LAWYERS COMMITTEE FOR

HUMAN RIGHTS

 

THE JUSTICE SYSTEM OF THE ISLAMIC REPUBLIC OF IRAN

RULE OF LAW

INDEPENDENCE OF JUDGES AND LAWYERS

Introduction

In what way is the administration of justice able to achieve a balance between the sometimes conflicting notions of individual liberty and public interest? National and international attempts to focus on this basic problem facing all societies have emphasized the central role of a strong independent judiciary in defending individual liberty while upholding the rule of law. The Universal Declaration of Human Rights declares in Article 8:

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution o by law.

Article 14(1) of the International Covenant on Civil and Political Rights provides that:

Everyone shall be entitled to a fair and public hearing by a competent, independent an impartial tribunal established by law.

The Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary in 1985. These principles indicate an affirmative obligation on states to guarantee the independence of the judiciary in the constitution or law of the country.

The Basic principles on the independence of the Judiciary establish detailed guidelines for governments o measures they should adopt to ensure the independence of the judiciary. These measures include: the protection of the independence of the judiciary in law and in the constitution;[1] the protection of members of the judiciary from

[page 2] improper influences, threats or intimidation;[2] the exclusive authority of the judiciary to set limits to its area of jurisdiction as defined by law;[3] the binding nature of the court decisions;[4] and the importance of security of tenure.[5]

Another important aspect of the protection of human rights and fundamental freedoms is effective access to legal services provided by an independent legal profession. The Eighth United Nations Congress on Basic Principles on the Role of Lawyers in 1990, "to be respected and taken into account by governments within the framework of their national legislation. "[6]

The Basic principles on the Role of Lawyers uphold the rights of individuals to: have access to legal counsel at all stages of criminal proceedings, [7] or upon arrest or detention.[8] They stipulate that lawyers should be able to perform their duties without intimidation, hindrance, harassment or improper interference and without fear of prosecution;[9] and that they should be entitled to form self-governing professional associations to represent their interests.[10]

In the light of these developing international standards, and the growing international consensus they represent, this report seeks to provide an assessment of the conformity of the judicial system in Iran to international norms. This study traces the development of the Iranian judicial system, and examines the system as it currently operates in the Islamic Republic of Iran.

CHAPTER 1. BACKGROUND

A. The Historical setting

Iran's long history has been much influenced by foreign powers, and by the particular nature of its religious traditions. The Persian Empire dates back to the 6th century BC. In 637 AD a long period of foreign domination of Iran began, punctuated between the 16th and 18th centuries by the Safavid Empire, which appealed to the Shi'a Muslim beliefs of the majority of Iranians to foster the creation of a national identity. In the 19th century, Iran was subject to British and Russian influence. The ruling dynasty of Qajar Shahs sought to play off the Great Powers, particularly the British and the Russians, against each other.

With the creation of the Soviet Union along Iran's northern borders and the beginning of oil exploitation in the early 20th century, Iran took on great strategic importance for the western powers. The United kingdom, and later the United States, intervened directly in Iranian affairs to remove leaders who were seen as threatening to their interests.

The Qajar dynasty was overthrown in 1925 by a coup led by a military officer and former War Minister, Reza Khan. Reza Khan declared the foundation of the Pahlavi dynasty and called himself Reza Shah. In 1941 the British and the Soviet Union acted in concert to force Reza Shah to abdicate in favor of his son, Mohammed Reza because Reza Shah's alleged close relations with Nazi Germany conflicted with allied war aims.

A constitutional movement, active in Iran in the early 1900s had been weakened under the autocratic rule of Reza Shah. After the Second World War the movement grew in strength, encouraged by a weak monarchy and the growth of nationalism which was sweeping across the region. In 1951 Mohammed Mossadegh was appointed Prime Minister. He came into conflict with the United Kingdom and the United States when he announced the nationalization of the oil industry. Mossadegh was brought down in a coup orchestrated by the CIA and the British government in collaboration with the Shah and his entourage in 1953. The Western powers encouraged the Shah to take a more dominant role in Iranian politics and assisted in the build up of the armed forces and fearsome internal security system.

The Shah actively suppressed political opposition relying on the National Intelligence and Security Organization (SAVAK). SAVAK became increasingly identified with torture and other human rights abuses during the 1960s and 1970s. Opposition to the Shah mounted in the late 1970s. He was eventually toppled by a revolution made by a broad coalition of left, religious and liberal democratic foreces. At its head was the returned religious leader, Ayatollah Ruhollah Khomeini, who had come to prominence in the early 1960s campaigning against the Shah's policies of Westernization.

Decades of repression had left the secular opposition parties weak. The religious leadership was quickly able to seize complete control over the revolutionary government, deposing the transitional government of the liberal figurehead, Mehdi Bazargan at the end of 1979. The occupation of the United States Embassy in November 1979, and the holding of hostages of its staff, signaled the militantly anti-Western tone of the new government. Iraq's invasion in September 1980, and the ensuing eight year war, enabled the government o derive strength and legitimacy from portraying itself as the defender of Iran against a traditional Arab enemy and a hostile West.

When Ayatollah Khomeini died in 1989 he left a country drained by a decade of war and revolutionary turmoil. His successor as leader of the Islamic Republic, Ayatollah Ali Khamenei, found himself in at times uneasy cohabitation with a newly created President, Hojatoleslam Ali Akbar Hashemi Rafsanjani.

B The legal system

The legal system of Iran prior to the 1979 revolution was a mixture of Islamic Jurisprudence and Western legal systems, in particular the legal system adopted by the civil law countries. The Civil Code of Iran, which was first prepared in 1928, was a codification of Shari'a in the format of the Napoleonic Code. The Code of Civil Procedure was based on the French Civil Procedure. In civil cases, questions of fact were reviewed at two stages with an appeal to a court of cassation on questions of law only. The criminal law and criminal procedure law were divorced from Islamic law. Punishments such as stoning and dismemberment were made illegal and religious judges were not permitted to impose penalties in matters which were considered as criminal under Islamic law.

