[The following letter was issued by the Observatory for the Protection of Human Rights Defenders on 8 April 2013.] 

Excellencies, Dear members of Parliament,

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

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

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

Our organisations are concerned that the current bill was drafted in an attempt to further stifle civil society organisations, in particular human rights NGOs. 

Today, human rights NGOs’ right to freedom of association is regulated under Law 21 of 1989 for “societies” (االجمعيات), which according to local NGOs, constitutes one of the main obstacles hindering their work. It gives the Minister of Social Development the right to replace board members and directors of associations, to prohibit associations from engaging in so-called “political activities”, to reject an application for establishing any association “if [Bahraini] society doesn’t need its service” and to dissolve the association. It has been indeed used to take over several associations over the past two years including the doctors association, and to dissolve the teachers association[1]. Over the past years, human rights defenders have been calling for a new law that guarantee the right to freedom of association in accordance with international standards by local and international human rights organisations. This call was made again during the review of Bahrain under the Universal Periodic Review (UPR) in May 2012 and Bahrain accepted to implement the corresponding recommendation[2]. 

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

The right to form associations hindered: 

Ambiguous criteria for registration 

Pursuant to Article 22 of the ICCPR, everyone should be able to benefit from the right to create an association, without any kind of discrimination. Any restrictions must comply with States’ international human rights obligations as blanket restrictions shall not be considered lawful. Article 22.2 provides that “[n]o restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others”. While certain restrictions may be imposed, freedom of association should be the rule and restrictions the exception. In its current form, the bill contains several wide-ranging provisions which would potentially impair the essence of the right and reverse the relation between right and exception. 

Article 2 of the draft law provides that it is “prohibited to establish an organisation/association on sectarian basis or to achieve items that violate the constitution and legislations, or public and moral order, or if its activities are political, business, or for profit”. In a context where human rights defenders and NGOs critical of the authorities for their human rights record are accused of conducting political activities or of fuelling “sectarian” hatred, such provisions could be used to unduly hamper human rights work. Indeed, criteria for registration included in the bill are ambiguous enough to allow authorities broad discretion in their interpretation. 

Furthermore, Article 8 states that “the Minister (of Social Development) has the right to reject the request of registration of an organisation if the society is not in need of its services, or if the request violates the provisions of this law, or it was intended to revive/incorporate another organisation that was previously dissolved”. This provision is also ambiguous and is a direct violation of the freedom of association, as it grants power to the Minister to interpret whether an NGO may serve the needs of society or not. 

Finally, under Article 7, the law would forbid individuals to be members of more than one group doing similar work, unless the ministry approves. 

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

Lack of independence of registration authorities 

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

In the current bill, Article 6 provides that “the registration request is submitted to theMinistry of Social Development”, a political body. 

Over-arching interference in the operation and management of associations:

Under the current bill, Bahraini NGOs would not be allowed to carry out their activities freely due to the capacity of the Government to interfere in decision-making and activities at all stages of the operation and management of the NGO: from regulating the thorough details of internal functioning and administration to tight supervision of the association’s funding, membership and dissolution. Ministry employees would be entitled to search and inspect NGO premises and arrests their members in case of violation (Article 13). 

Prior ministerial approval would be required at almost all stages: 

• to join/participate/cooperate/affiliate with foreign organisations (Article 16) 
• to issue any publications (Article 18) 
• to receive domestic and foreign funds/donations and to conduct fund-raising (Article 17) 
• to open/close a bank account (Article 50) 
• to donate funds to foreign organisations (Article 52) 
• to invest funds or perform any financial transactions (Article 55) 
• to invite foreigners to attend conferences, workshops, activities in Bahrain (Article 88) 

The Minister may also interfere in the management of NGOs in the following manner: 

• hire a manager or a temporary board to run the board in some cases (Article 20) 
• merge NGOs working on the same goals (Article 22) – this is one of the most serious threats to the independence of NGOs, as the minister would have the capacity to merge an independent NGO with a another NGO which is less critical of the authorities 
• attend general assemblies (Article 27) 
• receive minutes and decisions of general assemblies (Article 28) 
• cancel elections of executive board members (Article 41) 
• issue a unified guide on financial and administrative policies for civil society organisations, that the organisation must follow in their preparation of its annual budget (Article 54) 
• suspend the Board or manager or any of its members (Article 82) 

Administrative and judicial harassment: from suspension to dissolution

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

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

• spending funds in wrong manner 
• inability to achieve its goals/ the violation of these goals 
• conduct activities based on ethnicity/sectarian nature 
• gross violation of the law/statute 
• gathering/sending of funds inside/outside Bahrain in violation of the law 
• joining/participating/affiliating to a foreign organisation without the consent of the ministry 

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

NGO members subject to State-sanctioned persecution and discrimination:

Criminal sanctions for unregistered activities 

The right to freedom of association equally protects associations that are not registered. Individuals involved in unregistered associations should indeed be free to carry out any activities, 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 for operating unregistered NGOs (Article 87) and they face prison and fines punishments. 

Criminal sanction for unauthorised activities 

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

• establishing a body that conducts activities of a civil organisation/institution without compliance of the law 
• purposely giving false data or hiding data 
• conducting activities before the registration announcement in the official gazette; or after the decision/verdict of its dissolution
• conducting activities that exceed the purpose for it was established / or spending funds for purposes other than those authorised/ or misusing funds 
• allowing non-members to participate in the general assembly meetings of the organisation 
• participating in an activity with an organisation that was dissolved after the decision was published in the official gazette 
• collecting donations in violation of the law 
• receiving/sending funds to/from abroad 
• inviting foreign persons to attend activities of the organisation without the approval of the minister 
• refusing to give in documents/funds to the incorporated organisation 
• refusing to give in documents/funds to the appointed manager/committee 

The Draft Law on Civil Associations and Organisations adopted by the government would significantly undermine what few human rights independent non-governmental associations have under the country’s current law. 

The Observatory considers that the adoption of this draft law would blatantly violate international instruments on human rights that guarantee freedom of association, in particular the ICCPR, the Universal Declaration on Human Rights and the Declaration on Human Rights Defenders, adopted by the United Nations General Assembly on December 9, 1998. More specifically, the Observatory highlights that the bill as drafted would violate the following articles of the UN Declaration on Human Rights Defenders, and in particular: 

• Article 5(b): For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels: (…) (b) To form, join and 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 and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels: (…) (c) To communicate with non-governmental or intergovernmental organisations. 
• Article 13: Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration. 

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

In addition, the Observatory calls upon the Bahraini authorities, including the Parliament and the Government, to consult, throughout the drafting process of the bill, with civil society organisations and all concerned parties, and to amend the bill and to conform, in any circumstances, with the constitutional right to establish civil society organisations and international standards regarding freedom of association, in particular the provisions of the Universal Declaration of Human Rights (Article 20) and those of Article 5(b) of the UN Declaration on Human Rights Defenders. 

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

Yours sincerely, 

Souhayr Belhassen 
FIDH President 

Gerald Staberock
OMCT Secretary General