The Kingdom of Bahrain: The Constitutional Changes

Bahrain's route to democratization and the restoration of Parliamentary life has, in the view of many outsiders, been rather impressive in the less than three years since Sheikh Hamad bin ‘Isa Al Khalifa succeeded his father as Amir. And not just in the view of outsiders: many of the country's leading opposition figures in exile have returned to the country. The once-notorious security services have been reformed, and emergency laws repealed; there has been amnesty for those in exile, and new, more liberal laws in a number of areas. In late 2000 a National Action Charter was introduced, outlining a proposed return to parliamentary life through the election of a new lower House alongside an upper house appointed by the Amir. (See the Dossier, "Bahraini Political Reform: An Elected Parliament of Sorts?" in The Estimate for December 29, 2000.) That Charter was adopted in a referendum in early 2001.

On February 14, the anniversary of the Charter's approval, the Amir issued a decree implementing the proposed reforms and calling for elections for municipality governments as well as for election of the new lower house later this year. The decree also declared Bahrain a constitutional monarchy and it did something else as well: it made it a Kingdom. The State of Bahrain has become the Kingdom of Bahrain, and Sheikh Hamad has become King Hamad, by his own decree.

The change from Amirate to Kingdom has drawn most of the attention, but the manner of its implementation has also drawn some criticism from those who had previously praised the reforms. The main problem is how they were implemented: by Amiri decree, now a royal decree. This circumvented a constitutional problem that the whole National Action Charter approach had raised. Bahrain has a constitution from 1973, following independence in 1971; and changes in that constitution must be initiated by Parliament. The trouble is, Parliament was "suspended" in 1975 and never restored. In order to create a bicameral system with an elected lower house, in other words, the constitution has to be amended, but there is no parliament to amend it. Hence the decree, though its constitutionality is, to say the least, unclear.

It is also not entirely clear why Hamad insisted on taking the title of King and giving the "State" (dawla) of Bahrain the title of Kingdom. Of the six hereditary state systems on the Arabian peninsula, Saudi Arabia's alone is designated a Kingdom (though even the Saudi King has taken to using the title of Protector of the Two Holy Places of Mecca and Medina). Oman is a Sultanate (though with many of the protocol features of a kingdom, including the use in English of the word "royal" and addressing the Sultan as "His Majesty"). Bahrain, Kuwait and Qatar each was designated "State of ..." and its ruler called Amir; the United Arab Emirates, despite its name, routinely designates the rulers of each of the Emirates not as Amir but as "Ruler". Bahrain is smaller than most and poorer than most, yet it is now a Kingdom.

This Dossier looks at the February decrees and also at the reform process and the forthcoming elections, as well as the question of why Bahrain is suddenly a Kingdom, and Hamad (Profile, this issue) is suddenly a King.

Bahrain will hold municipal elections on May 9; and the first parliamentary elections since 1973 will be held on October 24, somewhat earlier than some had expected. That is major news in a country whose parliament was suspended in 1975 and never recalled. Women will have full equality in voting and may run for office, and an independent Constitutional Court will be established. Bahrain will have the second true Parliament in the Gulf Cooperation Council states, after Kuwait, but women still cannot vote in Kuwait. Qatar has given women the vote, but is still writing the constitution that will create its proposed Parliament.

But these major steps towards restoring parliamentary life were somewhat overshadowed, in many headlines in the Arab world and abroad, by the transformation of the country's name and the ruler's title.

The first of the decrees issued on February 14 carried the title "Royal Order Number One of 2002"; the phrase "Royal Order" instead of "Amiri Order" was explained in the first clauses, which declared the official name of the state to be the Kingdom of Bahrain and the official title of the ruler to be the King of Bahrain. It was signed by "The King of Bahrain, Hamad bin ‘Isa Al Khalifa". In subsequent days it was announced that changes were being made to the flag and the national anthem as well: the flag will add symbols to represent the five pillars of Islam, while the King's royal flag will add a crown.

The idea of changing the state into a Kingdom had been discussed extensively since late in 2000; some expected the National Action Charter announced at that time to make the change. Instead, the Charter merely said that the country would be a "hereditary constitutional monarchy" and that a constitutional amendment should "stipulate" the name of the state.

One question has long been, why? Bahrain is a tiny state, consisting of two main islands and a scattering of reefs and islets; as noted in the introduction, the only other Arabian peninsula state calling itself a Kingdom is Saudi Arabia. The Saudis may be annoyed to have another King on the block, especially a King of such a small Kingdom.

