BAHRAIN: Stakeholders’ Report

Bahrain has failed to ensure compliance of its obligations to promote and protect human rights as provided under its domestic laws as well as international human rights instruments. The situation of political and civil rights remains grim. Human rights defenders and civil society groups face serious repression. The freedom of speech and expression is gagged and freedom of assembly is unreasonably curtailed. Women face gender abuses while the situation of foreign maids remains deplorable. The Shia people who constitute 70% of Bahraini population face discrimination.

Arbitrary arrest and illegal detention

Arbitrary arrests and illegal detentions are rampant in violations of the constitutional guarantees for personal freedom [Article 19 (a)] and the right not to be arrested arbitrarily [Article (b)]. [1] The Riot Fighting Forces (RFF) do not spare even the minor students. [2] Victims were also held incommunicado. [3]

Torture, inhuman and degrading treatment

Security forces continue to practice torture as a part of law enforcement. Despite classifying torture as a penal offence, instances of torture have been found to be rampant, vindictive, and willful. The security forces also indulge in unrestrained and indiscriminate use of force than is usually necessary to maintain law and order. Victims of police beating reported that RFF shot them with rubber bullets from a distance of only 3 meters although they could have been easily arrested. [4]

Plight of Women

The Sharia laws continue to become obstacles to gender equality. Article 5 (b) of 2002 Constitution provides that in pursuit of seeking equality with men in political, social, cultural and economic spheres, women cannot break the provisions of Islamic Sharia laws. [5] Gender discrimination in public life and employment is distinctively visible. According to a 2006 report of the government, women held only 9 percent of senior civil service posts although they constituted 11 percent of the private sector workforce and 42 percent of the government workforce. [6] Gender bias is still strong in the workplace. [7] Women receive significantly low remuneration than their male counterparts. The average wage preference of men over women was BD63 in government and BD147 in the private sector. [8]

In the absence of a codified Personal Status Law, Bahraini women facing divorce, child custody or alimony disputes continue to suffer hardships under the Sharia system of justice. There have been numerous instances in which victims have suffered humiliation, unfair treatment and injustice at the hands of the Sharia Court judges but they still have to endure simply because there is no codified Personal Status Law to adjudicate their disputes/grievances on the basis of established principles of justice. [9]

Migrant workers, especially the female domestic workers, are subjected to conditions of involuntary servitude when faced with exorbitant recruitment and transportation fees, withholding of their passports, restrictions on their movement, non-payment of wages, and physical or sexual abuse. Between 30 to 40 per cent of the attempted suicide cases handled by the government’s psychiatric hospitals were foreign maids. [10] The foreign house maids continue to be excluded from labour law reforms carried out by the Bahrain government. [11]

Administration of justice

Although the trial of cases, both civil and criminal, is open and defendants are presumed innocent until proven guilty [12] , judiciary is only independent nominally. The courts were reportedly subject to government pressure regarding verdicts, sentencing, and appeals. [13]

There is enormous scope of executive interference into the functioning of the judiciary and such anomaly is inherent in the constitution. Under Article 33 of the 2002 constitution, the King is the head of the Higher Judicial Council, the body responsible for nomination of the judges and which is also responsible for supervising the work of the courts and the public prosecution. Practically, the king can hand pick the judges of his choice and dictate them. [14]

The Sharia Courts have been accused to be biased against women. Women rights groups claimed that women have been subjected to unfair treatment and their rights and dignity violated in the Shari'ah family courts. [15]

Situation of Human Rights Defenders

The human rights defenders face serious repression in Bahrain and they face various forms of systematic persecution, such as arbitrary arrest, judicial proceedings based on false or unfounded charges of “encouraging hatred of the state and distributing falsehoods and rumours”, threats, physical assaults, ill-treatment, torture and numerous other acts of harassment by the authorities and government security forces. [16]

Since 2004 starting with the arrest of Abdul-Hadi Al-Khawaja, President of Bahrain Centre for Human Rights (BCHR) on 26 September 2004, [17] Bahrain authorities have carried out illegal arrest of numerous human rights defenders and perpetrated torture for protecting and promoting the rights of the victims of human rights violations. Some of the prominent human rights defenders who have been victimized included spokesman of the National Committee for Martyrs and Victims of Torture in Bahrain (NCMVT) Abdul Rawf Al-Shayeb and Mr. Mahmud Ramadan, a board member of (NCMVT) [18] ; renowned women rights activist and president of the Bahrain Women's Petition Committee (WPC) Ghada Jamsheer [19] ; Nabeel Ahmed Rajab, the Vice-President of the Bahrain Centre for Human Rights (BCHR) [20] ; a well-known activist of the Unemployed Committee Hassan Abdulnabi Hassan Ali [21] ; an activist at the Unemployed and Low-Paid Committee (ULPC) Naji Ali Fateel [22] ; HAQ democracy movement leader Hassan Mush-aima'a; and rights activist Shaker Abdul Hussain.

