Report of the Bahrain Independent Commission of Inquiry

Chapter III — Relevant Aspects of the Legal System
and Description of the Enforcement Structures
180. A State of National Safety was declared in Bahrain pursuant to Royal
Decree No. 18 of 2011 of 15 March 2011. This was undertaken in accordance
with article 36(b) of the Constitution of Bahrain, which provides that in order
to declare a State of National Safety, there must be issued a Royal Decree,
which, as a matter of law, carries lesser value than a law passed by the
National Assembly or a Royal Decree Law. 230
181. Article 31 of the Constitution places a blanket obligation on the GoB
not to regulate the practice of any of the basic human rights or fundamental
freedoms enshrined in the Constitution except by means of a law. In addition,
many other provisions relating to a variety of civil and political rights forbid
placing any restriction on the enjoyment of these rights except by means of a
law.
182. Defendants have referred to constitutional provisions, including
article 31, in arguing that despite being of lesser legal value than an act of law,
Royal Decree No. 18 of 2011 allowed certain measures to be taken that
imposed restrictions on the enjoyment of basic human rights and fundamental
freedoms. The measures under Royal Decree No. 18 of 2011 to which the
defendants drew attention are as follows:
a. Searching individuals and places upon suspicion of violating
the provisions of Royal Decree No. 18 of 2011 on the
Declaration of a State of National Safety. 231 This was argued
to contravene articles 19(b) and 25 of the Constitution, which
respectively prohibit the searching of individuals and the
entry and search of private homes except in accordance with
an act of law.
b. Arresting and detaining suspects and individuals deemed to be
a threat to the security of citizens. 232 This was also argued to
contravene article 19(b) of the Constitution prohibiting the
arrest, detention or restriction of liberty of individuals except
in accordance with the law and under judicial supervision.
c. Article 5(12) of Royal Decree No. 18 of 2011 allowing
authorities to revoke Bahraini citizenship from any individual
deemed a threat to public order and security, to exile them
from the country or to detain them in a secure location. This
was argued to violate article 17 of the Constitution, which
provides: “Bahraini nationality shall be determined by law. A
National Assembly (art 42) and disband and reconstitute the Chamber of Deputies (arts 42 and
64).
230 The explanatory memorandum appended to the Constitution states that when declaring a
State of National Safety, the King may issue orders contravening laws in force. This power is
not prescribed in the text of the Constitution, but only appears in the appended memorandum.
A question arises whether it is proper for an interpretative memorandum to bestow such an
authority on the King, as it would appear to amend, alter or add to the provisions of the
Constitution itself. On the legal value of the appended memorandum, see Introductory Note
by HM King Hamad bin Issa Al Khalifa to the 2002 constitutional amendments.
231 Royal Decree No. 18 of 2011, art 5(6).
232 Royal Decree No. 18 of 2011, art 5(11).
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