The Shura Councils passes a draft law providing for a more rigorous penalty for assault on security men and military personnel and providing for 7 to 10 year imprisonment term for those who cause permanent handicap and life imprisonment for causing unintentional death

Meeting No (30), 14 May 2012 – Second Convening Period – Third Legislative Term

In its 30th session held this morning, the Shura Council passed a draft law for amendment of article 221 of the penal code promulgated by decree by law No.15 for the year 1976, accompanying royal decree No.44 for the year 2012, which rules for incorporation of a new paragraph to the article providing for imprisonment punishment if the assault is on a member of the public security forces or a military personnel of Bahrain Defense Force, the National Guard or National Security apparatus. The penalty involve a prison term of not less than seven years if the assault results in unintentional permanent disability and an imprisonment term of not less than 10 years if the assault results in permanent handicap and life term if the assault leads to unintentional death.

Meanwhile, the Council rejected the recommendation of the Foreign Affairs, Defense and National Security Committee regarding a draft law for amendment of certain articles of the penal code promulgated by decree No.15 for the year 1976, accompanying royal decree No.119 for the year 2011, regarding propagation and publication of false and untruthful news and the right of freedom of expression. The recommendation provides for endorsement of the language of article 168 as is while the Council decided to re-visit the deliberation of article 69 of the draft law and give the competent committee the opportunity to prepare its report thereon.

The Council decided to delay consideration of three draft laws on its agenda including a draft law for amendment of certain provisions of law No.4 for the year 2001 on prohibition and control of money laundering and funding of terrorism, a draft law on amendment of certain articles of criminal procedures law and a draft law providing for amendment of some articles of Social Security Forces Law in response to the request for the presence of His Excellency the Governor of the Central Bank and His Excellency the Minister of Justice, Islamic Affairs and Endowments.

The session started under the presidency of His Excellency Mr. Ali bin Saleh Al-Saleh, the Speaker of the Shura Council by ratifying the minutes of the 29th session. Then, His Excellency the Secretary General read Royal Decree No.15, for the year 2012, appointing two members on the Shura Council, namely His Excellency Dr. Saeed Ahmad Abdulla Husain and Dr. Jehad Abdulla Mohammad Al-Fadhel. The two new members of the Council were sworn in and His Excellency the Speaker congratulated them on the royal confidence and wished them success in discharging their national duties.

His Excellency the Chairman of the Council underscored the importance of having the two new members join the permanent committees of the Council as they desire and based on the available vacancies. Consequently, His Excellency announced selection of His Excellency Dr. Said Ahmad Abdulla Husain for the Legislative and legal Committee and selection of Her Excellency Dr. Jehad Abdulla Mohammad Al-Fadhel for the services Committee and the appointments were approved by the Council.

The Council moved on to discuss the items on the agenda of the session and it was informed of the messages received from His Excellency Mr. Khalifa bin Ahmad Al-Dhahrani, Speaker of the Council of Representatives, which included a draft law providing for opening additional credit in the state’s budget for the fiscal year 2012, accompanying Royal Decree No.32, for the year 2012 and the council was informed of the referral of the draft law to the Financial and Economic Committee, with notification to the Legislative and Legal Committee, in addition to His Excellency’s message regarding the Shura council on a draft law for considering Fasht Al-Jarim and Fasht Al-Athm as two natural sanctuaries, prepared in response to a proposed law filed by the Council of Representatives. The Council was informed of the referral of the draft law to the Public Facilities and the Environment Committee.

The Council was also informed of the two messages received from His Excellency Abdulrahman Ebrahim Abdul Salam, Chairman of the Services Committee on a request for extending the period given to the committee for filing its report on decree by law No.32, for the year 2011, providing for amendment of paragraph “h” of Article 42 of law No.19, for the year 2006, on the regulation of the labor market, and His Excellency’s letter regarding extension of the period set for the Committee to file its report on a draft law involving amendment of Article 9 of law No.18 for the year 2006 on Social Security, prepared in response to a proposed law filed by the Council of Representative, and both requests were granted by the Council.

Then, the final opinion of the council was taken, approving a draft law for amendment of certain provisions of decree by law No.21, for the year 1976, regulating the real estate auction business, accompanying royal decree No.59 for the year 2007 and a draft law for amendment of certain provisions of decree by Law No.14 for the year 1971, on Authentication, accompanying royal decree No.87 for the year 2008.

