...
Rule
...
of
...
Law
...
in
...
Iran
...
Original
...
Contribution
...
by
...
Dr.
...
Ramin
...
Moschtaghi,
...
Berlin.
...
The
...
author
...
was
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raporteur
...
for
...
Afghanistan
...
and
...
Iran
...
at
...
the
...
Max
...
Planck
...
Institute
...
for
...
comparative
...
public
...
law
...
and
...
international
...
law
...
in
...
Heidelberg
...
for
...
several
...
years
...
and
...
has
...
written
...
his
...
doctoral
...
thesis
...
on
...
the
...
human
...
rights
...
situation
...
of
...
Sunni
...
Kurds
...
in
...
Iran.
...
| Panel |
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Although having some significance within Iranian legal science the principle of the rule of law (hākemiyat-e qānun) and the aspects generally associated with it remain largely absent from Iranian constitutional doctrine. Instead the latter is characterised by the prevalence of the rule of Sharia (hākemiyat-e shari'at) in its specifically Shiite interpretation of the so called velāyat-e faqhih, i.e. the guardianship of a senior religious scholar over all execution of state power in order to ensure its compatibility with Sharia. The principle of velāyat-e faqhih and its repercussions run like a red thread through the Iranian constitution and supersede all traces of hākemiyat-e qānun. |
I. The Principles of hākemiyat-e qānun and velāyat-e faqhih
| Wiki-Markup |
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Historically the idea of the rule of law (_hākemiyat-e qānun_) in Iran has been in constant conflict with arbitrary monarchical power on the one hand and with the principle of the rule of _Sharia_ (_hākemiyat-e shari'at_) on the other (Rezaei: 2002, 55 et seq.). While the decades between the Constitutional Revolution of 1906-11 and the Islamic Revolution of 1979 saw some progress in the direction of the rule of law (cf. _inter alia_ Arjomand: 2008, 47 et seq.; Arjomand 2010) the establishment of the Islamic Republic in 1979 led to an explicit primacy of the rule of _Sharia_ based on article 4 of the Iranian constitution (IC) \[Article 4 IC: 'All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle is absolutely and generally binding to all articles of the Constitution as well as to all other laws and regulations and the \{_}foqhohā_ of the Guardian Council are judges in this matter.'\]. |
...
In
...
order
...
to
...
ensure
...
the
...
rule
...
of
...
Sharia the
...
constitution
...
of
...
1979
...
establishes
...
the
...
principle
...
of
...
velāyat-e
...
faqhih
...
(cf.
...
article
...
5
...
IC),
...
i.e.
...
the
...
guardianship
...
of
...
the
...
supreme
...
scholar
...
of
...
Islamic
...
law
...
(
...
faqhih
...
)
...
(on
...
this
...
principle
...
see
...
Khomeini:
...
1981
...
27
...
et
...
seq.;
...
Tellenbach:
...
1985
...
159
...
et
...
seq;
...
Momen:
...
1995,
...
196;
...
Hāshemi:
...
2003,
...
23
...
et
...
seq.;
...
Moschtaghi:
...
2010,
...
185
...
et
...
seq.). _
...
The
...
term
...
faqhih_
...
(pl.
...
_foqhohā_)
...
means
...
'expert'
...
in
...
Arabic.
...
At
...
least
...
in
...
the
...
Shiite
...
_ğafari_
...
school
...
of
...
law
...
it
...
is
...
used
...
as
...
a
...
synonym
...
for
...
the
...
term
...
_moğtahed_
...
referring
...
to
...
a
...
religious
...
scholar
...
who
...
is
...
accepted
...
as
...
an
...
expert
...
on
...
the
...
interpretation
...
of
...
Islamic
...
law.
...
Prerequisite
...
for
...
obtaining
...
the
...
rank
...
of
...
_moğtahed_
...
are
...
extensive
...
studies
...
of
...
Islamic
...
law
...
at
...
the
...
end
...
of
...
which
...
a
...
person
...
is
...
awarded
...
by
...
its
...
teacher
...
the
...
license
...
(
...
eğāze
...
)
...
to
...
issue
...
independent
...
interpretations
...
based
...
on
...
the
...
application
...
of
...
his
...
rational
...
powers.
...
The
...
teacher
...
has
...
to
...
be
...
a
...
_moğtahed_
...
himself.
...
