SHAFAQNA- This is a translated Arabic transcript of the testimony delivered by the Secretary General of Al Wefaq National Islamic Society, Sheikh Ali Salman, at the High Court of Appeal on January 14, 2016:
In the name of Allah, the Entirely Merciful, the Especially Merciful.
O Allah, send your blessings upon Muhammad and his divine pure posterity and companions and their kindly followers until the Day of Judgment
(..I only intend reform as much as I am able. And my success is not but through Allah. Upon him I have relied, and to Him I return)
In 2001, the people of Bahrain voted on the transformation to a democratic constitutional monarchy, similar to the genuine constitutional monarchies in the world. The National Action Charter stated: “It has been determined to take the national, political, and constitutional constants in the identity of the State to emphasize the democratic constitutional hereditary monarchy.”salm
It also stated that “it has become suitable for Bahrain to take its position among the constitutional monarchies of democratic systems that achieve the people’s aspirations for development.’
It is clear that the “democratic constitutional monarchy” which the people of Bahrain voted for is not something ambiguous, but follows the examples of the known democratic constitutional monarchies in the world, particularly in Europe where “democratic constitutional monarchies” exist.
The axioms of the constitutional monarchies include (and here we discuss the concepts and the jurisdictions of the positions, without referring to individuals or personalities in any way):
- Separating the family of the King from the governance. No “democratic constitutional monarchy” in the whole world combines the King and the governance in the same family.
Even in the monarchies which are not “democratic constitutional monarchies” as in Jordan and Morocco; the King and the governance are not from the same family.
The presence of the King and the governance in one family in Bahrain, is an obvious breach to the democratic constitutional monarchies we agreed on in the National Action Charter. I challenge the Public Prosecution Office to name a single constitutional monarchy where one family holds the post of the king and rules the country at the same time. Such a constitutional monarchy does not exist on earth.
- Among the axioms of the constitutional monarchies is that the winning party in the elections forms the government. All democratic constitutional monarchies in Europe and the world abide by this principle. And that is what the Kingdom of Morocco did in 2012 in order to join the democratic constitutional monarchies in the world. Whereas in Bahrain, the King names and appoints the government, something that clearly contradicts with all the genuine and non-genuine democratic constitutional monarchies.
- Also, among the axioms of the democratic constitutional monarchies is that the elected parliaments hold the legislative authority, either by one elected chamber or by 2 chambers where the final say is for the elected council as in the British political system. Bahrain, however, is the only country where the legislative authority (the parliament) is consisted of 2 equal chambers (each made up of 40 members), where one is elected and the other is appointed, i.e. the appointed council exercises a veto over the legislative resolution. Mr. Cherif Bassiouni1mentioned this in his report, as he said in paragraph 49: (…Draft acts of parliament must be approved by the Consultative Council to pass into law, which means that the appointed chamber of the National Assembly exercises a de facto veto over the legislative process…) In addition, there isn’t any genuine democratic constitutional monarchy that allows issuing decrees with the force of law, if not rejected by majority of both councils; i.e. the rejection of 21 MPs of the Council of Representatives and 21 MPs of the Shura Council which is appointed by the King. 141 decrees, representing the most important laws, were issued in this way between 2002 and 2015. There is no democratic constitutional monarchy around the world where the King appoints half of the legislative authority and grants it equal legislative jurisdictions to that of the elected council.
- Also, one of the constitutional monarchies axioms is that the distribution of the electoral districts is issued by a law from the parliament and not by a Royal Decree issued by the King, as in the case of Bahrain.
- Among the constitutional monarchy axioms is the sovereignty of the law and the obedience of all the institutions and the elements of the State to political accountability; the obedience of all members -without exception- to the law and accountability. However, our Constitution forbids questioning the King because his self is inviolable in spite of all the executive powers he enjoys in his position. Furthermore, there is no way to question the Prime Minister although he holds the top executive position in the country. Also, a motion of confidence in a cabinet minister requires a majority of two thirds in the Council of Representatives, something usually impossible. The political process is practically disabled and the experience proved right this opinion.