In the aftermath of the revolution, clerical supporters of Ayatollah Khomeini were able to control the writing of the new Constitution, issued in December 1979. The Constitution made clear that Islam was to be the basis for the entire legal system. Article 4 of the Constitution of the Islamic Republic states:

All civil, penal, financial, economic, administrative, cultural, military, political laws and regulations, as well as any other laws or regulations, should be based on Islamic principles. This principle will in general prevail over all of the principles of the Constitution, and other laws and regulations as well.

Secular judges, nevertheless, continued until August 1982 to enforce the pre-revolution laws and regulations with which they were familiar. On August 22, 1982 Ayatollah Khomeini expressly ordered that all pre-revolution laws should be disregarded and declared that judges who continued to enforce pre-revolutionary secular legislation would be liable to prosecution. By this time, three-and-a-half year after the revolution, about 2,500 laws had been passed. Ayatollah Khomeiny decreed that in those areas which were not covered by post revolutionary legislation judges should act on the basis of their own knowledge of Islamic law. If necessary, judges were encouraged to seek an opinion on a matter from Ayatollah Khomeini himself. The legislative process up until that point had not been systematic, and even many of the new laws referred to pre-revolutionary legislation which no longer had validity, leaving individual judges with wide discretionary powers.

C. The Religious Background to the Legal System

In Iran the official religion is Shi'a Islam, and the majority of Iranian are Shi'a as opposed to the majority of Muslims worldwide who are Sunni. The Shi'as differ from the Sunnis over the concept of constitutional law (called Caliphate in the Sunni school and Imamate in the Shi'a school). The Shi'a belief in the Imamate doctrine originates in a conflict over the issue of succession to the Prophet Muhammad. The Sunnis believe that the Muslim community could, and did, elect the Caliph (leader). The Shi'as disagree believing that Muhammad duly appointed Ali, his son in law, as his successor, and that the succession should follow the male descendants of Ali. The Twelfth Imam, the last of the line of succession, disappeared in 873 AD. The Shi'a believe that he did not die, but that he is in a state known as occultation awaiting his return to earth on the day of final judgment.

The Shi'as believe that the Imams are indispensable for understanding the message of the prophet. The Shi'as hold themselves ready to submit to the authority of the Twelfth Imam on his return to earth. For Shi'a believers this loyalty to the ever-present twelfth Imam supersedes the authority of secular governments.

After the Islamic revolution of 1979, the Iranian government was based on a premise that the high-ranking Shi'a clergy would govern the country as the agents of the Twelfth Imam. The preamble to the Iranian Constitution reads:

On the basis of the concept of Velayat-e Amr va Imamate Mostamir,[11] the Constitution will lay the ground for the realization of leadership by the qualified clergy recognized by the people as their leader (People's affairs have been entrusted to faithful Ulama or religious authorities who know that which is allowed and that which is forbidden) so that the clergy may safeguard against any deviations by state institutions from their true Islamic functions.

In an ideal Islamic Republic, according to the theory of Islamic government as expounded by Ayatollah Khomeini, the legislative power and competence to establish laws belongs exclusively to God. No one has the right to legislate and no law ma be executed except the law of the Divine Legislator.[12] In an Islamic government, the legislature is a consultative body. Yet, in the Constitution of the Islamic Republic of Iran this classical view is modified. Article 56 states that "absolute sovereignty over the world and mankind is God's, " but also provides that "the nation shall exercise this God-given right. " So in Iran the parliament is the legislature, but its position is weak because its decisions are ultimately subject to review by religious authorities, who exercise this power with great frequency.

D. Sources of Islamic Law

The Constitution of the Islamic Republic requires that all laws and regulations in Iran should be based on Islamic Principles. These principles prevail over constitutional law, and legislation enacted by the various legislative bodies. The sources of Islamic law according to Shi'a tradition fall into two main categories: the Qur'an and the Sunna with reference as necessary to secondary or dependent sources, Ijma and Aql.

i. Qur'an

The Qur'an is the principal source of Islamic law. The Qur'an contains approximately 80 verses that deal with legal topics in the strict sense of the term. The Qur'an is the holy book of Muslims and in the view of the faithful, it is the words of God revealed to the Prophet Muhammad. Many of these revelations were very short, and open to interpretation. A principal contained in a single sentence has been the foundation on which a whole structure of law might be built.

ii. Sunna

If the Qur'an give no explicit guidance on a given matter, then a secondary source of law is the teaching and example of the Prophet himself. This was ordained in several passages of the Qur'an, for example, "whatsoever the Messenger gives you, take it and whatsoever he forbids, abstain from it ".[13] Hence the authority of the traditions of the Prophet, collectively known as the Sunna in Islamic law. In the event of contradiction between the Qur'an and the Sunna, the two must be harmonize if possible but otherwise the Qur'an prevails.

The word Sunna means literally a manner of acting, a rule of conduct, a mode of life. Applied to the life of the Prophet this meant, therefore, a rule deduced from his sayings or conduct. Such sayings or conduct could take the form of a specific utterance of the Prophet, an action or practice of the action or practice of someone else, as narrated in a Hadith or tradition. The term Hadith thus refers to the report of a particular occurrence.

The Hadith were not recorded at the time of the Prophet, and over time differing accounts of the Prophet's sayings and deeds have been handed down in traditions, leaving broad scope for interpretation and contention.

iii. Ijma (Consensus)

Ijma is the consensus of the community expressed through its competent religious representatives. If it is impossible to find either a passage from the Qur'an or a Hadith bearing on a matter, then a third source is consulted- -the general consensus among Islamic scholars about the legal rule correctly applicable to the situation. In theory, Ijma is a dynamic consensus which might change with circumstances.

iv. Aql (Reasoning or wisdom)

If all three sources enunciated above fail to provide a rule to solve a problem, jurists must derive an appropriate rule by logical interferences and analogy, a process known as Aql. It requires special training to be able to perform this function. Only a scholar deeply learned in all the nuances of law through many years of training is deemed equal to the task. Such a scholar is known as mojtahed, one capable of initiative in thought about the law. Such initiative is known by the name of Ijtihad. Ijtihad provides Islamic law with a means of adapting to the changing needs of society. The Mojtahed is authorized to interpret the source of law. This interpretation is known as a Fatwa.[14]

E. The Constitution

The Constitution of the Islamic Republic of Iran was adopted in 1979 and was amended in July 1989.[15] The Constitution begins with a long and unusual introduction full of strident language stressing the importance of the events leading to the revolution and underscoring the impact of radical Islamic political theory on the Constitution. The subtitles give an impression of the tone: Vanguard of the Movement; Islamic Government in Islam; Supervision by the Faghih, (a title given to the Leader of the Islamic Republic).

