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Musaddiq’s Conception of Constitutionalism (Based on his arguments before the court that tried him in 1953)


Copyright Keyvan Tabari 2006. All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari.

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abstract: Mohammad Musaddiq’s views on constitutionalism in Iran are worthy of consideration for several reasons: he was the leader of the secular liberal movement National Front, he was a participant-observer from the very first parliament, the Majles, and he was, arguably, Iran’s foremost constitutional lawyer. As Iranian constitutionalism was a young and evolving experiment, Musaddiq’s conception of it could have been expected to change over time. This proved especially true when he assumed the responsibilities of governance as Prime minister during the critical years of the nationalization of Iran’s oil. The challenge of dealing with the competing centers of power would shape Musaddiq’s notion of what was practical under the existing constitutional monarchy in Iran. He had a unique opportunity to articulate his thoughts on this subject when forced to prepare for his trial a month after his overthrow in August 1953. In Musaddiq’s arguments before the court, as this paper will attempt to show, he addressed the core issues of Iran’s constitutionalism comprising the roles of the monarch, the executive branch, representative assemblies, and direct channels for the exercise of popular sovereignty. What emerged as his prescription was a constitutional monarchy where the Shah would be a symbolic and ceremonial figure, the powerful Prime Minister and his cabinet would be accountable to the Majles, the Majles would be the ultimate locus of power, and the electorate would be well informed through the free exchange of diverse opinions and actively vigilant to keep the legislators responsive.

 

  

 

 

 

BACKGROUND

 

A Special Man

In the hundred year history of Iran’s 1906 Constitution no person has expressed views on its meaning more comprehensive and consequential than Mohammad Musaddiq. This was in part due to his longevity as a particularly qualified participant-observer. The following is an attempt at a narrative of the pertinent points in Musaddiq’s life as he would have sketched it. (In a broader study, his critics’ views would have to be taken into account in equal detail as would such matters as Musaddiq’s statecraft and foreign policy when he was Prime Minister. These worthy subjects are, however, beyond the specific scope chosen for this study.)

When Musaddiq was about 25 years old, he was asked by the reigning monarch, Mohammad ‘Ali Shah Qajar (1907-1909), to help resolve the “misunderstanding” between that absolutist king and Ayatollah Seyd Abdullah Behbahani, the leader of the Constitutionalists. Musaddiq explained to the Shah that Behbahani “has opened a shop (dukan) and sells a product which is Constitutionalism and people are buyers. If you sell the same product, his shop will be boarded up and not only his customers but customers of other shops will also come to you.”  The Shah responded to Musaddiq’s blunt comment with a descriptive colloquialism of his own: he said Musaddiq’s “head exuded the odor of the green (political) stew (qurmeh sabzi) [1]”

Indeed, Musaddiq was himself in the Constitutionalist camp. He had joined two political groupings, jame’-yi adamiyat and majma-i ensaniyat [2]He had been elected to the First Majles as a deputy from the class of Notables (ayan) of Isfahan but his credentials were rejected as he was younger than the required age of thirty [3].

Isfahan chose Musaddiq in part because his wife was a land owner in that electoral district [4]. Similarly, Mohammad Ali Shah’s acquaintance with Musaddiq also spoke of his being closely related to the Qajar King through his mother. From his late father who belonged to Iran’s premier Mandarin family, the Ashtiyanis, Musaddiq inherited his high position as the chief Tax Officer (mustawfi) of Khorasan at the ripe old age of 14[5].

This privileged man was also exceptionally diligent. When Mohammad ‘Ali Shah bombarded the Majles and brought Iran’s Constitutionalism to a halt, Musaddiq left to study, first finance in Paris (1909-1910) and, after two years, law in Neuchatel, Switzerland (1910-1914). Upon graduation four years later, Musaddiq was so successful as a young apprentice lawyer, who even made appearances in Swiss courts [6] that he decided to make this his life career. A trip to Iran in 1914 and the impossibility of return during World War One postponed this plan [7]. Instead, Musaddiq pursued scholarship and teaching in law in Iran.

What and where he taught and what he wrote were as solid a basis as any for making him a superb Iranian constitutional jurist.  His lectures in his class at Iran’s sole modern school of law, The School of Political Science (madreseh-yi ulum-i siasi) were later published as Rules in Civil Courts (dastoor dar mahakem-i  huquqi)[8]. His other books in this period included Extraterritoriality and Iran (capitulacion va iran), and Parliamentary Laws in Iran and Europe (huquq-i parlemany dar iran va urupa). (Afshar, 1986: 82-84) This is only a partial list; there were others [9].

 

            There was no constitutional court in Iran. Instead, Musaddiq would show his talent in government service, especially as a deputy in the Majles which was the agency entrusted to interpret the Constitution. Before that, however, Musaddiq made another trip to Switzerland in 1919, as soon as the end of the WWI permitted. Musaddiq’s hope of resuming his legal career in Switzerland was dashed as its residency requirement for citizenship had been increased to 10 years due to the influx of the War refugees. Musaddiq became a businessman instead. When he was called back to Iran in 1920, to assume the post of the Ministry of Justice [10], he accepted only so as to be able to organize his affairs for a permanent stay in Switzerland [11].

On his way to Tehran, however, the notables of the province of Fars chose Musaddiq as the replacement for his uncle, the departing Governor Abdulhusain Farmanfarma. It was in this post that Musaddiq took it upon himself to offer another piece of historic advice on a weighty matter of the State to the new Shah. When Ahmad Shah cabled to him the appointment of a new Prime Minister Seyd Zia Tabatab’i, Musaddiq chose not to publicize it and, instead, sought to change the Shah’s mind [12] because, Musaddiq believed, Seyd Zia had been appointed under duress applied by the British [13]. Musaddiq did not succeed, but Seyd Zia also failed in his attempt to arrest Musaddiq and soon his government fell [14].

Musaddiq did not return to Switzerland. He was appointed to several high government positions. As the Minister of Finance he pursued the modernization goal of Constitutionalism by drastic financial reforms [15]. He gained further executive experience as the Governor of the Province of Azerbaijan [16], then Minister of Finance, and later Minister of Foreign Affairs [17]. These were short term assignments, each lasting a few months [18], but they established him as a popular candidate for the Majles from Tehran. Through the next two sessions of the Majles, the Fifth (1923-25) and the Sixth (1925-27), Musaddiq became a national figure.

Musaddiq soon made his mark on Iran’s Constitutionalism in two events. When Ahmad Shah cabled the Majles, in April 1924, to dismiss the Prime Minister, Sarder Sepah (the future Reza Shah), Musaddiq played a key role as a member of a group of deputies who defied the Shah. They journeyed to the village of Boom-i Hen outside of Tehran where Sardar Sepah had retired and brought him back to the capital and power [19]. About a year and half later, however, when the Majles was about to appoint Sardar Sepah the new Shah, Musaddiq was a leading deputy who opposed it, arguing in a landmark speech on October 31, 1925 that as a Shah, Sardar Sepah would be a dictator[20].

Musaddiq later refused Reza Shah’s offer to be his Prime Minister as he believed he would not have any independence [21]. Upon the expiration of the Sixth Majles, Musaddiq had to go into internal exile for the next 14 years of Reza Shah’s reign, and he was briefly jailed [22]. He was completely shut out of public political discourse. The silence that Reza Shah’s rule imposed on the outspoken and opinionated Musaddiq was unprecedented; but, the roar of his latent response would be heard [23].

After Reza Shah abdicated, Musaddiq was elected in 1943 as the first deputy from Tehran to the 14th Majles. This was considered to be the highest elective office in Iran.  Musaddiq’s preeminence among the major surviving figures of the pre-Reza Shah era was due to several factors. Some luminaries (such as Hasan Taghizadeh) had been tainted with their association with Reza Shah, some (such as Seyd Zia) had the reputation of being too close to foreign powers, some (such as Ahmad Qavam) were believed feared by the new Shah, while others (such as Hussain Ala) were too closely associated with this king. This left only one person who could compete with Musaddiq for popular leadership: Hussain Pirnia (Mo’tamen al Molk), but he declined to become engaged in politics again [24]. Unlike him, Musaddiq still had the proverbial fire in his belly [25].

Musaddiq’s popularity was enhanced by the positions he took in the 14th Majles. He opposed the extraordinary powers given to American financial advisers [26], he relentlessly pursued major cases of embezzlement by high government officials [27], and he castigated Reza Shah’s old associates for their wrongdoings at his behest. Musaddiq’s major accomplishment, however, was denying the demand for an oil concession by the Soviet Union in October 1944, while using the context to open the struggle against the British oil concession in Iran [28]. Musaddiq valued his position in the Majles so much that he declined the offer to become Prime Minister [29] because he would not be promised return to his Majles seat after his fall [30].

Qavam, who became Prime Minister to suppress the Soviet-supported movements in Azerbaijan and Kurdistan in 1946, assumed so much power that he controlled the elections to the 15th Majles. As they were not free, Musaddiq boycotted them [31]. When the elections for the 16th Majles approached, in the fall of 1949, relations with the concessionaire British oil company had become the dominant issue. A small group of opposition deputies sought the leadership of Musaddiq as the only figure with the stature for the fight [32]. Musaddiq agreed and led a sit in at the RoyalPalace to demand that the pending elections be free. The twenty Deputies and journalists around Musaddiq who formed the steering committee for this activity became the leadership of the National Front [33].

As a loose association of liberal nationalists, the Front succeeded in electing 6 deputies from Tehran to the 16th Majles, including Musaddiq as the first deputy. This popular “Minority (aqaliyat)” faction in the parliament managed the fight against several unacceptable versions of the agreement with the British oil company. Led by Musaddiq’s parliamentary maneuvers, it prevailed in passing the law for the nationalization of Iran’s oil industry.  When Musaddiq was offered the position of Prime Minister on April 28, 1951 with the expectation that as usual he would decline it, he accepted it, in order to implement the oil nationalization law. The pressure of public opinion assured him the grudging cooperation of the Shah and the Majles [34]. In the first year, Prime Minister Musaddiq concentrated on foreign policy with surprising success. In his second year, Musaddiq undertook to implement what he considered to be the domestic promises of the Constitution.

As his National Front competed for the same constituency of the politically aware urban segment of the population with the Communist Tudeh Party, Musaddiq drastically curtailed the Shah’s authority, and obtained extraordinary powers from the Majles to enact immediately enforceable reform measures. When the Majles threatened to turn against him, Musaddiq moved to dissolve the Majles by a referendum, thus paving the way for the election of hopefully a friendlier new Majles.

Musaddiq’s foreign adversaries never relented in their efforts to overthrow him through his domestic opponents [35]. Tipped off by a phone call a few hours before, Musaddiq thwarted an attempted military coup by the Shah in the early hours of August 16, 1953 [36], only to be faced by a better organized effort three days later.

Prime Minister de jure but not de facto

At approximately four in the afternoon of August 16, 1953, a white sheet was pulled off the bed from which the often ailing Prime Minister Musaddiq governed Iran. At his order the sheet was sent to be flown over the building which served both as his residence and the Prime Minister’s office. The Building was thus declared “defenseless [37].” Musaddiq had decided to stop resisting the forces bent on toppling him. Presently, a Colonel representing the Royalist troops surrounding Musaddiq’s house was ushered into his room. He demanded that Musaddiq resign as Prime Minister or face “dire consequences.” Musaddiq replied:  “God forbid that I should resign. Based on the authority given to me by the Majles, I am the Prime Minister and I do not resign [38].” He would, however, instruct his guards not to fire at the assaulting soldiers.

As his house then came under heavy bombardment, Musaddiq’s initial plan was to stay in his bedroom and be killed to end my responsibility to the nation.”  He was persuaded by the few close associates who had stayed with him that for their sake -as they would not leave without him- they should all escape to a neighboring house [39]. That night Musaddiq told these men: “legally, I am the head of the government but, practically, my rule is not effective [40].” He followed by declaring that he would turn himself in immediately [41]. Early next day, arrangements were made for the security forces of the new government to take him into custody. At six in the evening he was taken to General Fazlollah Zahedi [42], his replacement as Prime Minister. “He asked no question,” Musaddiq would later recall [43]. Zahedi ordered that Musaddiq be held in the Tehran Officers Club[44] which also served as Zahedi’s headquarters. Musaddiq was there 16 days [45], and while there he heard over Tehran Radio that he would soon be put on trial by the new government [46].

A Special Forum

Soon thereafter, Musaddiq was officially notified that he would be tried under the 1939 Military Code of Justice and Punishment (qanun dadresi va kayfar artesh)  [47] by a special military court [48]. The prosecutor of the Armed Forces, helped by two other officers, began his deposition (bazporsi) of Musaddiq on September 17, 1953 [49]. He was accused of “cooperating in the plot (su’-i qasd) to change the foundation of monarchy (asas-i saltanat) and the order of succession to the throne (tartib-i verasat-i va takht-o taj) and inciting people to arm against the power of the crown (qudrat-i saltanat) [50].”

Musaddiq was deposed without counsel [51]. In answer to the question about his “job,” Musaddiq said “Prime Minister.” He gave his age as “about 72 or 73 [52].” He “strongly denied (qaveyyan takzib)” all allegations [53] in general and brushed aside the prosecutors’ insistence for more detailed answers by saying “don’t bother me any more. If an open court is convened I will tell the public [54].”