In addition, the change in title distracts attention from the democratization process, and is easy enough to lampoon; not only did it get mentioned in most headlines internationally, but few news stories failed to note how small the new Kingdom is.

The reasons for the move have never actually been spelled out by the Amir himself. Some have argued that the move might be aimed at securing Bahrain's independence in the event Iran ever revived its dormant claim to the islands, but Bahraini independence is not really strengthened by a mere change of name. In 2000, when the move was first discussed, some thought it might have something to do with Bahrain's case in the World Court with Qatar over boundary disputes, but those disputes were already settled by the Court.

In any event and for whatever real reason, Bahrain has been declared a Kingdom and its ruler a King. The more important democratization moves deserve to be understood in their own right, whatever one may think of the country's new and perhaps a bit ambitious self-designation.

The Amended Constitution
But the fuss over becoming a Kingdom has, as noted, somewhat distracted attention from the constitutional reforms which will give Bahrain an elected lower house. Though the basic outlines had been known for more than a year since the original introduction of the National Action Charter in December of 2000, the constitutional changes spell things out in much greater detail.

The new bicameral parliament will be called the National Assembly (Al-Majlis al-Watani). It will consist of two houses, an appointed Consultative Council (Majlis al-Shura) and an elected Chamber of Deputies (Majlis al-Nawab). The original plan as spelled out in the Charter seemed to imply that the Consultative Council would be identical to the body of the same name which was established in 1992. But that council has now been dissolved; it consisted of 30 members, while the new Consultative Council, with greater and constitutionally defined powers, will have 40 members.

So will the elected lower house: in short, both houses will have the same number of members. When they are unable to reach agreement, as will be explained in greater detail below, they will meet jointly as the National Assembly, and votes can carry by a majority of the whole. The fact that the two are equal in size means that a majority of one house plus a minority of the other could carry a vote when meeting jointly.

Well before electing the new lower house, however, Bahrainis will elect municipality councils on May 9. A curious provision has reportedly been added: in the municipal elections, property owners in the municipality who are citizens of other members of the Gulf Cooperation Council (Saudi Arabia, Kuwait, Qatar, the UAE and Oman) will have the right to vote at the municipality level. This may be aimed at giving local participatory rights to nonresident owners, but it may also be, as some have suggested, a way of undercutting any radical tendencies by the local voters. It also could have the ironic result of giving a Saudi who owns property in Bahrain a right to vote which he does not enjoy at home. And the privilege applies, apparently, only to citizens of the GCC states, not to other expatriates, and only to property owners, not laborers.

The National Assembly
That is at the municipality level, however, and is not part of the new constitution but rather the result of a decree.

For the Parliamentary elections, which will be held on October 24, Bahraini men and women have equal rights to vote and stand for election; the amended constitution spells out the powers of the new legislature. (Provisions as described below are based on the Arabic and English texts available at the Kingdom of Bahrain's government website at www.bahrain.gov.bh.) Members of the Chamber of Deputies will be elected to a four year term, with the King having the right to extend the legislative session for a period not exceeding two years "when necessary". The Chamber will elect a President and two Vice Presidents. Challenges to election results will be handled by a Court of Cassation.

The King does have the power to dissolve the Chamber of Deputies, but new elections are to be held within four months from the date of the dissolution; if they are not, the dissolved Chamber reassumes its constitutional powers and is reconvened. However, Article 64 of the Constitution as amended does say that "notwithstanding the preceding clause", the King may defer election of the new Chamber "if there are compelling circumstances whereby the Council of Minsiters considers holding the elections is not possible": this would seem to mean that under some circumstances, a 1975-style dissolution could still occur.

The Chamber of Deputies will have the power to question members of the Council of Ministers, and may also hold a confidence vote on a Minister. If two-thirds of the Chamber votes no confidence in the Minister, he must resign. However, "the subject of confidence in the Prime Minister shall not be raised"; the Prime Minister has always been a senior member of the Royal Family. (Actually, it has always been the same man: Sheikh Khalifa bin Salman, profiled in this issue.)

However, even the Prime Minister is not invulnerable to pressure. If two-thirds of the members of the Chamber of Deputies vote that "it is not possible to cooperate with the Prime Minister", then the matter will be referred to the National Assembly, that is, the two chambers meeting together. If two-thirds of both chambers vote non-cooperation (and remember, the upper house is entirely appointed), then the issue is referred to the King, who may either replace the Prime Minister, or dissolve the Chamber of Deputies.