For
...
details
...
on
...
the
...
process
...
how
...
to
...
become
...
a
...
_moğtahed_
...
in
...
detail
...
see
...
Devin
...
J.
...
Stewart,
...
Islamic
...
Legal
...
Orthodoxy,
...
1998,
...
223
...
et
...
seq.;
...
On
...
peculiarities
...
of
...
the
...
terms
...
_moğtahed_,
...
_faqhih_
...
and
...
_eğtehād_
...
refer
...
to
...
Momen:
...
1985,
...
186
...
et
...
seq.;
...
Hāshemi:
...
2003,
...
113.
...
According
...
to
...
the
...
principle
...
of
...
velāyat-e
...
only
...
a
...
faqhih
...
is
...
equipped
...
both
...
with
...
a
...
comprehensive
...
knowledge
...
of
...
the
...
Sharia
...
and
...
moral
...
and
...
ethical
...
superiority,
...
which
...
are
...
necessary
...
to
...
ensure
...
a
...
just
...
execution
...
of
...
state
...
power
...
in
...
accordance
...
with
...
the
...
Sharia
...
.
...
Hence,
...
the
...
most
...
qualified
...
faqhih
...
is
...
the
...
only
...
person
...
deemed
...
suitable
...
for
...
leadership.
...
While
...
systems
...
based
...
on
...
the
...
rule
...
of
...
law
...
rely
...
on
...
a
...
system
...
of
...
mutual
...
checks
...
and
...
balances,
...
the
...
rule
...
of
...
Sharia
...
in
...
the
...
form
...
it
...
has
...
found
...
in
...
Iran
...
primarily
...
relies
...
on
...
the
...
'religious-legal'
...
qualifications
...
of
...
certain
...
officials
...
charged
...
with
...
the
...
supervision
...
of
...
state
...
power.
...
Consequently,
...
the
...
competences
...
of
...
the
...
supreme
...
faqhih
...
or
...
simply
...
the
...
'Leader'
...
as
...
he
...
is
...
referred
...
to
...
in
...
the
...
Iranian
...
constitution
...
are
...
hardly
...
restricted
...
and
...
he
...
has
...
the
...
final
...
word
...
on
...
any
...
matter
...
he
...
deems
...
important
...
enough
...
to
...
deal
...
with
...
(cf.
...
article
...
110
...
IC).
...
Due
...
to
...
the
...
primacy
...
of
...
the
...
rule
...
of
...
Sharia
...
only
...
scarce
...
traces
...
related
...
to
...
the
...
concept
...
of
...
rule
...
of
...
law
...
are
...
visible
...
in
...
the
...
Iranian
...
legal
...
system,
...
like
...
for
...
instance
...
a
...
formal
...
separation
...
of
...
state
...
power.
...
However,
...
even
...
these
...
remnants
...
are
...
overshadowed
...
by
...
the
...
rule
...
of
...
Sharia
...
and
...
the
...
repercussions
...
of
...
the
...
principle
...
of
...
velāyat-e
...
faqhih.
...
II.
...
The
...
Principle
...
of
...
the
...
Rule
...
of
...
Law
...
in
...
the
...
Iranian
...
Context
...
The
...
principle
...
of
...
the
...
rule
...
of
...
law
...
(
...
hākemiyat-e
...
qānun
...
)
...
is
...
neither
...
mentioned
...
in
...
the
...
Iranian
...
constitution
...
nor
...
in
...
standard
...
text
...
books
...
on
...
Iranian
...
constitutional
...
law
...
(cf.
...
Hāshemi:
...
2002
...
-
...
2003).
...
However,
...
the
...
concept
...
enjoys
...
some
...
prominence
...
in
...
scientific
...
discourse
...
in
...
particular
...
concerning
...
criminal
...
law.
...
The
...
reception
...
of
...
ideas
...
connected
...
to
...
the
...
rule
...
of
...
law
...
can
...
be
...
traced
...
back
...
to
...
the
...
constitutional
...
revolution
...
of
...
1906-11
...
and
...
its
...
demand
...
for
...
the
...
establishment
...
of
...
a
...
parliament
...
and
...
for
...
the
...
introduction
...
of
...
a
...
constitution
...
limiting
...
and
...
controlling
...
the
...
administration
...
of
...
state
...
power.
...