The Constitution enshrines the doctrine of Velayat-e Faghih (rule by the Islamic Leader). This means that the leader of the Islamic Republic should be the most learned and just Islamic scholar, who is empowered to make authoritative pronouncements on the law. Ayatollah Khomeini was able to use his position as Leader of the Islamic Republic to act as a legal authority higher than the Constitution. In a famous pronouncement on January 7, 1988, he made clear his maximalist interpretation of Velayat-e faghih. He stated that the safeguarding of the Islamic Republic was a preeminent religious duty which even took priority over conventional pillars of the Islamic faith, such as prayers or fasting.[16] The interpretation of the measures necessary to safeguard the Islamic Republic was the sole prerogative of the Faghih. The Constitution states that:

During the occultation of the Twelfth Imam, the leadership of the community will fall upon the Faghih who is just, pious, fully aware of the circumstances of his age, and courageous, resourceful and possessed of administrative ability.[17]

Ayatollah Ali Khamenei's status as a theologian and Mojtahed is far inferior to that of Ayatollah Khomeini.[18] This may be the reason why the notion of the Fatwa of the Leader of the Nation having a unique authority has, in practice, fallen into abeyance. Nevertheless, the question of who interprets the religious law, and the meaning of mavazin-e Islami (Islamic principles) is of fundamental importance in assessing the impact of the law in practice, and in understanding the legal system.

A notable aspect of the constitution is that fundamental human rights protected under international law are qualified by reference to ill-defined "Islamic " criteria. For example, Article 24 of the Constitution provides for freedom of expression,[19] "except when it is detrimental to the principles of Islam. " Article 26 of the Constitution provides for freedom of association[20] provided that such association do not violate "the criteria of Islam, or the basis of the Islamic Republic. "

The Constitution provides for the principle of the separation of legislative, executive and judicial powers. The power to legislate is vested in the Islamic Consultative Assembly.[21] Yet another body, the Council of Guardians[22], must affirm that any proposed legislation from the Consultative Assembly is not in conflict with the principles of Islam and the Constitution.[23]

In practice however, a number of extra-constitutional de-facto legislative authorities have arisen. While some were subsequently legally recognized by amendments to the Constitution, others continue to act with no apparent constitutional basis. The Council of Guardians for example, is not, according to the Constitution, a legislative body notwithstanding the fact that it has, in numerous instances, acted exactly like a legislature. Decrees from the Council are enforced by the Iranian courts without having been approved by the Islamic Assembly.[24]

Another quasi-legislative body, the Assembly for the Determination of Exigencies, was established by Ayatollah Khomeini in a 1988 decree. Its existence was formalized in 1989 when amendments to the Constitution acknowledged it as an advisory body to the Leader.[25] The Head of this Assembly is the President of the Republic, the Head of the Executive in the post1989 constitutional structure of the Islamic Republic. The Assembly for the Determination of Exigencies has unchecked authority to interpret laws in accordance with the best interests of the society. " These interests are defined by itself, and are not defined anywhere in the law.

The Assembly for the Determination of Exigencies was originally created to resolve disputes between the Consultative Assembly and the Council of Guardians which were paralyzing the legislative process.[26] Through the Assembly for the Determination of Exigencies, Ayatollah Khomeini sought to override objections from conservative clerical leaders in the Council of Guardians. However, it came to be used as an extra-constitutional legislative body. For example, the 1988 law imposing mandatory death sentences on drug-traffickers found in possession of specified amounts of proscribed narcotics, which has been used to sentence thousands of drug traffickers to death , came into force in early 1989 by order of the assembly for the Determination of Exigencies, without passing through the parliament.[27] The Assembly for the Determination of Exigencies also enacted legislation bringing into existence the High judges' Disciplinary Tribunal.[28]

F. Conclusion

In accordance with the Shi'a legal tradition which recognizes the authority of a number of qualified Mojtahed to issue Fatwa, a bewildering multiplicity of interpretations of law and its application has arisen. This may be seen, for instance, in the wide disparity in sentences handed down for the same offense by Revolutionary Courts. Even in civil matters, Fatwa or religious opinions have played a great role in court decisions. This in itself has undermined the principle of equality before the law and contributed to confusing and often inconsistent judgments issued by Iranian courts. There are many examples where the court's verdict or judgment has been based on the opinion of a Mojtahed, rather than on codified legislation. In cases involving loosely defined capital offences, people have been deprived of their lives, based on an individual personal interpretation. There are numerous instances of property being seized on the basis of Fatwa.[29] In other words, the institution of Fatwa may be said to militate against the equitable application of the law in all cases. Ayatollah Yazdi, the Head of the Judiciary acknowledged the uncertainty which reigns over the question of valid sources of law when he stated in July 1992 that: "The laws which are the criteria for action are taken from different Islamic treatises (Resaleh) and the Tahrir-Ol-Vassileh by the leader of the nation, Imam Khomeini. "[30]

These treatises may be mutually antagonistic, leaving uncertainty about what can be considered to be applicable legislation in the Islamic Republic. The legislative and constitutional underpinnings of the Iranian legal system have inconsistencies and unresolved tensions which undermine the rule of law in Iran.

