Here’s another one that I just came across, Chan’ad Bahraini (Chan’ad is one of my favourite fish by the way, some people might call it mackerel) is a blog by an “Asian” who lived all of his life in Bahrain and hopes to portray Bahrain from his Asian perspective. So now we have an American expat, and an Asian pseudo-expat sharing with you their experiences of these lovely islands!

I (a.k.a. Chan’ad Bahraini) am an “Asian” living in Bahrain. I have lived all of my life in Bahrain, except for my higher education which I completed in the United States. After reading other great Bahrain blogs like Mahmood, and more recently, Letter from Bahrain, I thought I would also take the opportunity to document and comment on life in Bahrain, from the view of an “Asian” expatriate.

Chan’ad Bahraini

Although with a blog name like that, and with a mastery of writing Arabic in English with the custom use of numbers (which I still cannot fathom) to me this person is most definitely Bahraini, might not carry the passport, but certainly carries the spirit!

I do hope that more Bahraini blogs start up, it’s an easy process… Good luck!

Why?

The excuses heard by these morons are ludicrous to the extreme as well: “(1) we tried to get instructions but couldn’t, (2) we weren’t trained in the Geneva convention”

What kind of moron requires instructions on how to treat prisoners of war? How would YOU like to be treated you animals?

You bring shame to the very idea of liberation and your own country. You effectively negate all the good will that has been generated by your comrades, low and slow that might have been, now it is practically non-existant.

And the difference between you and Saddam is?

Sheesh, I don’t know who takes credit for this, but in the last couple of days 3 blogs from/about Bahrain have surfaced, the latest is Bahraini Blog whose author I have a sneaky feeling has commented here not in the far distant past!

This one is showing you a Bahraini perspective from London! Here’s part of what he’s up to among other things, so check him out too:

The Rules of Attraction (2)
Scene 2: London, in a night Club.

Step 1: get sufficiently drunk to feel confident enough to approach a girl and dance a bit, but not drunk to the point where you run the chance of puking on her or falling asleep.

Step 2: Scan the place. Although looks are important, usually the most important thing is to find a girl hammered enough to not be too picky with guys.

read the rest of the instructions on Bahraini Blog!

The credit also goes to him for finding Al-Asala and Al-Menbar websites.

I got this in the guestmap today and what a find:

My blog offers the perspective of an American expatriate in Bahrain. My views are not politically correct – I’m neither pro-American nor anti-Muslim – I’m just noting experiences as an outsider.

Letter from Bahrain

Certainly shows you a perspective of an expatriate in Bahrain and well worth the read! He’s going on my blogroll immediately!

Enjoy…

One thing about living in a fledgling democracy is the daily changes which happen and the little things you notice changing, from people’s attitudes to huge projects that are not just being discussed, but actually actioned in record times.

But until yesterday, no one in their right mind in Bahrain would even think about suing the government, much less the Ministry of Interior for wrongful death and (a) live through it, (b) expect any kind of outcome, and (c) don’t even hope that you will win (d) forget about the government being effectively indicted and held to book because of wrongs one of its employees committed.

Yesterday, the final verdict was handed down in the case of a young man gunned down near the US Embassy in Manama two years ago. Regardless of why he was there with thousands of other people, and regardless of whatever he was doing if anything, over-whelming force to break up a demonstration should not have been used. Certainly not shooting a rubber bullet into his head from a distance of a few meters. That rubber bullet ended his life a couple of days later as he died from injuries sustained.

His family, helped by various human rights organisations in Bahrain took the Ministry of Interior to court, they were also helped by the King himself where he advised the parents to do so as well! This case proves without a doubt now that although the judicial system is wanting, and although not completely separate, you can sue any branch of the government, and if you have a case, you have nothing to fear.

The Ministry of Interior is of course appealing the case, but that’s beside the point, the judge found for the family of the deceased and laid the blame squarely at the Ministry of Interior’s feet.

In an interview in todays papers, the parents (although very poor and needy) have decided to donate the compensation to local charities. That’s 50,000 dinars ($132.6k) that a family such as this would probably have to work all their lives and couldn’t save as much. To them, they got what they needed however and that is an admittance by the government that it is wrong, and that it is sorry for using overwhelming force in a situation that does not mandate it in the least.

The repercussions of this case are manifest. Now the courts can look into cases of torture, wrongful imprisonment, harassment, mental anguish and of course the various monsters at the police forces in all of its branches who have terrorised this country for 10s of years and pass judgment rather than just refuse to accept the case by default. But then, Law 56 is stopping all of these cases, okay that’s fine, at least from December 2002 onwards, no one is going to be able to hide behind his government/Ministry of Interior protection any more.