The authorities extensively used the Societies Law [Decree No. 21 of 1989] to repress the human rights activists and civil society groups. Article 15 read with Article 22 gives the Specialised Administrative Authority very wide discretionary powers of monitoring and the authority to reject the registration of any organisation on unreasonable grounds. [23] The Ministry also has the authority to close down any society temporarily (Article 50) and Article 20 bars all association from receiving foreign contribution. [24]

Freedom of Speech and Expression

The 2002 constitution of Bahrain provides for freedom of speech and of the press, but the government limited the exercise of these rights. The government continues to illegally enforce the draconian Press Decree of 2002 at its discretion and restricted freedom of speech and press although it was suspended soon after it came into force in 2002. [25] According to the data collected by the Bahrain Journalists Association (BJA), 27 cases were filed against journalists in 2006, of which only 7 were considered by the Public Prosecution. In 2007, 32 cases were filed against journalists. Out of these, 12 cases were considered by the Public Prosecutor. [26]

In recent months, the authorities indiscriminately invoked Article 47 of the 2002 Press and Publication Law, and Articles 15 and 365 of the 1976 Penal Code of Bahrain to interrogate and prosecute more than 14 journalists as well as bloggers and website administrators. The other journalists who have been victimized include Hesham Al-Zayani and the editor-in-chief of “Akhbar Al-Khaleej” [27] ; Mr Saleh Al-Amm, a journalist, writer and the editor of the journal; Muath Al-Meshari, a columnist for “Al-wasat” newspaper; and Fareed Al-Shayeb, a writer for “Al-Saheefa” [28] and Al-Alam television news channel’s Isa Town reporter Ms. Zainab Abdulnabi along with her cameraman Mr. Seyed Ali Al-Najjar. [29]

Since 24 April 2005, numerous websites have been blocked and many website owners, bloggers and internet users faced prosecution. In 2007, over 26 blocked websites, local and international continue be blocked. [30]

Religious Intolerance

There were consistent reports of discrimination against the majority Shi’a Muslims by the minority Sunni followers, to which the royal family also belongs. The Sunni Muslim minority enjoyed a favored status. In the private sector, Shi'a tended to be employed in lower paid, less skilled jobs. Educational, social, and municipal services in most Shi'a neighborhoods were inferior to those found in Sunni communities. [31] According to a study of the BCHR, Shias hold only 18% of the total high posts such as posts of director or higher in the Government of Bahrain. [32]

Shias alleged that in spite of their being overwhelming majority, strategic and important ministries in the government are continued to be held by the members of the Sunni royal family members. [33] The government is reportedly pursuing policies to alter the island's demographic balance through granting citizenship to non-Bahrainis — mainly Sunni Arabs from around the region – to mitigate Shiite dominance.

Proposals to include the Ja'afari traditions of Shi'a Islam in the school curriculum continue to be rejected by the Bahraini Ministry of Education (MOE). [34] Shias are also shown in bad light in the Islamic curriculum of Bahrain. They are shown as non-believers and erratic. [35] Shi’as also face discrimination in matters of allocation of lands, provision of public funds and/or granting permission for building or refurbishment of worship places and mosques. [36]

II. Enhancement of State’s Capacity

Bahrain requires technical cooperation for strengthening of the civil society organizations, reform of the administration of justice sector and labour sector, especially migrant women workers.

III. Cooperation with the HRC, Treaty Bodies and OHCHR

Bahrain has failed to issue Open /Standing invitation to the Special Procedures of the UN. Bahrain allowed the Special Rapporteur on Trafficking in Persons, especially women and children to visit the country from 29 October – 1 November 2006. Working Group on arbitrary detention was also allowed to visit from 19-24 October 2001 but request of the Special Rapporteur on migrants remain pending although the situation of migrant workers is deplorable.

