Military courts in Bahrain could soon be expanding their powers and may gain jurisdiction to prosecute civilians if a new constitutional amendment is passed. The Bahrain Center for Human Rights (BCHR) is greatly concerned with the potential consequences such a distortion of legal power would have on the right to fair trials and urges the Bahraini Government to act in accordance with international legal standards.
On 5 February 2017, the Bahraini Parliament provided initial approval on the constitutional amendment put forth by Royal Decree (7/2017) and referred it to the Parliamentary Legislative and Legal Affairs Committee for review. The proposal amends the wording of art. 105(b) of the constitution which originally limits jurisdiction of military courts to military offences committed by military personnel, and civilians only when martial law has been declared.
Article 105(B): “The jurisdiction of military courts is restricted to military crimes that are committed by employees of the Bahrain Defence Force, the National Guard and the general security forces. It cannot enjoy wider jurisdiction except in the case that martial law is announced according to the limits set out by law.”
The proposed amendment however allows the military courts to prosecute civilians, as it includes the general security forces under its jurisdiction. No limitations of military courts are imposed in the proposed amendment. The amended text now reads thus:
“This law regulates the military courts and sets out their jurisdiction, which includes the Bahrain Defence Force, the National Guard and the general security forces.”
Within the next few weeks the Legislative and Legal Affairs Committee will discuss the proposal and conceive a report; the National Assembly will then consider the proposal.
The explanatory memorandum supplied by the Directorate of Legal Affairs said that: “It has become necessary to empower the apparatus of the military courts to achieve the aforementioned goals ... according to this, the jurisdiction of the military courts will be broadened to include crimes determined by the law. This will safeguard the safety, prestige and interests of the military apparatus throughout the Kingdom, and especially that of the Bahrain Defence Force, which is responsible for defending and protecting the nation, and for guaranteeing the independence, sovereignty, safety and security of its territory. It is especially important since crimes relevant to military institutions require greater flexibility and speed to investigate and prosecute them, in the shortest possible time, in order to guarantee the safety, security and stability of the nation.”
According to art. 120(a) of the constitution, the King and two-thirds of members of the Consultative Council and Council of Representatives must approve the amendment for it to pass.
The United Nations Human Rights Committee and the UN Working Group on Arbitrary Detention have both held that military courts should not be used to try civilians. If this constitutional amendment is passed, it will be in violation of Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees that: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
The lack of due process when prosecuting civilians in front of military courts has been demonstrated in 2011. In 2011, following pro-reform protests, hundreds of people including lawyers, medical staff, athletes and activists were sentenced in front of a military court, following Royal Decree (18/2011) declaring a State of National Safety. The State of National Safety was terminated on 1 June 2011, however a military court continued hearings until 6 October 2011. On the military courts, the Bahrain Independent Commission of Inquiry (BICI) report has stated that: “fundamental principles of a fair trial, including prompt and full access to legal counsel and inadmissibility of coerced testimony, were not respected” (para. 1720.)
The former UN High Commissioner for Human Rights Navi Pillay criticised the practise of trying civilians in military courts in Bahrain in 2011: “The trial of civilians before military courts is always a cause of concern... The defendants are entitled to fair trials before civil courts, in accordance with international legal standards and in keeping with Bahrain’s international human rights obligations.” Human Rights Watch has described the Bahraini military courts as a "travesty of justice," while Amnesty International has described them as a "sham" and "a parody of justice." expressing concern that those prosecuted would not receive fair trials and proper legal representation.
The members of the court are appointed by the chief of the army. As per BCHR’s 2011 documentation, the court showed a lack of impartiality by not allowing access to lawyers or family for the defendants, not presenting evidence, and ignoring claims of torture. The defendants were often not notified of the charges against them until their court hearing. There was a ban on pens and paper pads during hearings. Furthermore, making a statement to any media outlet was prohibited even for journalists and the media was restricted to state-run television. Journalists representing non-Bahraini outlets were not granted access to the hearings.
Dr. Alaa Shehabi described her 2011 experience of the courts as follows: “The military court buildings in Riffa are relatively new. Built in 2007, one wonders if they were built with its current use in mind. Upon entering, one is only allowed to carry their ID card, no watch, no paper, no pens, no jewellery - not even a wedding ring. I had to remove my headscarf and earrings during the painstaking electronic and hand search. There is an army officer standing every couple of metres in the lobbies and court rooms. This building, with only two courtrooms, was clearly not designed to handle this number of trials in one day. Female detainees are held in the lawyers' room for lack of space, male detainees are made to stand in the sun because of overcrowding in their holding cells and lawyers have to hang about in the lobby - as their room is now occupied by the female prisoners."
Based on the above, the Bahrain Center for Human Rights demands the authorities in Bahrain to:
- Halt and cancel the proposed constitutional amendment that will allow civilians to be tried in military court and violates the right to a fair trial;
- Adhere to the international and Bahraini law, which provides for the right of the accused to have fair litigation and an adequate defense; and
- Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Bahrain.
The explanatory note supplied by the Directorate of Legal Affairs said that:
“The instruments of the military courts, including the Bahrain Defence Force, the National Guard and the general security forces, are part of the general judiciary of the Kingdom of Bahrain. They are focused on following up legal and judicial matters with the responsible military officials and the like, especially as regards criminal charges. There can be no doubt that the establishment of these bodies is not restricted to pursuing these charges – their fundamental aim is to safeguard the privacy of the military apparatus and the secret nature of the information revealed within them. They are to be regarded as the protective shield of the Kingdom of Bahrain.”
“In light of the crises the Gulf Arab region is currently experiencing and the resulting spillovers that threaten society at large and its very bases – not to mention the phenomenon of terrorism and the proliferation of terrorist groups that disturb the security of the GCC, and the various regional wars - it is clear that it is necessary to promote peace and national as well as regional security. Safeguarding measures must be taken to increase the level of protection, the capabilities of military institutions and the scope of areas under their jurisdiction. This is especially true since the Bahrain Defence Force is currently carrying out its national and regional duties by safeguarding the security of the GCC and taking part in a number of fighting missions and military operations. In fact, its forces are constantly spread out inside and outside the Kingdom.”
“It has become necessary to empower the apparatus of the military courts to achieve the aforementioned goals and aims by replacing Article 15(B) of the constitution with a new article – according to this, the jurisdiction of the military courts will be broadened to include crimes determined by the law. This will safeguard the safety, prestige and interests of the military apparatus throughout the Kingdom, and especially that of the Bahrain Defence Force, which is responsible for defending and protecting the nation, and for guaranteeing the independence, sovereignty, safety and security of its territory. It is especially important since crimes relevant to military institutions require greater flexibility and speed to investigate and prosecute them, in the shortest possible time, in order to guarantee the safety, security and stability of the nation.”