Legal
...
reforms
...
of
...
the
...
following
...
decades,
...
which
...
were
...
supported
...
and
...
often
...
initiated
...
by
...
a
...
western
...
educated
...
elite,
...
saw
...
an
...
ever
...
expanding
...
corpus
...
of
...
codified
...
laws
...
combined
...
with
...
the
...
establishment
...
of
...
a
...
formal
...
system
...
of
...
courts
...
bound
...
by
...
these
...
laws
...
in
...
order
...
to
...
ensure
...
legal
...
certainty.
...
However,
...
the
...
influential
...
religious
...
establishment
...
remained
...
ambivalent
...
to
...
these
...
reforms
...
which
...
threatened
...
their
...
traditional
...
position
...
as
...
the
...
main
...
administrators
...
of
...
justice.
...
Following
...
the
...
victory
...
of
...
the
...
Islamist
...
fractions
...
after
...
the
...
overthrow
...
of
...
the
...
monarchy
...
in
...
1979
...
the
...
new
...
constitution
...
established
...
the
...
absolute
...
supremacy
...
of
...
the
...
rule
...
of
...
Sharia
...
(
...
hākemiyat-e
...
shari'at
...
)
...
in
...
article
...
4
...
IC,
...
demanding
...
all
...
laws
...
including
...
the
...
constitution
...
to
...
be
...
based
...
on
...
Islamic
...
rules.
...
Nevertheless
...
traces
...
of
...
the
...
rule
...
of
...
law
...
are
...
still
...
visible
...
in
...
the
...
Iranian
...
constitution.
...
For
...
instance
...
the
...
Iranian
...
constitution
...
separates
...
three
...
different
...
branches
...
of
...
state
...
power,
...
i.e.
...
executive,
...
legislative
...
and
...
juridical
...
authority
...
(cf.
...
article
...
57
...
IC),
...
and
...
declares
...
the
...
latter
...
to
...
be
...
an
...
independent
...
branch
...
of
...
public
...
power
...
(article
...
156
...
IC).
...
It
...
furthermore
...
establishes
...
guarantees
...
for
...
the
...
independence
...
of
...
individual
...
judges
...
(article
...
164).
...
According
...
to
...
article
...
167
...
IC
...
judges
...
are
...
bound
...
by
...
law.
...
Following
...
this
...
provision
...
they
...
may
...
not
...
refrain
...
from
...
issuing
...
verdicts
...
and
...
have
...
to
...
base
...
these
...
on
...
codified
...
law.
...
They
...
may
...
refer
...
to
...
sources
...
of
...
Islamic
...
law
...
and
...
advisory
...
opinions
...
of
...
a
...
faqhih
...
,
...
a
...
so
...
called
...
fatvā
...
(pl.
...
fatāvi
...
)
...
only
...
in
...
case
...
of
...
absence
...
of
...
codified
...
regulations.
...
Article
...
159
...
promulgates
...
that
...
courts
...
are
...
the
...
only
...
official
...
body
...
competent
...
to
...
hear
...
law
...
suits
...
and
...
provides
...
that
...
their
...
establishment
...
and
...
organisation
...
has
...
to
...
be
...
based
...
on
...
law.
...
Article
...
169
...
IC
...
seems
...
to
...
promulgate
...
the
...
principle
...
of
...
nulla
...
poena
...
sine
...
lege
...
by
...
providing
...
that
...
no
...
act
...
or
...
omission
...
may
...
be
...
regarded
...
as
...
a
...
crime
...
with
...
retrospective
...
effect
...
on
...
the
...
basis
...
of
...
a
...
law
...
framed
...
subsequently.
III. The Supremacy of Islamic law or the Rule of Sharia enshrined in the Iranian Constitution
As already mentioned, article 4 IC establishes the absolute supremacy of Islamic law (in the interpretation of the Shiite Jafari school of law, c.f. article 12 IC) for the Iranian legal system by providing that all laws and regulation including the constitution have to comply with Islamic law (Moschtaghi: 2010, 131 et seq; Hāshemi: 2002, 83 et seq).
