Open Letter to the Parliament regarding the bill presented by the Government to reform the law on associations

Attn. HEKhalifa bin Ahmed Al-Dhahrani, Chairman of the Council of Representatives

cc. HE Fatma Al-Balushi, Minister of Social Development

HE Dr. Salah bin AliAbdulrahman, Minister of Human Rights Affairs

Paris-Geneva,April 3, 2013

Re: The bill presented by the Government toreform the law on associations falls short of universal human rights standards

Excellencies, Dear members of Parliament,

The Observatory for theProtection of Human Rights Defenders, a joint programme of the InternationalFederation for Human Rights (FIDH) and the World Organisation Against Torture(OMCT), expresses its deepest concerns regarding the Draft Law on CivilAssociations and Organisations currently before Parliament, which, ifadopted, would further extend the capacity of the Government to interfere withthe activities of non-governmental organisations (NGOs), including human rightsNGOs, and thus further undermine human rights protection in Bahrain.

The Kingdom of Bahrainhas ratified the International Covenant on Civil and Political Rights (ICCPR),which in its Article 22 provides that “Everyone shall have the right to freedomof association with others” and is legally bound to respect and protect thisright.

The right to freedom ofassociation is a fundamental right, which plays a vital role in the promotionand protection of all human rights and the promotion of the rule of law anddemocratic principles. Any infringement of freedom of association underminesthe respect of all other human rights. It should be recalled that while somerestrictions may be imposed, freedom should remain the rule and restrictions theexception. In its General Comment No. 27 (1999), the UN Human Rights Councilstipulated that “in adopting laws providing for restrictions […] Statesshould always be guided by the principle that the restrictions must not impairthe essence of the right […]; the relation between right and restriction,between norm and exception, must not be reversed”. When, therefore, Statescontemplate a restriction of such rights, they must be sure to comply with theabove conditions. Any restriction must therefore be motivated by one of theinterests specified, be on firm legal grounds (i.e. imposed “in accordance withthe law”, which implies that the law must be accessible and that it issufficiently precisely worded), and be “necessary in a democratic society”.

Our organisations areconcerned that the current bill was drafted in an attempt to further stiflecivil society organisations, in particular human rights NGOs.

Today, human rightsNGOs' right to freedom of association is regulated under Law 21 of 1989 for “societies”(االجمعيات), whichaccording to local NGOs, constitutes one of the main obstacles hindering theirwork. It gives the Minister of Social Development the right to replace boardmembers and directors of associations, to prohibit associations from engagingin so-called “political activities”, to reject an application for establishingany association “if [Bahraini] society doesn’t need its service” and todissolve the association. It has been indeed used to take over severalassociations over the past two years including the doctors association, and todissolve the teachers association[1].Over the past years, human rights defenders have been calling for a new lawthat guarantee the right to freedom of association in accordance withinternational standards by local and international human rights organisations.This call was made again during the review of Bahrain under the UniversalPeriodic Review (UPR) in May 2012 and Bahrain accepted to implement thecorresponding recommendation[2].

The Draft Law on Civil Associationsand Organisations, which was adopted by the Government and referred in itsinitial form to the Parliament on January 7, 2013, is still being reviewed inParliament though strong opposition was voiced by 20 local NGOs in a publicletter dated March 4, 2013[3].Contrary to recommendations made by NGOs as well as some UN mechanisms, theprovisions of the current draft law contravenes international standards andamong others would give the Minister of Social Development the power to unduly“supervise” and “interfere with the internal management and activities ofNGOs”, including human rights NGOs.

The right to formassociations hindered:

- Ambiguous criteria forregistration

Pursuant to Article 22of the ICCPR, everyone should be able to benefit from the right to create anassociation, without any kind of discrimination. Any restrictions must complywith States' international human rights obligations as blanket restrictionsshall not be considered lawful. Article 22.2 provides that “[n]o restrictionsmay be placed on the exercise of this right other than those which areprescribed by law and which are necessary in a democratic society in theinterests of national security or public safety, public order (ordre public),the protection of public health or morals or the protection of the rights andfreedoms of others”. While certain restrictions may be imposed, freedom ofassociation should be the rule and restrictions the exception. In its currentform, the bill contains several wide-ranging provisions which would potentiallyimpair the essence of the right and reverse the relation between right andexception.

