The Bahraini Terrorism Act and Loose Laws (4)

2014-07-06 - 5:20 ص


"Terrorism is as a wildfire that endangers everything around" was not a definition given by a Bahraini political opponent; however it was mentioned in the UN International Commission of Jurists report about the terrorism act in Bahrain. The report addressed, in particular, article 1 of the law (58) of 2006 regarding "protecting the society from the terrorist acts".
Sheikh Ali al-Mustarshed is the third suspect in the "Qatar cell" case that started with a quarrel between Bahraini citizens and policemen in Doha in November 2012. The latter handed the said citizens to the Bahraini security forces. For the surprise of everyone, the Ministry of Interior declared the existence of a cell related to the Iranian Revolutionary Guard Corps that planned for bombing acts and targeting of political leaders !!

Sheikh Ali was regarded as a suspect after issuing of the Bahraini Independent Commission of Inquiry (BICI) report which documented that "there is no evidence of Iran's involvement in Bahrain" and after the authority's high alert response to that, with the King in the lead by hisdeclaration that he has much of evidence that proves the Iranian direct intervention in Bahrain's events.
The charges filed against the Qatar cell convicts were the following:

1- Collaborating with a foreign country (the Iranian Revolutionary Guard Corpsofficials) to commit hostile actions against Bahrain, as: targeting vital and sensitive installations and hitting the Ministry of Interior headquarters, King Fahd causeway, Embassy of Saudi Arabia building in Bahrain.

2- Establishing a secret organization aimed at calling to forcibly change the political regime in the country, suspension of the Constitution and laws provisions, prevent the authorities from performing their duties and assaulting the citizens' personal freedoms and public and private rights.

What was the evidence found by the public prosecution's investigations to pin the aforementioned charges against Sheikh Ali al-Mustarshed?

Was he caught red-handed in a terrorist act according to the charges list? No

Was he caught with weapons or explosives? No

Was he caught with intelligence letters? No

Could the prosecution find calls, messages, emails or any other form of social media that constitute evidence about the setups and plans for any of the objectives mentioned in the charges list? No

The investigations failed to relate the money element to the charges in all ways; on the contrary, the technical reports assured that al-Mustarshedhas nothing to do with the indictment. In addition, the investigations performed on al-Mustarshedelectronic devices showed no evidence for any external contact. Then, what was the evidence the prosecution used as basis and the judiciary agreed on later on?

All that the technical report and investigations could find with the suspect was "50 thousands Iranian Toman, i.e. not more than BD 10 = US$ 26.50"!!!

Despite al-Mustarshid's denial of the accusations against him and proving his irrelevance to the indictment, he was tried pursuant to the terrorism act. The court sentenced him to 15 years in prison on 27 May 2012 disregarding the convicts' attorney and the defense note.

Before the issuing of the statement, in particular, on 15 April 2011, "Mohammed Al Jishi", the lawyer, proposed an explanatory notice to the first high criminal court on the behalf of al-Mustarshedproving the Bahrain terrorism act's unconstitutional basis according to the UN International Commission of Jurists report, referred to in the beginning of our episode and jurists definition. This notice aimed at exerting pressure to show the invalidity of the Bahraini terrorism act in its current form and the invalidity of the provisions issued based upon it. The jurisdiction, however, was aware of the way it wanted to steer toward.

What is the definition of Terrorism in article (1) of Law (58) of 2006 regarding "protecting the society from terrorist acts"? How legal is it? How was it modified to be as a wildfire that devours everything around?

The legislator of the Bahraini terrorism act defined "Terrorism" as"the use of force or threatening to use it or any other unlawful means constituting a crime legally punishable by law resorted to by a perpetrator for the execution of an individual or collective criminal plan with the aim of disrupting public order or threatening the Kingdom's safety and security or damaging national unity or security of the international community if this would result in harming persons, terrorizing and intimidating them and endangering their lives, freedoms or security or causing damage to the environment, public health, national economy or public utilities, facilities or properties or seizing them and obstructing the performance of their business activities, preventing or obstructing the government authorities, places of worship or academic institutions from carrying out their activities".

Any lay person will face no obstacle to tell how ambiguous and loose this act is and realize that it is a wildfire whose victims are of all kinds it may choose. This game is based on language tricks; however, it is not smart enough to hide its defects. The Bahrain Independent Commission of Inquiry (BICI) report and Jishi's notice resorted to the Constitution to refute these expressions; we will summarize the most important expressions and then analyze them.

Why this unconstitutional definition?

Article 20/A of the Constitution states that no crime or penalty may be established except by virtue of law. This means that the penal provisions should be of clear statements and elements. "The aim of the legislator is to give notice to the public about what is considered a crime, its consequent penalty and the freedom limits; which is needed to clarify the image for the public. Every ambiguity in the text shall lead to dangerous judicial control". (Dr. FathySorour- Criminal Constitutional Law , page 91).

The penal provisions are to be narrowly tailored, thus the provisions shall define the actions which the legislator regards as crimes, specify them in order not to let ignorance be a cause for violating the people's rights stipulated in the Constitution. However, if the penal provisions were ambiguous, the public will be ignorant to the incriminating action.

The wildfire list according to the terrorism act definition:

The terrorism act definition in the Bahraini law Why is it a wildfire?
The whole text It did not differentiate between terrorism crimes and those which undermine the state security that are stipulated in the penal code
“the use of force or threatening to use it” Using force is not only attributed to terrorism, however, it is used in most of the crimes against people
“or any other unlawful means constituting a crime legally punishable by law” How do we differentiate between the crime committed for a terrorist intent or a non-terrorist one?
“resorted to by a perpetrator for the execution of an individual or collective criminal plan” The expression addresses all forms of activities that need organizing efforts to achieve a specific goal.

The term “plan” is more close to those used in the criminal law and it is not clear in the penal code.

How do we distinguish whether the crime is related to the individual or collective project?
“With the aim of disrupting public order or threatening the Kingdom’s safety and security or damaging national unity or security of the international community….” Intent is when the offender wants to achieve a specific event, to be determined.

Through the above table"The law of protecting the society from the terrorist acts" can arbitrate all the regular crimes which violence or threat are used in; such as: armed robbery on shops and banks, blocking the streets by armed groups, protests for demanding a right, strikes protesting for the poor working conditions and other forms of regular crimes.

In brief, the vastness used in writing the terrorism explanatory text reveals the incapability of the legislator to draw the lines between terrorism acts and other acts. Moreover, this vastness also shows that the legislator wants to camouflage to intentionally make this act a wildfire.

Back to the case of “Al-Mustarshed cell”, the terrorist (charge) imposed by the public prosecution to the convicts was the thing they were tried upon. It is to note that the prosecution found no act of (crime), no weapons or physical evidence relevant to this (charge). The convicts have but Iranian tickets, computers and few Tomans. The public prosecution put the terrorist charge in the scale that allows it to issue a harsh penalty according to the terrorism act. Thus, the prosecution declared: the formation of a cell “with intent to organize terrorist and armed acts in Bahrain against some vital institutions and persons”.

The weird thing was that the prosecution hid the case file which included the investigations with the convicts provided by Qatar.

But why?  Mohammed Al Jishi, the lawyer, says, “according to the statement of the Ministry of Interior through the security cooperation, Qatar provided Bahrain with all the information. However, the prosecution did not propose any paper in the case file about the measures taken against the convicts. Thus, there is a large missing part in the case characterized by the missing of the most the important measures related to the arrest and inspections conducted on the suspects in Qatar”.

In next part, the fourth high criminal court...

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