CHAPTER 2. THE JUDICIARY

The Iranian Judiciary prior to the revolution was composed of judges who had usually graduated from the Faculty of Law of Tehran University, and of graduates from foreign law schools who, after a period of apprenticeship and passing and examination, occupied judicial posts in prosecution offices, lower and higher courts and the Supreme Court. The Judiciary prior to the revolution was poorly paid and held in low esteem by the government. The independence of the judiciary had been undermined by the encroachment of influence wielded by the executive branch of government. Judges were bribed and intimidated, while a major part of the judiciary's jurisdiction was taken from it and given to special tribunals including military courts.

The 1979 Constitution of the Islamic Republic of Iran contains provisions aimed at securing the independence of the judiciary. For example, Article 57, as amended in 1989, states:

The ruling powers in the Islamic Republic are the Legislative, the Judiciary, and the Executive Branch which function under the supervision of the Velayat-al-Amr and the Leadership of the Ummah, in accordance with the forthcoming articles of the Constitution. These powers are independent of each other.

Article 156 of the Constitution describes the judiciary as "an independent power which shall support individual and social rights and be responsible for ensuring justice. " However, Article 61 of the Constitution qualifies this independence by stating that: "The functions of the judiciary are to be performed by the courts of justice, which are to be formed in accordance with the criteria of Islam, "(emphasis added) The Article continues, stating that the courts are vested with the authority to "dispense and enact justice and implement punishment according to Islam, " (emphasis added)

Prior to 1989, the Supreme Judicial Council, made up of five religious legal authorities, was the highest judicial authority. In the 1989 constitutional amendments the Council was abolished and replaced by the position of Head of the Judiciary, occupied since its inception by Ayatollah Mohammad Yazdi. The Head of the Judiciary is charged with the duty of establishing a judicial organization to implement Islamic law. The Head of the Judiciary has the power to appoint, promote and dismiss judges,[31] in accordance with loosely defined legal guidelines. He is appointed directly by the Leader of the Islamic Republic for a renewable term of only five years, leaving the incumbent vulnerable to political pressure from the Leader who has the power to replace him. There is a Minister of Justice who reports and is accountable to the Executive and the Legislature on behalf of the Judiciary. The Minister is appointed by the President from a list of nominees proposed by the Head of the Judiciary.

 

A. Qualifications

The Constitution provides for the required qualifications of judges to be laid down by law in accordance with the standards of religious jurisprudence.[32] The law on Qualifications for Appointment of Judges states that the judges are appointed from among men[33] who are "faithful to the system of the Islamic Republic of Iran, " and who have obtained approved training in religious law from theological seminaries.[34]

Following the revolution, the government tried to create a judiciary more in harmony with its interpretation of Islam. All female judges were suspended or appointed to clerical positions in the Ministry of Justice. A number of qualified judges were purged because of their "lack of commitment to the principles [of] the Islamic Republic." In January 1980, a special religious/judicial school was established in Qom to train religious judges to take over duties from existing secular judges. In May 1980, the government employed 1000 judges recruited from among graduates of theological seminaries,[35] and by 1989 this figure had risen to 2,000.

The Islamic Republic had inherited a weak judiciary which was weakened further by the purging of the judicial ranks for ideological reasons. The need for judges led to the appointment of inexperienced seminary students as judges. A single Article[36], added to the Law of the Qualifications for the Appointment of Judges, requires that judges in Revolutionary Courts[37] should be recruited only from among students in religious seminaries with the equivalent of a high school diploma, whose qualifications are approved by the Supreme Judicial Council. The Single Article does not describe the approval procedure in detail. In fact, the necessary qualifications are not spelled out in law and approval was completely at the discretion of the Council. This discretionary power has continued to be exercised by the Head of the Judicial since 1989.

On October 16, 1986, after disputes between the Consultative Assembly and the Council of Guardians[38], the consultative Assembly approved a law which permitted the Supreme Judicial Council to employ judges with minimum experience. The law stated:

The Supreme Judicial Council is authorized to appoint persons who have been working in Revolutionary Prosecutors' offices in judicial positions for more than three years as judges of the Prosecution Offices and Courts, without regard to the Legal Bill on Qualification of Judges provided that they possess at least the High School Diploma or are approved by the Supreme Judicial Council, and provided that the candidates of either category are able to pass an examination on the Civil Procedure Code and the Islamic Penal Code.[39]

In 1987, just months after the promulgation of this law, in answering a Ministry of Justice request for analysis, the Speaker of the Consultative Assembly, Hojatoleslam Rafsanjani, stated that : "The interpretation is that ... even if official approval from the Prosecutor office has been authorized for less than three years,a man may still be appointed as a judge. "[40]

This law meant that the judiciary was no longer the preserve of graduates of religious seminaries, where the influence of conservative theologians was great, and made it possible for judges with little formal education, whose experience lay in the structures of the post-revolutionary government, and who were often more politically radical and religiously activist, to be appointed. Over time, the requirements for experience have become less stringent, leading to an even less qualified, and ultimately, a less independent judicial body.

B. Tenure

The security of tenure of judges, and thus their independence, has also been undermined. In an exchange of correspondence in July 1990 between Head of Judiciary, Ayatollah Yazdi, and Head of the Council of Guardians, Ayatollah Guilani, the Head of the Judiciary asked for clarification from the Council of Guardians for what he referred to as an "ambiguity" in Article 164 of the Constitution, which states:

A judge cannot be removed provisionally or permanently from his position without being tried and his guilt of committing a violation, which is the reason for his dismissal, being proved; neither can he be transferred to another place, nor his position changed without his consent unless it is in the interests of the society and is unanimously approved by the Supreme Judicial Council...(emphasis added)

Ayatollah Yazdi recommended that it should be made clear that the dismissal of a judge "without his consent" is permissible "in the interest of the society", and therefore, the first part of the Article is fully subject to qualification by the second. Ayatollah Gilani, on behalf of the Council of Guardians, affirmed Ayatollah Yazdi's interpretation, adding that the power of dismissal should rest with the Head of the Judiciary who should consult with the President of the Supreme Court and the General Prosecutor.[41] The "interests of the society" are not clearly defined in law, thus giving a free hand to the authorities to remove judges from their positions at any time.

