This is, to our knowledge, the first significant human rights-related legislation under consideration since Bahrain was elected to the United Nations Human Rights Council. Human Rights Watch believes that the law as presently drafted has the potential to undermine rather than protect the right of peaceful assembly as codified in Article 21 of the International Covenant on Civil and Political Rights (ICCPR).
We are writing to express concern regarding the draft law governing public meetings and demonstrations, known as Amendments to Law 18/1973. It is our understanding that the Majlis al-Nawwab and the Legislative Committee of the Majlis al-Shura have reviewed and approved this draft, and that the full Majlis al-Shura is expected to do the same in the near future, before sending it to Your Highness for final approval.
This is, to our knowledge, the first significant human rights-related legislation under consideration since Bahrain was elected to the United Nations Human Rights Council. Human Rights Watch believes that the law as presently drafted has the potential to undermine rather than protect the right of peaceful assembly as codified in Article 21 of the International Covenant on Civil and Political Rights (ICCPR). While Bahrain is not yet a state party to the ICCPR, the Cabinet in May 2005 reportedly approved ratification of the treaty and authorized preparation of a draft law to that effect. We strongly urge you not to approve this draft law, and recommend instead that you instruct the relevant officials in the ministries of justice and interior to revise this law to bring it in line with Article 21 of the ICCPR.
Your Highness and other high government officials have declared on many occasions that Bahrain is committed to becoming a more democratic society. Freedom of assembly is a core component of any democratic order, as it is essential to the process of forming political opinions and articulating them in a public setting, and to the principle of popular participation in public affairs.
Article 21 of the ICCPR allows some restrictions on the exercise of the right of peaceful assembly, namely those necessary for the protection of national security or public safety, public order, public health or morals, and the protection of the rights and freedoms of others. It is a fundamental principle in applying limitations to protected human rights that the government specify the objective of the limitation, and that the limitation not jeopardize the essence of the right in question.
The text of Amendments to Law 18/1973 enumerates restrictions on the right to peaceful assembly without indicating the purpose of the restrictions, in a manner that undermines this right, as follows:
- Article 2 (a) requires that persons wishing to organize a public meeting or demonstration notify the head of Public Security at least three days in advance. The draft makes no distinction between public demonstrations, where prior notification is reasonable in order to arrange for traffic control or police protection of demonstrators, and public meetings in an enclosed space, where such concerns are not relevant. The draft indicates no reason for requiring prior notification for such meetings. With regard to public demonstrations or rallies, where some prior notification requirement is reasonable, the three-day requirement seems excessive. It is not clear why a shorter prior notification – for example, 24 hours – would not be adequate to meet legitimate public order and safety concerns.
- Article 4 requires that the authorities notify the organizers of an event of a decision to ban that event at least two days prior to its scheduled occurrence. The draft law however does not require that the authorities specify the reasons for which they are banning the event, or what constitute legitimate grounds for banning an event. The burden of justifying a limitation on any basic human right rests with the state.
- Article 4 states that the organizers of a banned event can appeal the ruling within 15 days of receiving the ban, “in front of a specialized court which will rule on an urgent basis.” The law does not indicate the composition of this court, or provide any assurance that it will be independent of the executive. Neither does it specify what it means by “urgent.”
- Article 5 states that “special permission” is necessary for public gatherings between 11:30 p.m. and 7 a.m. There is no indication of why the needed permission in this instance is “special.” Nor is there any indication of why the requirement for prior notification of public meetings is not confined to these night-time hours, with no prior notification necessary for events scheduled for day and evening hours.
- Article 6 states that every public event must be organized and run by a committee of at least three members that is responsible for, among other things, “forbidding any speech or discussion infringing on public order or morals.” The draft law leaves “public order or morals” undefined, inviting the authorities to restrict the rights to free expression and freedom of peaceful assembly at will.
- Article 7 authorizes police presence at any public meeting, and authorizes the police to break up a public meeting if, among other things, “a crime, listed in the Penal or other active codes, was committed during the meeting.” Bahrain’s Penal Code, and perhaps other “active codes” as well, still contains provisions that do not comport with international human rights standards governing basic civil and political rights, particularly in the areas of freedom of expression and freedom of association. This draft law thus may authorize security officials to disrupt public meetings solely in response to persons exercising or advocating the exercise of basic civil and political rights.
- Article 8 authorizes the head of public security to determine that a meeting is public rather than private and thus subject to police presence on the basis of, among other things, “its subject… or any other circumstance.”
- Article 10 prohibits the participation of non-citizens in demonstrations, processions, “and meetings with a political purpose.” The ICCPR does not allow states parties to make the right of aliens or non-citizens to freedom of assembly subject to special restrictions. On the contrary, the U.N. Human Rights Committee, the body that monitors state compliance with the ICCPR and provides authoritative interpretation of the Covenant, has stated unequivocally that “aliens receive the benefits of the right of peaceful assembly” and that “there shall be no discrimination between aliens and citizens” in the application of basic rights.
- Article 10 also prohibits, without explanation, “demonstrations for election purposes.” The right to freedom of assembly, like the associated rights to freedom of expression and freedom of association, are crucial to a democratic order in general and to free and fair elections in particular.
Your Highness, for the reasons enumerated, we believe that the draft law known as Amendments to Law 18/1973 is seriously flawed and should not become law. The draft law renders the right to freedom of assembly subject to the arbitrary determination of security officials and the government, and contains elements that directly contradict the right to freedom of expression. The draft law is distinctly incompatible with your declared intention that Bahrain move towards a more democratic political order. Specifically, the draft law is at odds with Article 21 of the ICCPR, which your government has declared it intends to ratify.
For these reasons, we urge you to refrain from signing this draft into law, and instead instruct the appropriate officials in the ministries of justice and interior to prepare a draft that meets Bahrain’s international human rights obligations and reflects your aspirations for a more democratic Bahrain.
We look forward to your positive response to these recommendations.
Sarah Leah Whitson
cc: His Excellency Ambassador Naser Al Belooshi, Embassy of the Kingdom of Bahrain, Washington, DC