Iranian justice

The revised code allows judges to refer to non-codified law (Shi’i jurisprudence which prescribes stoning for adultery) to reach their verdicts and widens the scope of crimes like ‘sowing corruption on earth’ for which the punishment is death.

Hadi Enayat
10 September 2014

 ‘Justice’ has long been central to Iranian political culture. From the ancient Persian theory of the ‘circle of justice’ to the demands for a ‘house of justice’ during the Constitutional Revolution of 1906 and finally the centrality of social justice and the rule of law to the ideology of the Islamic Republic.

Whilst the rule of law is only one dimension of justice explored in the Foreign Policy Centre’s latest Iran Human Rights Review it is particularly revealing in connection with contemporary Iran as it has been central to the rhetoric of legitimacy in the Islamic Republic.

After the 1979 revolution Ayatollah Khomeini denounced the secular legal system of the Pahlavis and pledged his commitment to a distinctly Islamic conception of legality on which the new order should be based. He declared the Persian New Year 1982 the ‘year of the rule of law’, maintaining that ‘all the Prophets since the beginning of the world have come for the establishment of the law and Islam has come for the establishment of the law’. The declaration paved the way for the introduction in that year of a codification of the Law of Islamic Punishments which enshrined punishments such as amputation and stoning for the various hodud crimes such as adultery, apostasy and homosexuality derived from Shi’a jurisprudence and replaced the secular penal code of 1926. Steps were also taken to Islamicise the judiciary culminating in 1991 in the abolition of the office of public prosecutor (procuracy) and a reversion to the traditional sharia court model in which the functions of the judge, prosecutor and investigator were combined in the person of the judge, a move which seriously compromised the neutrality of the judge in legal proceedings.

The review focusing on the issue of ‘justice’ in Iran, shows that in practice what emerged from these changes is a judicial system which lacks independence, is characterised by extreme arbitrariness, the enforcement—or at least selective enforcement—of brutal hodud punishments, the undermining of independent legal representation, the widespread use of torture and mass prison killings in the 1980s. Pressure from Iranian civil society as well as numerous international human rights reports published mainly during the 1990s and early 2000s prompted the government to restore the procuracy and make other mild attempts at reform from the early 2000s during Mahmoud Hashemi Shahroudi’s tenure as Head of the Judiciary (2000-2009).

The situation deteriorated again, however, with the crackdown on the Green Movement and its leaders in the 2009 post-election uprising, manifested in the mass show trials which followed, the widespread use of torture and rape in the course of interrogation, and the deaths of young protestors in the notorious Kahrizak prison. At the height of the protests in June 2009 new regulations were introduced which in effect nullified a 1955 law, introduced under Mohammad Mossadegh, guaranteeing independence for the Bar Association. Although these regulations were later suspended they were replaced by a new bill of attorneyship, which if passed could transform the Bar Association into a branch of the judiciary removing its independence and with it one of the few due process safeguard remaining in the legal system.

Another recent development is a revision of the penal code, originally commissioned by Shahroudi, in part at least in the light of growing international criticism of the provisions of the old law (highlighted in the international arena by the stoning sentence faced by Sakineh Ashtiani). The revised code has been touted by the government as an improvement on the older version and one that broadly complies with international human rights standards. But whilst it does not explicitly mention punishments like stoning, in reality the new code employs a great deal of sophistry and vaguely worded articles to retain and even enhance many of the negative features of the old code. For example, by allowing judges to refer to non-codified law (Shi’i jurisprudence which prescribes stoning for adultery) to reach their verdicts and by widening the scope of crimes like ‘sowing corruption on earth’ for which the punishment is death.

Thus far Rouhani’s ‘moderate’ presidency has not had a significant impact on a judicial and security apparatus that continues to systematically arrest, execute, torture, and repress religious and ethnic minorities, human rights defenders and political dissenters. Finally, in light of the these continuing violations it is deeply concerning that President Rouhani’s appointee as Justice Minister is Mostafa Pour-Mohammadi – a member of the so called ‘death committee’ that oversaw the 1988 massacre of up to 5,000 political prisoners. 

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