Or at least, that’s what we hope this landmark case has proven.

The constitutional petition which was partly organised by the Al-Wefaq society, which is of course one of the four parliamentary elections boycotting societies, and its main driver is creating waves within its board. There has been reports that up to 4 directors have resigned in protest, not just – it seems – against the changed policies of the society itself but also its succumbing to political and governmental pressure.

One of those people who did resign, Dr. Nizar Al-Baharna, spoke out at one political talks in Al-Jamri’s majlis a couple of nights ago, stating essentially that the current policy of the society is leading to confrontation and is unproductive, rather than be politically astute and try to find a median. He also commented on the sectarian nature of the petition, “whether we like it or not” meaning that as Al-Wefaq is the largest political society on the island, and as it caters mainly to the Shi’a and even though it is joined by 3 other societies, the membership of the other 3 societies are negligible when compared to those of Al-Wefaq.

Dr. Al-Baharna also accused the board of Al-Wefaq as still thinking with “old mentalities” meaning that they’re still see confrontation is the legitimate way to deal with the government, going back to the days of the “troubles,” ie, the 90′s where the State Security Law was still in effect and the wholesale imprisonment and torture was the norm.

Could this be a resurrection? Another political society to be formed? A more moderate and modern approach to politics by the Shi’a?

I certainly hope so. Confrontation will do no one any good. What we should concentrate on is nation building, not destroying. The very best that Al-Wefaq with its current hard-liners can hope for is the return to the State Security Law!

I am now totally convinced that our illustrious Speaker of Parliament is a dimwit.

By definition, the role of parliaments in any democracy is to (1) provide stability, (2) oversee the executive branch or government and ensures that they are held accountable to the people, the source of all legislations, (3) act as a conduit to enact the reasonable wishes of the people, and (4) ensure that the law reigns supreme.

In essence, it’s function is to oppose and cooperate with the government at the same time.

So can someone please explain to me how all these principals fair with our Speaker?

He was speaking at a seminar/majlis/chinwag/whatever at another MP’s (Ali Ahmed’s) “diwaniah” in which he states that:

1. He STILL terms the democratic movement in Bahrain as an “experiment”. To be fair to our distinguished leader of parliament, everybody still does! Why? They’re still hoping that it not the “real thing?” That, hey if it doesn’t work we’ll just try another experiment? Bozo, democracy is here to stay, now that the gates are open only Allah can stop it, and by then it would be the Day of Judgment anyway, so it doesn’t matter.

2. He lauded the performance of the parliament in various successes. But again warned that this “experiment” is surrounded by danger so it is our duty to protect it. As in, do what you’re told and don’t dare question. Otherwise mummy will send me to the time-out corner.

3. He demonstrated how the government, embodied in the King, is taking care of us all. Especially economically as the Awali field in Bahrain only produces 34,000 barrels of oil now, and had our King not had immensely good relations with Saudi, we would not have gotten Abu-Sa’afah offshore field in Saudi to the tune of 192,000 barrels a day. Let’s stop here for a while and see what this guy is implying: he’s implying that we would get everything we want if we stood by, acquiesce to all the government wishes, and forget this thing called democracy and constitution. We’ll get what we want if we were to have a good relationship with the government! (Note to the uninitiated: he’s doing major kissing ass here. Maybe he wants to ensure that he get appointed to the Shura council for the next few terms, he’s kinda got used to his big car and big salary.)

4. Don’t demonstrate. His “experience” following the Duma in Russia and the UK parliament that they dictated where demonstrations would take place. Huh? How can he put those two in the same sentence? And I’d like to see the UK parliament even suggesting what people there can and cannot do!

5. He again goes economic and states that it costs the government 450 fils (about $1.20) to desalinate 1 cubic meter of water and we should be thankful for that. Sure we’ve got to be thankful for that, if you consider that it would have cost maybe about 10% of that if desalination plants contracts were overseen in the first place and ensured that they’re built to specifications. Goodness knows how many people became millionaires because of these government contracts. But it doesn’t surprise me that he is surprised, maybe he would like to divest himself of some of the fat salary he’s getting, stop watering the plastic decorative plants his house is probably festooned with. But I would happily pay his water bills if he started shaving! What does he want us to do then? Stop showering to reduce the costs of water for the government? No. I would rather that he enacted bills to privatise the electricity and water industries. But that’s probably too much for his intellect. He’s busy dancing to the tunes after all.