As a peculiarity of Iranian constitutional law due to its decisively Shiite character (cf. article 12 IC) the rule of Sharia in Iran relies strongly on the principle of velāyat-e faqhih (see above) to ensure the conformity of state power with Sharia. This specific form of the rule of Sharia is somehow diametrical to the concept of the rule of law. Because whereas the latter concept is based on the perception that the control of public powers is ensured best by institutional means, i.e. by a separation of different branches of state powers and the establishment of a system of mutual checks and balances, the principle of velāyat-e faqhih relies exclusively on the supervision of state powers by an individual (article 57 IC), elected for lifetime and attributed with special moral and intellectual qualities (cf. article 109 IC), which are supposed to enable him to ensure the conformity of the execution of public powers with justice which in the Islamic context is synonymous to conformity with Sharia.
IV. Repercussions of the Rule of Sharia
Due to the absolute primacy of the rule of Sharia its repercussions are imposed on all remnants of the rule of law within the constitution. Consequently, the formal separation of powers is overshadowed by the comprehensive supervisory power of the Leader (article 57), which is implemented by an effective system of agents situated in all branches of public power and public agencies (Buchta: 2000). Moreover, rather than being restricted to mere supervisory functions, the Leader also holds the most powerful and highest public office in the state (articles 5, 113 IC) and has the final decisions on all basic issues of the Islamic republic (cf. the non-conclusive and sometimes rather vague catalogue of his competencies in article 110).
Legislation
The legislative competences of the parliament are severely limited by articles 4, 72 IC prohibiting any legislation in variance to the rules of the official Shiite school of Islamic law. The control of this limitation of legislation lies with the six foqhohā of the so called Guardian Council (Shurā- ye negahbān) who are appointed directly by the Leader (article 91 IC) without any involvement of others branches of state power. The foqhohā may reject any bill based on its perceived inconsistency with Islamic law (articles 5, 96 IC).
Moreover, based on article 99 IC the Guardian Council is also competent to supervise elections and referenda. Based on this provision the Council holds itself competent to review the suitability of all electoral candidates. This review in the past has led to the rejection of the majority of candidates prior to elections (for instance prior to the presidential election of 2009 out of 476 men and women only 4 men were allowed to participate in the elections). From a rule of law perspective, it is especially concerning that the Council deems itself neither obliged to give reasons for disqualifying candidates nor to offer legal arguments for vetoing legislation (Arjomand: 2010).
The legislative role of the elected parliament is further diminished by the Expediency Council (mağm'a-e tashkhis-e maslehat-e nezām), a kind or arbitration commission between parliament and the Guardian Council (Moschtaghi:2010, 307) which under certain conditions, remaining open to the interpretation of the Leader, also wields legislative power (Hāshemi: 2003, 552 et seq).
Executive branch of Power
The executive branch consists of the President and his ministers. Both the President (article 122 IC) and his ministers (article 133 IC) are accountable to parliament. Since the Leader in spite of his wide competencies is not regarded as part of the executive, he does not share in its checks and balances.
The executive may issue decrees when explicitly provided by law or in order to facilitate the implementation of laws and to organise their departments (cf. article 138 para. 1 IC). Executive decrees may not be at variance with the laws. In case of decrees based on article 138 IC this prerequisite can be controlled by the Speaker of Parliament (article 138 para. 3 IC).
Administration of Justice
The Courts have to refrain from applying any executive decrees which are inconsistent with Islamic law or have been issued by a breach of executive competences. The annulment of such decrees can be requested by an appeal to the Tribunal of Administrative Justice (divān-e adālat-e edāre'i) (article 170 IC).
While the ministers are appointed by the President and have to stand a vote of confidence by parliament the Head of the Judiciary is appointed directly by the Leader for a term of five years with the possibility of re-election and without any consultation of other branches of state power.
After efforts in the 1990s to change the judiciary system to some kind of pre-modern Kadi system excluding the right to appeal have failed, the Iranian justice system of today is once again characterised by a multi tired system of courts with the possibility to appeal most decisions of lower courts (for details on the limitation to the right to appeal cf. Abghari: 2008, 71). Also the division of labour between public prosecutors and judges during criminal proceedings has been restored.
Courts of first instance are General Courts and Revolutionary Courts. The first enjoy general competence while the competence of the latter courts is restricted to charges of narcotic crimes and security related offences. Proceedings before the Revolutionary Courts have been subject to intensive critique by NGOs and human rights treaty bodies of the United Nations due to the infringements of basic principles of fair trial (e.g. Human Rights Watch: 2009; CCPR: 1993, 3 para. 12,).