Then, the Council discussed the report by the Foreign Affairs, Defense and National Security Committee on a draft law for amendment of certain articles of decree by law No.4 for the year 2001 on prohibition against and control of money laundering and terrorism funding as amended by law No.54 for the year 2006, prepared in response to a proposed law filed by the Shura Council and a draft law for amendment of certain provisions of decree by law No.4 for the year 2001, on the prohibition against and control of money laundering and terrorism funding, accompanying royal decree No.111, for the year 2011.

Then His Excellency Dr. Sheikh Khalid bin Khalifa Al Khalifa, the rapporteur of the Committee, read the Committee’s recommendation providing for approval and passing of the draft law.

His Excellency the Committee rapporteur pointed out that the Committee reviewed the draft law with the representatives of the Ministry of Finance, Ministry of Interior, Ministry of Justice, Islamic Affairs and Endowment and the legal Counsel of the Council’s Committees Affairs, and that the Committee reviewed the decision of the Council of Representatives and attachments on the draft law as well as the opinion of the Legislative and Legal Affairs Committee in the Shura Council, providing for lack of integrity of the draft law from both constitutional and legal points of view. Having studied this opinion and hearing the views of the above mentioned concerned agencies and the legal Counsel of the Committee that there was no suspicion of lack of unconstitutionality since this suspicion was contained in the first draft law and nor the legislation and legal counsel commission nor the Council of Representatives endorsed it.

His Excellency added that the Council of Representatives adopted the first article of the second draft law and that it was imperative to differentiate between the crime from which money was gotten and the crime of money laundering resulting from that crime since the crime from which money was gotten could occur inside or outside the Kingdom whereas the money laundering crime secondary to that crime, which is the essence of incrimination and penalty in the money laundering prohibition and control and terrorism funding is that the crime must be perpetrated inside the Kingdom of Bahrain or else the penalty would fall out of the venue jurisdiction. To avoid that the Kingdom of Bahrain be a fertile regions for money laundering, the existing language provides for incrimination of the money laundering crime which occurs within the territory of the Kingdom of Bahrain.

His Excellency pointed out that it was the committee’s opinion that the amendment of the money laundering and terrorism funding draft was intended to identify the crimes which are considered sources of illegitimate funds without being content with clarifying the processes which consider the money laundering crime is consistent with the principle of legitimacy of the crimes and the punishments which the constitutional legislator went to great length to insure that they are incorporated in paragraph 20-A, in addition to establishment of controlled rules which clarify the components and penalty without any ambiguity. Also, the draft law came as a result of two matters, namely regulation of the financial sector in Bahrain which concluded by incorporating the money laundering and terrorism funding prevention and control law in the recommendations of the International Work Group to avoid listing the name of the Kingdom in the list of the countries which constitute risks to eh international community. The ruling rendered by the constitutional court in its session dated 21 December 2009, on case No. d/4/7, provided for illegality of the language “or his wife of minor children” as provided in paragraph 3-3 of article 3 of the law.

Their Excellencies the members aired their comments on the draft law and the Council decided to postpone consideration thereof to the upcoming session and to summon the Governor of the Central Bank.

Then, the Council discussed the report by the Foreign Affairs, Defense and National Security Committee on a draft law for amendment of article 221 of the penal code, promulgated by decree by law No.15 for the year 1975, accompanying Royal Decree No.44 for the year 2012. His Excellency member Mohammad Saif Jaber Al-Muslim read the committee’s report approving the draft law in principle.

His Excellency explained that the committee reviewed the draft law with the representative of the Ministry of Justice, Islamic Affairs and Endowment, the representatives of the Ministry of Interior and the legal Counsel of the Council’s Committee Affairs. The committee reviewed the decision of the Council of Representatives and its attachments on the draft law as well as the opinion of the Legislative and Legal Affairs Committee in the Shura Council which reasserted the integrity of the draft law from the constitutional and legal points of view and confirmed the importance of the draft law as Article 221 of the penal code provides in its first paragraph for the penalty of assault on a public officer or a person tasked with a public service while discharging the duties of his job or service and made the punishment in the form of incarceration. Due to the gross magnitude of the dangers that the public security men and the military personnel affiliated with the Bahrain Defense Force, the National Guard and the National Security apparatus are exposed to, the penalty for assault has been rendered more rigorous and stiff as a deterrent for any person who would get involved in committing such assault, by incorporating a new paragraph to that effect in article 221 of the penal code.