Approximately one year later, in October 1991, the Assembly for the Determination of Exigencies passed a law regarding the formation of a High Tribunal for Judicial Discipline.[42] This law stated that judges may be recommended for dismissal on the basis of "religious considerations by the Head of the Judiciary. The recommendation for dismissal is to be examined by a three person investigatory committee made up of the Judicial Disciplinary Prosecutor, the Parliamentary Deputy to the Minister of Justice and the Judicial Deputy to the Chief Prosecutor. After investigation, the committee sends its opinion to the High Tribunal.[43] The High Tribunal is composed of: the Head of the Judiciary, the President of the Supreme Court, the Chief Prosecutor, the Judicial Disciplinary Prosecutor and the Head of the First Branch of the Judges' Disciplinary Tribunal. The High Tribunal issues its verdict by majority vote, but the Head of the Judiciary retains the right to veto. There is no appeal against the decision of the High Tribunal. "Religious considerations" are not defined anywhere in law, creating the possibility of arbitrary dismissal.

Prior to the revolution, the disciplining of judges was carried out exclusively by the judges' Disciplinary Tribunal. This structure was retained in the Islamic Republic. However, the courts' exclusive jurisdiction over matters relating to judicial discipline. However, the courts' exclusive jurisdiction over matters relating to judicial discipline was usurped by the powers of the Supreme Judicial (and then the Head of the Judiciary) to dismiss and discipline judges and most recently, by the creation of the High Tribunal for Judicial Discipline.

The safeguards available to judges accused of disciplinary offenses have been substantially diminished. Judges may now be accused of offenses not defined in law, such as failing to abide by the "Islamic considerations" or "the interest of the society. " Judges are susceptible to disciplinary inquiry conducted in a diverse array of quasi-judicial bodies. Lack of any safeguard against arbitrary removal of judges, and dismissal without any judicial inquiry, has severly undermined the independence of the Iranian Judiciary.

C. Authority

Religious judges holding the status of Mojtahed who occupy the vast majority of judicial positions in penal courts cling to their authority to issue judgements on the basis of their own religious opinions or Fatwa. The scope of this wide-ranging authority was captured well by Ayatollah Khalkhali in a speech to the Islamic Consultative Assembly in 1990:

In a letter written by Ayatollah Khomeini, I was asked to take responsibility to act as religious judge in revolutionary courts and military courts. I accepted because the path of the Imam is the law for us. I was the religious judge, I sewed the cloth, I tore it up, I confiscated, I executed, I made the decision, there were none to challenge.[44]

Ayatollah Khalkhali's views are widely shared by the Islamic judge who assert that as Mojtahed they are free to make their own decision on the basis of their own interpretations of Islamic Law. In an interview with the Judicial Deputy to the Head of the Judiciary, Dr. Hossein Mehrpour, in New York in November 1991, the Lawyer Committee was informed that the Head of the Judiciary, Ayatollah Yazdi, had issued directives to ensure greater uniformity in judicial practice[45], but that some judges continued to fail to comply.

The lack of judicial independence was exemplified in a case reported in Keyhan daily newspaper in April 1987. The case concerned the repayment of a loan by a Tehran businessman who had allegedly profited from his relations with the Shah's regime. A sum equivalent to several million dollars at official exchange rates, was seized by the stae controlled Bank-e-Melli Iran by order of the court. An unusual aspect of the case was that the President of the Supreme Court, and Head of the Supreme Judicial Council, Ayatollah Moussavi Ardebili, attended the court hearing in person, making clear his support to the state bank in this case. The day after the court's verdict the Chief Executive of the Bank wrote a letter of thanks to Ayatollah Ardebili recognizing his personal role in securing payment of the large sum of money to the bank.[46] Shortly after the conclusion of this case, the judge involved in this case was promoted by Ayatollah Ardebili.

Following demonstrations during April and May 1992, in Mashad, Shiraz and several other cities in Iran, at least eight of the demonstrators were sentenced to death in summary trials before revolutionary courts.[47] During an address at the Friday prayer in Shiraz, Hojatoleslam Ha'eri, the Imam Jom-e or Friday Prayer Leader, offered the following advice to the military forces:

You must not be patient with the enemies, you must shoot them immediately. If you don't have the authorization from your seniors, report them in order to get permission to shoot. From this platform, I am sending this message to your senior commander; if you wish to be respected in our society send this authorization without delay... Islamic verdicts are clear, there is no need for trials and investigations. I told the Prosecutor the same night, after the incident, that it is better to execute a few of them immediately, in different areas of the city, than to execute ten of them tomorrow.[48]

In their cities, the Friday Prayer Leaders or Imam Jom-e have enormous power, including, in some cases, control over their own military forces. The government-appointed judicial officials in provincial cities often have less authority than the Imam Jom-e in issues of a judicial nature. In many cases the local religious authorities are in a position to order prosecutors and judges to enforce their interpretation of the law, as Hojatoleslam Ha'eri appears to have done on this occasion.

In the aftermath of the disturbances in Spring 1992 Ayatollah Yazdi had despatched teamsof judges to trouble spots to mete out exemplary sentences with scant regard to due process standards. When the circumstances required, Ayatollah Yazdi was prepared to put aside his professed commitment to following established laws and procedures and to resort to a "speedy, decisive, response in dealing with the issue in accordance with Shari'a "[49] The U.N. Special Representative commented on these incidents in January 1993:

Independent citizens feel concerned because they are unable to foresee the reactions of the authorities to situations of tensions or public disturbance. The recent case of the demonstrations in Mashad, Shiraz and other cities has been eloquent in this respect. What began as a municipal incident blew up into a major event because the authorities were not prepared to restore order through the use of non-lethal instruments... According to the official news agency IRNA, the orders of the higher authority were categorical: "Seek out troublemakers and destroy them like weeds.[50]

D. Assessment

The 1982 Law on the Qualifications for the Appointment of Judges, which is the legal basis on which appointments are made discriminates on grounds of sex, religion and political opinion. The provisions of this law conflict with Principle 10 of the Basic Principles on the Independence of the Judiciary which stipulates that:

... in the selection of judges there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion...