6. Here’s the punch-line: he urges journalists, imams, and businessmen to rather speak about these economic issues rather than “MPs privileges, cars, and salaries” Okay, I’ve taken your advice to heart. Here I am talking about the things you want me to talk about!

7. He wants people to trust the parliament. He wants MPs to not be drawn to the “street.” But rather, people today just classify MPs as pro-government and anti-government! God give me strength. Or at least please give me patience to control my blood pressure! Hey: trust is earned. You haven’t done that yet. Same with respect.

8. He once again lauded the role of parliament in questioning ministers. The results of which are? Why question when you already know the answer? And if you continue to “encourage” your MPs NOT to question, or at least ensure that the questions are not embarrassing nor verge on indictment. Because? He can fix it with his personal relationships! So, we’ll officially call Mr. Al-Dhahrani now Mr. Fixit.

9. He’s also encouraging us NOT to compare our “experiment” with European or even the Kuwaiti parliaments as our “experiment” is rather new. Who says that we even dream of comparing ours with theirs? Is there any comparison points at all? What’s so fantastic about the Kuwaiti parliament to compare our “experiment” with in the first place?

10. Mr. Fixit suggests that the parliament has done quite a lot for the country so far, even as it is still an infant, it was accepted with the highest number of votes to enter the International Parliament. And the success of the organisation of the recent meeting of the GCC Parliaments. We have parliaments in the GCC? This is news. Well done. That really allows us to sleep soundly now.

11. And here’s the kicker. He’s describing the “constitutional petition” organised by the boycotting societies as very emotive and sectarian, and goes further in describing it as “kharabeet” rubbish. Thus once and for all demonstrating beyond a shadow of a doubt that Mr. Fixit is the ultimate politician, saying it as he sees it and hides nothing!

Can we now organise a petition to throw this geezer out?

Richard Williams must be an old doddering fool who enjoys open fires and decrepit leather armchairs while he orders his maid around to get another scotch just to keep up “traditions” rather than get up off his fat arse to serve himself or even open his eyes and recognise that the juggernaut of the future has come close to crushing his life breath away. He is like a guy reminiscing about the “old days” of the Empire and berates anyone who now calls the UK anything but Great Britain. Refusing categorically to believe that the world has left his dearly beloved GB behind and that its former colony now called the United States of America is the king of the hill.

He’s also one of those old goats who ignores the present and the future for the sake of the past. The honourable gentleman had the temerity to call Bahrain’s Formula One circuit as resembling a “computer game” as if that – in this day and age – is the height of an insult, rather than being a paramount compliment! Using this analogy alone demonstrates what an old fogey he is and how unconnected with the times he has become.

Mr. Williams conveniently forgets that the great inventors have always been castigated as heretics, and that their ideas would never fly as hey, the world is really flat! How dare anyone believe “in this modern age” that it is really an odd-shaped sphere? Further, he also forgets that the definition of tradition is getting used to something “as is,” sans change?

Sir, to you the Bahrain International Circuit might have looked like a modern computer game (thank you!) and that only between 30,000 to 40,000 spectators have attended race Sunday, and that 82,000 attended the funereal procession at Imola, I personally can happily guarantee that there will be more than double the Bahrain attendance the next time the circus rolls into the desert, and a tradition will be borne in the sands of the windy arena. The difference is that this particular tradition is driven by a need to succeed and does not rest on its ancient laurels as being the “home of GP” but finds ways every single year to prove to the world that we are better, bigger and faster abetted by sheer willpower and passion. The passion and vigour of youth, rather than flaccid old men.

To hell with Silverstone and Imola. Welcome to Bahrain, Malaysia and China. We do represent the future regardless of Mr. Williams’ sentiments. Motor cars in any case only have a history of some one hundred years, what gives Silverstone, Imola or any other archaic race circuit the exclusive right to hold a race there ad-infinitum? Without the need to modernise and spend to become at par with the facilities offered by modern circuits? Should Mr. Eccelstone and Mr. Mosely now base their business on sentiment alone? Should they ignore the huge opportunities and fans who inhabit most of the planet just because of Europe? Does he conveniently forget that most cars in the world now are manufactured by countries “who have no motor sports heritage” and that today’s bright star the British Jensen Button is sitting millimeters away from a Japanese engine that has rightly put the flames up Ferrari’s nether regions? I suggest he wakes up from his dream and removes his sentimentally coloured pink shades.

Mr. Williams: the whole world has left your beloved Great Britain and lethargic Europe behind and have ventured unequivocally forth into a modern era unhindered by your admirable sentiment of flogging a dead horse, just in case it twitches for another few seconds before it finally succumbs to reality.