By looking at the powers of the King in the Constitution of 2002, we will find ourselves facing an absolute monarchy, not a constitutional one. In the whole world, there is no genuine or non-genuine constitutional monarchy where the King possesses such jurisdictions.
Here are the jurisdictions of the king according to the 2002 constitution:
- All rules of succession will be regulated under a Special Royal Decree, which will have force of the Constitution, and will not be altered except in accordance with the provisions of Article (120) of the Constitution.
- The legislative authority shall vest in the King and the National Council according to the Constitution. The King shall assume executive authority along with the Council of Ministers and Ministers. Judicial verdicts will be issued in the name of the King, and all this will be according to the rules of the Constitution.
- The King is the Head of state and its Highest Representative. He enjoys absolute immunity, which cannot be impinged. He is the Faithful Defender of Faith and the Country, and the symbol of national integrity.
- The King shall protect the legality of rule and the supremacy of the Constitution and law and preserve the rights of the people, the institutions and their freedom.
- The King shall exercise his power both directly and through his ministers for jointly implementing the general policy of the Government and every Minister will be answerable for the functioning of his Ministry.
- The King shall appoint the President of the Council of Ministers who can be absolved of his office by a Royal Decree. Similarly, he shall appoint Ministers and absolve them of office by a Royal Decree on the recommendation of the President of the Council of Ministers.
- The Ministry may be reconstituted in the manner described before in this Article at the beginning of every legislative session of the two Councils.
- The King will appoint members to the Advisory Council and relieve them by a Royal Decree.
- The King is the Supreme Commander of the Defense Force. He assumes its command and allots to it its national task with in the Kingdom and outside it. It has direct bonds with him and the necessary in its affairs will be observed.
- The King will head the Supreme Council of the Judiciary and will appoint Judges by Royal Decreebased on the recommendation of the Supreme Council of the Judiciary.
- The King shall confer Honorary Insignia as per law.
- The King will institute, confer and withdraw civil and military ranks and other honorary titles by Royal Decree or may authorize anyone else to do so.
- Currency will be issued in the name of the King as per law.
- The King, at the time of assuming the throne, at a special session of the National Council, shall take the following oath:
(I swear by God Almighty that I shall honor the Constitution and the Laws of the State; and I shall defend the liberties of the people, their interests and properties, and protect the independence of the country and the safety of its lands)
- The Royal Court will be subordinate to the King and will be organized as per Royal Decree. Its budget will be provisioned and the rules of supervision over it will be laid down in a special Royal Decree.
- The King shall, in the event of his being away from the country and the unfeasibility of the Crown Prince officiating for him, appoint a Deputy who will exercise his power during the period of his absence by virtue of a Royal Decree. Such a Decree may lay down a special organization for the exercise of these powers on his behalf, or define its scope.
- The King will have the right to amend the Constitution and propose laws. He will have jurisdiction over approving and promulgating them.
- The law will be considered to have been approved and issued by the King if six months have passedsince it was raised to the King by the Advisory Council and the Council for a review of it.
- In keeping with the special laws relating to amending the Constitution, if the King returns the Draft Law to the Advisory Council and the Council of Deputies under a regulation requiring a review of it, it will be stated if such a review is to be completed during the same session or the next.
- If the Advisory Council and the council of Deputies or the National Council, after its review, affirms the draft law by a two-thirds majority of their members, like King will certify it and issue it within a month of its affirmation for the second time.
- An aggressive war is forbidden. A defensive war will be declared by a Decree and it will be placed before the National Council immediately after its announcement for a decision on its conduct.
- A State of National Security or Martial Law will not be declared except by a Decree. Under all circumstances such a declaration shall not exceed a period of three months. It will not be extended except with the approval the National Council by a majority of the Members present.
The King will ratify Treaties through a Decree and inform the Advisory Council and the Council of Deputies about them immediately along with a declaration as may be suitable. The Treaty will have the force of law after its approval and ratification and its publication in the Official Gazette. ……
Should any event occur between the sessions of the Advisory Council and the Council of Deputies, or during the period when the Council of Deputies stands dissolved, which does not admit of any delay, the King may issue decrees in their respect which have the power of the law, provided they do not contravene the Constitution. Such Decrees should be placed before the Advisory Council and the Council of Deputies within a month of the date of their issue if they are in session, or within a month of the first meeting of the two new council in case of dissolution or the end of the legislative term. ……
- The king will lay down through Decrees the necessary regulations for the promulgation of the laws in a manner, which do not contain changes in them or clauses disabling them or exempting their execution. It will be proper for the law to lay down the minimum instrument of a Decree for the issuance of the necessary regulations for its implementation.
