Short review

Introduction to the Iranian Legal System and the Protection of Human Rights in Iran. By Adineh Abghari. London: British Institute of International and Comparative Law, 2008. Pp. 285 (bilingual: Persian and English). £50.00.

Reviewed by Ramin S. Moschtaghi.

 

The book, 'Introduction to the Iranian Legal System and the Protection of Human Rights in Iran ' is one of two volumes[1] published by the project 'Human Rights in International Law and Iran' of the British Institute of International and Comparative Law. This project primarily aims at fostering the dialogue on human rights between international and Iranian legal scholars, practitioners and intellectuals. Although this is a worthwhile aim and the book is the first comprehensive introduction to the Iranian legal system written in English by a jurist, the book unfortunately falls short of expectations. The author is an Iranian lawyer and has been a research fellow at the British Institute of International and Comparative Law. It is widely uncritical, partly faulty and sometimes the English version is hard to comprehend without reference to the Farsi text or prior knowledge. For instance the term Imām-e djome is translated with the English word Friday. Thus, a reader of the English version might get the impression that Imām-e djome is the Persian equivalent of Friday, the famous companion of Robinson Crusoe, whereas, in fact, the term refers to Muslim preachers of the Friday sermon. Due to mistakes and shortcomings like this, the book rather gives the impression of a working paper than a final work of £50 worth.

 

The book is structured into four chapters ('Introduction to the political system of the Islamic Republic of Iran'; 'The History of the Judiciary in Iran'; 'The Sources of Iranian Law'; 'The Judicial Structure and Fundamental Rights and Freedoms in Iran').

 

The first part provides an introduction into the political and constitutional system of the Islamic Republic of Iran (I. R. Iran). In accordance with Iranian constitutional doctrine, the office of the Leader (rahbar) is addressed as a fourth branch of state power. Hence, there are four sections on each of the branches of state power, i.e. the legislature, the executive, the judiciary and the Leader. It is rightfully claimed that the Leader enjoys superior power in the Iranian Constitution as he supervises all other state organs.[2] However, it would have been interesting to include details on the representatives of the Leader that are embedded in the various organs of all the other branches of state power as well as in public institutions. This system of representatives is of particular importance, since it is precisely this system which provides the Leader with the necessary instruments to implement his supervisory authority in practice. For these details the reader should refer to Buchta's book on the political system of the I. R. Iran, which still provides the most detailed and lucid introduction to the factual distribution of state power in Iran.[3]

 

Concerning the legislative branch, the elaborations of the author are slightly contradictory. First, she describes the Islamic Consultative Assembly (mağles-e shorā-ye eslāmi) as the sole legislative authority. However, later on in the text she correctly remarks that the Expediency Council (mağm'a-e tashkhis-e maslehat-e nezām)[4] also wields legislative power in exceptional cases.[5] Nevertheless, the section concludes with the statement that the function of the Expediency Council 'is arbitration and not legislation' without any further explanation. Although arbitration might be the focal point of the Council’s tasks it nevertheless also acts as a legislative organ. In fact this infringement on the power of the legislature has been criticised in the Iranian literature.[6]

 

It is moreover hardly acceptable for a British publication that the problematic role of this council both in the process of legislation and during elections is not criticised; neither in the section on the Guardian Council (shurā-ye negahbān)[7] nor during the elaborations on the different general elections for public positions in Iran. In fact, the reason for the establishment of the Expediency Council is that the Guardian Council made extensive use of its veto power and vetoed parliamentary legislation for its alleged incompatibility with the Constitution or Islamic law. The fear of a permanent blockade of the legislative process (in the parliamentary period between 1988 and 1992 nearly 40 per cent of the bills passed by parliament were rejected by the Guardian Council)[8] is the reason for the establishment of the Expediency Council, rather than – as the author claims -- the intention to reduce the influence of the Leader in the legislative process (p 15). This is supported by the very wording of the respective directive of the then Leader, Ayatollah Khomeini.[9] Moreover, the Guardian Council notoriously infringes the right to eligibility in general elections by large scale disqualifications of candidates mostly based on political and discriminatory grounds.[10] For instance in 2005 the Guardian Council allowed only six out of the 1,014 candidates who tried to register for the presidential election to participate; it excluded, inter alia, all 89 female candidates.[11]

 

Finally, what is missing in the introduction to the political system of the I. R. Iran is any mention of the fact that all Iranian citizens of non-Shiite creed[12],- approximately ten per cent of the population - [13] are excluded from most higher-ranking public offices. For instance, article 115 of the Constitution excludes all non-Shiite citizens from the presidency of the I. R. Iran.[14] According to this provision, a candidate among other criteria must belong to the official school of Islamic Law (mazhab) of the country and has to be a “follower of the correct faith” (mo'men). These limitations of eligibility are repeated in Article 35 of the Law on the Presidential Elections.[15] Since Article 12 IC establishes the Shiite ğafari School of Law as the official school of Islamic Law (mazhab) of the Iranian State, all citizens who do not belong to this School of Law, which includes both non-Muslims and non-Shiite Muslims like Sunnis, are excluded by law from eligibility. Moreover, according to the understanding of the ğafari School of Law, only followers of this School are considered to be “followers of the correct faith” (mo'men). In fact the term mo’men has traditionally been applied by the ğafari School of Law to discern Shiite from Sunni Muslims.[16] Since this School of Islamic Law is the basis of interpretation for all laws and the provisions of the Constitution, the criterion of mo'men serves as an additional barrier for the eligibility of non-Shiite candidates.