At the end of the first session which lasted four hours, the prosecutor issued a Detention Order (qarar-i bazdasht) for Musaddiq. Musaddiq immediately objected [55]. A military court of five Officers, without a hearing, affirmed the Detention Order on September 23, 1953 [56]. The chief judge (president of the court) was a general who had been boasting about his part in bombarding Musaddiq’s house by a tank on August 19, 1953 [57]. There was no jury in these proceedings.

In the second session of the deposition, the prosecutor called as a witness Musaddiq’s Minister of Justice who himself now faced charges by the military justice system. Following this witness’s less than friendly testimony [58], Musaddiq spoke at some length, outlining what would become the core of his defense [59].

The Complaint (eddea nameh) by the prosecutor of the Armed Forces against Musaddiq was published in Tehran newspapers on October 7, 1953 [60]. In support of the charges it listed numerous acts that took place in the four days from August 16 to 19, 1953, when Musaddiq became an “outlaw (yaghi)” by disobeying the Shah’s Order (farman) which dismissed him as Prime Minister. They included the arrest of the Commander of the Royal Guard who delivered the farman, disarming of the Royal Guard, arresting the Acting Minister of the Royal Court and the scribe of the farman, ordering the arrest of the man appointed as Musaddiq ’s successor, not disclosing the farman to all the Ministers of his Cabinet, issuing an order dissolving the Majles, arresting an opposition deputy of that Majles, ordering the preparation for a referendum to establish a Regency Council, organizing a mass public gathering where anti-Shah slogans were featured, allowing publication of newspaper articles insulting to the Shah, removing the statues of the Shah and his father from public squares, instructing Iran’s Ambassador in Iraq not to contact the Shah who had gone there, and firing on the people who set siege on Musaddiq’s house on August 19, 1953. A death sentence was requested [61].

Musaddiq’s trial began on November 8, 1953, in the ornate Hall of Mirrors of a Palace that once served as the venue for the official summer audience of the Qajar Shahs. This was now a military base where Musaddiq was held for almost the duration of his trial.[62]. As a Tehran newspaper noted the drama, unprecedented in the annals of judicial tribunals [63], first the prosecutor and the judges came into the room and sat in their chairs; then, five minutes later, Musaddiq entered slowly [64]. The chief judge would later acknowledge Musaddiq’s unusual status of “sheykhukhiyat (elder statesmanship) [65].”   More important, this was the first time that any Prime Minister was being tried in any court in the history of the Iranian constitutional monarchy [66].

The new chief judge had been a general who had been retired by Prime Minister Musaddiq. Two of the other four judges, all military officers, had been recalled from their posts by Musaddiq because of complaints against their alleged misdeeds by the local population [67]. Musaddiq chose not to formally object to this conflict of interests [68].  He objected unsuccessfully to the qualification of the prosecutor on the grounds that he had in the past declined an appointment to a military court, giving as his excuse lack of “any judicial education and experience [69].” Indeed, this Officer did not even have a college degree [70].

There was no jury in this court. Musaddiq was allowed only military lawyers [71]. When his first choice demurred so as not to displease the Shah [72], Musaddiq accepted a lawyer appointed by the court. Colonel Jalil Buzurgmehr maintained that he was sympathetic to Musaddiq. Musaddiq did not fully trust him [73] but he served as the conduit for legal support provided by Abdollah Mo’azemi, a prominent professor of Law. Musaddiq’s favorite in Mo’azemi’s team of judges and lawyers [74] was one of Iran’s best trial lawyers, Hasan Sadr [75]. While these men furnished assistance on technical legal research, the main briefs which were about constitutional issues were prepared by Musaddiq himself [76].

Civilian spectators were allowed. Reporters from the local and foreign press attended. The coverage by the controlled domestic press was sporadic [77]. The new government was probably more sensitive to coverage by the freer foreign press. It was generally believed that the government’s purpose for convening this tribunal was to discredit Musaddiq by trying and convicting him in a court of law [78].

For both sides the real audience was beyond the walls of the courtroom [79]. Musaddiq relished the opportunity to tell his story in the court [80]. As he might have assumed, this would help establish him as the undisputed leader of the opposition to the regime that the Shah would create in the course of the next quarter century. Even the Tudeh Party would now refer to Musaddiq deferentially and with respect.

The first part of the court proceedings was about the jurisdiction of the court, and the second part about the “substantive charges (mahiyat).” In practice this boundary was not observed. Many of the same arguments were repeated in both phases.

 

The Process

The protagonists were the prosecutor and Musaddiq. This defendant kept counsel’s presentation to a minimum [81].  There was another defendant in the court. The Army’s chief of Staff under Musaddiq was tried with him, although with charges that were different. He had several military lawyers. On occasions, they invoked and expanded Musaddiq’s arguments [82].

The prosecutor was aggressive, short on legal reasoning and long on political and personal attacks against Musaddiq. He was helped by Musaddiq’s adversaries from among former senators, deputies, and judges [84]. He was given free reign by the court [85] to accuse Musaddiq of numerous types of crimes [86], ranging from embezzlement to apostasy and heresy [87] to being an agent of foreign Powers [88]. The bulk of these allegations were about events prior to August 16 and hence outside the period specified in the charges. The prosecutor’s commentaries took much of the court’s time: at one stretch almost all of the 36 hours of 9 sessions [89]. The evidence he produced was all related to the post August 16 events, consisting of Government orders, newspaper articles, and a sound track of the August 16th mass public meeting [90].

The prosecutor called as witness of the events of those four August days, fourteen of Musaddiq’s close associates. Questions were directed to them both by the chief judge and the prosecutor. The prosecutor repeatedly reminded those witnesses that they were also being held as defendants [91]. The intimidation was too blatant even for the witness whose testimony had displeased Musaddiq during his deposition. Both this former minister of Justice [92] and another witness, the veteran professor of law Ali Shayegan [93], reminded the prosecutor that they were in this court as witnesses and not as accused [94].  When the prosecutor maintained that as accused their testimony should be interpreted differently and that their rights were not the same as ordinary witnesses [95], they reprimanded him for his lack of legal knowledge [96].

Musaddiq did not cross-examine any of these witnesses. He did not have to. Their treatment of him in the court ranged from deep respect to near reverence shown by bowing to him [97]. They did not contradict anything of substance that Musaddiq said [98]. Musaddiq had already neutralized such possibility in advance by saying that he would accept whatever they might say about him or indeed about any event [99].

Musaddiq did not introduce any witness.  His defense consisted of oral arguments. Much of these had been prepared meticulously in detail and in writing [101]. Several times Musaddiq’s arguments were left incomplete as he was stopped by the court. They had to be repeated later. Musaddiq’s experience as a parliamentarian in the challenging debates of the 5th and 6th Majleses and, indeed, his “abundant (sarshar) memory” helped him [102]. Musaddiq was determined to tell his story whole. This meant covering subjects which were not directly related to the charges against him [103]. He reasoned that they were necessary to provide a full explanation for what happened [104]. Regardless, he wanted the world to know his position on many issues he considered relevant or important [105].

Of the five judges, only the chief judge spoke at the trial. He saw his job to be limiting Musaddiq to defending the charges before the court and expediting the process [106]. He was repeatedly urged to do so by the prosecutor [107]. His self interest [108] also required preventing Musaddiq from criticizing the Shah who was the real antagonist in this theater [109]. Occasionally, however, the chief judge would show curiosity about what some of the witnesses [110] and even Musaddiq had to say [111]. At one point Musaddiq was moved to praise the judge for his questions which helped to elucidate some fine points of constitutional law. This is “useful,” Musaddiq said [112].

In insisting that he be allowed to say what he needed, Musaddiq would remind the judge that Article 49 of the Army Code under which he was being tried specifically provided that a defendant had the right to say what he thought was necessary for his defense at any time during the proceedings [113]. Musaddiq would be told that he should then limit himself to the events of the four days of August 1953 [114] and should avoid repeating what he had already said [115]. When he was stopped, Musaddiq would threaten a hunger strike [116]. He would also threaten to refuse to come back to the court [117]. The prosecutor in turn would threaten to bring him to the court by force, in handcuffs and shackles. Once, at his insistence, even the chief judge made that threat [118]. When Musaddiq’s comments about the Shah or his father became too blatant, the prosecutor and the judge would threaten to take the proceedings closed doors [119]. Consideration of international public opinion was believed to have restrained the court [120]. Despite this continuous tug of war between the parties, none of these threats were carried out. Musaddiq was able to say nearly all that he wanted. In exasperation, the prosecutor declared to the court: “I must admit that I have never been caught in such a bind (tangna)” [121].

The court assumed subject matter jurisdiction (salahiyat-i zatti) by rejecting Musaddiq’s opposition which maintained that his alleged crimes were political by definition; the court’s position was that the complaint determined the type (onvan-i davay-i matruheh) of the crime [122] and its charges were not political but common crimes [123]. The court assumed personal jurisdiction over Musaddiq by denying that he was being tried for his acts as a prime minister [124]; its position was that Musaddiq had become a common civilian criminal –yaqhi (outlaw), in the prosecutor’s language- after refusing the Shah’s dismissal Order [125].

The court convicted Musaddiq of all the charges. As the facts were generally not disputed, the main issues were whether Musaddiq could be held responsible for the acts of others on the theory that he “initiated”[126] and directed them with no exculpating good intent [127], and whether those acts cumulatively amounted to an attempt against the Crown and toward changing the regime and inciting armed popular insurrection to that end. Musaddiq denied attributive culpability of respondeat superior for the acts [128] and denied the application of the law to those acts [129]. The court ruled against him on both [130].

Before the court recessed to decide its judgment, the chief judge had read into the record a letter from the new minister of the Royal Court -Musaddiq’s pre-Reza Shah ally Hussain Ala- to the effect that the Shah would forego any personal claim against Musaddiq in recognition of his services for nationalizing the oil industry during the first year of his government [131]. Musaddiq got up and said that he declined such favors from the Shah [132] as he had done no wrong to the Shah or the country. He asked the judges to render justice in view of God and their conscience [133].

In sentencing Musaddiq the court said it took into account Musaddiq’s services which had been “acknowledged” by the Shah as well as the fact that Musaddiq was older than sixty years which required leniency [134]. On December 21, 1953 the court sentenced Musaddiq to three years solitary confinement [135]. The prosecutor expressed his displeasure with the judgment: “This could not be a (right) verdict! [136]”

Musaddiq immediately filed an appeal (farjam) to Iran’s highest court, the civilian divan-i ali-yi keshvar (National High Court) [137]. The military court of appeals responded by saying that was not possible [138]. Instead, that court itself seized Musaddiq’s case [139]. The parties’ arguments about the Constitution before the appellate court were not that different. The sentence was affirmed on May 12, 1954 [140] with this difference: the reduction of the sentence was now based solely on old age. The court said that the Shah’s declared forbearance should not be deemed as his having been a party to the case [141].

Musaddiq again demanded that the civilian High Court hear his case. That court delayed and finally, on March 13, 1956, denied his request, stating that his “objections were not effective (mua’ssir)” [142]. It upheld the decision of the military court of Appeals. The former prime minister served the remainder of his prison term in a room in a military base which had coincidentally been the office of his counsel sometime before [143]. He was then kept under virtual house arrest until his death in 1967 at his farm, Ahmad Abad, where he had also been in exile under Reza Shah.

Musaddiq maintained that because of the threat of closed door session he could not say all that he wanted to say in the military courts. He prepared a detailed brief to be presented to the High Court. A review of that brief [144] does not reveal anything materially new with regard to his arguments on the major constitutional law issues. The analysis that follows is based on the detailed records of the trial court.

CONSTITUTIONAL ISSUES

Musaddiq treated his trial as an opportunity to expound his interpretation of the Constitution. This was reflected in his pithy sarcastic critique of the trial court’s Judgment: “Tonight you taught the Iranian nation the meaning of Constitutionalism (mashrutiyat)” [145]. He repeated almost the same summation about the proceedings in the military appellate court.  He felt fulfilled in having successfully used these forums to draw the public’s attention to the fundamental questions of a constitutional regime which was meant to wean Iran away from the will of a single individual king toward the rule of the majority of the people [146].

Musaddiq claimed a unique authority to undertake this task because of his “fifty years of observation and experience (mutalieh va tajrubeh)” [147]. Further, he considered himself exceptional as he had proven that he would speak his mind even to the mighty, and would not now hold back as he feared no consequence, not even a death penalty [148]. Finally, as he would repeatedly remind the court, he was a constitutional lawyer [149].

The Constitutional issues that Musaddiq discussed in the Trial court could be categorized in terms of relevance to the case itself. Some were fundamental to the allegations against him and hence determinative for the judgment. Others were not so but still raised by the allegations. The third category was issues relevant to clarifying the facts of the allegations even though they were not explicitly raised by the allegations.

These issues could also be categorized with regards to the court’s adjudication or rebutable by the prosecutor or the chief judge in the proceedings. Thus, some issues were decided in the judgment, some were only debated in the prosecutor’s arguments or the judge’s comments in the discussions, and still others were not addressed by either.

A total of eight major Constitutional issues can be recognized. Together they constituted a rather comprehensive picture of Musaddiq’s conception of Constitutionalism for Iran at this time. They are discussed below.