Bahrain had ratified some of the major human rights instruments. These included Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment in 1998; International Covenant on Civil and Political Rights in 2006; Convention on the Elimination of All Forms of Discrimination Against Women in 2002; International Convention on the Elimination of All forms of Racial Discrimination in 1990; Convention on the Rights of Persons with Disabilities in 2007; Convention on the Rights of the Child in 1992.

However, Bahrain has not yet ratified the Convention for the Protection of All Persons from Enforced Disappearance; International Covenant on Economic, Social and Cultural Rights; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Bahrain has so far failed to submit periodic reports under the UN Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment since 4 April 2007; under the Convention on the Elimination of All Forms of Discrimination against Women since 18 July 2003; under the International Convention on the Elimination of All Forms of Racial Discrimination since April 2007; and under the Convention on the Rights of the Child since 12 March 1999.

2. Human rights situation on the ground

I. Arbitrary arrest and illegal detention

Article 19 (a) of the Constitution of Bahrain states, “Personal freedom is guaranteed under the law” and Article 19 (b) states, “A person cannot be arrested, detained or imprisoned or searched, his place of residence specified or his freedom of residence or movement restricted, except under the provision of law or under judicial supervision.” [37]

Yet, there have been several instances of arbitrary arrest and illegal detention in Bahrain during the last couple years. On 19 October 2007, Bahrain riot fighting forces besieged the area of an expected demonstration in Karzakan province and that led to clashes between the security forces and the suspected demonstrators. After the clashes, security forces resorted to random arrests in different parts of the province and many innocent persons including employees, shop owners, beach goers and students were arrested and kept in detention. Some of the detainees include Hassan Ahmed Hassan, (17), Hassan Mansour Ali, (18), Sayed Shoubeir Sayed Mekki (18), Hassan Mekki Abbas (17), Ja’afer Abdul Nabi Abbas, (18). According to family members, the detainees were tortured in custody and many of them sustained injuries. [38]

On 21 May 2007, Ali Saeed Al Khabaz, a 22-years-old student of the Bahrain Training Institute, reportedly went missing after he went out for dinner from the house of his grand parents in Sanabis. He remained untraceable till 15 June 2007 when the Director of Police Media at the Ministry of Interior revealed that he has been in the custody of the security forces. [39] He has been allegedly held incommunicado and even his family members were not allowed to meet him. He has been subjected to severe torture in custody and had to be given medical treatment at the military hospital. [40]

II. Torture, inhuman and degrading treatment

The 2002 Constitution of Bahrain prohibits torture. Article 19 (d) specifically provides that no person shall be subjected to physical or mental torture, inducements, or undignified treatment and torture is a penal offence in Bahrain. In order to lessen the scope of custodial torture, the article also categorically provided that any statement obtained or extracted under torture, inducement, or undignified treatment, or under any threat to mete out such treatment shall be null and void. [41]

However, the above constitutional guarantees failed to prevent torture in Bahrain and scores of people have been tortured. Instances of torture have been found to be rampant, vindictive, and willful. The security forces indulge in unrestrained and indiscriminate use of force than is usually necessary to maintain law and order. According to testimonies of the victims who have been tortured by the Fighting Riot Forces (FRF) at Al-Malkiaya village near the seacoast on 9 June 2007, many have been beaten up or shot at with rubber bullets or thrown tear gas or sound bombs not just to disperse them but to physically harm them. Many of them said that they have been chased while dispersing from the place of demonstration and shot at rubber bullets from a close distance of 3 meters although the security forces can arrest them without shooting. While pursuing the dispersing protestors, security forces also illegally penetrated, entered into and searched houses indiscriminately and they also threw sound bombs inside one house to force the hiding protestors to come out. [42]

III. Plight of Women

The constitution provides for equality; equal opportunity; and the right to medical care, welfare, education, property, capital, and work for all citizens. However, these rights were protected unevenly, depending on the individual's social status, sect, or gender. To this end, Article 5 (b) of 2002 Constitution provides that in pursuit of seeking equality with men in political, social, cultural and economic spheres, women cannot break the provisions of Islamic Sharia laws.

a. Discrimination in public life and employment

Bahrain can be proud and boast of having the lone and the first elected woman Member of Parliament namely Latifa al-Qa'oud in the Gulf region but there were still very less number of women in policy or decision making positions. Except Latifa al-Qa'oud, none of the 18 women candidates who contested the legislative and five who ran in the municipal elections in 2006 were elected. [43] Male domination over public post/position was demonstrated bare in August 2007 when Ebrahim Bu Sandal, representing Bahrain second largest political party namely Al Asala, stated that his party was opposed to the possibility of fellow MP Latifa heading the finance committee when the parliament reconvenes because she was a woman. He went further to state that his party adheres to its principle based on religious precepts that women should not run for parliament, let alone head committees. [44]

