The road to a constitutional dissolution

By Atyab Al-Shatti

The televised Amiri address reflects public indignation, which was a result of the executive authority not carrying out all its duties. To determine whether a certain procedure executed by the Cabinet is constitutional or unconstitutional, then it’s crucial to scrutinize article 103 of the constitution stipulating the Cabinet of execution of urgent matters.

The constitution expressly stipulates in article no. 103: “If the prime minister or the minister relinquishes his position for any reason, he shall continue to execute urgent matters.” An explanatory memorandum regarding the interpretation of article 103 states: “The minister continues to execute urgent affairs related to his mission, until his successor is appointed,” so as to avoid what is constitutionally called a “constitutional vacuum”.

But the explanatory memorandum does not specify what is recognized as an urgent matter that the Cabinet has the capacity to execute regardless of the resignation and what is not an urgent matter that will wait till the final official formation of the new Cabinet. So this legislative vacuum led to a clash between parliamentarians and the Cabinet. While MPs believed that the grant for retirees is not an urgent matter, the Cabinet acted as if it was one. This legislative vacuum in the explanatory memo has caused ambiguity and escalated anger and wrangling among the public.

Such a dissolution might face nullification by the constitutional court if it takes place under the current political and legal circumstances. While the dissolution of the parliament can be imposed either through a law or a decree, for laws to be passed, a parliament and a stable Cabinet should exist, which is not our current situation. For a decree law to be passed, a stable Cabinet and prime minister shall file the dissolution matter to HH the Amir for his ratification.

This could be subjected to nullification by the constitutional court presently because the Cabinet resigned without stating non-cooperation with the Assembly, which is a crucial statement that HH the Amir would have considered to dissolve the current Assembly, if such a statement of non-cooperation was ever submitted by the Cabinet at the time of resignation. The Cabinet of urgent matters does not have the ability to file for dissolution before HH the Amir, which makes the dissolution procedure contrary to the constitution, and with it the decree issued in this regard becomes null and void.

Article 129 of the constitution states that if a new prime minister is appointed to replace the resigned prime minister, the powers of all ministers in the resigned Cabinet cease, and the prime minister and other ministers in his resigned ministry no longer have any right to continue their work. The Amiri order appointing the new prime minister included in his assignment to nominate members of the new Cabinet, and therefore it is not constitutional that he will practice any work unless the formation of the new Cabinet is accomplished.

It is also crucial to differentiate between the dissolution of the parliament by a parliamentary request or an Amiri dissolution by HH the Amir in line with article 107, which states that HH the Amir may dissolve the National Assembly by a decree stating the reasons for such a dissolution, provided the Assembly shall not be dissolved for the same reasons a prior Assembly was dissolved by an Amiri decree, so it is crucial that the aspects and causes of dissolution are different.

If the Assembly is dissolved, the elections for the new Assembly must be held within two months of the date of dissolution. If elections are not held during this period, the dissolved Assembly regains its full constitutional authority, meets immediately as if the dissolution had not occurred, and continues its work until a new Assembly is elected.

The second stage after assigning the prime minister is for the prime minister to assign the Cabinet, which is crucial, and it needs to take the oath before HH the Amir as a fundamental procedure for the Cabinet’s legitimacy. Afterwards, only the new legitimate Cabinet, in light of the Amir’s address on June 23, shall file the dissolution matter of the Assembly before HH the Amir to issue the dissolution decree according to constitutional article 107. Then in line with the constitution, the period of two months in which the elections of the new Assembly shall take place will begin from the date of issuing the dissolution decree.

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