In spite of article 159 IC which declares the judiciary to be the only institution competent to adjudicate law suits and complaints and renders the establishment of courts dependent on a formal bill of law there are Special Courts of the Clergy (Dādgāh-e Vizheh-ye Ruhāniyyat) in existence that are operating outside the judiciary and are situated under the direct supervision of the Leader. These courts adjudicate transgression of members of the Shiite clergy. Their actions are highly problematic from a rule of law and human rights perspective in particular because they may issue criminal sanctions although they are primarily bound by Islamic law rather than by parliamentary legislation (in detail Künkler: 2010).
Another problematic factor are vaguely defined crimes like Enmity to God (mohārebeh) and Spreading of Corruption on Earth (mofsed fel'arz) which provide judges with a wide margin of discretion and hence render their obligation to base their verdicts on codified law as rather superficial. The latter problem is increased furthermore by the prevailing perception of article 167 IC within the judiciary according to which judges may refer to sources of Islamic law and to fatvā (pl. fatāvi) in case of absence of codified laws even in criminal cases. This enables judges to base criminal punishment solely on a fatvā in case of absence of formal legislation. Similar possibilities are also enshrined in several penal laws (e.g. article 638 Law on Islamic Punishments; cf. also article 18 and 42 of the Procedural Code of the Special Courts of the Clergy).
Finally it should be mentioned that if a substantive understanding of the rule of law is applied, encompassing ideas like human rights and equality by law (e.g. Secretary-General of the United Nations: 2004, para. 6), the Iranian legal system shows additional structural deficits. For instance Iranian citizens are discriminated based on gender and religious affiliation. Because whereas article 19 IC stipulates that all Iranians, whatever their ethnic group or tribe, enjoy equal rights and neither color, race, languages, nor the like, do bestow any privilege, religious affiliation is intentionally excluded from the provision. Religious minorities in Iran are inter alia barred from access to most of the higher public offices (cf. Moschtaghi: 2010). The situation of so called 'un-official minorities', i.e. religious minorities which are not recognized by article 13 ICE is even worse. For instance members of the Baha'i religion, the largest non-Muslim minority in Iran, are even excluded from higher education (cf. Human Rights Watch). Regarding the equality of men and women, the guaranty of equality between them in article 20 IC is restricted to equality according to the rules of Islam. Hence, due to the prevailing interpretation of Islamic law Iranian women are subject to widespread discrimination both by law and by its application (cf. for details Parhisi: 2010).
V. Conclusions
Rather than adhering to the rule of law Iranian constitutional doctrine gives absolute preference to the rule of Sharia and its specific Shiite component, the principle of velāyat-e faqhih. Hence, beside a formal separation of powers and the adoption of the principle of nulla poena sine lege hardly any aspects regularly associated with the rule of law have been incorporated into the Iranian legal system. Moreover, these two principles are rendered rather ineffective by the repercussions of the rule of Sharia and velāyat-e faqhih. Moreover, when applying a substantive approach of the rule of law there are structural deficits in the Iranian legal system concerning equality between Iranian citizens and the protection of human rights. Hence, one has to conclude that at present the rule of law remains largely absent from the Iranian legal system.