I. Does the Shah have the right to dismiss the prime minister?

Musaddiq’s answer to this question was an unequivocal no. The issue was pivotal not only to the outcome of the trial but also to Musaddiq’s views about the 1906 Constitution. His detailed discussion requires a thorough description. It was here that Musaddiq also explicated some fundamentals of a constitutional law for Iran, dealing with such matters as who should interpret the constitution, how to interpret it, and what precedents could be used.

The arguments in the court regarding this issue centered on Article (Principle or asl) 46 of the 1907 Amendment to the Constitution. The Article provided that “The dismissal and appointment of the ministers are by the Royal Order of the Shah (azl-o nasb-i vuzara be mujeb-i farman-i humayun padshah ast)” [150].

The need to interpret the Constitution

The threshold question was whether this language was so unambiguous as to require no interpretation. The prosecutor said it was [151] and the court agreed with him. Their position was that these words were “explicitly certain (nass-i sarih)” [152] as to the right of the Shah to dismiss and appoint ministers, including the prime minister [153]. The prosecutor claimed that there had never been any disagreement about this [154]. The court seemed to concur [155].

Musaddiq disagreed and discussed his position at length. He pointed out that ever since Mohammad Ali Shah there had been disagreement about the meaning of this provision [156], specifically concerning the Shah’s “right” to dismiss and appoint ministers. He cited the address to the Cabinet and the letter to the Majles by the Regent of the succeeding monarch, in which the Regent (Nayeb os-Saltaneh Naser al-Molk) clearly stated that although “it might appear (suratan)” that the Shah had the power, in fact all decisions were with the Majles and the ministers [157]. Indeed, Musaddiq reminded the court, there had been a disagreement between the current Shah and Musaddiq on this issue which was submitted for resolution to a commission of eight deputies of the 17th Majles [158]. Musaddiq summed up: the interpretation of constitutional provisions is necessary because by nature all constitutions are brief. They are not “rigid,” their built-in “supples” allows for circumstances all of which could not be foreseen [159].

The tools for interpreting the Constitution

Musaddiq maintained that the ultimate authority for interpreting the Constitution was the Majles [160]. In all of his arguments, Musaddiq did not refer to a single court decision. No court had ever dealt with this or other constitutional issues. As Musaddiq would indicate in other contexts -under Issue V below- any court decision about the Constitution could be overruled by the Majles.

If the Majles had not spoken explicitly, judicial tribunals had other tools for the proper understanding of Article 46, Musaddiq said. The tools he would use covered the gamut of the permissible under most legal systems including the Iranian common law based on the Shiite jurisprudence (fiqh), which in its principle of due diligence (ijtihad) allowed reason (aql), logic (manteq), and analogy (qias). The categories of proof he proffered were not uncommon.

Admission

Musaddiq directed the court to the aforesaid admission of the Regent Naser al-Molk [161] about the true meaning of Article 46.  Similar to that was the fact that the aforesaid 17th Majles commission of eight deputies had submitted its report to the whole Majles, supporting Musaddiq’s position that the Shah did not have the right to dismiss prime ministers [162]. This was after consulting with the Shah and, apparently, obtaining his concurrence [163] Even though the Majles did not get around to approving it [164], the report could serve as a valuable guide for the courts.

Precedent

Secondly, Musaddiq continued, there was evidentiary conduct by the Fifth Majles, when it ignored Ahmad Shah’s cable to dismiss the incumbent prime minister Sardar Sepah and successfully insisted on reinstating him [165]. This Majles practice could be considered as precedent [166].The absence of contrary practice was also proof of this precedent. Musaddiq stated that there was ample evidence that when the Majles was in session, no prime minister had been removed without a Parliamentary interpolation and vote of no confidence [167]. This precedence was also supported by the Shahs’ conduct, Musaddiq asserted. He told the court that it was because the dismissal of the prime minister was deemed the exclusive right of the Majles that the Shah did not interfere or act in the dismissing of prime ministers. Hence a Royal dismissal Order was unprecedented [168].

Musaddiq acknowledged that Ahmad Shah once dismissed Samsam os-Saltaneh as prime minister by a telegraph. The latter, however, continued to insist that he remained the prime minister and Musaddiq agreed with him. This was one bad precedent, Musaddiq insisted [169]; it was superseded by the Majles’s defeating Ahmad Shah’s later attempt to dismiss prime minister Sardar Sepah.

Reading in Context

Another approach that the court could use in interpreting Article 46, Musaddiq continued, is by reading its words in context, in conjunction with other “completing (mukkammel)” Articles of the Constitution [170].  He elaborated by offering the following four examples.

Ministers. First, Musaddiq said, several Articles of the Amendment to the Constitution spoke about the appointment and dismissal of the ministers. He cited article 65 which said that the Majleses (majlesain, comprising the Majles, or the National Consultative Assembly, and the Senate)  [171] could demand answers to their questions from the ministers and bring them to trial, and Article 67 which said that if the majority of the Majles or the Senate expressed their dissatisfaction about the cabinet or a minister, that body or person would be dismissed. Mentioning provisions of Articles 60 and 61 which also supported such authority of the parliament, Musaddiq concluded that these Articles “simply, clearly, and obviously prove” that dismissing ministers was by the Majleses. It was not by the Shah because, otherwise, there had to be counterparts of these Articles in the section of the Constitution that dealt with the scope (hudud) of the role of the Crown [172].

As Musaddiq pointed out, the framers of the Constitution did not say that the dismissal and appointment of the ministers were among the Shah’s “rights and powers,” or at his “will.” Instead, they used the word “farman (Order)”. Musaddiq explained the contingent nature of that word. Article 45 stated that all laws and Shah’s Orders became enforceable when signed by the appropriate “responsible (mas’ul)” minister. The Shah’s Orders were ineffectual without the signature and approval of the ministers, Musaddiq asserted. Under Article 46, to be effective, the Shah could issue his Order appointing ministers only at the prime minister’s recommendation. The prime minister chose the ministers and introduced them to the Shah. The Crown did not interfere in that choice [173].

            Prime Minister. Second, Musaddiq argued, if the Shah’s Orders were ineffectual without the signature and approval of the ministers, it was obvious that the Shah could not appoint and dismiss the prime minister by Orders bearing only his signature. Article 46 did not mention the appointment and dismissal of the prime minister, Mossadeq pointed out, in recognition of the principle that the prime minister came into the office by the vote of preference (ra’y-i tamayul) of the Majles and went out only by its vote of no confidence (ra’y-i adam-i etemad). Any Royal Order dismissing or appointing the prime minister without such prior consent and permission of the Majles was without effect [174].

 

            Accountability. Third, Musaddiq said, the Constitution could not give the same right, to appoint and dismiss the prime minister, to both the Majles and the Shah. That would cause a conflict [175].Musaddiq cited Articles that showed the ministers were accountable to the Majles: Article 60 which said that the ministers were accountable to the Majleses and must appear before them when so demanded, and Article 61 which said that the ministers were jointly and severally accountable to the Majleses. Musaddiq pointed out that no comparable provisions existed in the Constitution for accountability of the ministers to the Shah [176]. The ministers were not accountable to the Shah, Musaddiq concluded. If the ministers were not accountable to the Shah, the Shah could not question (mu’akhezeh) them. Without being able to question them, how could the Shah investigate to determine if the ministers should be dismissed, Musaddiq asked rhetorically [177].

Immunity. Fourth, Musaddiq reasoned, accountability was a pre-condition for having power. The ministers were accountable; while the Constitution specified that the Shah was “not subject to accountability (as mas’uliyat mubarrast). [178]” The accountable minister’s countersignature was required to make a Royal Order effective. The Shah’s interference in the affairs of the State would violate the principle of Royal non-accountability [179]. The crown’s immunity (masuniyat) from accountability was essential to the survival of a hereditary monarch such as Iran’s, Musaddiq argued [180]. It allowed any heir to ascend the throne without being subjected to investigation which would be necessary if he were to be held accountable [181].

Spirit of the Constitution

The spirit (mafhum) of the Constitution was another tool that the court should use in interpreting the language of Article 46, Musaddiq posited. The Shah’s power to dismiss the prime minister would be against the very goal of Iran’s Constitutionalism (mashrutiyat). With such power for the Shah, Iran would be returning to the “absolutist monarchs (salatin-i istebdad) [182].” The essence of the difference between constitutionalism and absolutism was that in the latter the Shah “could dismiss and appoint the prime minister [183].”

            Recording. The Constitution by providing that the Shah issue the Order for the ministers’ dismissal addressed a matter of formal recording, Musaddiq maintained. Just as a marriage contract was recorded in an official registry, the Royal Order recorded acts by others who were the real parties: the Majles and the ministers [184].

 

            Ceremonial. The Constitution envisaged only a ceremonial (tashrifati) role for the Shah, Musaddiq concluded [185]. His signing of the Orders was in the exercise of such role. The Shah’s title of the Commander-in-chief of the Armed Forces was another example of his ceremonial role; the actual commander was the minister of National Defense whose countersignature was required for the Shah’s Orders regarding military matters. Otherwise, how could one accept that a Shah who might ascend the throne at the age of 18 be the Commander-in-chief [186]?Another ceremonial duty of the Shah was being the symbolic representative of the country in the world. That was the true meaning of his being above all ministers, Musaddiq said [187].

 

Legislative History

Next, Musaddiq referred the court to the legislative history of the 1906 Constitution for understanding it. He reminded the court that the Iranian Constitution was not the original “creation of Iranian thoughts (za’ideh-yi fekr-i irani).” It was borrowed mostly from the Belgian Constitution, “and maybe some others.”  Therefore, Musaddiq went on, if there was no applicable precedent because “our Constitution is not that old,” the court should look at the comparable provisions in the Belgian Constitution and see how they had been applied so that “we may use from them that which is in the country’s interest [188].” Musaddiq recalled that the Iranian Constitution’s Article 46 was enacted in the Belgian Constitution as Article 65, the Iranian Article 45 was modeled after the Belgian Article 64, and the Iranian Article 44 after the Belgian Article 63 [189]. He argued that the Belgians interpreted their Article 65 the same as he had been saying the identical Article 46 should be read. As proof, he asked that he be allowed to solicit an advisory opinion from “the most prominent Belgian legal authority [190].”

Custom and practice of others

Finally, Musaddiq proposed that the court should take into account the custom and practice of other constitutional monarchies, such as Sweden and Britain [191]. He explained that even though Britain did not have a written constitution, established customs were accepted there as constitutional. Two relevant such principles, Musaddiq pointed out, were the sovereign immunity of the Crown and the principle that Royal Orders required countersignature by the appropriate ministers [192].

II. Who rules in the absence of the Majles?

In the absence of the Majles, Musaddiq maintained, the prime minister ruled [193].This resulted from the fact that the Shah could not dismiss the prime minister even when the Majles was not in a position to act. Musaddiq pointed out that in this respect, there was no provision in the Constitution to distinguish between this time and when there was a Majles. He argued that there was no reason for making such a distinction [194].

In fact, Musaddiq pointed out, the 1906 Constitution did not envisage the absence of the Majles [195].The governing principle of that document, as stated in Article 7 of the Amendment, Musaddiq continued, was that “there would be no interruption in the fundamentals of Constitutionalism (asas-i mashrutiyat tatil bar dar nist) [196].” This meant that the Constitution did not allow a parliamentary interregnum. A new Majles, Musaddiq said, would be elected before the expiration of the last one [197]. While no precedent was cited by Musaddiq in support of this argument, as prime minister he had acted in accordance with this position: he had asked the Shah to issue the Order for holding the elections for the 18th Majles before August 16, 1953 and, hence, before declaring the dissolution of the 17th Majles [198].

The premature dissolution of the 17th Majles was occasioned by its inability to function, both of these also being situations not provided for by the Constitution. The 17th Majles had been deprived of a quorum for some time by the refusal of Musaddiq’s supporters to attend as they feared that the pending interpellation by an opposition deputy could lead to a vote of no-confidence in his government. In this unusual and short period, according to Musaddiq, the prime minister could rule, unless he chose to resign. There was ample precedent for prime ministers’ voluntary resignation in Iran [199]. Musaddiq maintained that he too would have resigned if the Shah had asked him [200].

 

III. Does the prime minister need the approval of the other ministers to act in the name of the executive branch of the government (dawlat)?

Musaddiq’s response to this issue could be seen as splitting it into two separate issues. He maintained that he did not need the approval of the other ministers for his government to continue despite the Shah’s dismissal Order of August 16, 1953 [201].With respect to the acts of the government thereafter, Musaddiq’s response was more equivocal.

Musaddiq defended his right not to disclose the receipt of the dismissal Order to his ministers [202]. He maintained that the decision not to accept the Order was his only, as prime minister. He pointed out that he was not accountable to the ministers but only to the Majles. Indeed, he appointed the ministers; while the prime minister’s own appointment was by the Majles [203]. Similarly, Musaddiq continued, the dismissal of one minister by the Majles did not bring down the prime minister. For that the Majles had to vote no confidence in the whole government, which is in effect the prime minister [204]. Clearly, for Musaddiq, the prime minister was not merely prime among equals.

As for the Article 61 Constitutional concept of ministers’ “joint liability (mas’uliyat-i moshtarak) [205],” Musaddiq distinguished between government decisions and those relating to “poloitique general (general or party politics).” In matters falling within the latter category, Musaddiq maintained, he did not have to consult his ministers.  The decision to continue as prime minister was one such matter [206]. The ministers did not share in any resulting liability [207].