- The king will lay down through decrees regulations for imposing restraints and the necessary provisions for regulating interests and public administration, which do not violate laws.
The king shall appoint civil and military officials and political representatives in foreign state and world bodies and relieve them of their posts in accordance with terms conditions as laid down in law; even as he may accept representatives of states and foreign bodies with him.
The King may grant pardon for a punishment or reduce it, but a comprehensive pardon may not be granted except by law for miscellaneous offences before proposing a pardon.
- The King will issue orders for the holding of elections for the Council of Deputies according to the provisions of law.
- B. The King will invite the National Council to hold a session by a royal Decree and open the session and dissolve it according to the Constitution.
- The King will dissolve the Council of Deputies by a Decree stating in it the reasons thereof. The Council will not be dissolved for the second time for the same reasons.
The King may hold a national referendum on laws and important issue concerning the country’s interests. The subject of referendum will be considered to have been agreed to if the majority of the voters approve of it. The result of the referendum will be binding and enforceable from the date of its announcement. It will be published in the official gazette.
The Executive Authority
The Council of Ministers
……. If the Chamber rejects it a second time within a period not exceeding twenty one days through a two-thirds majority of its members, the King shall accept the resignation of the cabinet. If the Chamber does not approve the policy statement of the new cabinet, according to the preceding rules and time periods, the King may dissolve the Chamber or accept the resignation of the cabinet and appoint a new one, ………
- The King will preside over the meeting of the Council of Ministers whenever he attends them.
THE NATIONAL COUNCIL
THE ADVISORY COUNCIL
The Advisory Council will consist of forty members appointed by a Royal Decree, in accordance with the procedures, conditions, and the method defined by a Royal
THE COUNCIL OF DEPUTIES
- If the Council of Deputies is dissolved, the elections for the new Council should be held within a period of not more than four months of the date of dissolution.……
- The King may, despite what has been stated in the previous clause, postpone the election to the new Council if there are compelling circumstances even as in the view of the Council of Ministers holding of elections may be seen to be impracticable.
- If the conditions described in the previous clause persisted, the King may, based on the opinion of the council of Ministers recall the dissolved Council and ask it to hold its session. Such a Council may be considered as functioning from the date of issue of the Royal Decree ordering recall…….
- A motion of no confidence against the President of the Council of Ministers will not be placed before the Council of Deputies.
- If the National Council decides by two-thirds majority of the impossibility of co-operation with the President of the Council of Ministers, the matter will be raised to the King for a decision on relieving the President of the Council of Ministers and constituting a new Ministry or dissolving the Council of Deputies.
COMMON REGULATION FOR BOTH COUNCIL
No law will be issued except when it is approved by both the Advisory Council and the Council of Deputies or the National Council according to circumstances and ratified by the King.
The King will open the normal session of the National Council with his lofty Address….
A Royal Decree may convene the Advisory Council and the Council of Deputies for an extraordinary meeting should the King feel the need for…
The King may, be a Royal Decree, cancel the holding of ordinary and extraordinary session.
Every draft law which regulates economic or financial matters and which the Government wants looked into expeditiously, will first be placed before the Council of Deputies for a decision on it within fifteen days. At the end of this period, it will be placed before the Council of Deputies along with the opinion of the Council of Deputies if available, to record its opinion within another fifteen days. If there is a difference of opinion between the two Council over the draft law placed before them, the matter will be referred to the National Council for a vote on itwithin fifteen days. If, during this period, the National Council does not decide the issue, the King may issue a Decree giving it legal force.
The King may postpone by a Royal Decree the meeting of the National Council for a period not exceeding two months….
SPECIAL RULES FOR CONVENING THE NATIONAL COUNCIL
In addition to the conditions under which the national Council meet under the provisions of the Constitution, the King may call for such a meeting as he deems fit, or if the President of the Council of Ministers asks for it.
