in any concession granted by the Government or by public bodies or cumulate the ministerial post with membership of the board of directors of any company, except as a representative of the Government and without any remuneration. During the period of his mandate, the Minister cannot buy or take on hire any property of the State even by public auction, nor can he let, sell or barter any of his property to the State.
Deliberations of the Council of Ministers are secret. Decisions are passed when the majority of its members are present and with the approval of the majority of those present. In case of an equal division of votes, the side on which the Prime Minister has voted prevails. Unless they resign, the minority abides by the opinion of the majority. Decisions of the Council are submitted to the King for ratification in cases where the issue of a decree is required.
The law regulates general and municipal self-governing bodies in such a way as to ensure their independence under the direction and supervision of the State.
The State guides bodies of public interest in such a way that they conform to the general policy of the State and the benefits of the citizens.
A National Assembly was created on June 1972 and dissolved on August 26, 1975. The legislative powers were controlled by the Council of Ministers, until an Advisory Council was established in 1992 of forty appointed members with the power to propose draft laws. The amended Constitution rendered on February 14, 2002 ordered the establishment of a legislative committee composed of two, rather than one Council. The Committee preserved the appointed Advisory Council and granted it broader legislative powers. It also reinstituted the elected Parliament with the power to propose and ratify draft laws. Each of the councils, the Advisory Council and the Parliament, is composed of forty members. They both constitute the National Council.
Members of the Advisory Council are appointed by the King. They should be Bahraini nationals and have no less than thirty five years of age upon appointment. The term of appointment is four years. A member whose membership reached its term may be reappointed. If, for any reason, a seat in the Advisory Council becomes vacant before the end of the term of the member, the King shall appoint a successor for the remaining period of his predecessor. A member may submit his resignation to the President of the Council, who in turn refers it to the King. The membership ends only upon the approval of the King on such resignation. The King appoints the President of the Advisory Council for a term similar to that of the Council, while the members of the Council elect two Vice Presidents for each session.
The Advisory Council holds its meetings at the time of the Parliament. If the Parliament is dissolved, the Advisory Council puts an end to its sessions.
Members of the Parliament are elected by secret ballot. Each member should be a Bahraini national and have at least thirty years of age at the day of the election.
The term of the Parliament is four calendar years commencing from the date of its first meeting. Elections for the new Parliament take place within four months preceding the expiry of the said term, while members whose term of office expired may be re-elected. The King, when necessary, may extend the mandate of the Parliament for a maximum of two years.
If, for any reason, a seat in the Parliament becomes vacant before the end of the term, the vacancy shall be filled by election within two months from the date on which the Parliament declares the vacancy. The term of the new member lasts until the end of the term of his predecessor.
The Parliament is the competent authority to approve the resignation of its members. The resignation is only effective upon its endorsement by the Parliament. If a vacancy occurs within six months prior to the expiry of the legislative term of the Parliament no successor shall be elected.
When holding its first session, the Parliament elects a President and two vice Presidents from its members for the Parliaments term. If any office becomes vacant, the Parliament elects a successor for the remainder of its term. The Election is based on the absolute majority of votes of those present. If such majority vote is not attained in the first ballot, a second ballot will be held between the two candidates receiving the highest number of votes in the first ballot. A relative majority is sufficient at this stage. Should the votes be equal, the Parliament will choose a candidate by drawing lot.
The Parliament holds its first session under the presidency of the oldest member.
The Court of Cassation is the competent authority to settle any annulment recourse filed against the legislative elections.
Within the first week of its annual session, the Parliament forms the committees required for its functions. Such committees may convene outside of the Parliaments meetings.
Should the Parliament be dissolved, the election of the new parliament must be held during a maximum period of four months from the date of the dissolution. The King may postpone such election if there are urgent circumstances according to which the Council of Ministers considers that the holding of new elections is impossible.
Every Minister shall report to the Parliament on the affairs of his Ministry.