It was different when Musaddiq -after deciding that his government would continue- on August 16, 1953, declared in the name of the “dawlat (government)” that the 17th Majles was dissolved [208]. He had not even consulted with many of his ministers for this declaration [209]. Admittedly, they had approved the popular referendum, the results of which, Musaddiq argued, justified the dissolution of the Majles. By the same token, however, it could be argued that Musaddiq should have then sought the Cabinet’s approval for effectuating the results. This was especially so as it was debatable that the government could take such action without the formality of an Order from the Shah to whom the 1949 Constitutional Assembly had granted the right to dissolve the Majles. Musaddiq did not address this argument. Instead he maintained that the ministers, in effect, approved his dissolution of the Majles in the name of the dawlat because they did not object to it afterwards [210]. “If they had any objections, they should have told [me] [211].”

This “approval by waiver” argument was implicitly endorsed by the testimony of one minister (who, coincidentally, also confirmed that he had full trust in the prime minister’s judgment, thus alternatively implying approval by ratification) [212]. It would have been a more persuasive argument, however, if all Musaddiq’s ministers were of the type who would freely express their opposition to the prime minister’s major policy decisions. The testimony at the trial court showed them to be otherwise. They saw their roles essentially as technocrats concerned only with matters of their own Ministries, choosing not to question the prime minister’s policy decisions [213]. This was not necessarily typical of Iranian cabinets. In fact, ministers in Musaddiq’s earlier cabinets were clearly more independent [214].

Unlike the Majles dissolution decision, Musaddiq said he was going to bring before the Cabinet the matter of establishing a Regency Council in the absence of the Shah who had left the country on August 16, 1953. Musaddiq had already commissioned his political advisors – some twenty deputies of the 17th Majles group (fraction) who had remained loyal to him [215] – to study and propose the appropriate approach to this yet another issue unforeseen by the Constitution [216]. Musaddiq said that the final decision was left to the Cabinet’s review, and that he would have acted only after the Cabinet approved the proposed course of action [217].

At least in this case the ministers would have been deprived of the claim of lack of prior knowledge, as defense against joint liability for the decision [218]. That defense is, in fact, the one Musaddiq used against his being liable for his Foreign minister’s anti-Shah cables to Iran’s Embassies after August 16 [219]. For some other acts of this same minister offensive to the Shah [220], Musaddiq offered another defense: those were the minister’s acts in his personal capacity [221]. Accordingly, Musaddiq pointed out that the Constitutional principle of joint liability of ministers’ could be invoked only when a minister acted on behalf of the Government.

IV. Could the Majles be dissolved by popular referendum?

Musaddiq maintained that he could dissolve the 17th Majles by a popular referendum. He argued that disabling the Majles was necessary as the majority of deputies had come to favor the policy of Iran’s foreign adversaries that Musaddiq’s government should be made to fall. Therefore the 17th Majles no longer served the interests of the Nation [222].To Musaddiq, this justified the parliamentary maneuver of those deputies who supported him, to deprive the Majles of the required quorum by refusing to attend its sessions. This maneuver, however, could be effective only temporarily. Musaddiq believed people would soon come to demand that their deputies return to the Majles. Populist deputies could not resist such pressure. The pending interpolation against Musaddiq’s government would then be voted on and could win, as some pro-government deputies could defect [223].To avoid this, deputies who strongly supported Musaddiq declared their resignations from the Majles.

The resignation of a deputy, however, could not be final until  fifteen days after it was read in a meeting of the Majles properly convened with a quorum [224]. Therefore, at any time enough resigned deputies could change their mind and rescind their resignations and, eventually, cause the fall of the government under the mentioned scenario [225]. Musaddiq said that the dissolution of the Majles was the way to safeguard against this threat [226].

The 1949 Constitutional Assembly had given the Shah the right to dissolve the Majles [227]. Musaddiq would not use this approach probably because that would have validated a right the granting of which Musaddiq had strongly opposed [228]. He had argued against that amendment to the Constitution on the grounds that the elections to the Constitutional Assembly were not free and were held when political groups were suppressed or intimidated in reaction to the failed recent assassination attempt on the Shah’s life [229].

Furthermore, Musaddiq could not expect the Shah to willingly use his right to dissolve the Majles. It was not difficult to see that the Shah’s interest was in supporting the Majles opposition to the prime minister who had curtailed so much of his cherished powers.  As Musaddiq saw it, there was no other way but to ask for help directly from the people [230]. He would do this by putting the question of the dissolution to a referendum.

That approach was justifiable, Musaddiq argued. The Constitution provided only for elections of representatives by the people. Musaddiq deemed that to mean that the Constitution did not oppose referendum; it was merely silent about it. On the other hand, referendum had been used in other countries. As Musaddiq put it, referendum in this case was preferable since the people being the “principal,” they were more entitled than their “agents” or deputies to decide about an impasse that the Constitution had not foreseen [231].

The referendum that was held had flaws for generating a full popular mandate. For Musaddiq its imperfections did not invalidate the mandate. An imperfect referendum was sufficient, especially as Musaddiq held that the defects were excusable. In the referendum, different polling stations were set up for those favoring and those opposing the dissolution. Musaddiq defended this practice as necessary to prevent clashes that would cause serious threat to political stability [232]. More objectionable was the fact that the referendum was held only in big cities. To Musaddiq this geographic limitation of the franchise was justified because the rural voters were prone to manipulation by the Shah, the army, the big land owners, and the tribal chiefs who, he believed, all supported Iran’s foreign adversaries against his government [233].

On the other hand, Musaddiq pointed out, the voting for the referendum was far fairer than those for previous elections in Iran. There was no ballot box stuffing, voters were not intimidated or manipulated, and those who voted were the best educated and politically aware [234]. Most important, Musaddiq maintained, more than two million votes were cast in favor of dissolving the Majles, far more than the highest total of votes (1,400,000) in any previous elections even though they were countrywide [235].

V. Could the Majles delegate power to enact changes in the military justice system, enforceable subject only to the Majles’s rejection of them?

Musaddiq defended the delegation of conditional legislative powers to him by the 17th Majles as permissible under the Constitution. He stressed that those powers were delegated by both the Majles and the Senate, which was then in session, and approved by the Shah [236]. At the time none of these parties objected that the delegation was against the constitutional principal of separation of powers. Indeed, they could not as they were intimated by the recent popular uprising of July 1952, known as see-yi tir, which had forced them to reinstate Musaddiq as prime minister against their wishes.

There had been precedent for the delegation of legislative powers by the Majles to individuals and bodies, such as its own Judicial Commission [237]. On three occasions, Musaddiq had opposed the grant of such powers: in the 6th Majles to the Minister of Justice, in the 14th Majles to the American Financial Advisor, and in the 16th Majles to the Minister of Finance [238].  Musaddiq had argued that such delegation was against the Constitution [239]. Yet, at earlier times, as Musaddiq reminded the court, he had also accepted such delegation of legislative powers from the 4th Majles to himself as Minister of Finance [240], in order to prepare laws for reforming that Ministry [241]. Thus, Musaddiq was arguing that his past position had not been unequivocally against such delegation.

What justified the delegation was necessity, in Musaddiq’s opinion. As prime minister, Mossadeq had insisted that he needed the delegated authority to govern effectively in the emergency conditions existing during the struggle to nationalize the oil industry. Furthermore, Musaddiq pointed out, there were effective limitations and controls built into the delegation of legislating powers to him as prime minister [242]. The measures that he would enact, although enforceable immediately, had to be submitted to the Majles within a short time and the Majles could repeal them. Only if the Majles did not do so, would they have become permanent laws [2423].

Musaddiq maintained that the legislative powers delegated by the Majles could extend to the authorization to change the “justice system (dadgustary)” as, indeed, the law granting him those powers specified [244]. Accordingly, Musaddiq had even dissolved the country’s highest court (divan-i ali-yi keshvar). Thus Musaddiq rejected the position taken by the prosecutor and his trial court that such actions were unconstitutional because they were against several Articles of the Constitution on the separation of powers and, also, because of the principle of “the rights and authorities” of judges [245].

Musaddiq insisted that only the Majles could decide whether measures enacted under his delegated powers exceeded their scope.  Accordingly, Musaddiq argued that his position that those powers included his authority to change the military justice system -because it was a part of the overall “justice system”- could not be challenged by the new cabinet or by courts [246]. It was under this authority, Musaddiq maintained, that he abolished the very special military court that was trying him  [247]and repealed the part (“First Book”) of the Code for the administration of military justice under which he was being tried [248].

VI. Could a Regency Council be installed by referendum if the Shah refuses to perform his required Constitutional function?

 

            Musaddiq asserted that when the Shah was out of the country a Regency Council was needed and if the Shah refused to establish it, and the Majles was not in session, then it should be established through authorization by a popular referendum.

The Constitution provided certain duties for the Shah. Among them was the solemnizing “signing (tushih)”) [249] required to formalize the enactment of bills, the appointment Orders, and the Orders to hold elections. There was no provision in the Constitution, however, for the performance of this function when the Shah was not available. Ahmad Shah, the last Qajar king, established a Regency Council to act on his behalf when he traveled to Europe. The incumbent Mohammad Reza Shah had followed this practice and had established a similar Council when he traveled to Britain [250]. Musaddiq recognized that such a constitutional right for the king was thus created, although it did not exist in the Constitution itself [251].

In acknowledging that right, Musaddiq said that he intended to ask the Shah who had left the country on August 16 to form a Regency Council if he was not planning to return soon. If the Shah declined [252], Musaddiq maintained, then the Majles could establish the required Regency Council [253]. The Majles, however, had been dissolved, and the Regency Council was needed before a new Majles could be convened [254]. Indeed, the election of the new Majles itself required a Royal Order.

Musaddiq did not think that dawlat (the Cabinet) could establish the Regency Council [255]. Such authority did not come even within the scope of the special powers delegated to him as prime minister [256]. That left only one approach for the establishment of the needed Regency Council: asking the people [257]. Musaddiq, once again, argued that, indeed, when “the voters wanted to express their opinion, that opinion would be one thousand degrees superior to the opinion of their representatives [258].”

Some political groups, especially Musaddiq’s rivals on the left, proposed the election of a Constitutional Assembly for the purpose of establishing a Regency Council [259]. The urgency of the need called for a speedier process than the time consuming elections of an assembly of representatives. The direct method of referendum that had just been experienced in the matter of the dissolution of the Majles was far more expeditious. Furthermore, a Constitutional Assembly was where the Constitution could be amended. Musaddiq was against amending the Constitution, at least at this time [260], and would have presumably preferred avoiding any conduct that appeared to the contrary. He commissioned a group of deputies of the defunct Majles who were his supporters to study the whole subject of the Regency Council. They came to report their conclusion to him on August 19 [261], but the more momentous events of that day did not allow any further discussion of the issue. They later indicated that their recommendation favored putting the issue of the Regency Council to a referendum.

In the court, Musaddiq endorsed this position [262]. His Ministry of Interior had already advised provincial administrators to be ready for holding a referendum [263]. The arrangements as to how the members of the Council were to be chosen were left to be decided by the Cabinet [264]. Musaddiq argued that no harm would be done by so establishing the Regency Council; it would be a temporary expedient which the Shah could dissolve upon his return [265]. Musaddiq maintained that this was “not against the Constitution [266].”

His deputy prime Minster went further, explaining to the court as an expert in “political sociology,” that on the grounds of the past practice of the Shahs, “customs and precedent (rasm, adat, … sabeqeh)” constituted “the basis for forming the Regency Council” in Iran as a part of the “constitutional law (huquq-i asasi) [267].” Musaddiq did not use this language. Instead, he based his justification on the necessity for establishing the Council [268].Indeed, the term huquq-i asasi is absent in the lexicon that Musaddiq employed in what was a most elaborate exposition of Iran’s constitutional law, before the court that tried him. Musaddiq acknowledged his scholarly minister’s theoretical discourse: “that is because he has been a Prof. (usta) [269].” Musaddiq’s own method, however, was detailing in factual parlance the vast legal implications of the real experiences of his governance for Iran’s Constitution.

VII. Were Musaddiq’s alleged crimes in August 16-19, 1953 political crimes?

Article 79 of the Amendment to the Constitution provided for jury trial in the case of political crimes [270] Jury trial could not be held in Iran’s military courts [271]. Iran’s laws, however, did not define political crime [272].

Musaddiq maintained that the crimes he was charged with having committed during August 16 to 19, 1953, were the type of political crimes meant by the Constitution. They were alleged to be acts aimed at changing the regime, the line of succession to the throne, and inciting armed insurrection against the Crown [273].The prosecutor denied that these were political crimes [274] and the court agreed.  Musaddiq responded by applying the reasonable common meaning for the term, asking, in effect, that if these were not political crimes, what then could be said to be political crimes [275]?

Further, Musaddiq asserted that he happened to be an authority on the legal meaning of the term political crime, reminding the court that he wrote his university thesis [276] in Switzerland on that very subject [277]. He said political crimes had not been defined in any laws of any country [278]. He invoked, however, the authority of the 1935 conference of world’s jurists in Copenhagen, Denmark that, as Musaddiq said, defined political crimes as “crimes against the country’s regime and political institutions.” That was exactly the sum of the allegations against him, Musaddiq pointed out [279].