Only an insignificant percentage of women hold key positions in the Government. In 2004, the Ministry of Cabinet Affairs revealed that women held only 9 percent of senior civil service posts although women constituted 11 percent of the private sector workforce and 42 percent of the government workforce, according to a 2006 report of the government. [45] A study conducted by an NGO, the Bahrain Centre of Studies and Research in January 2007 also stated that only 9.9 per cent are in key positions and pointed out that gender bias is still strong in the workplace. The report found that most of the women were employed at jobs traditionally associated with women such as secretaries, receptionists and clerks. [46]

Women also receive significantly low remuneration than their male counterparts. A report published by the defunct Bahrain Centre for Human Rights (BCHR) in July 2007 stated that the average wage preference of men over women was BD63 in government and BD147 in the private sector. The BCHR report also revealed that in the public sector, average monthly salary of Bahraini women was BD643 compared to BD706 for their male counterparts. As for the private sector, Bahraini females received average monthly salary of BD307 compared to BD454 for men. [47]

b. Victims of matrimonial discord at the mercy of the clerics

In the absence of a codified Personal or Family Law, Bahraini women facing divorce, child custody or alimony disputes continue to suffer hardships under the Sharia system of justice. As the decisions of their cases depend upon the nature of interpretations of the Islamic law by the judges who are religious scholars, women are virtually at the mercy of the clerics. Their legal rights vary according to interpretations of Islamic law, which are often divergent and conflicting, depending upon their faith (Shia or Sunni) or by the court in which various contracts, including marriage, were made. There have been numerous instances in which victims have suffered humiliation, unfair treatment and injustice at the hands of the Sharia Court judges but they still have to endure simply because there is no codified Personal Status Law to adjudicate their disputes/grievances on the basis of established principles of justice. Because Bahraini civil law doesn’t have any jurisdiction over Shariah Court verdicts there is no legal way to challenge arbitrary, inconsistent and unjust verdicts till a unified Personal Status Law is introduced. According to Afaf al-Jamri, a Shiite activist and a member of the main Islamic National Accord Association, “The situation of many Bahraini women is tragic. Each neighborhood has an average of four women thrown on the street by their husbands after, say, 30 years of marriage just because they (husbands) wanted to have younger wives.” [48]

Any attempt to introduce a unified Personal Status Law has received vehement opposition from Sunni and Shiite conservative scholars who are the judges in the Sharia courts. The government avoids antagonizing the powerful religious scholars. In November 2005, the state controlled Supreme Council for Women (SCW), chaired by Sheikha Sabeeka bint Ibrahim Al-Khalifa, the wife of the Emir, sponsored a bill to pass a Personal Status Law which was still supposed to be based on the Sharia but the result was devastating. Islamic scholars, mainly Shiite, vehemently opposed the proposal and they organized counter campaigns and the Government had to abort SCW’s proposal. Till a Personal Status law is introduced, Bahraini women will continue to suffer. [49]

c. Sufferings of the migrant women workers

Like other countries in the Gulf, Bahrain remain one of the favoured destinations for several men and women from all over the world looking for jobs. Many though end up being cheated by travel agents and manpower agencies. Thousands from South and Southeast Asia come to Bahrain to work as labourers or domestic servants, but are subjected to conditions of involuntary servitude when faced with exorbitant recruitment and transportation fees, withholding of their passports, restrictions on their movement, non-payment of wages, and physical or sexual abuse. It has been commonly reported that domestic servants, especially women, were forced to work 12 or 16-hour days, given little time off, were malnourished, and were subjected to verbal and physical abuse, including sexual molestation and rape. Between 30 to 40 per cent of the attempted suicide cases handled by the government’s psychiatric hospitals were foreign maids. [50]

