Rule of Law in Iran

Original Contribution by Dr. Ramin Moschtaghi, Berlin. The author was 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.

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I. The Principles of hākemiyat-e qānun and velāyat-e faqhih

Wiki-MarkupHistorically 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).

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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

Background Information

Devin J. Stewart, Islamic Legal Orthodoxy, 1998

Nāzer Katouziān, Gāhi be su-ye adālat - Mağmu'e-ye maghālāt, Band I und II, 1378  - 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

Tellenbach, Silvia: Strafgesetze der Islamischen Republik Iran, 1996

Selected Documents

Concluding 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. 12957, English translation in: Blaustein, Albert P., (ed.), Constitutions 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