 

VIII. Should the Constitution be changed?

Musaddiq did not believe that the 1906 Constitution needed to be changed. Evolution might be unavoidable, but for now the country did not need any alteration of the regime [280].

Musaddiq denied that he considered establishing a Republic [281].This was supported by the court testimony of associates who spent most of those four fateful days of August with him [282]. As one of them stated, in a country where people could not yet properly elect even a Majles, they could not be expected to properly elect a Republican President [283]. Musaddiq declared that not only the establishment of a Republic was not practical [284], it was also not desirable. For him it was important to abide by his past “swearing on the Quran” to the Shah that he would not participate in any effort to establish a Republic [285].As he pointed out, Musaddiq had not taken such an oath to the Shah’s father [286]; and thus unhindered, he did not refrain from denouncing the father for his greed as well as allegedly serving the interest of Britain [287].

Further, Musaddiq claimed that he would not have stayed in office if he knew for certain that he had lost the Shah’s support [288]. This was more than just a personal preference. His close associates deemed the Shah as a necessary symbol for the unity of the country [289].This was likely Musaddiq’s view as well. If a King was needed, Musaddiq made it clear that he believed the incumbent was the best person available [290].

Musaddiq, of course, would not revert to the absolutism of pre-Constitution times. For him this meant that concentration of power in the hands of the Shah should be avoided. This was not only for domestic reasons, he said, but also for resisting foreign pressures. Foreign interests desired concentration of powers in the hands of the Shah, Musaddiq asserted, so that they could more easily bring pressure on Iran through him [291]. Instead, in Musaddiq’s view, the prime minister should be entrusted with sufficient power to be effective. He should be accountable to a Majles that was truly representative of the people. The Majles should be the ultimate depository of power.

There were two problems with the current Majles, as Musaddiq saw it. One resulted from interference by foreign Powers with undue economic interests in Iran. Many of the deputies followed the foreign powers’ commands and wishes either because they owed their seats to them or because they were intimidated by them [292]. The other problem was that the voters often could not distinguish  patriotic Majles candidates from those who were foreign agents. This was in part because foreign powers had long pursued a policy of keeping the Iranian people “ignorant, desperate and poor (nafahm, bichareh, faqir) [293] so that their agents could rule over them by force (chumaq) [294].

Musaddiq’s brief for the court on these subjects was his longest and the most important, his counsel would report later.295 Musaddiq was optimistic that foreign interference could be eliminated [296] and, given time, Iranian voters would choose the right candidates. Musaddiq believed that people’s active participation in politics was needed. This was possible not just by the conventional devices of voting in elections and engaging in vigorous exchange of views in a free press -which Musaddiq’s government ensured. Equally important was attending mass public gatherings where speeches would not be subject to “censorship” by the government, Musaddiq stressed [297]. Only thus, Musaddiq said, could the government know what people wanted [298]. As well, Musaddiq maintained, people’s involvement in such manners was required to strengthen the government against its foreign adversaries [299].

For Musaddiq the primary culpable foreign power was Britain. In the trial court, Musaddiq barely mentioned Russia and made virtually no reference to the United States. Even in the brief which he later prepared for the High Court, Musaddiq only mildly criticized the United Sates, mostly its incumbent Ambassador to Iran; Britain remained the main target of his complaint [300].

Musaddiq recognized the need for certain restrictions on people’s rights. As he limited voting in the referendum to the urban population, he justified the disfranchisement of the rural citizens on the grounds that their votes were prone to manipulation. Musaddiq also denied the followers of the Tudeh Party freedom to hold public assemblies of their own, or speak at others’ mass public meetings [301]. He justified these restrictions by arguing that the Tudeh followers were wittingly or unwittingly serving the interests of foreign powers: Russia, or even Britain as some were disguised British agents or tudeh-nafti (the [British] Oil [Company] Tudeh)[302].” Yet Musaddiq would not endorse methods of suppression, urged by the Shah, which he considered as ineffective. He proposed to deal with the causes of the Tudeh’s strength, which he argued were the legitimate grievances of the people [303].

 

CONCLUSIONS

 

A written constitution is the schematic plan for the political organization of the community. In the second half of 1953, Mohammad Musaddiq endorsed the continued relevance of the 1906 Constitution for Iran. His reading of it should not have surprised the framers. The Constitution was the work of privileged and educated Iranians like himself, actively facing up to the challenge of a stronger, modernized West. The basic elements of the suitable prescription were obvious. The Crown had to become merely symbolic, and the parliament had to become supreme. In Iran’s constitutional monarchy popular sovereignty would be implemented by the representative form of government.

Musaddiq acknowledged these Constitutional precepts as ultimate truth. His contribution was to account for the transitional period. In the penumbra of the Constitutional goal of azadi (Liberty), Musaddiq saw democracy and individual freedoms. All were eclipsed, however, by the absence of the twin Constitutional goal of isteqlal (Independence). The all important Majles could not act properly when it was deformed by pernicious foreign interferences rooted in unjust demands.

The indivisible struggle for Liberty and Independence required sacrifice and unity. For a limited period, power had to be delegated to a tested and accountable executive. Time was needed also to remove the vestiges of servitude from the populace. Until then franchise would be limited to the informed. Beyond verification, Musaddiq’s gospel asked for faith and trust from the believer [304]. A charismatic popular leader could generate both. For a fleeting moment in Iran’s history, Musaddiq seemed able to offer such a possibility.

 

NOTES

1. (Records of Trial Proceedings: 95). The source used here for the transcript of the trial proceedings is Jalil Buzurgmehr’s two volume (combined) book, Buzurgmehr. J. (1999) Musaddiq dar mahkameh-yi nezami (Musaddiq in Military Court). Tehran: Doostan. Buzurgmehr mentions that he copied the records of the Deposition. (Buzurgmehr, 1999b:  30)  The rest is, at least, partially based on texts published by newspapers (Records of Trial Proceedings: 693). Buzurgmehr wrote a preface and an introduction for the first volume and an introduction for the second volume which are bound as one book. These three are numbered each separately in letter numbers, while the rest of the two volumes, the court proceedings (pages 3-802) are numbered sequentially together. Here, for easer reference, they are cited as four different sources.

2..(Buzurgmehr, 1999b: 8)

3..(Buzurgmehr, 1999b: 8; Afshar, 1986: 58-61)

4..(Afshar, 1986: 58)

5.. (Buzurgmehr, 1999b: 8)

7.. (Afshar, 1986: 81, 118)

8.. (Afshar, 1986: 82)

9.. His other related works were a book entitled sherkatha-yi sahami dar urupa (Joint Stock Companies in Europe), an article with the title qa’edeh-yi murur-i zaman dar iran (The Rule of Time Limitations in Iran), and a book called usul-i qavaed va qavaneen-i maliyeh dar mamalek-i kharejeh va iran qabl az mashruteh va doreh-yi mashruteh (Principles and Laws of Finance in Foreign Countries and Iran before Constitutionalism and during Constitutionalism). (Afshar, 1986: 82-84)

10.. (Buzurgmehr, 1999b: 9)

11..(Records of Trial Proceedings: 710)

12..(Buzurgmehr, 1999b: 9)

13..(Records of Trial Proceedings: 119)

14..(Records of Trial Proceedings: 119)

15..(Buzurgmehr, 1999b: 9)

16..(Buzurgmehr, 1999b: 10)

17..(Buzurgmehr, 1999b: 10 )

18..(Buzurgmehr, 1999b: 9-10

19..(Records of Trial Proceedings: 509-510, 519)

20..(Buzurgmehr, 1999b: 11; Ghani, 2000: 370)

21..(Records of Trial Proceedings: 129; Afshar, 1986:179)

22..(Buzurgmehr, 1999b: 11-12)

23..Musaddiq has admitted only once (Afshar, 1986:386)  to have even discussed politics in this period: commiserating, in private, about the Shah’s oil concessions to the British with Hasan Pirnia (Moshir al-Dowleh)  .(Katouzian, 1999: 32), the former Prime Minister who had first offered him the portfolio of Justice in 1920, and upon returning to office appointed Musaddiq Governor of Azerbaijan -having failed to win Majles’s approval to make him the Minister of Finance- and finally appointing him the Minister of Foreign Affairs. (Buzurgmehr, 1999b: 9-10). One may thus conjecture that until then Hasan Pirnia was perhaps the closest to Musaddiq’s model of a Constitutionalist Prime Minister (Katouzian, 1999: 14). He was one of the drafters of the 1906 Constitution (Ghani, 2000:78).

24..(Ghani, 2000 :84)

25..(Katouzian, 1999: :5)

26..(Buzurgmehr, 1999b: 12)

27..(Buzurgmehr, 1999b: 13-14)

28..(Buzurgmehr, 1999b: 14)

29..( Records of Trial Proceedings: 129)

30..(Records of Trial Proceedings: 348)

31.. (Buzurgmehr, 1999b: 14 )

32..(Baqa’i, 1985: 248)

33..(Buzurgmehr, 1999b: 14; 1999a:  476)

34..(Records of Trial Proceedings: 101)

35.. (Records of Trial Proceedings: 25-26)

36..(Records of Trial Proceedings: 26)

37..(Records of Trial Proceedings: 30-31, 622, 657)

38..(Records of Trial Proceedings: 481, 622)

39.. (Records of Trial Proceedings: 30-31, 126 590, 622 )

40..(Records of Trial Proceedings: 656)

41..(Records of Trial Proceedings: 565)

42..(Records of Trial Proceedings: 623)

43..(Records of Trial Proceedings: 485)

44..(Katouzian, 1999: a 485)

45..(Records of Trial Proceedings: 642

46..(Records of Trial Proceedings: 299)

48… (Buzurgmehr, 1999d: 5) In its judgment the court called itself dadgah-i nezami-yi add-yi vaqay-yi 25-28 murdad-i 1332 (The Ordinary Military Court of the Events of 25-28 Mudrad, 1332 /August 16-19, 1953). (Records of Trial Proceedings: 788)

49..(Buzurgmehr, 1999c: 28)

50..(Records of Trial Proceedings: 3)

51..(Buzurgmehr, 1999c:  31)

52..(Records of Trial Proceedings: 3)

53..(Records of Trial Proceedings: 3)

54..(Records of Trial Proceedings: 5)

55..(Records of Trial Proceedings: 3)

56..(Records of Trial Proceedings: 7)

57..(Records of Trial Proceedings: 96)

58..(Records of Trial Proceedings: 7-13)

59..(Records of Trial Proceedings: 21-32)

60..(Buzurgmehr, 1999c:  28, 47-58 )

61..(Records of Trial Proceedings: 47-58, 313-98)

62..(Buzurgmehr, 1999c:  33 )

63..(Records of Trial Proceedings: 96),

64..(Records of Trial Proceedings: 79)

65.. (Records of Trial Proceedings: 84)

66..(Records of Trial Proceedings: 166, 235)

67..(Records of Trial Proceedings: 110)

68..(Records of Trial Proceedings: 110)

69..(Records of Trial Proceedings: 88)

70..(Records of Trial Proceedings: 81)

71..(Buzurgmehr, 1999c:  28 )

72..(Buzurgmehr, 1999c:  29 )

73..(Buzurgmehr, 1999d:  22)

74..(Buzurgmehr, 1999c:  37-38

75..(Buzurgmehr, 1999d:  15 )

76..(Buzurgmehr, 1999c: 48)

77..(Buzurgmehr, 1999b: 7 )

78..(Buzurgmehr, 1999d:  5; 1999a: 700)

79..(Records of Trial Proceedings: 153, 700, 750)

80..(Buzurgmehr, 1999c:  31; 1999d: 5; 1999a:  455)

81..(Buzurgmehr, 1999d: 11 ; Records of Trial Proceedings: 153 422, 698)

82..(Buzurgmehr, 1999d:  7)

84..(Buzurgmehr, 1999d: 8)

85..(Records of Trial Proceedings: 451)

86..(Records of Trial Proceedings: 608 711-12, 720-23, 708-724)

87..(Records of Trial Proceedings: 369, 652, 382-85)

88..(Records of Trial Proceedings: 682-83, 710)

89..(Buzurgmehr, 1999d:  8)

90..(Records of Trial Proceedings: 63-76, 291-92, 295-96)

91..(Buzurgmehr, 1999d: 11-12)

92..(Buzurgmehr, 1999d: 13)

93..(Records of Trial Proceedings: 690)

94..(Buzurgmehr, 1999d: 13, Records of Trial Proceedings: 690)

95..(Records of Trial Proceedings: 608)

96..(Records of Trial Proceedings: 520-27)

97.. (Buzurgmehr, 1999d:  14-15 ) The sole exception was a minister without Portfolio, Davud Rajabi, whose mildly adverse testimony was rewarded by the prosecutor dropping the charges against him. (Records of Trial Proceedings:611)

98..(Records of Trial Proceedings: 608)

99..(Records of Trial Proceedings: 605, 608, 694)

101..(Buzurgmehr, 1999c:  38-44, 47-48 )  (Note 100 is intentionally left blank)

102..(Records of Trial Proceedings: 750)

103..(Buzurgmehr, 1999d: 7)

104..(Records of Trial Proceedings: 725, 737-38)

105..(Records of Trial Proceedings: 153)

106..(Buzurgmehr, 1999d:  7, 10; 1999a:  750)

107..(Buzurgmehr, 1999d: 9 ; 1999a:  224, 517-18, 750)

108..(Records of Trial Proceedings: 750)

110..(Records of Trial Proceedings: 675-76)

111..(Records of Trial Proceedings: 513-14)

112..(Records of Trial Proceedings: 513-15)

113..(Records of Trial Proceedings: 774)

114..(Buzurgmehr, 1999d:  10, 600 725)

115..(Records of Trial Proceedings: 698)

116..(Records of Trial Proceedings: 421)

117..(Buzurgmehr, 1999d:  10)

118..(Records of Trial Proceedings: 750)

119..(Records of Trial Proceedings: 420-21; 1999d: 10)

120..(Buzurgmehr, 1999d:  10)

121..(Records of Trial Proceedings: 706)

122..(Records of Trial Proceedings: 252)

123..(Records of Trial Proceedings: 205-206)

124.. (Records of Trial Proceedings: 207, 251)

125..(Records of Trial Proceedings: 252)

127..(Records of Trial Proceedings: 726-29, 793, 796)

128..(Records of Trial Proceedings: 479, 792)

129..(Records of Trial Proceedings: 792-93)

130..(Records of Trial Proceedings: 797-99)

131..(Records of Trial Proceedings: 787 )

132… A few days before Musaddiq had decided against another purported offer of pardon by the Shah (Buzurgmehr, 1999d: 17-19).