Legislation
Both chambers must concur to pass legislation, which is then sent to the King for ratification. The requirement that the appointed upper house concur in passage of legislation obviously provides a check on the power of the democratically elected lower house.

The Prime Minister presents legislation to the Chamber of Deputies, which may pass, amend, or reject the bill; apparently it may in some cases originate legislation as well, but priority is given to legislation submitted by the government. Bills are then referred to the Consultative Council, the upper house, which may accept, amend or reject the text provided by the lower house, and then send it back for consideration. If both chambers agree, the legislation goes to the King for ratification. If the two houses do not reach agreement — if the Chamber of Deputies does not accept amendments or revisions made by the upper house, or vice versa — the legislation is again referred back to the other house. If the two houses have not agreed after two rounds, then the National Assembly convenes as a joint session under the Presidency of the President of the Consultative Council. For a bill to be adopted, a majority of members present must concur; thus it would be possible to pass legislation if an overwhelming majority of one house agreed with a minority in the other house. (Remember, each house has 40 members.) If the National Assembly meeting jointly does not approve legislation after such an impasse, it cannot be submitted again during the same legislative session.

In keeping with the Anglo-American tradition, bills involving financial or economic matters must first be submitted to the Chamber of Deputies, the lower house. However, the Chamber must take action within 15 days, or it will then be submitted to the upper house.

The King may convene the National Assembly as a joint body on other occasions than those discussed here and some other occasions when it happens automatically under the constitution.

The Judiciary
The new Constitution says that "no authority shall prevail over the judgment of a judge" and promises an independent judiciary. Military courts will be confined to military offenses only and cannot be extended to others without the declaration of martial law. A Higher Judicial Council will supervise the courts.

The new reforms establish a Constitutional Court, which will consist of a President and six members, appointed by the King for a specified period. Its role is "to watch over the constitutionality of laws and statues"; members will not be liable to dismissal. The government, or either house of the National Assembly, may challenge the constitutionality of any measure before the Court. The King may refer to the Court draft laws prior to their adoption, to determine their constitutionality.

Rights
The Constitution specifies that the shari‘a is a principal source of legislation but also pledges freedom of conscience; it guarantees equality of women with men "in political, social, cultural and economic spheres, without breaching the provisions of shari‘a.

The state guarantees "requisite social security" and declares that inheritance shall follow the shari‘a.

The constitution also says that every citizen is entitled to health care, and permits private hospitals in addition to public health institutions. It states that "ownership, capital and work" are " basic constituents of the social entity of the state and the national wealth" and protects private property, but states that "all natural wealth and resources are State property" (read: oil and gas).

Bahraini nationality is to be defined by law; a Bahraini national cannot be stripped of citizenship except in case of treason or other actions prescribed by law.

Discrimination is banned on the basis of "Sex, origin, language, religion or creed"; "freedom of conscience is absolute" and the state guarantees "the inviolability of worship, and the freedom to perform religious rites and hold religious parades and meetings" with the proviso, "in accordance with the customs observed in the country".

Constitutions, of course, always guarantee rights, and some (like Stalin's for the Soviet Union) are quite liberal except for the fact that they are never applied. In theory, this is not even a new constitution, but a revision of the 1973 constitution.

Some opposition figures have expressed concern about the way in which the revisions were implemented. Though the constitution claims to be a deomcratic one, it has been amended by decree, though its text says that cannot be done, and already said that.

The government approach seems to be that there was no way to bring back the 1975 Parliament to amend the Constitution, and thus no "constitutional" way to establish a different, rather more checked-and-balanced parliamentary system. The new King's speech and decrees emphasized the overwhelming approval a year ago of the National Action Charter in a referendum, and saw this as a mandate for implementing the proposed changes.

In fairness, the government did face a sort of constitutional Catch-22: do you hold new elections for the 1973-75 parliamentary system and then ask them to amend the Constitution to create an appointed upper house which can block their actions? Recall the 1975 Parliament, many if not most of the members of which have died? Or find some other way to create the new system?

The Amir/King chose the latter. The new system may not be as democratic as the 1973-75 Parliament was, but then, that Parliament only had two years of life, and this system is clearly more representative than anything Bahrain has enjoyed since 1975.

Many of those opposition figures who had praised the Amir's liberalization are obviously bothered by how the King, as he now is, implemented the changes. But he has clearly done more than his father ever did.

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