His Excellency further pointed out that the draft law embodied, in addition to the preamble two articles, a new paragraph incorporated in article 221 of the penal code which provided for imprisonment if the assault touched a member of the public security men as well as the military personnel affiliated with the Bahrain Defense Force, the National Guard and the National Security apparatus. The minimum penalty shall not be less than seven years if the assault results in a permanent but unintended handicap and a minimum imprisonment of not less than ten years if the permanent handicap is deliberate, life imprisonment if the assault results in unintended death. The second paragraph of the draft law is executive.

After Their Excellencies the members contributed inputs and comments on the draft law, the Council voted to approve the committee’s recommendations regarding the paragraphs to be incorporated, subject to taking the final opinion thereon after one hour and the draft law passed with the approval of the majority of the members.

The members of the Council also discussed the supplementary report by the Foreign Affairs, Defense and National Security Committee on a draft law providing for amendment of certain articles of the penal code, promulgated by decree No.15 for the year 1976, accompanying royal decree No.119 for the year 2011, on propagation and broadcasting of false news and the right to freedom of expression. His Excellency  Dr. Shaikh Khalid bin Khalifa Al-Khalifa, the committee rapporteur, read the committee’s recommendation to approve the language of article 168 without amendment.

His Excellency explained that the Foreign Affairs, Defense and National Security committee reviewed and examined with the representatives of the Ministry of Human Rights and Social Development and the Legal Advisor of the Committees Affairs in the Council, article 168 of the draft law for amendment of certain articles of the penal code, promulgated by decree No.15 for the year 1976, accompanying royal decree No.119 for the year 2011, on propagation and broadcasting of false news and the right to freedom of expression. The committee also discussed the proposal filed by His Excellency member Dr. Abdul Aziz Hasan Able and Her Excellency Dr. Aisha Salim Mubarak involving amendment of the language of article 168, presented in the 28th session held on 30 April 2012. The committee concluded by approving the language of article 168 without any amendment because article 168 after amendment addressed the penalty for those who deliberately spread news while being aware that such news may cause damage to the national security, public order or the public interest once the damage occurs after the punishment involved a person who deliberately spreads false news, statements or rumors if they are likely to cause disturbance of the public security or terrorize people or cause damage to the public interest,  while the amended language strikes a balance between the person’s right to express and air his or her opinion  and exceeding the boundaries of the law as in causing damage to national security, public order or public interest. It is the committee’s opinion that the amended language of article 168 of the penal code is, therefore, important. His Excellency referred to the reservation of His Excellency Mohammad Saif Jaber Al-Muslim over the committee’s recommendation to approve the amended language of article 168.

Following through and exhaustive discussion by their Excellencies the members, the Council decided to approve the recommendation of the Committee. The Council passed the draft law in its entirety before the members agreed to the request for reconsideration of article 69 and referral thereof to the committee for review and submittal of the report thereon to the council.

Then, the Council moved on to discuss the report by the Foreign Affairs, Defense and National Security on a draft law providing for ratification of an agreement between the Government of the kingdom of Bahrain and the Government of Australia on exchange of information on taxation issues, which was approved by royal decree No.29, for the year 2012. Her Excellency member Nancy Dina Elli Khadouri read the committee’s recommendation approving approval of the draft law in principle.

Her Excellency sated that the Committee examined the draft law and exchanged points of view thereon with the members of the committee, representatives of the Ministry of Finance and the Legal Counsel of the Committees’ Affairs in the Council. The committee reviewed the decision of the Council of Representatives and its attachments on the draft law as well as the opinion of the Legislative and Legal Committee of the Shura Council which confirmed the integrity of the draft law from both the constitutional and legal points of view. The committee concluded that the subject agreement targets exchange of information on taxation issues and regulation of the information related to taxation issues between the two countries.

