LEGAL STRUCTURE – BAHRAIN

INTRODUCTION

Bahrain gained full independence from Britain in 1971, adopted a constitution in 1973, and substantially revised it in 2002. The al-Khalifa family has ruled Bahrain since 1783. The system of governance is democratic.

Bahrain is a constitutional monarchy, ruled by a King. The constitution states that the succession of the office of King automatically passes from ruler to son, unless the King appoints before his death one of his other Heirs to exercise his powers. The current King is Hamad Ibn Isa Al Khalifa.

The King appoints a prime minister and a cabinet (the Council of Ministers). The constitution also provides for a bicameral legislature, the National Assembly. The two houses of the National Assembly are

a) the Consultative Council: whose 40 members are appointed by the King; and

 

b) the Chamber of Deputies: whose 40 members are elected by direct popular vote by citizens 20 years of age or older.

Both appointed and elected legislators serve four-year terms. All legislation approved by the National Assembly must be ratified by the King in order to become law. The King is the protector of the legality of the government and the supremacy of law. He can propose constitutional amendments and initiates laws.

 

A bill is considered to have been ratified and promulgated by the King if a period of six months from the date of its submission from the Advisory Council and the Parliament has elapsed without the King returning it to any of the those councils for reconsideration. If the Parliament or the Advisory Council reconfirms the bill by a majority vote of two thirds of its members, the King shall ratify and promulgate the bill within one month from the date of reconfirmation.

LEGAL SYSTEM

Bahrain’s legal system draws its existence from:

a) Islamic religious law (the Sharia),
b) tribal law,
c) Egyptian codes
d) English common law, and

e) other sources like customs and in absence of customs the tenets of natural justice and good conscious are applied.
 
The court system consists of:

a) Sharia Law Courts
b) Military Courts
c) Constitutional Courts
d) Civil Law Courts

The administration of justice judges shall not be subject to any authority. No interference whatsoever shall be allowed in the conduct of justice. The law shall guarantee the independence of the judiciary and shall state the guarantees and provisions relating to the judges.

SHARIA COURTS

The personal status law is still not codified. The Shari’a law courts are divided into Sunni and Shi’i sections, with jurisdiction over disputes relating to Muslim personal status (except disputes over estates that fall under the jurisdiction of the competent civil courts, though those courts are obliged to divide estates in accordance with Islamic law).

There are three degrees of the Shari’a Courts:

a) Junior Shari’a Courts that hear personal status cases in the first instance,
b) Senior Shari’a Courts and
c) High Shari’a Court of Appeal having ultimate appellate jurisdiction.

The Shari’a Courts apply classical Islamic personal status law to Muslims without reference to state law. Each High Shari’a Court consists of a president and a number of judges; sittings are validly held in the presence of two judges, one of whom must be the President of the Court or his deputy. The Court of Cassation also has exclusive jurisdiction to decide cases filed simultaneously in Shari’a Courts or to settle any dispute arising from conflicting judgments between such courts.

MILITARY COURTS

The Military Courts have jurisdiction restricted to military crimes committed by members of the armed and security forces and shall not extend to others except during the time of martial law and within the limits determined by the law.

CONSTITUTIONAL COURT

The Constitutional Court, established pursuant to the Constitution, examines the conformity of the laws with the constitutional provisions. This Court is composed of a President and six members appointed by the King according to the recommendation of the Supreme Council of Judiciary (SCJ).

The decision declaring a law unconstitutional shall be retrospective and have immediate effect unless the Court specifies a date starting from which such decision shall have effect.

 

CIVIL COURTS

The Civil Courts have the power to settle commercial, civil and criminal cases, as well as all other cases related to the personal status law (family law) of non-Muslims. The personal status law is still not codified. The Supreme Court of Appeal, or the Court of Cassation, was created in 1989 and is the final Court of Appeal for commercial, civil and criminal cases. Recourse to Appeal against decisions with regard to the personal status is allowed before this Court for non-Muslims.

They are made of three levels:

a) Court of First Instance
b) Court of Appeal
c) Court of Cassation (Mahqamat At Tameez)

The concept of binding precedents in Bahrain is limited to the judgments of the Court of Cassation and Constitutional Court.

The Court Structure:

The Junior Court

The Junior Court has jurisdiction to hear both civil and commercial cases of claims involving small sums, and cases involving certain real property rights. Junior Court cases may be appealed to the High Court.

The High Court

The High Court has jurisdiction to hear all civil and commercial cases not falling within the jurisdiction of the Junior Court. The High Court is also authorized to hear cases concerning the personal status of non-Muslims and cases which are placed under its jurisdiction by law. The High Court also maintains jurisdiction over non-Bahraini citizens, including companies that are resident or domiciled in Bahrain except in cases involving real property situated outside Bahrain. The High Court has jurisdiction to hear appeals from the Junior Court and the Court of Execution. The High Court has exclusive jurisdiction over appeals of judgments from the Summary Actions Court. Judicial precedent followed by the High Court is set by decisions of the High Court of Appeal and the High Court of Justice sitting as a court of appeal.

The High Court of Appeal

The High Court of Appeal sits as a court of appeal regarding all appeals made from the High Court.

The Execution Court

The Execution Court has jurisdiction to execute all final judgments made by the Junior Court, the High Court and the High Court of Appeal.

The Summary Action Court

The Summary Action Court hears claims that may be adversely affected by the lapse of time. Hearings are usually set to take place not less than twenty-four hours after the filing of an application for a summary trial, although, in cases of extreme urgency, this period can be reduced.
 

THE SUPREME COUNCIL OF THE JUDICIARY

 

In September 2000, the Supreme Council of the Judiciary SCJ was created, and has a main mission of supervising the Judiciary. According to the Constitution of 2002, the King is the Chair of the SCJ. The President of the Court of Cassation as well as Judges from the Highest Courts of Appeal, applying the civil law and the Shari’a law, constitute the members of the SCJ.

 

BCDR – DISPUTE RESOLUTION

 

On June 2009 the Bahrain Chamber for Resolution of Economic, Financial and Investments Dispute (BCDR) in partnership with the American Arbitration Association (AAA) was established, to look into banking disputes above BHD500,000 (USD1,325,000). Furthermore, investors can bring a direct claim before the BCDR where the civil courts’ procedures will apply, or both parties can agree on arbitration whereby a panel within the BCDR will review the disputes.