Bahrain: Historic Change in Judicial System Renders it Under Military Rule after 94 Years of British Reforms

2017-02-10 - 8:08 p

Bahrain Mirror (Exclusive): 94 years after the tribal system in Bahraini courts was abolished, following the British reforms in 1923, the judiciary in Bahrain is, for the first time, heading towards becoming directly and permanently under military rule.

On February 2nd 2017, the King of Bahrain began the process of amending article 105(b) of the constitution, presenting a proposal for approval to the legislative council. The article governs the role of military courts, and the amendment removes all legal limitations on military courts, opening the possibility of the court being used against civilians. This allows the Bahrain Defence Force (BDF) Commander-in-Chief Field Marshal Khalifa bin Ahmed Al Khalifa to officially become the head of the judicial authority in the island kingdom.

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The Constitution, which was promulgated in 2002, states the following under article 105(b): "The jurisdiction of military courts shall be confined to military offences committed by members of the Defence Force, the National Guard, and the Security Forces. It does not extend to other persons except when martial law is declared and within the bounds prescribed by law."

The text of the proposed amendment states that "the law regulates the military judiciary and shows its competencies with regards to Bahrain Defense Force, the National Guard and the Public Security Forces." This means that the amended article removes all limitations on the military courts, and states only that the law regulates the military judiciary.

Explanatory Note

The amendment was put forward in an explanatory note circulated through Bahrain's government on 2 February. According to the note prepared by the legal advisory committee and sent by the Prime Minister to the National Assembly, it is explicitly stated that the aim of the proposed amendment is to extend the mandate of the military justice system to include crimes that are defined by the law, "in order to achieve and maintain the integrity, prestige and interests of all security forces in the kingdom."

In a rare statement, the official explanatory note openly said that the Bahrain Defense Forces are taking part in many combat missions and military operations that "require the deployment of the Armed Forces in and outside of the Kingdom of Bahrain." This can explain the extent to which the military is involved in governing the country's internal affairs and how many security and political decisions are dictated by it.

A number of western political analysts have shed light on the rise of the influence of the Bahraini ruling family's Khawalid branch and their role in governing the country's affairs, through its three heads, the BDF Commander-in-Chief Khalifa bin Ahmed Al Khalifa, his brother Royal Court Minister Khalid bin Ahmed and their nephew Minister of State for Cabinet Affairs Ahmed bin Attiyatallah, who was responsible for the Bandar report scandal.

The explanatory note further links the proposed amendment to "the crises that the Arab States of the Gulf and the Arab World are going through, such as the spread of terrorism in the region, which pose a great threat to the national security of Gulf Cooperation Council (GCC) countries."

After Failure of State Security Forces, Bahrain Heads towards Police State

The full picture of the proposed amendment will only be seen after it is passed, either by the issuance of laws by the National Assembly or decree laws directly by the King.

The implication that the military justice system will be used to "maintain the integrity, prestige and interests" of security forces strongly suggests that future military courts could be used against civilians, particularly those charged under the anti-terrorism law. The vaguely-worded amendment removes the limitations of military courts and appears set to prosecute offences which are deemed "to harm the security forces."

The effect of this could be wide-ranging, as the military judiciary can execute death sentences without the interference of the Interior Ministry. Many persons on death row and at imminent risk of execution, including Ali Al-Singace, Abbas Al-Samea and Sami Mushaima, who were executed in January 2017, are convicted of killing police officers in unfair trials, which rely on confessions extracted under torture.

Activists have even been prosecuted for "insulting" the armed forces, such as human rights defender Nabeel Rajab, who was sentenced to 6 months in prison for criticising the military and security forces in 2015, and who currently faces a litany of free expression charges, including "insulting a statutory body," in relation to his exposure of torture in Bahrain's prisons. The vaguely worded amendments may allow future critics and torture victims to be unfairly tried by military courts.

Husain Abdulla, Executive Director, Americans for Democracy & Human Rights in Bahrain said: "Bahrain has been an undeclared police state for many years now, but if this amendment goes through and civilians are tried by military courts, then we will have a situation far more sinister than what we witnessed in 2011. This time, the processes of unfair trial will be embedded in the country's constitution itself."

The King's new project seems to be an indication that he has despaired of the ability of the security and judicial bodies to stop the vortex of violence and tensions in Bahrain, and revealed his intention to turn the country to martial law, governing state authorities and unprecedentedly the judiciary as well.

In addition to reinstating law enforcement powers to the National Security Agency, directly reversing their disempowerment in 2011 following the BICI recommendations, the new proposed amendment will radically change the judicial system's structure, taking it back to what it was before the 1923 reforms. This will lead Bahrain to a situation expected to be far worse than the State of National Safety in 2011.

Military Judiciary Prosecutes 2011 Uprising, Bassiouni Criticizes

The military judiciary has previously counteracted the Public Prosecution and civilian judiciary in March 2011, taking on all security and political cases and trying civilians as part of the government's widespread repression of thousands of pro-democracy protesters, including politicians, activists and ordinary citizens who took part in the February 14 uprising protests.

The National Safety Courts prosecuted at least 300 protesters, according to the Bahrain Independent Commission of Inquiry. Among those tried in the National Safety Courts were doctors, nurses, and the Bahrain 13, a group of political leaders and human rights defenders sentenced between five years and life imprisonment. The BICI found that "fundamental principles of a fair trial, including prompt and full access to legal counsel and inadmissibility of coerced testimony, were not respected" in the National Safety Courts.  The commission also criticized the military judiciary's silence towards prisoner's claims of being subjected to torture and brutal prison conditions under the military forces' authority. The Commission recommended that the constitutionality of Royal Decree No. 18 of 2011 on the Declaration of a State of National Safety, which grants the military courts the aforementioned powers, to be reviewed by the Supreme Constitutional Court. The constitutional court; however, ruled the constitutionality of the decree despite all the issues regarding it.

Definition of "Terrorist" Cases

Since the eruption of the February 14, 2011 uprising, it has become evident that the cases labeled by the Bahraini state security authority as "terrorist" are related to all forms of political protest, from assembly, peaceful marches, clashes between security forces and protestors who use stones and Molotov cocktails, blocking of streets with rocks and burning tires, harboring wanted political suspects, to even treating injured protestors.

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