133..(Records of Trial Proceedings: 788)

134..(Records of Trial Proceedings: 800)

135..(Records of Trial Proceedings: 800)

136..(Records of Trial Proceedings: 801)

138..(Katouzian, 1999: p 201)

139..(Katouzian, 1999: p 202)

140..(Afshar, 1986:317-18)

141..(Katouzian, 1999: p 203)

142..(Afshar, 1986:317-18, 329)

143..(Buzurgmehr, 1999c: 53)

144..(Afshar, 1986: 219-330)

145..(Buzurgmehr, 1999d: 22, 1999a:801))

146..(Katouzian, 1999: 203 )

147..(Records of Trial Proceedings: 166)

148..(Records of Trial Proceedings: 446, 448, 700)

149..(Records of Trial Proceedings: 82, 198 , 801)

150..(Records of Trial Proceedings: 794)

152… In contemporary Iranian law, based on a dictum of feqh (the Shiite jurisprudence), nass precluded research (ijtihad) for defining a legal term: ejtihad dar muqabel-i nass ja’yez nist) Langarudi, 1967: 714-15 If the meaning was not in doubt, there was no need to apply the otherwise acceptable tools of interpretation, analogy, contextual reading, and reasoning. Ironically, the framers of the 1906 Constitution feared that the Shahs would argue that its provisions were ambiguous when they provided that only the Majles could interpret and explicate the Constitution (Bushehri, 1976:176-178).

153..(Records of Trial Proceedings: 251, 794-95)

154..(Records of Trial Proceedings: 739)

155..(Records of Trial Proceedings: 795)

156..(Records of Trial Proceedings: 508)

157..(Records of Trial Proceedings: 771-72)

158..(Records of Trial Proceedings: 508, 518)

159..( Records of Trial Proceedings: 771)

160..( Records of Trial Proceedings: 771)

161..( Records of Trial Proceedings: 771-72)

162.. ( Records of Trial Proceedings: 508)

163..( Records of Trial Proceedings: 94)

164.. (Records of Trial Proceedings: 94, 508, 518)

165.. (Records of Trial Proceedings: 509-10, 519)

166… The court’s response was “why should we care what Ahmad Shah did?” (Records of Trial Proceedings: 510).

167.. (Records of Trial Proceedings: 778

168.. Records of Trial Proceedings: 697-98)

169..(Records of Trial Proceedings: 773; Afshar, 1986:289)

170.. (Records of Trial Proceedings: 701)

171. While the Constitution in certain passages referred to the Senate and the Majles, sometimes as majlesain, Musaddiq -who was opposed to the institution of the Senate because ½ of its members would be appointed by the Shah (Baqa’i, 1985: 252-3; Afshar, 1986:273)- in referring to the parliament, in effect, meant only the Majles or the lower house (majles shuray-i melli).

172..(Records of Trial Proceedings: 507-508)

173. Error! Main Document Only.(Bozorgmehr, 1999a: 697)

174..(Records of Trial Proceedings: 697-98)

175.. (Records of Trial Proceedings: 469)

176..(Records of Trial Proceedings:  507-508)

178.. (Records of Trial Proceedings: 91)

179.. Records of Trial Proceedings: 513-14

180.. (Records of Trial Proceedings: 118)

181.. (Records of Trial Proceedings: 773)

182..(Records of Trial Proceedings: 91)

183.. (Records of Trial Proceedings: 509)

184.. (Records of Trial Proceedings: 509)

185.. (Records of Trial Proceedings: 469, 508)

187. (Records of Trial Proceedings: 513-14) The prosecutor proclaimed that it was an inexcusable crime to say that the minister of Defense was the Commander-in-chief of the Armed Forces. (Records of Trial Proceedings: 602)  The court’s judgment said that a  ceremonial role for the Shah was against logic (Records of Trial Proceedings: 794)

188.. (Records of Trial Proceedings: 738)

189.. ( Records of Trial Proceedings: 469, 507)

190..(Records of Trial Proceedings: 509)

191.. (Records of Trial Proceedings: 468, 697-98, 739)

192… ( Records of Trial Proceedings: 513) The chief judge said each country had laws special to it. The court could not review or interpret the laws of other countries. (Records of Trial Proceedings: 739) The prosecutor said that what they did in other countries was not relevant for Iran. (Records of Trial Proceedings: 602) Those countries had laws which could not apply to Iran such as allowing women to inherit the throne (Records of Trial Proceedings: 739) and not considering Islam as the official religion.

193.. (Records of Trial Proceedings: 513, 516)

194.. (Records of Trial Proceedings: 144)

195.. (Records of Trial Proceedings: 697)

196.. (Records of Trial Proceedings: 516)

197. (Records of Trial Proceedings: 516)

198… (Records of Trial Proceedings: 55. The Shah did not respond and left the country. (Records of Trial Proceedings: 55)

199.. (Records of Trial Proceedings: 27)

200… Records of Trial Proceedings: 27-28. Musaddiq explained that he did not obey the dismissal Order on August 16, 1953 because he did not believe that it was issued with the Shah’s knowledge. (Records of Trial Proceedings: 479, 681.

202..(Records of Trial Proceedings: 417)

203..(Records of Trial Proceedings: 697)

204.. (Records of Trial Proceedings: 488)

205..(Records of Trial Proceedings: 4)

207..(Records of Trial Proceedings: 694)

209.. (Records of Trial Proceedings: 402-403 )

210..(Records of Trial Proceedings: 694)

211.. (Records of Trial Proceedings: 693-94)

212..(Records of Trial Proceedings: 716)

213..(Records of Trial Proceedings: 13-14, 402-403, 534, 607)

214..(Records of Trial Proceedings: 611; Afshar, 1986:247)

215.. (Records of Trial Proceedings: 591)

216..(Records of Trial Proceedings: 10, 596, 678)

217..(Records of Trial Proceedings: 29, 457, 679, 729)

218.. (Records of Trial Proceedings: 8-9, 694)

219.. ( Records of Trial Proceedings: 276, 293, 608)

220..(Records of Trial Proceedings: 292, 295)

221..(Records of Trial Proceedings: 478-79, 608)

222..(Records of Trial Proceedings: 23)

223.. (Records of Trial Proceedings: 123-125)

224..(Records of Trial Proceedings: 516, 662)

225..(Records of Trial Proceedings: 123-126, 778)

226..(Records of Trial Proceedings: 126 )

227.. (Records of Trial Proceedings: 776)

228… Even after the referendum, Musaddiq did not ask for the Royal Order to dissolve the 17th Majles. Instead, he asked for the Royal Order to hold the 18th Majles -which he expected the Shah to issue on August 15 (Records of Trial Proceedings: 532) – that would have implicitly affirmed the result of the referendum dissolving the Majles.  (Records of Trial Proceedings: 290)

229..Buzurgmehr, 1999b: 14; 1999a:  24-25, 662 )

230..(Records of Trial Proceedings: 126)

231..(Records of Trial Proceedings: 126-27, 663)

232..(Records of Trial Proceedings: 663-664)

233..(Afshar, 1986: 210; Baqa’i, 1985: 251-52)

234..(Records of Trial Proceedings: 100, 663-64 )

235..(Records of Trial Proceedings: 24)

236.. (Records of Trial Proceedings: 210; Afshar. 1986: 250)

237..Records of Trial Proceedings: 207- 208 )

238..(Buzurgmehr, 1999b: 12; 1999a: 365 )

239… (Records of Trial Proceedings: 365; Baqa’i, 1985: 466).

240..(Records of Trial Proceedings: 247)

241..(Buzurgmehr, 1999b: 9, 247)

242.. Colonel Abbasquli Shahquli, counsel for the other defendant Taqi Riyahi, who had helped the prime minister revise the Military Justice laws under those powers (Buzurgmehr, 1999d:  22), argued in the court that the powers were not “legislating authority” but merely for “executing and testing” bills that Musaddiq would proposed to the Majles. (Records of Trial Proceedings: 246-47) Musaddiq did not specifically endorse this interpretation.

243..(Records of Trial Proceedings: 83, 210)

244..(Records of Trial Proceedings: 83)

245..(Records of Trial Proceedings: 252,  367)

246… (Records of Trial Proceedings: 83, 210) This position distinguished Iranian constitutional law from, for example, the constitutional law of the United States. Unlike the U.S., the courts in Iran could not declare a law passed by the legislature unconstitutional -i.e., unenforceable for being against the Constitution- unless the Constitution specifically provided to the contrary. The argument for the Iranian position was based on the constitutional principle of separation of powers: courts could not supervise the legislature (Emami Vol 1, 1974: 15).

247..(Records of Trial Proceedings: 83)

250..(Records of Trial Proceedings: 666 )

251..(Records of Trial Proceedings: 729)

252.. (Records of Trial Proceedings: 667, 679, 729)

253..(Records of Trial Proceedings: 729)

254..(Records of Trial Proceedings: 729)

255..(Records of Trial Proceedings: 729)

256..(Records of Trial Proceedings: 588 )

257..(Records of Trial Proceedings: 729 )

258.. (Records of Trial Proceedings: 729)

259.. (Records of Trial Proceedings: 287)

260..(Records of Trial Proceedings: 763, 640)

261..(Records of Trial Proceedings: 678 )

262..(Records of Trial Proceedings: 29)

263..(Records of Trial Proceedings: 639)

264… (Records of Trial Proceedings: 29) As though completing the circle, one of Musaddiq’s earliest partners in the constitutionalists movement, Ali Akbar Dehkhoda who recruited Musaddiq into the now extinct Edalat Party in 1914 (Buzurgmehr, 1999b:8), was believed to be a candidate for the Council. Dehkhoda who had long been retired from politics, met with Musaddiq after August 15 (Records of Trial Proceedings: 628) and consulted with the commission of deputies Musaddiq appointed to study the issue. (Records of Trial Proceedings: 591)

265..(Records of Trial Proceedings:  679 ,729 )

266..(Records of Trial Proceedings: 679)

267.. (Records of Trial Proceedings: 637)

268..(Records of Trial Proceedings: 729 )

269..Buzurgmehr, 1999d:  13-14)

270..(Records of Trial Proceedings: 199)

271..(Records of Trial Proceedings: 183, 199)

272..(Records of Trial Proceedings: 198)

273.. (Records of Trial Proceedings: 3 )

274.. (Records of Trial Proceedings: 225 )

275..(Records of Trial Proceedings: 198, 230)

276.. Etude de droit civil au sujet de la responsibilite de l’Etat pour les actes illicites de ces fonctionnaires, et de droit penal sur le principe de la non extradition pour delits politique. (Records of Trial Proceedings: 215)

277.. (Records of Trial Proceedings: 198 )

278..(Records of Trial Proceedings: 198)

279..(Records of Trial Proceedings: 199)

280..(Records of Trial Proceedings: 637-38)

281.. (Records of Trial Proceedings: 299, 637 )

282..(Records of Trial Proceedings: 593)

283..Records of Trial Proceedings: 593)

284.. (Records of Trial Proceedings: 727-28

285..(Records of Trial Proceedings: 28, 727)

286.. (Records of Trial Proceedings: 370)

287.. (Records of Trial Proceedings: 38-39)

288..(Records of Trial Proceedings: 3-4, 27-28)

289..(Records of Trial Proceedings: 593 673)

290..(Records of Trial Proceedings: 118, 728)

291.. (Records of Trial Proceedings: 118, 194-95)

292.. (Records of Trial Proceedings: 23-24, 123)

293.  (Records of Trial Proceedings: 194; Afshar, 1986:233, 258)

294.. (Buzurgmehr, 1999b: 11)

295..( Buzurgmehr, 1999c: 47)

296.. (Records of Trial Proceedings: 28)

297..(Records of Trial Proceedings: 730; Afshar, 1986:369)

298.. (Records of Trial Proceedings: 40)

299.. (Records of Trial Proceedings: 40)

300. (Afshar, 1986:250-298). Only later, Musaddiq would write at length about the American involvement in the August 1953 coup (Afshar, 1986: 193, 337-38), leading one to conclude that until then he might not have known the full story.