And welcome to the modern world, ably demonstrated by this little minnow of a collection of islands we call collectively as the sparkling future of motor sports.

This is a public service announcement: If you are ever in Saudi, and you get invited by an abaya-wearing woman to a secluded place, or (even dumber) receive a phone from “an educated sounding” woman wanting to privately meet you, DON’T, else you deserve everything you get:

In another incident, the victim fell prey to the same tactics when he went on to meet the “lady”. This businessman did not have any money nor an ATM card with him at the time so the irritated assailants sexually assaulted him instead.

Arab News

I don’t envy these “women” having now been caught ONLY nine months after the first report. Must be a record for Saudi police! Bahraini police, please take heed!!

Abaya: A loose, usually black robe worn by Muslim women, especially in Arabic-speaking regions, covering the body from head to toe and often worn with a headscarf and veil. – otherwise locally known as the “Guinness bottle” look!

I can’t help but to describe the latest in the petition saga on both the government and the opposition as a stinky brain-fart. The opposition have backed down in the face of mounting government pressure and supposedly threats of persecution, the return to State Security Law, imprisonment and the like; while the government is having one hell of a brain-fart because now that it has smelled success in subjugating the opposition in their petition plan, to put the nail in the coffin of said petition by categorically stating in this morning’s papers that the king will not receive the petition. The government maintains that the only way to get constitutional changes is through the prescribed constitutional channels: the Shura Council, Chamber of Representatives and of course the King.

Problem: the opposition do not recognise the Parliament, but do recognise the King of course. Therefore, the only way open to them is to talk to the King directly through the petition.

Problem: the government is forcing the opposition to recognise the Parliament as they are telling them (not asking) to submit the signed petition to Parliament and not the King and reiterating the government’s position that the only constitutional changes to be entertained are those suggested by parliament and the current constitution.

Problem: the current constitution clearly states in Article 29 that: “Any individual may address the public authorities in writing over his signature. Group approaches to the authorities may only be made by statutory bodies and corporate persons.” The government interprets this by classifying that the societies should only collect signatures from their own membership rolls, while the societies decided that what it really means that they are allowed to “organise” the petition as “individuals” signing them. They of course backed down, but threw open their membership doors in order to collect the signatures.

Problem: the government now says that opening the membership doors haphazardly (and not charging fees) is (possibly) illegal, thus raising the specter of another fight. Didn’t you expect it? Of course they would!

My take on the situation is that both have done a royal balls-up of a very basic issue: we the people, have every right to petition the King directly or indirectly.

That is the only way to really make our views known to His Majesty. We have almost stopped believing in the effectiveness of the parliament due to the MPs continuous posturing and hot air. The same goes for the various boycotting societies, they’ve gone about this petition in completely the wrong way. They went head-to-head with the government fully knowing that the government have already written the rules of engagement a long time ago, and they conveniently fell into the trap.

So what we’re left with now is stale-mate. We have issues with the current constitution. We know of its shortcomings as in any other written constitution in the world and it needs to change for the better, but I fear what this situation will result in is at best a delay in making these changes happen. Thank you very much for that boycotters. You have been out-witted once again!

Just came across this explanation which seems to be correct in an article in ArabicNews.com:

The four societies are:

Dear Prime Minister:

We the undersigned, former British ambassadors, high commissioners, governors and senior international officials, including some who have long experience of the Middle East and others whose experience is elsewhere, have watched with deepening concern the policies which you have followed on the Arab-Israel problem and Iraq, in close co-operation with the United States. Following the press conference in Washington at which you and President Bush restated these policies, we feel the time has come to make our anxieties public, in the hope that they will be addressed in Parliament and will lead to a fundamental reassessment.

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Index:

• >> Part 1

• Part 2
• Part 3
• Part 4
• Part 5
• Part 6
• Part 7

  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;

  • The 1973 Constitution: theprocess of its framing; its formal characteristics; the substantivecharacteristics relating to the composition and prerogatives of theLegislative Power.
    
  • The National Action Charterand the Referendum thereon.
    
  • The Document of February 14^th,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 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 20^th 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 9^th, 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 6^th, 1973.

  Subsequently, the Constitution was published in the Official Gazette on December 6^th, 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.

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  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.

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  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?#8364;ﾦ".  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 ?#8364;ﾦ , 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.

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  Index:
  

  • Part 1

  • Part 2
  • >> Part 3
  • Part 4
  • Part 5
  • Part 6
  • Part 7