As on April 2007, there were at least 50,000 foreign housemaids in Bahrain who were awaiting legislations that would ensure them better treatment, decent work environment and better wages. In 2007, the Government of Bahrain carried out sweeping labour law reforms including comprehensive insurance covers for expatriate workers through amendment of labour laws of the island country. Sadly the labour law reforms did not cover the sufferings of the housemaids. In spite of the continuous pressure from the human rights groups and non-governmental organizations, Bahrain failed to bring the domestic workers or housemaids, the most vulnerable section of the workforce within the purview of labour laws. The government had said that a separate law for the housemaids was being drafted and would be passed soon but that has not yet happened. [51] Citing that the domestic workers are not covered by the labour laws, the General Federation of Bahrain Trade Unions (GFBTU) which has been taking up the cudgels for thousands of expatriate workers stated that the foreign domestic workers are “simply beyond” protection mandate of the GFBTU. [52]

While the fate of the law governing the rights of the domestic workers hang in balance, numerous cases of abuse of expatriate housemaids by their sponsors and employers are being reported every month.

IV. Administration of justice

a. Structure of the court system

The Bahraini legal system is based on a mix of British civil law, Common Law, Shari'a (Islamic law), and traditional laws. The judiciary is organized into two separate branches: the civil law courts and the Shari'a courts. [53]

The civil law courts (criminal and civil), adjudicate all civil and commercial cases, criminal cases, and personal status cases involving non-Muslims while the Shari'a courts have jurisdiction over personal status cases involving citizen and non-citizen Muslims. The constitution established the Constitutional Court to rule on the constitutionality of laws and statutes. The Constitutional Court consists of a president and six members (judges), who were all appointed by the king. These seven judges serve nine‑year terms and cannot be removed before their terms expire. The court's determination is final and "binding on all state authorities and on everyone," according to the constitution. The Bahraini Defense Force (DINARSF) maintains a separate court system that only tries military personnel accused of offenses under the Military Code of Justice. The Ministry of Interior (MOI) has a similar system for trying police officials. [54]

While the Courts of Minor Causes (the Lower Courts and the Court of Execution) have one judge with jurisdiction over minor civil, commercial, and misdemeanor cases, the High Civil Courts have three judges with jurisdiction over larger civil and commercial cases, felonies, and personal status cases involving non-Muslims. Above the High Civil Courts is the Civil High Court of Appeal with a panel of three judges which hears appeals. Both the civil and criminal court systems have a Supreme Court of Appeal, and a Court of Cassation, which is the final appellate court. In the Sharia court system, there are two levels: the Senior Shari'a Court and the High Shari'a Court of Appeal. At each level is a Sunni Maliki Shari'a Court with jurisdiction over all personal status cases brought by Sunni Muslims, and a Ja'afari Shari'a Court with jurisdiction over cases brought by Shi'a Muslims. The High Shari'a Court of Appeal is composed of a minimum of two judges. In the event of a disagreement, the Ministry of Justice (MOJ) provides a third judge, and the decision is based on a majority vote. There are 11 judges in the Sunni Maliki Shari'a courts and 12 judges in the Shi'a Ja'afari Shari'a courts. [55]

b. Trial procedures

Trial of cases, both civil and criminal, is conducted openly. According to the constitution, defendants are presumed innocent until proven guilty. The defendents/respondents have the right to counsel, question witnesses, and the right to appeal. Defendants may choose their own attorneys. If they are unable to afford a private attorney, defendants may ask the MOJ to appoint an attorney to represent them in court. Juries are not a part of the judicial system. [56]

c. Executive interference

Under the 2002 constitution of Bahrain, judiciary is nominally independent but practically it is not independent, and courts were reportedly subject to government pressure regarding verdicts, sentencing, and appeals.

There is enormous scope of executive interference into the functioning of the judiciary and such anomaly is inherent in the constitution. Article 33 says, “The King chairs the Higher Judicial Council. The King appoints the Judges by Royal Orders, as proposed by the Higher Judicial Council.” Under this Article, the King is the head of the Higher Judicial Council the body responsible for nomination of the judges and which is also responsible for supervising the work of the courts and the public prosecution. This means that the King can hand pick the judges of his choice and dictate them. Given that Bahrain is ruled mostly by the members of the royal family, scope of interference by the Ministers, many of whom are close relatives and aides of the king, are enormous. The constitution does not provide a legislative branch confirmation process for judicial appointees nor does it establish an impeachment process.

In the past, some attorneys and family members involved in politically sensitive criminal cases have argued that the Government intervenes in court proceedings to induce the result or to obstruct rulings from being carried out. There are also occasional allegations of corruption in the judicial system. [57]

Universal Periodic Review

[Contribution under the Universal Periodic Review of the Human Rights Council]

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