The interpellation of a Minister with regard to matters falling within his competence may be raised upon a request signed by at least five members of the Parliament. The interpellation should not be on the private interest of the Minister or any of his cousins. The Parliament may not start a debate upon such a request before the elapse of eight days from the presentation thereof.
The interpellation may lead to vote on the confidence of the Minister by the Parliament. The question of confidence in a Minister may not be raised except upon his request or upon a demand signed by ten members of the Parliament, following a debate on an interpellation addressed to him. The Parliament may not make a decision upon such a request before the elapse of seven days from the presentation thereof.
If the Parliament passes a vote of no confidence against a Minister he will 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 made by a majority of two thirds of the members constituting the Parliament.
The question of confidence in the Prime Minister cannot be raised by the Parliament. If two thirds of the members of the Parliament decide that they cannot cooperate with the Prime Minister, the matter will be submitted to the National Council for settlement. The latter may not render a decision on the matter of cooperation with the Prime Minister before the elapse of seven days from the date such matter was submitted. If two thirds of the members of the National Council decide that they cannot cooperate with the Prime Minister, the matter shall be submitted to the King for settlement. The King either relieves the Prime Minister of office and appoints a new council of Ministers or dissolves the Parliament.
The Bahraini Constitution laid down several provisions that are common to both Councils and granted them major legislative powers. Accordingly, no law can be passed without the confirmation of the Advisory Council and the Parliament or the National Council as deemed by the circumstances, and ratified by the King.
The National Council convenes on the second Saturday of October, unless the King convokes the Council to hold its meeting before this date.
Notwithstanding the abovementioned provisions, the National Council convenes the day after the elapse of one month from the date of the appointment of the Advisory Council or the election of the Parliament, unless the King convokes the Council to hold its meeting before this date.
The King inaugurates the ordinary session of the National Council by the royal speech. Each of the Councils chooses a committee from its members to prepare a draft reply to the speech, which shall be submitted to the King upon ratification. The Advisory Council and the Parliament will, by a royal decree, be called to an extraordinary session if the King deems it necessary, or upon the request of the majority of its members. In an extraordinary session, the Council may not consider matters other than those for which it has been convened. The King announces by a royal decree the prorogation of ordinary and extraordinary sessions.
Sittings of both Councils are public. However, they may be held in camera upon the request of the Government, the Speaker of the Council or ten of its members. The debate on such request is held in camera.
The King may, by a royal decree, adjourn the meeting of the National Council for a period not exceeding two months. Adjournment may not be repeated during the same session.
For a meeting of the Advisory Council and the Parliament to be valid, more than half of its members must be present. Resolutions are passed by an absolute majority vote of the members present, except in cases where a special majority is required. In case of an equal division of votes, the side on which the Speaker has voted prevails. In case the vote is related to the constitution, it should be done by calling each of the members. If the quorum for such meetings was not satisfied in two consecutive times, the meeting of the Council shall be considered valid if at least a quarter of its members are present.
Each Council has its own internal law that organizes the discussions, voting, questions and interpellation in the Advisory Council and the Parliament along with their committees, in addition to the penalties that may be inflicted on the members who violate its rules or refrain from attending the sessions of the Council or its committees without a valid reason.
The Prime Minister submits the draft laws to the Parliament who may approve the law, amend or reject it. In all cases, the draft law is referred to the Advisory Council who may approve, amend or reject it, or adopt, amend or reject the modifications of the Parliament to that same law. Priority in discussions is always given to draft laws and proposals submitted by the Government. In case the Advisory Council disapproves a draft law adopted by the Parliament, whether by rejection, amendment, deletion or addition, the President of the Council refers it back to the Parliament for its review.
If the Parliament approves the version of the draft law submitted by the Advisory Council, the President of the latter Council refers it to the Prime Minister who submits it to the King. The Parliament may reject any amendment on the draft law made by the Advisory Council, and insist in turn on its previous decision without introducing any new amendments to the draft law. In this case, the draft law shall be referred to the Advisory Council, who may approve the decision of the Parliament or insist on his position.