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BibliographyAbghari, Adineh, Introduction to the Iranian Legal System and the protection of Human Rights in Iran, 2008 Amnesty International, Human Rights Violations Against Shi'i Religious Leaders and their Followers, 1997 Amnesty International, Report 13/24/97, 1997 Arjomand, Saïd Amir: Islam and Constitutionalism since the Nineteenth Century: the Significance and Peculiarities of Iran, in Saïd Amir Arjomand (ed.): Constitutional Politics in the Middle East with Special Reference to Turkey, Iraq, Iran and Afghanistan, 2008, 33 - 62 Arjomand, Saïd Amir: The Kingdom of Jurists: Constitutionalism and the Legal Order in Iran, in: Grote, Rainer / Röder, Tilmann, Constitutionalism in Islamic Countries: Between Upheaval and Continuity, soon to be published \\ h2. III. The Supremacy of Islamic law or the Rule of Sharia enshrined in the Iranian Constitution As already mentioned, article 4 IC establishes the absolute supremacy of Islamic law (in the interpretation of the Shiite _Jafari_ school of law, c.f. article 12 IC) for the Iranian legal system by providing that all laws and regulation including the constitution have to comply with Islamic law (Moschtaghi: 2010, 131 et seq; Hāshemi: 2002, 83 et seq). As a peculiarity of Iranian constitutional law due to its decisively Shiite character (cf. article 12 IC) the rule of _Sharia_ in Iran relies strongly on the principle of _velāyat-e faqhih_ (see above) to ensure the conformity of state power with _Sharia_. This specific form of the rule of _Sharia_ is somehow diametrical to the concept of the rule of law. Because whereas the latter concept is based on the perception that the control of public powers is ensured best by institutional means, i.e. by a separation of different branches of state powers and the establishment of a system of mutual checks and balances, the principle of _velāyat-e faqhih_ relies exclusively on the supervision of state powers by an individual (article 57 IC), elected for lifetime and attributed with special moral and intellectual qualities (cf. article 109 IC), which are supposed to enable him to ensure the conformity of the execution of public powers with justice which in the Islamic context is synonymous to conformity with _Sharia._ \\ h2. IV. Repercussions of the Rule of Sharia Due to the absolute primacy of the rule of _Sharia_ its repercussions are imposed on all remnants of the rule of law within the constitution. Consequently, the formal separation of powers is overshadowed by the comprehensive supervisory power of the Leader (article 57), which is implemented by an effective system of agents situated in all branches of public power and public agencies (Buchta: 2000). Moreover, rather than being restricted to mere supervisory functions, the Leader also holds the most powerful and highest public office in the state (articles 5, 113 IC) and has the final decisions on all basic issues of the Islamic republic (cf. the non-conclusive and sometimes rather vague catalogue of his competencies in article 110). h4. Legislation The legislative competences of the parliament are severely limited by articles 4, 72 IC prohibiting any legislation in variance to the rules of the official Shiite school of Islamic law. The control of this limitation of legislation lies with the six _foqhohā_ of the so called Guardian Council (_Shurā\- ye negahbān_) who are appointed directly by the Leader (article 91 IC) without any involvement of others branches of state power. The _foqhohā_ may reject any bill based on its perceived inconsistency with Islamic law (articles 5, 96 IC). Moreover, based on article 99 IC the Guardian Council is also competent to supervise elections and referenda. Based on this provision the Council holds itself competent to review the suitability of all electoral candidates. This review in the past has led to the rejection of the majority of candidates prior to elections (for instance prior to the presidential election of 2009 out of 476 men and women only 4 men were allowed to participate in the elections). From a rule of law perspective, it is especially concerning that the Council deems itself neither obliged to give reasons for disqualifying candidates nor to offer legal arguments for vetoing legislation (Arjomand: 2010). The legislative role of the elected parliament is further diminished by the Expediency Council (_mağm'a-e tashkhis-e maslehat-e nezām_), a kind or arbitration commission between parliament and the Guardian Council (Moschtaghi:2010, 307) which under certain conditions, remaining open to the interpretation of the Leader, also wields legislative power (Hāshemi: 2003, 552 et seq). h4. Executive branch of Power The executive branch consists of the President and his ministers. Both the President (article 122 IC) and his ministers (article 133 IC) are accountable to parliament. Since the Leader in spite of his wide competencies is not regarded as part of the executive, he does not share in