Judicial independence is weakened because of the absence of guidelines, clearly defined in law, which judicial appointees must satisfy. The wholesale absorption of judicial officials from the Revolutionary Courts into the judiciary blurred standards further because many of these judges and prosecutors had little or no previous legal training or experience. Criteria such as "Islamic considerations ", or "the interests of society " lend themselves to abuse of reasons of political expediency and fail to meet international standards which require states to safeguard the judiciary from "improper influences ".[51]

Judicial independence is further weakened because judges are not sufficiently protected from summary dismissal by the Head of the Judiciary or by the High Tribunal for Judicial Discipline. The rights of judges subject to disciplinary proceedings to a "fair hearing"[52] and to an "independent review"[53] of the decision of the disciplinary authority are not respected.

Some judges in the Islamic Republic continue to fail to arrive at their judgement in accordance with the law, preferring to rely on their positions as Mojtahed to issue Fatwa. This practice contradicts Principle 2 on the Basic Principles on the Independence of the Judiciary which stipulates that: "the judiciary shall decide matters before them on the basis of facts and in accordance with the law. "

One cannot speak of a unitary judicial power existing in the Islamic Republic. In addition to the judiciary under the supervision of the Head of the Judiciary, Friday prayer leaders in provincial centers, appointed by the Leader of the Islamic Republic but also relying on their own local power bases, exercise considerable control over judicial matters in their regions. The Head of the Judiciary is not the sole arbiter of what constitutes "Islamic considerations" or the "interest of society" -defining such terms being the substance of much political competition within Iran. This fragmented judicial authority undermines the principle of equality before the law, and the "exclusive authority"[54] of the judiciary to decide on issues within its competence as defined by law.

Article 14(1) of the International Covenant on Civil and Political Rights requires that, "everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law. " There are grave doubts about the competence and the independence of the Iranian Judiciary, and its powers are established by ways other than "by law."

Recommendations

The Law on Qualifications for the appointment of Judges should be amended so that discrimination on the basis of sex, religion, political or other opinion is removed.

The discretionary power of the Head of the Judiciary to appoint as judges individuals who are insufficiently or inappropriately qualified in law to carry on duties of a judge should be discontinued.

Safeguards against arbitrary dismissal of judges should be enhanced by making it impossible for judges to be dismissed on grounds that are not well established in law, such as "the interests of society" or "religious considerations."

All judges subject to disciplinary proceedings should be given a fair hearing. A decision to dismiss a judge should be subject to review by a body independent of the Head of the Judiciary.

Judges should decide matters before them on the basis of facts and in accordance with the law. An effective appeals procedure for all court judgments should be implemented so that the influence of judges who refuse to issue their rulings in accordance with the law can be overcome.

CHAPTER 3. COURT STRUCTURE

The formal court structure of the Islamic Republic has its origins in a draft law drawn up prior to the convening of the first Islamic Consultative Assembly in 1979. A law of 37 articles promulgated on October 2, 1979 provided for the establishment of courts of civil law, courts of criminal law and courts of resolving petty dispute.[55] A feature of the post-revolutionary period was the emergence of revolutionary court structures which were not created by any legislative process, but whose jurisdiction, procedure and personnel were incorporated into the judicial system at a later date.

A. Penal Courts

On August 28, 1982, a law was enacted which contained elements of a penal procedure code, and which provided for the creation of two divisions of penal courts. [56] Penal Courts I were competent to deal with more serious offenses punishable by the death sentence, stoning to death, crucifixion, amputation, exile, fines of at least 200,000 Tomans[57] or two-fifth of the property of the offender, or at least 10 years imprisonment. Penal Courts II were competent for all other cases.

Penal Courts II were presided by a single judge. Penal Courts I were made of a presiding judge and a second Judge who acted as an advisor. The second judge passed his written comments on the case to the presiding judge who decided on the case alone. Before a judgement was enforceable in Penal Court I, the Presiding Judge was required to submit his draft judgement for review to a chamber of the Supreme Court. This review procedure could become complicated, particularly because some judges in Penal Court I, who were qualified to act as Mojtahed, were opposed to their judgement being called into question. It is the tradition in Islamic law that verdicts issued by a qualified jurist should not be subject to review or appeal.[58] However, legislation relating to the formation of the penal court structure has attempted to make provision for a right to appeal.

In October 1988, the parliament passed a revised law relating to review of penal court judgments.[59] This law gives a right of appeal to a convicted defendant if the conviction is claimed to be based on invalid documentation or false testimony. The defendant can also base an appeal on a point of law or a procedural violation. Verdicts passed in Penal Court II may be appealed to Penal Court I, and verdicts of Penal Court I may be reviewed by the Supreme Court which after giving its views passes the case back to another Penal Court I for judgement. This structure was confirmed by the Law on the Formation of Penal Court I and II and the Chambers of the Supreme Court which was passed on June 21, 1989.[60]

Articles 20 and 21 of the Law of Penal Courts provide for judges from civil courts, or for qualified individuals selected by the Head of the Judiciary, to serve as judges in Penal Courts I and II for temporary periods so as to avoid the accumulation of a backlog of cases, or to speed up the process.[61] These provisions leave open the possibility that completely unqualified persons may, at the discretion of the Head of the Judiciary, be assigned to try serious cases, even those carrying the death penalty.

These two articles of the Law of Penal Courts also give judicial officials wide powers to supplant the judiciary with ad-hoc appointees. Such ad-hoc judges were dispatched to various cities in May and June 1992 to mete out exemplary sentences in the aftermath of widespread civil unrest. For example in June 1992, Ayatollah Yazdi first stated his appreciation for the judges' work and later stated that he had sent "religious judges, " whose qualifications were not described, to various cities which had been affecte by civil disorders in order to try alleged offenders. The Head of the Judiciary made clear that he had sent these judges in accordance with these two articles of the law.[62] It is notable that Ayatollah Yazdi even added that it was for these judges to decide whether defendants in these cases should be permitted representation by legal counsel, a discretionary power which is not mentioned in the law.