A Constitutional Court will be established with a President and six Members under a Royal Decree for a period laid down in law entrusted with the supervision of the constitutionality of rules and regulations.
The King may refer to the court, any draft laws before their issue, to determine their constitutionality and such determination will be considered mandatory for all State authorities and others.
GENERAL RULES AND FINAL PROVISIONS
A.In order to amend any rule of this Constitution, there should be an agreement over it by a two-thirds majority of the members constituting the Advisory Council and the Council of Deputies.
The King should approved of the amendment, which is an exception to the rule in Article (35, b, c, d) of this Constitution. …
- The power of the King as laid down in this Constitution, cannot be proposed to be changed during the period when someone else is deputizing for him.
These are the powers granted by the Constitution to the “post of the King”. In addition, otherjurisdictions have been granted to the King through a number of laws, including:
- The demarcating of districts, electoral constituencies and their boundaries is by decree
- The right to grant nationality as an exception of necessity conditions to individuals who offer valuable services
- The right to give public lands to individuals and else
- The subordination of the Administrative and Financial Court to the Royal Court; as the King appoints the Chairman and the undersecretaries of the Administrative and Financial Court.
- He forms the councils, bodies and public institutions
In addition to many other jurisdictions spotted among other laws. We will find ourselves in front of a “King” who enjoys absolute powers, and has no parallel in any democratic constitutional monarchy all around the world.
It is clear that the King, according to these powers, is capable of issuing any legislation and taking any executive action he desires, without the ability of any party to object or resist his legislative and executive will.
As well as this, the elected council cannot pass any legislation if not accepted by the “King”.
All these powers are protected by the inadmissibility to question the King because “his self is inviolable” according to the Constitution.
- These facts were mentioned in the Bassiouni report [BICI Report] in paragraph (49).
This reality does not achieve what the people of Bahrain voted for in the National Action Charter; a democratic constitutional monarchy similar to the genuine constitutional monarchies of the world.
If this reality is summed, the legitimacy of demanding what the Charter stated of a democratic constitutional monarchy similar to the genuine constitutional monarchies should be clear.
What matters in a constitutional monarchy is not the existence of the text in the Constitution, as in paragraph (d) of the Article 1: “The rule of the Kingdom of Bahrain will be a constitutional monarchy..”and as the Public Prosecution Office mentioned about the distribution of the Constitution into chapters; a chapter for the legislative authority, another for the executive authority and another for the judicial. What matters lies in the overall powers granted to the King by the Constitution and other laws. The matter is what real power the people and the elected council have in controlling the country’s affairs and forming the legislative, executive, judicial, security and other authorities.
Otherwise, it is known that all countries, including the most autocratic and dictatorial ones, state in the preface of their Constitutions that they are “democratic”, as the democracy of Hitler’s Germany, Saddam Hussein’s Iraq, Mubarak’s Egypt and Zein El Abidine’s Tunisia, and others.
Bahrain’s legislative authority is held by the “National Assembly”, headed by the Chairman of the Shura Council. The National Assembly consists of 2 chambers the “Shura Council” which consists of 40 members appointed by a royal decree, and the “Council of Representatives” which consists of 40 members elected by a direct secret election; the membership of both councils lasts for 4 years.
Laws are issued only after the agreement of both councils; the appointed and the elected; the implication of this decision, in practice, is the ability of the Shura council – which is appointed by the King – to veto any draft law he does not wish to pass. The King has the right to return the approved bill back to the Shura Council and the Council of Representatives and request it to be re-discussed either in the same session or in the second round.Then it becomes nearly impossible that both councils approve the returned draft law by a royal decree, since this requires a two thirds majority. And in all cases, the King can refer the draft laws to the Constitutional Court – which is also appointed by the King – to ascertain its conformance with the Constitution, before his approval.