its checks and balances. The executive may issue decrees when explicitly provided by law or in order to facilitate the implementation of laws and to organise their departments (cf. article 138 para. 1 IC). Executive decrees may not be at variance with the laws. In case of decrees based on article 138 IC this prerequisite can be controlled by the Speaker of Parliament (article 138 para. 3 IC). h4. Administration of Justice The Courts have to refrain from applying any executive decrees which are inconsistent with Islamic law or have been issued by a breach of executive competences. The annulment of such decrees can be requested by an appeal to the Tribunal of Administrative Justice (_divān-e adālat-e edāre'i_) (article 170 IC). While the ministers are appointed by the President and have to stand a vote of confidence by parliament the Head of the Judiciary is appointed directly by the Leader for a term of five years with the possibility of re-election and without any consultation of other branches of state power. After efforts in the 1990s to change the judiciary system to some kind of pre-modern Kadi system excluding the right to appeal have failed, the Iranian justice system of today is once again characterised by a multi tired system of courts with the possibility to appeal most decisions of lower courts (for details on the limitation to the right to appeal cf. Abghari: 2008, 71). Also the division of labour between public prosecutors and judges during criminal proceedings has been restored. Courts of first instance are General Courts and Revolutionary Courts. The first enjoy general competence while the competence of the latter courts is restricted to charges of narcotic crimes and security related offences. Proceedings before the Revolutionary Courts have been subject to intensive critique by NGOs and human rights treaty bodies of the United Nations due to the infringements of basic principles of fair trial (e.g. Human Rights Watch: 2009; CCPR: 1993, 3 para. 12,). In spite of article 159 IC which declares the judiciary to be the only institution competent to adjudicate law suits and complaints and renders the establishment of courts dependent on a formal bill of law there are Special Courts of the Clergy (_D{_}{_}ā{_}{_}dg{_}{_}ā{_}{_}h-e Vizheh-ye Ruh{_}{_}ā{_}{_}niyyat_) in existence that are operating outside the judiciary and are situated under the direct supervision of the Leader. These courts adjudicate transgression of members of the Shiite clergy. Their actions are highly problematic from a rule of law and human rights perspective in particular because they may issue criminal sanctions although they are primarily bound by Islamic law rather than by parliamentary legislation (in detail Künkler: 2010). Another problematic factor are vaguely defined crimes like Enmity to God (_moh{_}{_}ā{_}{_}rebeh_) and Spreading of Corruption on Earth (_mofsed fel'arz_) which provide judges with a wide margin of discretion and hence render their obligation to base their verdicts on codified law as rather superficial. The latter problem is increased furthermore by the prevailing perception of article 167 IC within the judiciary according to which judges may refer to sources of Islamic law and to _fatvā_ (pl. _fatāvi_) in case of absence of codified laws even in criminal cases. This enables judges to base criminal punishment solely on a _fatvā_ in case of absence of formal legislation. Similar possibilities are also enshrined in several penal laws (e.g. article 638 Law on Islamic Punishments; cf. also article 18 and 42 of the Procedural Code of the Special Courts of the Clergy). Finally it should be mentioned that if a substantive understanding of the rule of law is applied, encompassing ideas like human rights and equality by law (e.g. Secretary-General of the United Nations: 2004, para. 6), the Iranian legal system shows additional structural deficits. For instance Iranian citizens are discriminated based on gender and religious affiliation. Because whereas article 19 IC stipulates that all Iranians, whatever their ethnic group or tribe, enjoy equal rights and neither color, race, languages, nor the like, do bestow any privilege, religious affiliation is intentionally excluded from the provision. Religious minorities in Iran are _inter alia_ barred from access to most of the higher public offices (cf. Moschtaghi: 2010). The situation of so called 'un-official minorities', i.e. religious minorities which are not recognized by article 13 ICE is even worse. For instance members of the Baha'i religion, the largest non-Muslim minority in Iran, are even excluded from higher education (cf. Human Rights Watch). Regarding the equality of men and women, the guaranty of equality between them in article 20 IC is restricted to equality according to the rules of Islam. Hence, due to the prevailing interpretation of Islamic law Iranian women are subject to widespread discrimination both by law and by its application (cf. for details Parhisi: 2010). \\ h2. V. Conclusions Rather than adhering to the rule of law Iranian constitutional doctrine gives absolute preference to the rule of _Sharia_ and its specific Shiite component, the principle of _velāyat-e faqhih_. Hence, beside a formal separation of powers and the adoption of the principle of nulla poena sine lege hardly any aspects regularly associated with the rule of law have been incorporated into the Iranian legal system. Moreover, these two principles are rendered rather ineffective by the repercussions of the rule of _Sharia_ and _velāyat-e faqhih_. Moreover, when applying a substantive approach of the rule of law there are structural deficits in the Iranian legal system concerning equality between Iranian citizens and the protection of human rights. Hence, one has to conclude that at present the rule of law remains largely absent from the Iranian legal system. \\ {panel} h6. Bibliography Abghari, Adineh, Introduction to the Iranian Legal System and the protection of Human Rights in Iran, 2008 Amnesty International, Human Rights Violations Against Shi'i Religious Leaders and their Followers, 1997 Amnesty International, Report 13/24/97, 1997 Arjomand, Saïd Amir: Islam and Constitutionalism since the Nineteenth Century: the Significance and Peculiarities of Iran, in Saïd Amir Arjomand (ed.): Constitutional Politics in the Middle East with Special Reference to Turkey, Iraq, Iran and Afghanistan, 2008, 33 - 62 Arjomand, Saïd Amir: The Kingdom of Jurists: Constitutionalism and the Legal Order in Iran, in: Grote, Rainer / Röder, Tilmann, Constitutionalism in Islamic Countries: Between Upheaval and Continuity, soon to be published
Buchta Wilfried, Who Rules Iran-The Structure of Power in the Islamic Republic, WashingtonD.C., The Washington Institute for Near East Policy (et al.), 2000 Hāshemi, Mohammad, _Hoquq-e asāsi-ye ğomhuri-ye eslāmi-ye _irān ("Iranian Constitutional Law", Vol. I and II, Tehran, Mizan Publ., 1382 - 83 (2002-03) Human Rights Watch,Iran: Overturn Death Sentences, Other Unfair ConvictionsPost-Election Protesters Were Denied Access to Lawyers, October 26 2009, [http://www.hrw.org/en/news/2009/10/26/iran-overturn-death-sentences-other-unfair-convictions ](last visit April 2010) International Campaign for Human Rights in Iran, Human Rights Group Demands Closure of Evin Prison Court, 4 April 2010, [http://www.iranhumanrights.org/2010/04/close-evin-court/ ]Khomeini, Sayyed Ruhollah: Hamid Algar (trans.), Islam and Revolution - Writings and Declarations of Imam Khomeini, Berkeley, Mizan Press, 1981 Künkler, Mirjam: The Special Courts of the Clergy (Dadgah-e Vizheh-ye Ruhaniyyat) and the Repression of Dissident Clergy in Iran, Social Science Research Network, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505542 ]. A shorter and edited version of this is to appear in Saïd Amir Arjomand / Nathan J. Brown (ed.), The Rule of Law, Islam and Constitutional Politics in Egypt and Iran, Said Arjomand and Nathan Brown (eds.) Momen, Moojan: An Introduction to Schi'i Islam, 1985 Moschtaghi, Ramin, Die menschenrechtliche Situation sunnitischer Kurden in der Islamischen Republik Iran, 2010 Parhisi, Parinas, Frauen in der iranischen Verfassungsordnung, 2010 Rezaei, Hassan: The Iranian Criminal Justice under the Islamization Project: in European Journal of Crime, Criminal Law and Criminal Justice, Vol. 10/1 (2002), 54-69 Tellenbach, Silvia: Untersuchungen zur Verfassung der islamischen Republik Iran vom 15. Januar 1979, 1985 h6. Background Information Devin J. Stewart, Islamic Legal Orthodoxy, 1998 Nāzer Katouziān, _Gāhi be su-ye adālat -1985 Background InformationDevin J. Stewart, Islamic Legal Orthodoxy, 1998 Nāzer Katouziān, Gāhi be su-ye adālat - Mağmu'e-ye maghālāt _, Band I und II, 1378 - 13791378 - 1379 (1998 - 1999) Ramin Moschtaghi, Die Islamische Republik als Verfassungsprinzip - Ein Vergleich der Verfassungen von Afghanistan und Iran, Verfassung und Recht in Übersee Nr. 41 (2008), 185 - 220 {color:#000000}220 Tellenbach, Silvia: Strafgesetze der Islamischen Republik Iran, 1996{color} h6. Selected Documents Concluding observations of the Human Rights Committee: Iran (Islamic Republic of),1996 Selected DocumentsConcluding observations of the Human Rights Committee: Iran (Islamic Republic of), 03/08/1993, UN Doc CCPR/C/79/Add. 25 Constitution of the Islamic Republic of Iran of 15 November 1979, with comprehensive amendments of 28 July 1989, Ruznāme-ye rasmi ("Official Journal") No. 1295712957, English translation in: Blaustein, Albert P., (ed.), ConstitutionsConstitutions of the Countries of the World, Loseblattsammlung, Dobbs Ferry (N.Y.), Oceana Publ., 2006 Debates on the Law of the Ministry of Information: Parliamentary Minutes of 19. 02. 1362, _Surat-mashruh-e mozākerāt-e ğalase-ye alani-ye mağles-e shurā-ye eslāmi _("Minutes of the public sessions of Parliament"), 23. 01. to 30. 11. 1362 (12.04. 1983 to 19. 02. 1984) Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflictStates (2004), S/2004/616 {panel} |