301..(Records of Trial Proceedings: 41 574 )

302..(Records of Trial Proceedings: 573-74

303..(Records of Trial Proceedings: 576-77)

304.. A future foe, Baqa’i would recall how the 15th Majles deputies who began opposition to the British oil company concluded that Musaddiq was the only person with the stature to lead their popular movement; and how Ali Zohari, whose interpolation later as a 17th Majles deputy would threaten the fall of Musaddiq’s government, would declare that Musaddiq was like “the Iranian flag; no matter how many times they hit our head with this flag we still would respect him.” (Baqa’i, 1985: 366) Khalil Maleki is reported to have warned Musaddiq that his decision to hold the referendum was the path to hell (jahannam) but, nonetheless, to declare that his devotion to him was such that he would follow him to hell. (Katouzian, 1981:  103-104 ) Musaddiq’s aides called him by many titles, including pishvay-i mellat (the Leader of the Nation), but the one they used commonly was the simple and most descriptive aqa (Master). Ali Shayegan would later recall, for a small group of us, how on the night of August 19, 1953 -sitting in the room to which he had fled with aqa- he expressed disappointment at the turn of events: “bad shud (misfortune has befallen)!” Musaddiq’s response was defiant: “No, the alternative was worse.” Shayegan indicated submission -once again- to Musaddiq’s position. As though summing up, he told us: “rafteem, rafteem ta sare-mun be sang khurd (we proceeded/followed him, we proceeded/followed him, until our heads hit the rock).”

———————————————————————————————————————

References

Afshar. A. (ed) (1986) Khatirat va ta’lomat musaddiq [Memoirs and Sorrows of Musaddiq]. Tehran: Elmi.

Amanat, A. (1997) Pivot of the Universe. Berkeley: University of California Press.

Baqa’i, M. (1985) Cheh kasi monharef shud,duktur musaddiq ya duktur Baqa’i [Who Deviated, Dr. Musaddiq or Dr. Baqa’i?]. Tehran: Sanobar.

Buzurgmehr. J. (1999b) ‘dibacheh’ [Preface], in Buzurgmehr. J. (ND) Musaddiq dar mahkameh-yi nezami [Musaddiq in Military Court], Volume I, pp. Five-Fifteen. Tehran: Doostan.

Buzurgmehr. J. (1999c) ‘muqaddameh’ [Introduction], in Buzurgmehr. J. (ND) Musaddiq dar mahkameh-yi nezami [Musaddiq in Military Court], Volume I, pp. Twenty-four to Fifty-four. Tehran: Doostan.

Buzurgmehr. J. (1999d) ‘moqaddameh’ [Introduction], in Buzurgmehr. J. (ND) Musaddiq dar mahkameh-yi nezami [Musaddiq in Military Court], Volume II, pp. Five to Twenty-three. Tehran: Doostan.

Bushehri, J. (1976) huquq-i asasi, jeld-i avval [Constitutional law, Volume One]. 9th ed. Tehran: daneshkadeh-yi ulum-i edari.

Emami, H. (1974), huquq-i madani [Civil law]. VolI.Tehran: ketabforoushi-i Islamiyeh.

Fardoost, H. (1991) Zuhur va suqut-i saltanat-i pahlavi [The Rise and Fall of the Pahlavi Dynasty]. Tehran: Ettelaat.

Ghani, C. (2000) Iran and the Rise of Reza Shah. London: I.B. Tauris.

Katouzian, H. (1981) ‘Pishgoftar [Introduction], in Maleki, Kh. khatirat-i siasi [The Political Memoirs]. Europe: Koshesh Baray-i Pishbord-i Nehzat-i Melli Iran

Katouzian, H. (1999) Musaddiq and the Struggle for Power in Iran. London: I.B. Tauris.

Langarudi, M. (1967) terminology-i huquqi [Legal Terminology]. Tehran: Ebn-i Sina

Maleki, Kh. (1981) khatirat-i siasi [The Political Memoirs]. Europe: Koshesh Baray-i Pishbord-i Nehzat-i Melli Iran

_____________________________________________________________________________

This paper was presented at the International Society for Iranian Studies Conference on August 4, 2006 in London, UK. It was later published on Iranian.com

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THE RULE OF LAW AND THE POLITICS OF REFORM IN POST-REVOLUTIONARY IRAN

_______________________________________________________________
                                     Copyright© Keyvan Tabari. All Rights Reserved.
The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari. _______________________________________________________

abstract: This is a study of the jurisprudence of a political system in the throes of post-revolutionary reconstruction. It finds the main fault line for the instability of the Iranian system in the fissure caused by those who wish to reform the Islamic Republic. In the rule of law they have sought protection against the arbitrary exercise of power by the conservative clerical elite. Emboldened by electoral victories, the Reformists have pressed for the full implementation of the Islamic Constitution. That document, however, favors the hierocracy of the conservative clerics. The conservative clerical jurisprudence is different from that of the Reformists. Both are rooted, however, in the unique political Islam bequeathed by Khomeini’s radical revision of Iran’s Shi`ism. The conservative clerics reject the Reformists’ prescription of greater respect for human rights, stricter adherence to due process, and movement toward fully elective governance. The ruling Conservatives would rather vigilantly defend their gains by further constricting participation, not even sparing the Reformists. Despite the latter’s success in generating a lively public discourse, Iran’s political system has not been stabilized by efforts to achieve the rule of law. The need to choose between oligarchical hierocracy and democracy may have become compelling.

      Key Words: Rule of Law, Iran, Islamic Jurisprudence, Constitution, Reform, Post- Revolutionary Reconstruction
_________________________________________________________________________________________

Introduction

The rule of law is a central topic of the current political and constitutional discourse in Iran. While this phenomenon has been studied by social scientists, it remains to be adequately investigated by students of public law. This paper is a step in that direction; it focuses on the jurisprudence of the ruling system in Iran since the beginning of Mohammad Khatami’s presidency in 1997.

Global interest in the rule of law has grown considerably since the implosion of the Soviet empire. The American Bar Association has been engaged in an ambitious program to help reform the legal systems of the former communist countries and, contemporaneously, the World Bank has vigorously pursued a policy aimed at establishing the rule of law in developing countries as a prerequisite to economic development. In the course of such programs, and in academic dialogues, the rule of law as a universal concept is being gradually defined. Notwithstanding cultural differences, globalization is creating consensus on a set of core elements. This paper will show that many of the themes pertaining to the rule of law being discussed elsewhere are also discernible in the current debate in Iran.

The Rule of Law and the Reform Movement

The incumbent Iranian President, Hojatoleslam Seyyed Mohammad Khatami, deserves credit for promoting the current discourse on the rule of law in his country, and for explicating many of the issues in that debate. Khatami’s first major public pronouncements on the subject were made during his successful campaign for the Presidency in the summer of 1997. He maintained that the time had come, in the quieter aftermath of the turbulent era of revolution and the 1980s war with Iraq, for the supporters of the Islamic Republic of Iran to conduct their political rivalry within the framework of law. This was a prescription for the political reconstruction of a country still slowly recovering from the cumulative impact of momentous destabilizing events. Khatami, however, also saw an older problem: a culture of disregard for the law which preceded the revolution. Iranians, he said, had long viewed the law negatively –as the instrument of oppression by the powerful. Hence, he proposed that a major function of the Islamic government should be to promote general respect for the law, His promise was to institutionalize the rule of law. (Khatami 1997a: 18-19,38; Khatami 1997b:72,76-77, 82)

Khatami’s views were related to specific contemporary contexts. A troubling background was some ruling clerics’ condoning of physical attacks by the zealots of the Party of God (hezbollah) on their opponents. Reporting on one such occasion in 1995, a newspaper that reflected the position of Khatami’s political group asked in a celebrated critical article, “Which Way Do We Go, Respecting the Law or Self-help?” (Salam, 8/27/1995) [i] After Khatami was elected President such discourse became much more widespread and textured. Not only a new lexicon for conduct toward the law, but also new legal concepts were introduced. What is more, beyond the tools of syllogistic argumentation, which was trapped in the confines of the orthodox principles of Islamic jurisprudence (osul-e feqh), the debate about the rule of law now came alive by the resort to philosophy, Shi`ite mysticism (`erfan), and even Western thoughts. Khatami’s vernacular has now become the language of the realm; it is even spoken by his opponents. (Hajjarian 2000:26; Arjomand 2000:286; Mujtahid-Shabistari 1996:42-66)

Underlying this cultural shift has been a political change in Iran. Khatami ran for President as an independent, but his candidacy was supported by the two political groups that had a reputation, respectively, as populist and reformist. (Khatami 1997a:6-7) [ii] Khatami’s landslide victory, with over 20 million or nearly 70% of the votes, was a remarkable surprise. It heralded the emergence of a public that clearly differentiated between the factions within the regime, and rejected the status quo. Equally ominous for the conservative clerical elite was the fact that the largest bloc of Khatami’s votes was cast by the youth. This is the segment of the population to which the regime is by far the most sensitive. (Sciolino 2000: 276) The voting age in Iran is 15 and more than one-half of the population is younger than 25. The views of the youth toward the Islamic Republic are not shaped by the distant circumstances that caused the 1979 Revolution. They do not revel in the glories of the Revolution’s triumph. They are highly educated , politically aware, and more willing to accept reform than radical upheavals —in line with their horror at the excesses of the Revolution. (Khosrokhavar 2001)

Khatami disclaimed any radical intent. Instead, he aligned himself with those who maintained that the regime was in serious need of repair but that it could, indeed, be repaired. (Hajjarian 2000:19) Khatami eventually came to call their campaign the Reform Movement (jenbesh-e eslahi). (Khatami 2001:23) The Reformists are not a political party, as political groups in Iran have not yet matured much beyond mere congregations around individual leaders. (Khatami 2001: 15) [iii] The Reformists include the more progressive clergy and the less religious technocrats. They are supported by a broad band of those disenchanted with the regime. Khatami is the recognized “symbol” of the Reform Movement.

Khatami’s Reform Movement is faithful to the regime’s Islamic character. Following four impressive victories in national elections in the last five years, however, it has staked a solid political and social base for a jurisprudence different from that of its conservative rivals in the regime. The Conservatives are led by the ruling clergy, and include the traditionalist merchants of the Bazaar and the more religious technocrats. [iv] The Conservatives’ votes totaled roughly one-third of the Reformists’ in Khatami’s first run for the President and only twenty percent of the Reformtist’ votes in his second run. (Hajjarian 2000:23; Seifzadeh 2002:2) Many of these votes, however, came from fervent supporters –religious zealots or beneficiaries of entitlement programs created for the veterans of the war with Iraq –who have also served as shock troops to control the streets for the Conservatives.

The distinctive characteristics of the Reformists’ jurisprudence, enumerated below, are rooted in the Reform Movement’s rejection of the rigid orthodoxy demanded by the Conservatives. In asserting that there may be more than one reading (qera’at) of Shi`ite Islam, the Reform Movement generally endorses freedom of thought and expression. The unity of the “community of believers” (ummat) does not preclude diversity of political parties. Indeed, a policy of “tolerance” (tasahol va tasamoh) is called for, as the regime needs to turn enemies into rivals and rivals into friends. The policy of “rejection and elimination” (tard va hazf) must be discontinued, since the regime ought to take more passengers on its “train” rather than force them out. People are won over to Islam by “kindness,” not by “harshness.” Even those who are not Shi`ite or Muslim could contribute to the goals of the regime. Indeed, “Iran belongs to all Iranians.” (Khatami 2001 :25; Khatami 1999b: 97; Hajjarian 2000:23,-24, 369; Muhajerani 1999:325-26, 376, 342, 346;)

To the Reformists the element of “Republic” in the Islamic Republic is pivotal. It means the same as it does “everywhere in the world,” which is “popular sovereignty.” Only that reading of Islam which has been approved by the vote of the people is the binding political interpretation of Islam. Otherwise, the commands of even the highest clergy binds an individual –who chooses him as his “source of emulation”– only in religious matters, and different individuals may choose different clergy for that purpose. (Hajjarian 2000:198-99) In this perspective Khatami justifies the role of Islam in Iran as the unifier of the nation. (Khatami 1999b:105) This is a political reason; the context is not a domain of faith.

The challenge of Khatami’s Reform Movement has dominated Iran’s constitutional politics and has seriously undermined the legitimacy of the regime in the eyes of the educated public. Its impact on Iran’s constitutional law, however, has been far more limited. Nor, one should note, has it caused any serious rift in the regime with respect to economics or –reported disagreements notwithstanding– foreign policy.

Written Constitution

Khatami’s proposed institutionalization of the rule of law assumed the existence of specified laws. The laws that Khatami wished to promote were contained in the written Islamic Constitution of 1979. Acts violating the Constitution were illegal, he said, and those who aimed to subvert the Constitution had to be suppressed. (Khatami 1997a:21) The Constitution was approved overwhelmingly by the people in the heat of the revolutionary fervor and under the influence of the charisma of the Grand Ayatollah Rouhollah Khomeini. In effect, it certified the dominance of a new ruling group in Iran, a select group of the high-ranking clergy, closely knit –in many instances by marital or tutorial bonds– and now organized in a hierarchy designated by Khomeini. What is more, this Constitution allowed no possibility of amending it without that group’s consent.