If the Advisory Council and the Parliament disagree twice on any draft law, the National Council shall convene to discuss the issues subject of disputes. The draft law may be approved by a decision of the National Council rendered by the majority of its present members. If the draft law was rejected, it shall not be submitted twice to the National Council during the same session.
Each draft law on economic or financial issues is submitted, upon the request of the Government, to the Parliament for approval during a period of fifteen days. In case such period has expired, the draft law is referred to the Advisory Council to decide upon it during a period of fifteen days. In case of a dispute between both Councils over the submitted draft law, the National Council may render its vote during a similar period. If such period has expired, the King may ratify the said law by a decree.
Online legal portals are: Bahrain center for Studies and Research ; Justice-Law. This portal is a compilation of most Laws of Arab countries and international agreements signed between Arab States. You must subscribe to access its content and subscription is free of charge. (Arabic only)
The constitution preserves the immunity of members of both Councils through a series of protections in order to allow them to fully play their role as representatives of the entire people. The member safeguards the public interest and shall not be subject to any authority in the discharge of his duties in the Assembly or in its committees.
A member of the Advisory Council or the Parliament is free to express any views or opinions in the Assembly or in its committees, and under no circumstances shall he be held liable in respect thereof, unless such views expressed violate the basis of the ideology, the unity of the nation, the respect towards the King or an intervention in the private of life of any person.
Except in cases of flagrante delicto, no measures of detention, investigation, search, arrest, imprisonment or any other criminal measure may be taken against a member while the Advisory Council or the Parliament is in session without the authorization of the Council in which he is a member. If the National Assembly is not in session, such authorization shall be obtained from the Speaker of the Council. If the of the Council or its President does not give a decision regarding a request for authorization within one month from the date of its receipt, permission shall be deemed to have been granted.
Similarly to the membership in the Council of Ministers, the Constitution laid down restrictions on the membership in the Advisory Council or the Parliament, since it is prohibited to have a membership in both Councils, or be a member in any of the Councils and hold any other public office, or cumulate the ministerial post with membership of the board of directors of any company, nor can a member participate in any concession granted by the Government or by public bodies. During the period of his mandate, a Member cannot buy or take on hire any property of the State even by public auction, nor can he let, sell or barter any of his property to the State, except through a concession or expropriation for public interest.
Every member of the Advisory Council or the Parliament may put to the 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. The question should not be related to the private interest of the questioner or any of his cousins.
Fifteen members of the Advisory Council or the Parliament may propose an amendment to the Constitution, while any member of the both Councils may propose draft laws. Each proposal is referred to a special committee in the Council in which the proposal was made. If approved by the Council, the proposal will be referred to the Government who issues a draft amendment to the constitution and submits it to the Parliament during the same session or in the following one.
The Bahraini law regulates the various kinds and degrees of courts and specifies their functions and jurisdictions. The Judiciary is divided into two branches: The Civil Law Courts and the Sharia Law Courts.
The civil Courts have the power to settle commercial, civil and criminal cases, as well as all other cases related to the personal status law (family law) of non-Muslims. The personal status law is still not codified. The Supreme Court of Appeal, or the Court of Cassation, was created in 1989. It is the final Court of Appeal for commercial, civil and criminal cases. Recourse to Appeal against decisions with regard to the personal status is allowed before this Court for non-Muslims.
The Courts applying the Islamic Sharia Law have the jurisdiction to settle all cases related to the personal status of Muslims, whether Bahraini citizens or foreigners. The Sharia law courts are divided into Sunni and Shii sections, with jurisdiction over disputes relating to Muslim personal status (except disputes over estates that fall under the jurisdiction of the competent civil courts, though those courts are obliged to divide estates in accordance with Islamic law). There are three degrees of the Sharia Courts: Junior Sharia Courts that hear personal status cases in the first instance, Senior Sharia Courts and High Sharia Court of Appeal having ultimate appellate jurisdiction. The sharia courts apply classical Islamic personal status law to Muslims without reference to state law.