Article 50 states: the King of Bahrain enjoys wide executive powers; he shall exercise his power both directly and through his ministers, he shall appoint and absolve the Prime Minister by a Royal Decree. The Prime Minister and the cabinet ministers shall not be questioned except before him. The King is the Supreme Commander of the Bahrain Defense Force as well as the Chairman of the Supreme Judicial Council. He proposes to amend the Constitution and the laws, and has the jurisdiction over approving and issuing them. He is the entrusted to estimate necessity to declare the State of National Security or Martial Law, issues Decrees and regulations necessary to implement the laws, and decrees regulations and the necessary provisions for regulating interests and public administrations. The King issues orders to hold the elections of the CouncilCouncil of Representatives, opens the legislative session and suspends them. He also has the power to invite the people to a national referendum. The King has the authority to issue decrees with the power of law, when necessary, between the sessions of the Shura Council and the Council of Representatives, or in case the latter has been dissolved. The members of the Council of Representatives have the right to question the ministers, the questioning may lead a vote of no-confidence in a minister, by which he/she will be dismissed if the Council of Representatives approves it by a majority of two thirds. The Council members are forbidden from submitting a motion of confidence in the Prime Minister. They can only vote for a no-cooperation with the Prime Minister. If this vote was successful by a two thirds majority , the issue will be raised to the King who has the right to dismiss the Prime Minister or to dissolve the Council of Representatives. So in all the cases, the King has the power to dissolve the Council of Representatives, and as a result the Shura Council sessions will be terminated.
My demand of a genuine democratic constitutional monarchy, which the people of Bahrain voted for in the National Action Charter in 2001 and which should have achieved a democratic rule with the sovereignty of the people’s will, is a demand to reform the political system to be a democratic constitutional monarchy where “the King reigns but does not govern” and where there is a separation between the royal family and the government, similar to the real constitutional monarchies in the world. It is not a demand to overthrow the regime. I don’t know how the Public Prosecution Office missed this in affirming the known definition of democratic constitutional monarchy around the globe. Its boundaries and regulations are indicated in the books and academic papers of political institutions, this is something every Political Sciences student understands and identifies.
My demands emerged from this standpoint; the demands of the opposition and the people of Bahrain for reform and the application of a real constitutional monarchy through:
- An electoral system that achieves equality among the citizens in electoral voice, and to hold the elections under the supervision of an independent national authority.
- Enabling the people to elect their government, and not to impose a government against their will.
- Enabling the people to elect a parliament that has the final say in legislation and observation.
- A fair and independent judicial system, in financial and administrative terms according to the best conclusions the United Nations.
- To allow citizens of all backgrounds to serve in the Security Services.
- Resolving the outstanding issues like; naturalization, discrimination, national reconciliation and transitional justice.
The detailed response to all what the Prosecution claimed was mentioned before in my written memorandum submitted to the court in the hearing session held on 14, Oct.2015.
I conclude to say:
I am a Bahraini citizen demanding reform of the regime and an adoption of the constitutional monarchy that is stated in the National Action Charter (a democratic constitutional monarchy similar to the genuine constitutional monarchies). I did not call for the overthrow of the regime.
I was elected to the presidency of Al Wefaq Society, which won in three election rounds with more than 60% of voter-turnout, regarding the winners in the municipal and parliamentary elections in 2002, 2006 and 2010. According to my political reading, it represents the majority of the citizens demanding democracy, freedom, equality and justice in the distribution of national wealth.
Since the beginning of my political work and up until now, I have stuck to peaceful activism and the principle of nonviolence practiced by Gandhi and Martin Luther King Jr. A history of over 20 years proves my words.
I disagree with the existing policy of naturalization, however I respect all the citizens and residents in Bahrain, and I did not incite hatred against any of them. I did not threaten anyone with anything, but had constantly called for peaceful coexistence and for the respect of all citizens and residents.
I will stick to my right to criticize the regime, as the universal covenants and charters of which Bahrain is signatory to and as the Constitution indicates. I have not even crosses the national laws which I have reservations on. I have abided to these laws in spit of all their flaws, and I did not call on anyone or any party to disobey these laws.
In my speech, I did not insult any official or non-official institution. My criticism was less than what was stated in the Bassiouni report and what was mentioned in the UPR recommendations in Geneva and in various international human rights reports. I did not go beyond the right to criticism that is legitimized by universal covenants and charters approved by Bahrain and included in its Charter and Constitution.
