Laws & State Institutions Threaten Freedoms, in Absence of Protective Measures
11 May 2004
Contents:
- Changes: steps forward and steps back
- Reverting to old restrictive Laws
- Applying The Penal Code on Political activists
- The Real Role Of Public Prosecutor
- Separation Of Powers
- The Helpless Constitutional Court
- A National Assembly Under The Control Of The Government
- In Conclusion
Laws & State Institutions Threaten Freedoms, in Absence of Protective Measures
11 May 2004
Contents:
- Changes: steps forward and steps back
- Reverting to old restrictive Laws
- Applying The Penal Code on Political activists
- The Real Role Of Public Prosecutor
- Separation Of Powers
- The Helpless Constitutional Court
- A National Assembly Under The Control Of The Government
- In Conclusion
Recent developments have enhanced the concerns of Bahrain Human Rights Centre (BCHR) about the fate of public liberties and human rights in Bahrain. The government has reverted again to the laws of the past era to restrict freedoms and sue those who oppose them. These laws had been given immunity from any challenge by the Constitutional Court. On the other hand, the National Assembly is unable to amend these laws without the consent of the government. The House of Representatives (elected chamber) has, so far, been unable to impose any real control on government practices. The formation and performance of the Public Prosecution has cast serious doubts about its independence, in addition to lack of real progress on the issue of the judiciary independence. The weakness of non-governmental organizations due to the laws and government dominance and the setback in freedom of the press are added threats.
Changes: steps forward and steps back
The main problem lies in the laws, especially the Penal Code of 1976, Societies Law of 1998 and the Press Act of 2002. These are all inter-related laws of the State Security era, which greatly restrict freedom of expression and publication, freedom of gathering, formation of societies and participation therein. These laws are heavy handed in punishing anyone who expresses opinions or is involved in practices that are considered “red-lines” by the government. These laws were practically frozen in the period subsequent to the referendum vote on the National Charter in February 2001, allowing for the revival of freedom of expression and the formation of societies, including political ones, but things began to witness a setback.
The setback started when the constitutional amendments were declared by the new ruler in Feb. 2002, which gave all the powers to the King, prevented holding the Prime Minister accountable, and established an appointed chamber with the same legislative powers as the elected chamber. Prior to the vote to elect the House of Representatives, a series of decrees were issued by the government dividing the constituencies on a sectarian basis, restricting the direct role of political societies in elections, and placing the new legislative and judicial institutions “under control” of the government. These decrees provided immunity from prosecution for those responsible for human rights abuses and corruption during the previous era. As a result, opposition societies boycotted parliamentary elections and the country entered into a new era of increasing political dispute. This coincided with a set back in the direct role of the new King and his son the Crown Prince for the benefit of the Prime Minister and other members of the ruling family who have been, and still are, running the country for the past thirty years.
Reverting to old restrictive Laws
The authorities systematically reverted to the use of policies and laws of the past era. They imposed their domination on the new legislative and judiciary institutions. Two editors – in – chief of newspapers, journalists and activists were sued in accordance with the press act. The Bahrain Centre for Human Rights and opposition political societies were threatened with closure. Authorities warned against any seminar, sit-in or public gathering of more than four people without prior permission. Some members of political societies are currently being tried before courts for collecting signatures on a petition addressed to the King. All these recent actions by the authorities give the impression that the unprecedented margin of freedoms witnessed in Bahrain was only a temporary stage during which an absolute rule of a family was put in order in a regime that lacks the fundamental basics of a real democracy.
Applying The Penal Code on Political activists
As a result of a campaign staged by four political societies to collect signatures for a petition refusing constitutional amendments and demanding more powers for the elected parliament, the Minister of Labor threatened to close down the societies, hence, the Public Prosecutor ordered the arrest of those who were gathering signatures. The detainees were charged with accusations which could carry penalties as severe as life imprisonment, based on articles in the Penal Law concerning: (1) Promoting the change of regime, (2) Instigation of hatred for the regime (3) Forcing the King to perform an act which falls within his legal jurisdiction (4) Spread of false news that could harm the public interest. In addition to the said articles, the Penal Code, which had been issued in 1976, after the cancellation of parliamentary life, includes more articles that restrict freedom of the press and freedom of societies.