 

The chapter on the history of the judiciary in Iran is divided into sections on the pre-Islamic period, the period following the conquest of Iran by Islam and the contemporary period. It provides an overview of the evolutionary and revolutionary legislative reforms that led to the present Iranian court system. With respect to the Iranian Constitution of 1906/07, the author errs on the role of Islam in the Constitution. She misinterprets article 2 of the supplementary law to the Constitution, which provided: 'At no time may the enactment of the national Consultative Assembly […] be at variance with the sacred precepts of Islam and the laws laid down by the Prophet.' Rather than giving priority to religious criteria over codified legislation, as the author claims, this provision established a limitation on legislation.[17]

 

There are also some problems of terminology and translation in this chapter. For instance, it is highly questionable to what the author refers, when she explains that before the Islamic revolution in 1979, many laws were adopted following the models of foreign legal systems especially the 'Roman-German legal system based on the French legal system'. In fact, mostly laws of French and Belgian origin were used as models for legislation during the reign of the Pahlavi Shahs.

 

The next chapter deals with the sources of Iranian law and the present structure of the Iranian judiciary. It also includes a short introduction to Islamic law, focusing on the Shiite ğafari school of law, the state religion of the I. R. Iran.[18] Unfortunately, for readers not familiar with the details of Shiite-Islamic law, these elaborations are much too cursory to provide them with the necessary understanding of this rather complex matter. Furthermore, many special terms of (Shiite) Islamic law are not explained. For instance, it is unclear for people not familiar with Shiite Islam to whom the expression 'the Fourteen Impeccant Leaders' (p 67) refers. It should have been mentioned that this term in Shiite vocabulary refers to the Prophet Mohammad, his daughter Fatima and the twelve Shiite Imāms.[19]

 

Concerning the structure of the Iranian judiciary, a comprehensive and interesting overview of the present court system is given that includes the substantive reforms of the beginning of the decade. As far as I am aware, there are no comparable elaborations on the Iranian court system in English. While the Iranian discussion on the illegality of the Revolutionary Courts due to a lack of a sufficient legal base for their establishment is mentioned, nothing is said about the various infringements of due process rights especially by the Revolutionary Courts and the Special Courts of the Clergy, which have been criticised heavily by NGOs and various bodies of the United Nations.[20]  In the section on the judicial professions, the widespread exclusion of female candidates from most judicial positions within the judiciary is at least mentioned. Furthermore a detailed elaboration on the legal professions in Iran, in particular the bar association and its history are given.

 

The final chapter of the book is on fundamental rights and freedoms in Iran. Although this section of the book is relatively critical of the Iranian legal system as it provides an overview of the multitude of discriminations against women, there is no word on other infringements of human rights. The numerous discriminations against religious minorities in the I. R. Iran are not mentioned. The author fails to mention the shortcomings that include exclusion from public offices mentioned above and the prevention of the construction of Sunni mosques[21] to the denial of the right to education of Bahai'i students by barring them from attending university studies.[22] Nor does the author address the infringements of the freedom of expression by censorship and restrictive press laws,[23] or the violation of the freedom of association and assembly[24].

 

A positive aspect of the book is its bibliography, which provides a thorough and comprehensive overview on Farsi literature on the Iranian legal system. Concerning the list of laws in the bibliography, it would have been beneficial to cite their sources and the exact date when they were passed as this data facilitates research substantively. The extensive appendix of the publication encompasses a graphic on the structure of the Iranian judiciary, internet addresses of Iranian legal institutions, a list of the most important international conventions that Iran has joined, the Iranian Constitution, the Law on the Establishment of the General and Revolutionary Courts and finally an excerpt from the third economic, social and cultural development program of the I. R. Iran concerning the activities of so-called legal advice offices including the respective implementation procedures.

 

The book provides the first comprehensive introduction to the Iranian legal system in English. However, for Iranians there are lots of Farsi books which are more detailed and as or even more critical of the human rights deficits of the Iranian legal system. Due to its rather uncritical approach, it is advisable for international scholars to use the book only in combination with the respective reports of NGOs and human rights treaty bodies that highlight problematic aspects of the Iranian legal system. The author of the book is an Iranian lawyer, so the mentioned shortcomings might be due to understandable concerns about her personal and professional future in Iran. However, this excuse can hardly be invoked in favour of the British Institute. Even though the aim to foster the dialogue between Iranian and international experts on human rights is highly praiseworthy, it seems questionable whether a book which is in parts less critical than scientific publications in Iran can really promote this aim. Fortunately, other scientific dialogues between Iranian and international lawyers exist which are more outspoken as to the deficits of the Iranian legal system.

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