In addition to civil law and Sharia law courts, the military Courts form part of the judicial power and have a jurisdiction restricted to military crimes committed by members of the armed and security forces and shall not extend to others except during the time of martial law and within the limits determined by the law.
Sittings of the courts shall be public except in cases prescribed by the law.
In September 2000, the Supreme Council of the Judiciary SCJ was created, and has a main mission of supervising the Judiciary. According to the Constitution of 2002, the King is the Chair of the SCJ. The President of the Court of Cassation as well as Judges from the Highest Courts of Appeal, applying the civil law and the Sharia law, constitute the members of the SCJ.
The Constitutional Court, established pursuant to the Constitution, examines the conformity of the laws with the constitutional provisions. This Court is composed of a President and six members appointed by the King according to the recommendation of the SCJ.
The Law lays down the rules that provide safeguards for the non-recusation of the Courts members, and guarantees the right of the King, the Government, the Advisory Council, the Parliament and individuals with interest to file before the Court their claims to annulment in the constitutionality of the Laws. The decision declaring a law unconstitutional shall be retroactive and have immediate effect unless the Court specifies a date starting from which such decision shall have effect.
The honor of the judiciary and the integrity and impartiality of judges are the bases of rule and a guarantee of rights and liberties. In the administration of justice judges shall not be subject to any authority. No interference whatsoever shall be allowed in the conduct of justice. The law shall guarantee the independence of the judiciary and shall state the guarantees and provisions relating to the judges. The law shall specify the rules for public prosecution, rendering of legal opinions, drafting of legislation and representation of the State before the courts. The law shall regulate the legal profession.
According to the provisions of the amended Constitution, the legislative authority is vested in the king and the National Council, consisting of an Advisory Council and an elected Parliament. Executive authority is vested in the king and his appointed Council of Ministers.
The king may issue decrees with the force of law, but they must be referred to both the Advisory Council and the Parliament.
The Constitution establishes a Supreme Council of the Judiciary to supervise the courts and a Constitutional Court to watch over the constitutionality of laws and statutes.
No general tax may be established, amended or abolished except by law. No one may be exempted, wholly or partially, from the payment of such taxes except in the cases specified by the law. No one may be required to pay any other tax, fee or imposition except within the limits of the law. The law prescribes the rules for the collection of taxes, fees and other forms of public funds and the procedure for their expenditure.
Local bodies such as municipalities or public bodies may grant, borrow or guarantee loans in accordance with their own regulations.
The Government shall draw up the annual budget, comprising the revenue and expenditure of the State, and submit it to the Parliament in at least two months before the end of each current fiscal year. The Parliament shall refer it to the Advisory Council for review according to the provisions of the Constitution. The budget shall be discussed part by part, and may be drafted for more than one fiscal year. In no case shall the maximum estimation of expenditures, included in the budget law or the laws amending it, be exceeded. Any expenditure not included in the budget, or in excess of the budget appropriations, shall be entered into effect by a law.
Funds for more than one fiscal year may be appropriated by a law if the nature of the expenditure so requires. In this case, each annual successive budget shall include the funds allocated for that year in the way established by the said law. In addition, an extraordinary budget valid for more than one fiscal year may be drawn up separately for the expenditure referred to in the preceding item.
The budget law may not include any provision for establishing a new tax, increasing or amending an existing law, or evading the issuance of a law on a matter in respect of which the Constitution provides that its regulation shall be by a law.
The final account of the financial affairs of the State for the preceding year shall be submitted first to the Parliament within the five months following the end of the fiscal year. The ratification of the final account shall be by a decision of the Advisory Council and the National Assembly, together with their comments.
Together with the draft annual budget, the Government shall submit to the Parliament a statement on the financial and economic situation of the State and arrangements made to implement the appropriation of the budget in effect and the effect thereof on the new draft budget.