These articles require prior authorization for all internal and external activities, and give the executive power far reaching powers for direct control and interference, and to take administrative measures at the discretion of the executive power itself. Those articles allow the government to use the judiciary to sue those who oppose it, and to impose financial penalties and long jail sentences on them. The Bahrain Penal Code, had been subject to widespread criticism from the concerned bodies of the UN and International human rights organizations such as Amnesty International, Human Rights Watch and the World Organization Against Torture (OMCT) in Geneva.
The Real Role Of Public Prosecutor
The current public prosecutor, Shaikh Abdul Rahman bin Jaber Al-Khalifa plays an active role in suing the opposition by using the articles of the penal law related to the so-called state security crimes. Shaikh Abdul Rahman had been the head of the State Security Court which was disbanded as a part of the reform programme announced by Shaikh Hamad after coming to power in March 1999. UN bodies and international organizations had condemned the State Security Courts of the past era because of its procedures which violated the principles of fair trial. Its trials were secret and relied on confessions taken under torture during solitary confinement. Its sentences, which reached life imprisonment, were harsh and could not be appealed against. The penal Code – in its article 186 – still allows for the formation of special tribunals similar to the state security courts to deal with those involved in cases connected with political activities.
The Public Prosecution is supposed to be independent from the executive power. The judiciary system in Bahrain is of a single system in which there is no administrative judiciary. Therefore, the civil judiciary to which the Public Prosecution is a part of, is the body authorized to look into all disputes, including those between the public authority and the individuals. However, in real terms the P.P. is under the control of the government and cooperates with it, especially in issues of a political and security nature.
Separation Of Powers !!
The head of Public Prosecution Office is a member of the ruling family, of which the Prime Minister, and the Ministers of the Interior, Defence, Foreign Affairs, Oil, Transport, Islamic Affairs and Electricity & Water are also members. Other members of the ruling family head the Supreme Judiciary Council and occupy sensitive positions in the Judiciary. According to the Constitution of 2002, the King appoints the prime minister, cabinet members, members of the constitutional court and members of the Consultative (Shura) Council, who share legislative power with the House of Representatives. Therefore, the overall political structure and the actual situation in the country are a far cry from separation of powers and independence of the Judiciary as provided for by the constitution.
The Helpless Constitutional Court
Although the recently formed Constitutional Court is the body empowered to oversee the conformance of laws with the constitution, however it is helpless in challenging the laws of the past era. The reason is that, the government issued a law prior to the formation of this court preventing it from looking into any challenge concerning laws that preceded the election of the National Assembly in December 2002.
A National Assembly Under The Control Of The Government
The National Assembly is, in theory, responsible for legislation and amendment of laws. However, the current mechanisms – as per the new laws and constitutional amendments- prevents it practically from playing that role without the prior consent of the government. It is the government who formulates the laws and chooses the right time for submitting them to the Parliament for discussion. In addition to that, the King appoints half of members of the N.A., thereby securing a loyal majority for itself, especially in the light of the boycotting of the elections by the opposition. At the final stage, no laws can be issued without the approval by the King.
As for the role of the elected parliament in monitoring the practices of the government, it has, so far been unable to free itself from the government’s domination and pressures, which even determines its by-laws. The council’s inability became clear when it failed to pass a vote of no-confidence against three ministers who were accused of financial and administrative corruption in connection with the Social Insurance Organization and the Pension Fund. It failed in taking any action against ministers who violated the constitution law by combining ministerial positions and their business activities. Members of the House of Representatives failed in obtaining information concerning the Sectarian and Political Naturalization, despite the formation of a special committee for that purpose. Members of the H.R. who raised serious criticisms against the government were subjected to a vicious publicity campaign and pressures, preventing them from disclosing information and making statements to the press. The House of representatives has, so far, refrained from taking any initiative to reform those laws that restrict freedoms. The Public Prosecutor warned the deputies against any interference in the case of recent arrests, claiming that this was beyond their authorities and subjects them to legal suing.
In Conclusion
The continuation of implementing the same arbitrary laws, weakness of the legislative, the non-independence of the judiciary, marginalizing political and non-governmental societies, domination and control of the government on the media and the lack or ineffectiveness of internal and external means of protection, put us before an absolute authority which holds the instruments of oppression and uses them at its discretion. This is a constant threat to freedoms and human rights in Bahrain.