Her Excellency explained that the agreement consisted originally of the preamble and 14 articles. The articles 1 to 3 clarify the objective of the agreement and the scope of its application, namely providing for the competent authority in both of the contracting parties to extend assistance through exchange of information which they believe relate to the management and execution of the national laws on the taxation issues covered by subject agreement. The agreement does not impose on the party from which the information is required to make such information available if the information is not available with the competent authority or if the information is not available in the possession or under the control of persons existing in its regional jurisdiction. The agreement also defines the agreement envisaged in the scope of the agreement, including the taxes which are identical or similar in essence which are imposed after the date of execution of the agreement, in addition to the existing taxes or their replacements. Her Excellency further explained that article 4 defines the most important definitions in the agreement while article 5 addressed the method for exchange of information between the two parties. Article 6 allowed access by the representatives of the competent authorities in both contracting parties to the region of the other party for the purpose of taxation auditing. Article 7 allowed either of the contracting parties to refuse to disclose any required information if such information is in conflict with its laws while article 8 requires the receiving party to treat the information received in strict confidence and may disclose such information only to the persons or authority under the jurisdiction of the contracting party for evaluation or collection or bringing to court or identification of any demands related to taxation.

Her Excellency further explained that article 9 charges the contracting parties with any expenses that may be incurred upon rendering the required assistance while article 10 “enforcement of the legislations on the contracting parties by issuance and enactment of any legislation that may be required for compliance with the provisions of the agreement and its implementation. Article 11 clarifies the relationship of the agreement with the other international arrangements and conventions on taxation issues while article 11 provides for the mutual agreement procedures in case of any difficulties or doubts between the two parties relative to implementation or interpretation of the agreement. Articles 13 and 14 provide for the final provisions of the agreement and clarify the provisions for its enforcement and termination.

The Council passed the recommendation of the committee relative to the articles embodied in the draft law before it was endorsed in its entirety and taking the final opinion thereon was postponed to the upcoming session.

The council concluded its session agenda by discussing the report by the Foreign Affairs, Defense and National Security Committee on a draft law providing for amendment of certain articles of the penal code procedures, promulgated by decree by law No.46 for the year 2002, accompanying royal decree No.31 for the year 2012. His Excellency Ebrahim Mohammad Bashmi, the Committee Rapporteur, read the committee’s recommendation providing for approval of the draft law in principle.

His Excellency elucidated the efforts exerted by the committee during examination of the draft law and explained that the committee reviewed the draft law with the representatives of the Ministry of Justice, Islamic Affairs and Endowment, the representatives of the Ministry of Interior and the Legal Counsel of Committees’ Affairs in the Council. The Committee also reviewed the decision of the Council of Representatives and its attachments on the draft law as well as the opinion of the Legislative and Legal Affairs Committee in the Shura Council which confirmed the integrity of the draft law from both the constitutional and legal points of view. He spoke of the committee endorsing the conclusions reached by the Legislative and Legal Affairs Committee regarding absence of any constitutional doubts or suspicions and that the phrase “ shall not be accepted before courts of appeals” which was incorporated in article 22 of the criminal procedures law. The statement provides that a civil right claimant may file his petition during evidence gathering or investigation or before the court hearing the criminal case in any condition it may be pending the rendering of the ruling and closure of briefs. However, this will not be accepted or allowed before the court of appeals. Article 105 of the constitution explains that the law arranges the courts in the order of all their types and degrees and spells out their functions and jurisdictions, and so do the contents of articles 292 and 293 of the criminal procedures law which provide for appealing the sentences rendered on criminal cases by first degree courts which may be appealed before them. This also applies to the ruling by the Bahrain Court of Cassation which reconfirms this issue as attached to the report.

His Excellency explained the committee’s decision that in implementation of recommendation No.1718, issued by the Independent Bahraini Fact Investigation and Finding Committee, providing for application of the provisions of the criminal procedures law upon arrest of persons pending proclamation of the state of national safety and recommendation No.1719 providing for the legislation requiring that compensation be made available for any person who alleges vengeance on account of having filed a case of torture or any other kind of cruel or inhumane or degrading treatment.

A number of Their Excellencies the members contributed inputs and comments on the contents of the draft law after which the Council decided to approve the proposal made by His Excellency the Speaker of the Council providing for postponement of  consideration of the draft law as well as the report by the Foreign Affairs, Defense and National Security Committee on a draft law for amendment of certain articles of the public security forces law, promulgated by decree by law No. 3 for the year 1982, accompanying Royal Decree No.34 for the year 2012, to the upcoming session in the presence of His Excellency the Minister of Justice, Islamic Affairs and Endowment.