Article 2 of the draftlaw provides that it is “prohibited to establish an organisation/association onsectarian basis or to achieve items that violate the constitutionand legislations, or public and moral order, or if its activities are political,business, or for profit”. In a context where human rights defenders and NGOscritical of the authorities for their human rights record are accused of conductingpolitical activities or of fuelling “sectarian” hatred, such provisions couldbe used to unduly hamper human rights work. Indeed, criteria for registrationincluded in the bill are ambiguous enough to allow authorities broad discretionin their interpretation.

Furthermore, Article8 states that “the Minister (of Social Development) has the right to rejectthe request of registration of an organisation if the society is not inneed of its services, or if the request violates the provisionsof this law, or it was intended to revive/incorporate anotherorganisation that was previously dissolved”. This provision is alsoambiguous and is a direct violation of the freedom of association, as it grantspower to the Minister to interpret whether an NGO may serve the needs ofsociety or not.

Finally, under Article7, the law would forbid individuals to be members of more than one groupdoing similar work, unless the ministry approves.

Also, under Article 7,the law would forbid creation of any organisation that is based on theobjectives underlying the trade unions. This automatically make theassociations of “doctors”, “nursing” and “teachers” illegal, at time the labourlaw forbids forming trade unions for employees in the public (governmental)sector. These associations were last resort to have a form of trade-union-likeassociation for the public service employees.

- Lack of independenceof registration authorities

It is crucial that thereviewing body be independent from the Government to ensure the fairness of theregistration process.

In the current bill, Article6 provides that “the registration request is submitted to the Ministryof Social Development”, a political body.

Over-archinginterference in the operation and management of associations:

Under the current bill,Bahraini NGOs would not be allowed to carry out their activities freely due tothe capacity of the Government to interfere in decision-making and activitiesat all stages of the operation and management of the NGO: from regulating thethorough details of internal functioning and administration to tightsupervision of the association's funding, membership and dissolution. Ministryemployees would be entitled to search and inspect NGO premises and arreststheir members in case of violation (Article 13).

Prior ministerialapproval would be required at almost all stages:

- tojoin/participate/cooperate/affiliate with foreign organisations (Article 16)

- to issue anypublications (Article 18)

- to receive domesticand foreign funds/donations and to conduct fund-raising (Article 17)

- to open/close a bankaccount (Article 50)

- to donate funds toforeign organisations (Article 52)

- to invest funds orperform any financial transactions (Article 55)

- to invite foreignersto attend conferences, workshops, activities in Bahrain (Article 88)

The Minister may alsointerfere in the management of NGOs in the following manner:

- hire a manager or atemporary board to run the board in some cases (Article 20)

- merge NGOs working onthe same goals (Article 22) – this is one of the most serious threats to theindependence of NGOs, as the minister would have the capacity to merge anindependent NGO with a another NGO which is less critical of the authorities

- attend generalassemblies (Article 27)

- receive minutes anddecisions of general assemblies (Article 28)

- cancel elections ofexecutive board members (Article 41)

- issue a unified guideon financial and administrative policies for civil society organisations, thatthe organisation must follow in their preparation of its annual budget (Article54)

- suspend the Board ormanager or any of its members (Article 82)

Administrative andjudicial harassment: from suspension to dissolution:

The right to freedom ofassociation applies for the entire life of the association. The suspension andthe involuntarily dissolution of an association are the severest types of restrictions on freedom of association. As a result, itshould only be possible when there is a clear and imminent danger resulting in a flagrant violation ofnational law, in compliance withinternational human rights law. It should be strictly proportional to thelegitimate aim pursued and used onlywhen softer measures would be insufficient.

Under the current bill,the Minister may initiate legal proceedings against NGOs for even minorinfringements or suspend them without appropriate remedies (Article 58). Suchinfringements include:

- spending funds inwrong manner

- inability to achieveits goals/ the violation of these goals

- conduct activitiesbased on ethnicity/sectarian nature

- gross violation of thelaw/statute

- gathering/sending offunds inside/outside Bahrain in violation of the law

-joining/participating/affiliating to a foreign organisation without the consentof the ministry

The current draft lawintroduces a new form of dissolution through the involuntary merging withanother association (assumingly working for the same goal), under Article 22which leave it to the Minister to decide on the conditions and the mechanism ofthe merge and which force the merged associations to submit all its records tothe new association.