The truth behind my trial:
My trial, for my statements and political attitudes, confiscates the most basic human rights guaranteed in the universal covenants and charters signed by Bahrain, particularly the International Covenant on Civil and Political Rights. It also confiscates the rights guaranteed by the Constitution of the Kingdom of Bahrain itself.
This trial comes to provide a sample of other political trials, one of which is Ebrahim Sharif’s, and in light of the almost complete confiscation of freedom of expression, freedom of peaceful assembly and the right to association. The suppression of voices and peaceful gatherings is a clear surpass of what these treaties and covenants allow through legal restriction of certain rights. The existing reality is the suppression of freedoms, not the imposing of necessary restrictions in a democratic society.
The world has observed the features of this trial, and agreed that it is a politically-motivated one; it is a trial of opinion and conscience, par excellence. Accordingly, the charges on which this trial is based upon must be dropped and the detainee must be immediately released.
A Call to the international community to support Bahrain:
I call on the international community, represented by the United Nations, its Secretary General Mr. Ban-Ki Moon, the High Commissioner for Human Rights Prince Ra’ad Bin Al Hussein, as well as the free democratic states represented in the European Union, the United States and the human rights organizations, to lend a helping hand to the government and people of Bahrain for a real democratic shift through which a democratic constitutional monarchy similar to the genuine democracies is achieved, and in accordance with universal democratic standards indicated in the United Nations’ documents, where the International Covenant on Civil and Political Rights and all the universal human rights covenants are respected.
The continued demand for a democratic reform:
I thank every individual of this people who demanded democracy, equality and justice.
I urge you to continue with the peaceful approach in order to achieve the fair and legitimate demands of the people. This approach, which I contributed with the opposition to entrench, has been a determinant factor in preserving civil peace.
The rejection of real and genuine political reform to meet the genuine democratic constitutional monarchy leads to the continued political, human rights, economic and social crisis. One who loves Bahrain and its people would not do so.
Such a demand saves the homelands from extremism, terrorism, tyranny, deadlock, calcification and political, economic and cultural backwardness.
For the sake of my beloved homeland and people and its interests; and for achieving their humanitarian, fair and legal ambition of a real democracy, equality between the citizens, fair distribution of the country’s resources and the creation of a modern country; I owe these people to continue the peaceful struggle which I am determined to, no matter how big the difficulties and obstacles are until the dawn of this desired democracy shines in the horizon.
A letter to the King of Bahrain:
I take this opportunity to call on the King [of Bahrain] to launch an initiative for a democratic constitutional formula which achieves the genuine democratic constitutional monarchy as the promise and covenant was in the National Action Charter.
The people of Bahrain are educated, civilized and qualified to elect their government and parliament without the tutelage of those appointed against their will.
Thus, the democratic constitutional monarchy similar to the civilized modern European constitutional monarchies would be achieved.
The national solution:
I call for a genuine national dialogue that produces a national solution and prevents the negative impact of regional tensions on Bahrain, of which the people of Bahrain approve the outcomes of through a referendum.
My political project:
This is my political project, which I presented briefly in some cases and in detail to the King of Bahrain in other cases, as well as the Crown Prince and the Minister of the Royal Court. I talked about it during my membership in the Parliament and for over twenty years in the local and international forums and media.
I will continue my call, and I urge all the benevolent citizens of this homeland from all the tribes, families, sects and religions to cooperate and achieve this pluralistic democratic homeland which unifies all the dear people of Bahrain without any discrimination or exclusion.
I am dreaming and eagerly longing to see this kingdom safe and stable, with all its people living in love and harmony and cooperating to build this beloved homeland in the light of mutual respect between the people and the rulers and cooperation that raises the name of Bahrain in the international forums.
I look forward to put our hands together to face the economic and social challenges, and to work hand in hand for the sake of this homeland and its people.
Oh God, I seek your guidance so guide me, I seek your advice so advise me, I seek your victory so grant me victory, I seek your help so help me, and I trust in you so better my trust in you, oh most merciful.
Oh God, make this country safe, bless its people , join their hearts and unite them with love, welfare and guidance. Our last prayer all praise is due to Allah, Lord of the worlds.