Between Law and Crisis: Creating and Changing the Constitution in Bahrain
This paper draws on the concept of “crisis” – understood as an ever-present phenomenon in constitutionalism1 –
to offer an analysis of Bahrain’s constitutional amendments. The persistence of crisis is attributed to the formation
of the constitution as a result of a “compromise between disparate forces.” The compromise was nevertheless
incomplete, leading to certain contradictions under state capitalism, particularly those arising between the “material
constitution” that defines social relations and the form of wealth distribution, on the one hand, and the “formal
constitution” that organizes the relationship between state authorities on the other.2 That being said, the term
“crisis” in this context does not necessarily refer to a specific moment in time with a defined beginning and end; it
is rather a continuous process involving turning points where more severe social conflicts erupt. This paper argues
that the relationship between crisis and constitutional amendment is a multi-directional relationship, such that crises
drive constitutional amendments, just as constitutional amendments drive crises. It further argues that crises are
included in the constitutional provisions because they anticipate the occurrence of additional crises in the future.
The first section offers an overview of the genesis of Bahrain’s current constitutional order, as well as its underlying
legal principles. It focuses on what the constitutional texts refer to as the “popular will,” the “joint will of the King
and the people,”3 and the “moderate approach.” It examines their legal and political impact on the form of the
constitutional order and further considers them against the concept of “popular constituent power,” as defined
under the liberal approach to constitutional law. In this first section, the paper raises questions regarding the goal
of “reactivating constitutional life” in Bahrain as announced at the beginning of 2001, as well as the internal and
external contradictions inherent in that endeavour. It further poses questions about the law’s role in dissociating the
“constitution” from politics and steering it clear of economic and social matters.
In the second section, the paper analyses the constitutional amendments that were undertaken during the post-Arab
Spring period (particularly between 2012 and 2018) and their similarities in terms of the legal mechanism by means
of which they were introduced, their content, and their impact. In particular, it analyses the extent to which they
responded to the political parties’ aspirations and goals, as well as their impact on the legal and political system as a
whole, and whether or not they constituted a turning point in the course of the country’s constitutional development.
The paper concludes by considering the current status quo in Bahrain and proposes possible measures to resolve
the crisis in the future.
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