Further examples of the expansive discretionary powers available to judges in Penal Courts can be seen in Article 27 of the law whereby a judge may proceed with trying a case, if "the case requires " even if no investigation establishing the facts of the matter has been completed by the Prosecutor's Department. The terms of this law leave potential for summary judgements to be issued without regard for the basic principle of the presumption of innocence.

B. Special Penal Courts: The Islamic Revolutionary Courts

Islamic Revolutionary Courts were established by decree of the Revolutionary Council[63] on June 17, 1979.[64] The decree, which was initiated by Ayatollah Khomeini, consisted of 34 articles. It stipulated that the aim of the Revolutionary Courts was to investigate crimes committed before the revolution by supporters of the Pahlavi dynasty, and to fight against foreign influence and other "enemies of the revolution. " According to the International Commission of Jurists, Islamic Revolutionary Courts "were specifically created ecclesiastical tribunals having no basis in the law ...; the procedure of these tribunals also departed from the strict requirements of proof and safeguards for the defense which are a marked feature of Islamic systems of law".[65]

The jurisdiction of the Revolutionary Courts, as amended in 1983[66], encompasses,

Any offence against internal or external security, attempt on the life of political personalities, any offence relating to narcotic drugs and smuggling, murder, massacre, imprisonment and torture in an attempt to fortify the Pahlavi regime, suppressing the struggles of the Iranian people by giving orders or acting as agents, plundering the public treasury, profiteering and forestalling the market of public commodities.[67]

This expanded jurisdiction was contained in a law which placed the Revolutionary Courts formally under the direction of the Supreme Judicial Council. One result of this law was that the recognition of religious judges as qualified judges; theses judges had presided in Revolutionary Courts, even though they did not meet formal judicial qualification requirements.

Initially, most judgments of the Revolutionary Courts were final and not subject to appeal. However, the 1988 law of Penal Courts which provided for a right of appeal in cases tried before Penal Courts I and II, also extended a right to appeal to cases tried by Revolutionary Courts.

Disputes over jurisdiction between the Revolutionary Courts and Penal Courts I are resolved by the Supreme Court. To date, it appears that there is a tendency to extend the jurisdiction of the Revolutionary Courts to all offenses which in the opinion of the authorities are not punished severely enough by the ordinary courts.[68]

The Islamic Revolutionary Courts have been responsible for sentencing thousands of prisoners to death, and tens of thousands more to prison terms and other penalties. Throughout the 14-year history of the Islamic Republic, defendants before such courts have suffered from chronically abusive procedure. Proceedings have taken place in secret with defendants given no opportunity to consult with defense counsel. Eyewitness accounts reported by Amnesty International [69]have spoken of trials lasting only a matter of minutes, and in some cases of defendants not even knowing that a trial was taking place. Despite the theoretical existence of a right of appeal, no evidence has emerged of this right functioning as a practical safeguard.

The United Nations Special Representative reported on a 1989 interview with "an experienced Iranian lawyer" who said that in Islamic Revolutionary Courts,

"No legal representation was possible and no appeals were admitted. In cases of death sentences passed by these courts the defendant was never informed of his condemnation. Such sentences were reviewed by the competent section of the Supreme Court without the defendant's knowledge that he had been sentenced to death and without any further hearings."[70]

In a 1991 trial before a Revolutionary Court which was unusual in that it took place in the spotlight of at least some international attention, nine prisoners were sentenced to prison terms ranging from six-months to three years after signing an open-letter addressed to President Rafsanjani, criticizing the government's failure to uphold constitutional principles. The trial was marked by irregularities. The defendants were not permitted to be represented by defense counsel, and allegations that they had been subjected to torture during pre-trial detention were not investigated by the court. The Special Representative had dubbed this well-known case, "a test case for the application of the rules of due process," and it was a test which the Iranian legal system failed.

Despite repeated official claims that problems with the Revolutionary Courts were being rectified, there is no indication of any improvements in practice. In May 1992, President Rafsanjani, in a meeting with Islamic Revolutionary Prosecutors, referred to the shortcomings in procedures before Revolutionary Courts and said:

"If one regards the matter as a whole, that institution [the Revolutionary Court system] was very useful in terms of defending the Islamic revolution. Now, many of its problems and shortcomings have been eradicated. The new direction of the judiciary provides a sort of reassurance and confidence to society that did not exist among people who dealt with that organization in the early days of the revolution because of hasty judgments.[71]

This optimistic tone was not shared by the U.N. Special Representative who reported in November 1992 that:

"proceedings are very summary and are held in closed session, the accused do not enjoy the right of presumption of innocence, cannot select their own defence lawyer, submit evidence, bring witnesses on their behalf or have recourse to any remedy or appeal against their sentences ..."

In Practice trials continue to be blatantly irregular from the standpoint of international standards.[72]

The failure to observe procedural safeguards is not restricted to the Revolutionary Courts. The secrecy of appeal proceedings was criticized by a member of the Islamic Consultative Assembly in November 1991:

"Under the Iranian Constitution Article 35, all courts must be public and all the people have the right of access to a competent court. We have heard that in Islamic tradition the door of a judge's home was open day and night to those with grievances. Unfortunately, however, due to the unlawful guidelines from the chief of the National Supreme court, which were probably issued to prevent influence over the judges in the Court, the appeal cases in the Court are dealt with secretly, and even plaintiffs and their lawyers do not have the right to know under what classification and in what court their cases are being heard. This is not only a violation of the constitution, public regulations and the ways of Islam, but most of all it is an insult to the innocent and noble judges, and this matter could even create more business for the profiteers."[73]

Ayatollah Yazdi, the Head of Judiciary, spoke out clearly on this subject and asked why this article of the Constitution is not enforced, why trials are not held in public, and why judges do not permit the public to be present in courtrooms. He stated:

"People should see and hear what cases are being heard and which issues are being investigated, so that they can even be present during cross-examinations, hear the defense, the charges, the bill of indictment. For me, or for people like me occasionally to make a passing comment, through certain media, that such and such group was arrested, such and such amount of bribery money was confiscated, such and such amount of government properties were returned to the treasury, is, in my opinion, not enough."[74]

However, Ayatollah Yazdi's commitment to due-process standards appears not to be deep-rooted. The reaction of the Head of the Judiciary to the civil unrest of April and May 1992 was to take special measures, and to mete out swift exemplary punishment, rather than letting the justice system take its course. A statement from 1989 highlights this fundamental tension in the Head of the Judiciary's approach to the justice system. On the one hand, Ayatollah Yazdi stated:

"I have emphasized many times that care must be taken to ensure that speed is not achieved at the expense of accuracy, or at the expense of the rights of the defendant."

