الرقابة القضائية السابقة على دستورية القوانين في النظام القانوني البحريني والمقارن دراسة تحليلية مقارنة

Abstract

Abstract : The thesis in question aims to look into ex-ante judicial review of constitutionality of laws under the Bahraini and other comparative legal systems, through examining the constitutions and laws organizing such review and its practical applications in view of procedural and objective aspects, and effects incurred upon that application. The thesis addresses a set of debated matters related to time overlap between the two jurisdictions of the King when contesting bills or referring them to the Constitutional Court (CC), particularly the grace in which bills are referred to the Constitutional Court and whether the exercised pre-review by the Court could be potentially post or pre -review in relation to the bill objection, in addition to the consequence of referral over act endorsement. It also examines the scope of royal referral of bills to the CC, as this underlines that such referral should state clearly the statutory text in question along with the constitutional text alleged to be conflicting and aspects of the conflict. The thesis discusses the borderlines of the CC's jurisdiction of ex-ante review in terms of its objective scope and its probable inclusion of constitutional amendments, bills subject to referendum and decree laws. It also discusses the extent to which the CC may abide by when exercising ex-ante review under the same terms and conditions abided by in case of ex- post review; such as presumption of constitutionality for the law examined. In addition to that, the thesis highlights the manner of the CC towards extending the constitutional bloc when applying ex-ante review, and highlights too the decisions of conformity- which are conditional on reserved interpretations issued by comparative judiciaries in the course of exercising such ex-ante review. One of the most interesting problems raised here is how to execute the CC's decision and what the body – vested in addressing the constitutional defect as explained by the CC's report - is, as well as the relationship between the ex-ante and ex-post reviews and whether the ex-ante one will prevent the other in effect. B The thesis is divided to four chapters. The first one deals with the definition and features of the ex-ante review of the constitutionality of laws. The second chapters deals with initiation of ex-ante review and the third one deals with the limits of jurisdiction of the CC. The final chapter is on the impact of the report by the CC and judicial cases occurring later.