NGO members subject toState-sanctioned persecution and discrimination:

- Criminal sanctions forunregistered activities

The right to freedom ofassociation equally protects associationsthat are not registered. Individuals involved in unregistered associationsshould indeed be free to carry out anyactivities, including the right to hold and participate in peaceful assemblies, and should not be subject to criminal sanctions.Under the current bill, individuals are liable to criminal responsibility foroperating unregistered NGOs (Article 87) and they face prison and finespunishments.

- Criminal sanction forunauthorised activities

Under the current bill,the Minister may initiate legal proceedings against human rights defenders forconducting unauthorised activities or committing specific offences, such as(Article 87):

- establishing a bodythat conducts activities of a civil organisation/institution without complianceof the law

- purposely giving falsedata or hiding data

- conducting activitiesbefore the registration announcement in the official gazette; or after thedecision/verdict of its dissolution

- conducting activitiesthat exceed the purpose for it was established / or spending funds for purposesother than those authorised/ or misusing funds

- allowing non-membersto participate in the general assembly meetings of the organisation

- participating in anactivity with an organisation that was dissolved after the decision waspublished in the official gazette

- collecting donationsin violation of the law

- receiving/sendingfunds to/from abroad

- inviting foreignpersons to attend activities of the organisation without the approval of theminister

- refusing to give indocuments/funds to the incorporated organisation

- refusing to give indocuments/funds to the appointed manager/committee

The Draft Law on CivilAssociations and Organisations adopted by the government would significantlyundermine what few human rights independent non-governmental associations haveunder the country’s current law.

TheObservatory considers that the adoption of this draft law would blatantlyviolate international instruments on human rights that guarantee freedom ofassociation, in particular the ICCPR, the Universal Declaration on Human Rightsand the Declaration on Human Rights Defenders, adopted by the United NationsGeneral Assembly on December 9, 1998. More specifically, the Observatory highlightsthat the bill as drafted would violate the following articles of the UNDeclaration on Human Rights Defenders, and in particular:

-Article 5(b): For the purpose of promoting and protecting human rights andfundamental freedoms, everyone has the right, individually and in associationwith others, at the national and international levels: (…) (b) To form, joinand participate in non-governmental organizations, associations or groups; (c)To communicate with non-governmental or intergovernmental organisations.

-Article 5(c): For the purpose of promoting and protecting human rights andfundamental freedoms, everyone has the right, individually and in associationwith others, at the national and international levels: (…) (c) To communicatewith non-governmental or intergovernmental organisations.

-Article 13: Everyone has the right, individually and in association withothers, to solicit, receive and utilize resources for the express purpose ofpromoting and protecting human rights and fundamental freedoms through peacefulmeans, in accordance with article 3 of the present Declaration.

Accordingly,the Observatory respectfully requests Members of Parliament to vote down thebill mentioned above, and to prevent any other bill or initiative that would limitthe right to freedom of association.

Inaddition, the Observatory calls upon the Bahraini authorities, including theParliament and the Government, to consult, throughout the drafting process ofthe bill, with civil society organisations and all concerned parties, and toamend the bill and to conform, in any circumstances, with the constitutionalright to establish civil society organisations and international standardsregarding freedom of association, in particular the provisions of the UniversalDeclaration of Human Rights (Article 20) and those of Article 5(b) of the UNDeclaration on Human Rights Defenders.

We express our sincerehope that you will take these considerations and requests into account,

Yours sincerely,

Souhayr Belhassen

FIDH President

Gerald Staberock

OMCT Secretary General

[1] For moreinformation see FIDH and Arab Institute for Human Rights (AIHR) Report onFreedom of Association in Bahrain, Kuwait and Yemen, available at: http://www.fidh.org/Freedom-of-Association-Report-on

[2] To consultthe UPR outcome report on Bahrain:http://daccess-ods.un.org/TMP/1878962.51678467.html

[3] Seehttp://www.alayam.com/newsdetails.aspx?id=135641&de=1