Legal and human rights observations on the Bahraini Military Judiciary Law:

With regard to the trial of civilians in military courts:

1. The Military Judiciary Law does not expressly establish the right of the accused to seek counsel from the moment of arrest onwards, during interrogation sessions, and in court hearings.

2. The Military Judiciary Law gives those accused of felonies only the right to have a lawyer with them in court hearings.

3. Article 2 of the Military Judiciary Law provides that a criminal action shall not be abated, contrary to article 18 of the Code of Criminal Procedure, which stipulates that “A criminal action involving felonies shall abate upon the lapse of 10 years, in case of misdemeanors shall abate upon the lapse of 3 years and in case of offences upon the lapse of one year […].”

Article 3 of the Military Judiciary Law stipulates that any person accused of initiating a crime shall be subject to the penalty prescribed for the perpetrator of the original crime, in violation of Article 37 of the Penal Code, which reduces the penalty inflicted upon the person who is found guilty of initiating the crime without completing it.

5. Article 11 (b) of the Military Judiciary Law stipulates that, based on the suggestion of the Director of the Judiciary, a decision shall be made by the Commander-in-Chief to determine the conditions and procedures for the appointment and discipline of members of the military judiciary, the organization of their duties, and the judicial inspection of them. This is contrary to Article 69 of the Judicial Authority Law, which grants this authority to the Supreme Council, which is composed of the President of the Court of Cassation, the Attorney General, and five members of the judiciary. Here lies the danger of the lack of independence of the Military Judiciary and its submission to the will of an individual, which violates the standards of an independent judiciary.

6. The Military Judiciary Law does not expressly determine the duration of remand and does not set time limits, which makes this issue extremely dangerous.

7. Article 18 of the Military Judiciary Law stipulates that the Military Prosecution shall carry out confinement, detention, arrest and imprisonment in military prisons. As civilians became targeted by this law after the amendment, it is possible that this article shall be applied and they may not be sent to civil prisons such as the Reform and Rehabilitation institution (Jaw Prison).

8. Article 53 of the Military Judiciary Law stipulates that the trial shall be public, but gives the court the right to make the trial secret whenever it deems appropriate and with broad authority under the pretexts of public order, moralities and preservation of secrets.

9. Article 58 of the Military Judiciary Law stipulates that only a person accused of a felony may be assigned a lawyer if he didn’t have one. This article grants the right to a counsel only in court proceedings because the president of the court is the one who decides to assign a lawyer, thus, the law does not expressly grant the right to a counsel during interrogation sessions.

10. Article 72 of the Military Judiciary Law stipulates that the rulings for crimes set forth in section 2 thereof cannot be appealed against, and these articles target both civilians and military personnel after the last amendment. Incidentally, article 105 of this Law was used in one of the charges against the Secretary-General of Al-Wefaq Society.

11. The recent amendment to the Military Judiciary Law (article 17 bis 1) has granted the military judiciary the power to apply the Law on Protecting Society from Terrorist Acts, although this is within the jurisdiction of civil criminal courts, thus a contradiction of jurisdictions is created. In addition, under the Law on Protecting Society from Terrorist Acts, political activity and peaceful opposition are being tried.

12. Article (17 bis 1) also gave the military judiciary jurisdiction over the prosecution of civilians (opposition and human rights activists) under Chapters 1 and 2 of the special section of the Penal Code, which could lead to tightening and intensifying sanctions against peaceful dissidents.

13. The death penalty in the Penal Code, the Military Penal Code, and the Law on Protecting Society from Terrorist Acts, with a total of 61 articles and clauses, has become in the hands of the military judiciary, thus increasing the danger of the sentences against the opposition and political and human rights activists.