But on the other hand, he also stated:

"The general policies of the judiciary are based, as far as possible, upon eliminating the interval between the committing of a crime and the punishment of the convict, so that the convict is punished as soon as possible."[75]

This equivocal attitude to the rule of law at the top of the justice system is reflected in a court system which does not respect fundamental safeguards.

C. Public Prosecution, Police and other forces

After the revolution, a revolutionary public prosecution office and a civil public prosecution office co-existed. They were merged, on paper at lest, in 1984. In addition, there is a military prosecution office dealing with offenses committed by members of the armed forces. All of the prosecution offices must proceed in accordance with the Penal Procedure Code, as amended. In addition, there are organizations which act in the field of law enforcement: the police force, the Gendarmerie, the Pasdaran (Revolutionary Guards), the Revolutionary Committees, and the Basijis, irregular forces of volunteers who seek to uphold revolutionary ideals. A law aimed at consolidating the police forces of the Islamic Republic, promulgated in July 1990,[76] stated that the police, the gendarmerie and the Revolutionary Committees should be merged within one year,[77] but it is difficult to say to what extent this has been realized.

The functions of the Pasdaran are described in the Statute Relating to the Pasdaran of 1982.[78] This law legalizes the activities of the Pasdaran and gives them important military and political functions. From 1982 to 1989, the Revolutionary Guards had their own Ministry. Since 1989 they have come under jurisdiction of the Ministry of Defence. They are bound in a special way to the Leader of the Islamic Republic who is their Commander-in-Chief. In provincial cities, it is common for local Pasdaran units to owe allegiance to the Friday Prayer Leader of the city.

The enumeration of the aims of the Pasdaran in Article 1 of the 1982 Law illustrates their ideological orientation. They have to "defend the Islamic revolution and its achievements, to enforce the concept of the sovereignty of God in accordance with the laws and to strengthen the capability of defending Islam. " They are also charged with more conventional duties, for example, disarming people who are in possession of weapons and ammunition and, according to circumstances, cooperation with the police forces to restore law and order.[79] During the execution of these functions the Pasdaran are to be regarded as police officers.[80]

The Revolutionary Committees are similar in several respects to the Pasdaran. While they were formed during the first months after the revolution, their position was not legally established until 1986.[81] The Revolutionary Committees too were charged with the defense of "law and order" and fell under the authority of the Ministry of Interior.[82] They had to work in close cooperation with the Pasdaran on the one hand and with the police forces on the other.[83] The Committees had responsibility for combating drug dealers and also the struggle against forbidden religious movements. Furthermore, they were obliged to channel all the information gathered to the Ministry of Information because the information could be deemed relevant to the security of the Islamic Republic. Thus, surveillance was a core activity of the Revolutionary Committees.

Law enforcement has also been carried out by self-styled "followers of the Imam's line" vigilante groups who take into their own hands the religious instruction to promote virtue and prohibit vice. The right of private citizens to take the law into their own hands, using this religious basis as a pretext, is relied upon by these groups, who are referred to as Basijis. In this connection, Ayatollah Khamenei, the present religious leader of the country stated in July 1992:

Some people write to me — some people telephone — saying: "we try to prohibit the forbidden, but the official authorities do not side with us; they take the opposing side. " Let me say this: They do not have that right. Official authorities, be they law enforcement officials or judicial officials, do not have the right to defend an offender. They must defend the promoter of religious command. All our government institutions must defend the one who promotes virtue and discourages vice. That is the duty.[84]

In this statement the Leader undermined the authority of judicial institutions in favor of an individual's right to act in accordance with this own interpretation of "religious command."

An opposing point of view can be seen in the remarks of Ayatollah Yazdi, the Head of the Judiciary who condemned, as an example of the misguided zealotry of these vigilante groups, the arbitrary attack against a pregnant woman who was accused of not abiding by the dress code. Ayatollah Yazdi is reported to have said:

"I say that the fetus that was miscarried while you were conducting your prohibition of vice will face you on the Day of Reckoning and tell you that the sin of causing the miscarriage of a pregnant woman by frightening her -in the course of this incident- is much graver than the good deed that you believe you did by frightening two women into adjusting their chadors [veils]."[85]

However, a law adopted in December 1992, the Law of Judicial Support for the Basiji,[86] gives to these irregular quasi-governmental forces full powers to arrest and detain suspects. The completely unregulated status of the Basiji provides no redress against arbitrary detention. The absence of safeguards in the pre-trial period makes unfair trial virtually a foregone conclusion.

D. Assessment

That the Head of the Judiciary feels obliged to defend in public such fundamental concepts as the rule of law and the independence of the judicial system demonstrates the shallow roots which judicial institutions have put down in the Islamic Republic. That a considerable body of legal opinion, with the Head of State at its forefront, should draw a distinction between respecting the rights of persons accused of criminal charges and the "promotion of religious commands " is to equate respect for due process of law and international human rights standards with the promotion of vice. These attitudes are flagrant challenge to Iran's compliance with its obligations as a State Party to the International covenant on Civil and Political Rights.

The tendency to bypass legally-established judicial structures at times of social unrest, or in response to particular social problems, such as drug-trafficking, conflicts with Principle 5 of the UN Basic Principles on the Independence of the Judiciary, which states:

Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

We have already noted that those accused of criminal charges are unlikely to benefit from the safeguards provided in Article 14 of the Covenant, which requires a "fair and public hearing by a competent, independent and impartial tribunal "