A financial control and audit commission is established by a law, which ensures its independence. The commission assists the Government and shall assist the Government and the Parliament in controlling the collection of the State revenues and the disbursement of its expenditures within the limits of the budget. The commission submits to both the Government and the Parliament an annual report on its activities along with its observations.
No concession for exploitation of either a natural resource or a public service may be granted except by a law and for a limited period.
The law shall regulate currency and banking and determine standards, weights and measures.
The Bahraini Constitution explicitly provides that the application of its provisions shall not affect treaties and conventions previously concluded by the Kingdom of Bahrain with other States and international organizations.
The Constitution adds with regard to the respect of its provisions that no such provisions may be suspended except when martial law is in force and within the limits specified by the law. Safeguards for the protection of the Kingdoms institutions were also provides whereas under no circumstances the meetings of the Parliament or the Advisory Council be suspended, nor the immunities of its members be interfered with, during such period.
The following is an exhaustive list of laws of the Kingdom of Bahrain:
· Code of Civil and Commercial Procedures and its amendments n° 12/1971;
· Code of the legal professions and its amendments n° 26/1980;
· Code of the Court of Cassation n° 8/1989;
· Code of evidence in Civil and Commercial matters n° 14/1996;
· Code of political associations n° 26/2005;
· Code of commercial registry n° 1/1961;
· Code of the special rules of joint stock companies n° 12/1984;
· Commercial code n° 7/1987;
· Code of international commercial arbitration n° 9/1994;
· Decree n° 39/2002 on the General Budget;
· Code of commercial secrecy n° 7/2003;
· Bankruptcy code n° 11/1987;
· Corporate and insurance code and its amendments n° 17/1987;
· Code of nationality and its amendments of 1963;
· Code of criminal procedures n° 46/2002;
· Code of the prohibition of human trafficking n° 1/2008
· Code of Islamic affairs and the organization of the Sunni and Jaafari Councils n° 6/1985;
· Code of general health n° 3/1975;
· Decree on the prevention of contagious diseases n° 14/1977;
· Code of higher education n° 3/2005;
· Code of education n° 23/2005;
· Decree n° 3/1982 on the General Security Forces;
· Code of expropriation for the general interest and its amendments n° 8/1970;
· Code of construction n°13/1977;
· Code of real estate selling contracts n° 16/1979;
· Civil code n° 19/2001;
· Code of civil aviation n° 6/1995;
· Code of civil defense n° 5/1990;
· Code of guardianship on minors n° 7/1986;
· Decree n° 28/1999 Respecting the Establishment & Organization of Industrial Estate
Laws are published in the Official Gazette. Case reporting is restricted to the judgments of the Court of Cassation, the highest court in Bahrain. There are no official publications of the Sharia Courts decisions.
· Middle East Legal Systems. Glasgow: Royston Ltd., 1985;
· Basis of Liberties in the Kingdom of Bahrain by Abdel Aziz Muhamed Salman, Centre of Bahrain for Studies and Research, 2008;
· Family and Marriage Cases by Ali el Kaimi, Dar el Nobala, 2003;
· Islamic Marriage and Divorce Laws of the Arab World, El Alami and Hinchcliffe, London, 1996;
· Commercial Law in the Arab Middle East: The Gulf States, Ballantyne, London, 1986;
· Bahraini Bankruptcy law by Justice Said Abdullah El Hamidi, 2010;
· Business Laws and Practices of Bahrain by Shair Management Services Staff, 1979;
· Bahrain Energy Policy, Laws and Regulation by Ibp Usa, 2008;
· Arbitration with the Arab Countries by Abdel Hamid El Ahdab, Kluwer Law International, 3rd edition 2010;
· Bahrain Taxation Laws and Regulations by Ibp Usa, 2008;
· Online legal portals: Bahrain Center for Studies and Research ; Justice-Law This Portal is a compilation of most Laws of Arab countries and international agreements signed between Arab States. You must subscribe to access its content and subscription is free of charge. (Arabic only).