Judicial Foundation and Legal Codification
The legal system of Bahrain is a mixed system based on British Common Law models and Sunni and Shi'a Shari’a traditions. Judicial powers are discussed in Chapter IV of the Bahraini Constitution as amended in 2002. This section also states that the judiciary is to be an independent body whose functioning and organization are to be regulated by law. The Constitution declares that Shari’a is to be a principal source of law.
Judicial Structure and Court System
The major codifications of Bahraini law include the Code of Civil Procedure of 1971, which was modified in 1990; the Law of Commerce of 1971, which was modified in 1990; the Criminal Code of 1987; and the Code of Criminal Procedure of 1966. In August 1971, Legislative Decree No. 13, known as the Judiciary Act, was promulgated to provide for the organizational structure of the judiciary and the duties of judges.
The judiciary is organized into two branches: the Civil Law Courts and the Shari’a Law Courts. The Civil Law Courts are authorized to settle all commercial, civil, and criminal cases, and all cases involving disputes related to the personal status of non-Muslims. These courts are structured in a three-tier system, starting with the Courts of Minor Causes, also called the Lower Courts and the Court of Execution, which have jurisdiction over civil and commercial matters. The Middle Courts have jurisdiction over criminal matters. At the second level is High Court of Appeal, or the Senior Civil Court. Cases at these levels are presided over by a minimum of two judges.
The Shari’a Law Courts have jurisdiction over all issues related to the personal status of Muslims, both Bahraini and non-Bahraini. The Judiciary Act stipulates that they hear all matters relating to inheritance, gifts, wills, and charitable donations (waqf). There are two levels: the Senior Shari’a Court and the High Shari’a Court of Appeal. At each level is a Sunni Shari’a Court with jurisdiction over all personal status cases brought by Sunni Muslims, and a Jaafari Shari’a Court with jurisdiction over cases brought by Shi’a Muslims. The High Shari’a Court of Appeal must be composed of a minimum of two judges. In the event of a disagreement, the Ministry of Justice shall provide a third judge and the decision will be based on a majority vote.
Judicial Authority and Appointment of Judges
The Bahraini judiciary is empowered to review the constitutionality of laws. The executive branch houses the Ministry of Justice and Islamic Affairs, which is empowered by the Judiciary Act as the overall supervisor of the judiciary. Only judgments made by the Court of Cassation (Mahkamat al-Tamyiz) are publicly available through the Official Gazette. Shari’a Court judgments are not available officially.
The Judiciary Act of 1971 settles a number of significant issues concerning the organization and operation of the judiciary. It mandates that Arabic is the official language of the courts, although English, Hindi, and Persian translators can be provided by the Ministry of Justice. All court hearings are to be held in public, although the court has discretion to hold closed hearings. Judges of the High courts, both Shari’a and non-Shari’a, are nominated by the Ministry of Justice and appointed by Emiri decree. Judges of the middle and lower courts are nominated by the Ministry of Justice and appointed by decree by the prime minister. The Higher Judicial Council, chaired by the King, appoints the members of the Constitutional Court.
Law No. 8 of 1989 established the Supreme Court of Appeal or Court of Cassation. This institution serves as the final court of appeal for all civil, commercial, and criminal matters. In addition, cases dealing with the personal status of non-Muslims may be appealed to this body. The Court of Cassation is composed of a chairman and three other judges who are appointed by decree. As a practical matter, the civil courts do not invoke Shari’a law except when the issue is concerned with inheritance.
Constitutionality of Laws – Judicial Review
The 2002 constitution established the Constitutional Court, which consists of a president and six members, appointed by royal decree for a specified time period. Any legislator, member of the government or notable individual can challenge the constitutionality of laws in the Constitutional Court. The decisions of the court are final, binding and immediate, unless the Court defers the effects of its ruling to a later date. Any convictions obtained under a penal law that has been found unconstitutional are automatically overturned.
Emiri Decree No. 7 of 1975 established the State Security Court to deal with all issues regarding the internal and external security of the state. This court was the final arbiter in such matters, until it was abolished February 18, 2001. Issues involving members of the Bahraini military are heard by the military court, established pursuant to the Bahrain Defense Force Law of 1970. The Military Penal Code and other penal codes govern the law. The constitution restricts the jurisdiction of military courts to military offenses committed by the Defense Force, the National Guard, and the Security Forces.
Judicial Education and Profession
Judges must be Bahraini nationals possessing a university law degree. Judges of the Shari’a Courts must hold a higher law degree qualifying them for appointment to the Shari’a Courts. On September 2, 2007, the Arab Lawyers Network (www.Mohamoon.net) launched the website of Bahrain lawyers, the fourth such website in the Gulf States, after Saudi Arabia, Kuwait and the Emirates. It contains more than 100,000 pages of legislations and more than 700 judicial rulings. The principles on which the rulings are based were classified, indexed and tabled in a different ways to enable users to access any legal information quickly, accurately and easily. New legislations would be added as soon as they are published. Subscribers may copy or print any text or document.
In September 2000, the government announced a package of measures intended to ensure greater independence of the judiciary. Chief among these was the creation of the Higher Judicial Council, chaired by the King. Members include the presiding judge of the Court of Cassation as well as judges from the Shari’a and Civil High Courts of Appeal.