The Islamic government that the Constitution proposed had no precedent, and no template to use. This was the first time that the Shi`ite clerics had seized power. The closest that the clergy had come to influencing the constitutional law of Iran was in the Supplementary Fundamental Law of 1907, following the Constitutional Revolution. While they helped the secular constitutionalists impose the principle of “conditional government” (mashrutiyat) on the hitherto absolute power of the king, the Shi`ite clerics’ own share of power –in the form of a committee to ensure that the legislation would conform to Islam — was never delivered as the enacting provision was ignored.

 

     Velayat-e faqih and the Leader

It was only in 1970 that the notion of a full-fledged Islamic temporal government was introduced by Khomeini. (Akhavai 1996: 231) Especially noteworthy was his new formulation of the concept of velayat-e faqih (the Islamic jurist’s guardianship) as the divinely ordained rule by the highest-ranking clerical jurist, in the guise of the guardian of the community of believers during the occultation of the last, Hidden Imam. The Islamic Constitution, substantially shaped by Khomeini’s lieutenants, defined the supreme clerical jurist entitled to velayat as the Leader (Rahbar) and endowed that office with the person of Imam Khomeini. After Khomeini’s death in 1989, Hojjatoleslam Sayyed Ali Khamanah’i was selected as his successor, according to the Constitution, by the Assembly of Experts (majles khebragan), an elected body with exclusively clerical membership. He received sixty votes of the seventy-four members present. (Arjomand 2002: 157) Khamanah’i’s rule since has not required the approval of any other institution or the direct vote of the people; neither has he asked for such approval or vote.

Unlike Khomeini, he is not regarded as the highest ranking religious authority (marja` taqlid). Nor does Khamaneh’i have the revolutionary credentials of Khomeini, or his charisma. Consequently, much more than his predecessor, Khamaneh’i must take into account the views of the members of the clerical ruling class. Nevertheless, Khamaneh’i occupies a supremely powerful office by virtue of the Constitution. Khamaneh’i, and less so the office of the Leader, have been the subject of criticisms in Iran. Khatami, however, has maintained his unwavering allegiance to both. (Khatami 1997a: 11-12; Arjomand 2000:Notes 1) Aside from personal ties –Khameneh’i was especially close to Khatami’s father– Khatami has looked to Khameneh’i, who has a relatively moderate past, for support against his more conservative opponents in the regime (Sciolino 2000:84-87).

Khatami has described the Leader’s role as providing guidance, supervision, and coordination among the three branches of the government. In fact, however, the Leader’s powers under the Constitution put him virtually in control of all three branches.(Article 110) His specified executive powers — which include the command of the armed forces and the Corps of the Guardians of the Islamic Revolution — are much greater than the President’s, and Khatami has acknowledged that he is expected to exercise his share of the executive powers under the control of the Leader. (Khatami 1997a: 8, 11, 33-34) The Leader also appoints and dismisses the head of the Judiciary. Finally, he has the decisive voice in legislation in the frequent deadlock between the principal legislative body, the Majles (majles-e shuray-e eslami), and the organ charged with ensuring the constitutionality of legislation, the Guardian Council (shuray-e negahban). Khamaneh’i has not shied away from exercising these vast powers.

Limited Government

There is no Constitutional accountability for the Leader. His term of office is indefinite. He could be dismissed, however, by the Assembly of Experts, but only in cases of proven moral turpitude or incompetence. (Arts. 5, 107, 109) That is a highly improbable measure for the exercise of popular sovereignty, as the nominees for membership of the Assembly of Experts must be approved by the Guardian Council, one half of whose members are directly appointed (and dismissed) by the Leader, and the other half, although approved by the Majles , are nominated by another appointee of the Leader, the head of the Judiciary.

Is The Leader’s authority then unlimited? Is Iran back to the position of autocracy (estabdad) against which it staged two revolutions in the last century? The Leader, indeed, has supporters who maintain that his authority is absolute (motlaq). In this view, the Leader could over-rule not only the Constitution but even the Divine law. (Akhavi 1996: 262-66) Khatami has, apparently pointedly, abstained from this view. (Arjomand 2000:Note 1) His political writings on the subject indicate that he considers the traditional Shi`ite constraints on the temporal ruler inadequate, and that limitation consisted of merely advising the ruler that punishment in the afterlife and popular uprising in this world awaited unjust rule. (Khatami 1999a:428-34) Indeed, Khatami allows the questioning of the scope of the “jurisdiction” of the Leader. These questions, however, Khatami points out, should be referred to the Guardian Council, which is vested with the authority to interpret the Constitution by the vote of three-fourths of its members. (Khatami 2001:18) Considering the Leader’s dominant power in appointing the members of the Council, this is, at best, a circumscribed check on the Leader.

The Leader, however, is not unfettered by the influence of the other members of the ruling clergy in the Guardian Council –and in other institutions of the regime. The Guardian Council has not always acted according to the Leader’s wishes, although it has ultimately yielded to them. When its long delay in ruling on the complaints about the 2000 Majles election caused considerable unease, the Leader formulated a specific resolution. Rather than adopting it as its own, the Council merely announced it as the Leader’s response to its request for guidance in the matter. Thus, it left standing the declaration in the request that the Council itself could not certify that election, which implied that it was void. Twelve years earlier, the Guardian Council acted nearly the same way toward Khomeini with respect to a previous Majles election. It ignored his repeated suggestions that it should declare that election valid before finally announcing, pointedly, that the election was certified by virtue of Khomeini’s personal directive. (Muhtashemipour 2000:182, 188, 191)

This pattern in the Leader’s relationship with the Guardian Council is also noticeable in the area of legislation. The Council has been especially attentive to its constitutional responsibility to confirm that all laws passed by the Majles are compatible with the Constitution and Islam. Exercising this authority, the Guardian Council has returned many laws to the Majles demanding their revision. The resulting lengthy legislative process often interfered with effective governance even when Khomeini was alive. His solution was to create still another council, the Interests Council (majma`-e tashkhis-e maslahat-e nizam, or The Council for Assessing the Interests of the Ruling System), which included all the six clerical jurists of the Council of Guradians. Incorporated by a 1989 Amendment into the Constitution, the 31 member new Council advises the Leader on how to handle the impasse when the Majles fails to accommodate the Guardian Council’s objections. The stalemate would be treated as a problem that “cannot be solved by conventional methods,” and the Leader would have to personally “resolve” them. (Arts. 110.8, 112) Thus, in effect, the Amendment has given the Leader the final say in interpreting the constitutionality of legislation. The Guardian Counsel had no choice but to acquiesce in this diminution of the original scope of its authority. On the other hand, the institutionalization of the advice to the Leader, in the form of the Interests Council, restricts the Leader’s freedom of action. The oligarchic attribute of the Iranian conciliar heirocracy is further manifest in the fact that several grandees are members of both the Interests Council and the Guardian Council –as well as the Assembly of Experts. In this perspective on decision making in Iran, Khameneh’i appears more as the first among equals.
Separation of Powers

The Constitution provides for the separation of powers among the three branches of government, which is noteworthy in considering the critical differences that President Khatami’s Administration has had with both the Legislature and the Judiciary. Two well publicized areas of disagreement have been the treatment of the press and the matter of political prisoners. In these disputes Khatami’s virtually sole remedy has been to appeal to the Leader, often in private, as the coordinator of the three powers. The Leader’s intervention was decisive also in the dispute between the Majles and the Judiciary, in 2001, on the restriction of the Majles’s right to choose members of the Guardian Council from among a list nominated by the Judiciary. (Amuzegar2002: Notes) The Leader’s discretion, therefore, has served as the principal guarantor of the separation of powers.

Khatami has declared that he would aim at seeking predictable rules for the Leader’s coordination of the three branches. ( Khatami 2001:18) The records of the Leader’s discretion when exercised could be valuable as precedent. The Leader, however, has avoided thus diluting his privilege. For example, he would pardon a jailed Majles deputy rather than agreeing with the Majles that as a matter of principle the Judiciary did not have the power to put a deputy in jail for expressing any views on the Majles floor. (The Economist, 1/18/2002)

Constitutional Executor

Khatami has maintained that it is his duty as President to implement the Constitution, pursuant to its Article 113 — a vestige of the earlier drafts that, anomalously, has survived the otherwise considerable transfer of functions to the Leader. (Arjomand 2000:287) Employing this provision to promote the rule of law, Khatami has interpreted it to mean that he has to protect the people’s constitutional rights. Accordingly, he established a commission to receive reports of violations of the Constitution. The commission has compiled over one hundred complaints it considered valid and reported them to the President. The commission’s efforts have not gone much further, as the President does not have adequate power to stop violations of the Constitution. He could investigate violations and warn the violators. (Mehrpour 2001:53,55-60) It is the Judiciary, however, which the Constitution entrusts with the task of seeing that its violations do not go unpunished. The Judiciary, on the other hand, has taken concrete measures to punish those it considers to be violating the law — many of them Khatami’s supporters. When these measures have been challenged as exceeding the Judiciary’s constitutional authority, the Leader has taken the Judiciary’s side. (Arjomand 2000:288)

The Leader has, thus, in a sense endorsed the independence of the Judiciary. In that fashion, indeed, the head of the Judiciary also invokes the principle of the independence of judges when he is asked why they do not follow his public pronouncements on the fair administration of justice. (Tehran Times, 2/ 20/ 2002) This judicial independence, however, should be viewed together with the institutional limitations imposed by the Constitution. The head of the Judiciary is appointed and dismissed by the Leader, and he, in turn, appoints the Chief of the Supreme Court, who supervises all the courts, and the Prosecutor General. Furthermore, the Constitution provides that all these main officers of the Judiciary be high ranking clergy (mojtahed). ( Arts. 156, 161, 162) Khatami has gone as far as charging that the Judiciary is in the hands of “dogmatic and regressive clerics.” (Arjomand 2000:288) Critics blame them for establishing a new culture of “judicial lawlessness”. Amuzegar 2002:3) The United Nations Human Rights observers have reported that the judiciary was largely responsible for the ongoing abuses in Iran. (Agence France-Press, 3/11/ 2002)

The President can protest against unconstitutional conduct by the Judiciary. This right, under Article 113, does not contravene the principle of separation of powers as it stems from the President’s Constitutional position not as the head of the Executive branch but as the highest official after the Leader. Khatami maintains that the Guardian Council has endorsed this interpretation, despite the Conservatives’ continuing efforts to refute it. ( Khatami 2002: 5-6; Mehrpour 2001:46-51) Accordingly, Khatami has issued “several warnings,” but until recently he had refrained from taking the more drastic measure of making this fact public, because he believed “the less tension we brought to society, the greater the possibility would be for peaceful resolution of issues.” (Khatami 2001:13) His repeated warnings, however, have been ignored. As a result, Khatami submitted a bill in September 2002 to increase the power of the President in order to enable him to perform his duties as the executor of the Constitution. (Khatami 2002:6)

Although the bill is unlikely to change the situation significantly even if passed by the Council of Guardians, this may be Khatami’s boldest challenge to the ruling Conservatives. It is the extreme limit of his hallmark strategy of “active calm.” Khatami’s own role in that strategy has been private intercessions with the powerful in the councils of the regime, while he calms the more activist Reformist deputies and press. Circumspection may be native to this gentle man, but it also reflects Khatami’s estimation of his political power. Do not expect him to mobilize his still massive popular support to effectuate radical change in the Islamic Republic. He rejects the shock option of “withdrawal,” suggested by many dejected Reformists. (Khatami 2002:20) Khatami has faith in plodding for moderate changes in the face of real adversity. (Khatami 2001:12) His ambitions are confined to harvesting the existing Constitution. He avoids talks about any liberating amendment.

Due Process

The Judiciary’s conduct has brought into public debate in Iran another aspect of the rule of law which could be summarized as due process. The Constitution provides for non-retroactivity of criminal laws, the right of habeas corpus — in that the detainees must be immediately notified in writing of the legally justifiable charges against them–, the right to speedy proceedings and to open trial, the right to counsel, presumption of innocence , right to jury in political or press offenses. It bans torture as a means of obtaining confession. The Constitution even expressly states that the Leader is equal before the law. (Arts. 32, 37, 38, 107,165,168,169) Khatami has endorsed these specific rights –in contexts that implied they were not being observed by the Judiciary. (Khatami 2001:13, 22) Newspapers are full of reports about detainees being held without a formal charge for long times, confessions forcefully obtained, the right to counsel denied, trials held behind closed doors, and counsel intimidated for vigorously defending political prisoners. Speaking on the administration of justice in the non-political cases, the head of the Judiciary himself summed up the general conditions, in March 2001, as being worse than even in the underdeveloped “third world” countries. He cited as major problems long delays in processing cases, unequal application of the law, too many prisoners, terrible prison conditions, long detention of suspects without trial, the use of torture to obtain confession, and psychologically unfit judges. ( Mahanmeh Pezhvak, April 2002)

The constitution establishes one system of courts with a general jurisdiction, excepting only violations of military or police duties which it refers to the special military tribunals. The Reformists have maintained that all other special courts are unconstitutional. The regime, however, has continued to employ the special Revolutionary Court –with its vague and broad jurisdiction– and the Special Court for the Clergy to prosecute its critics. In their proceedings, these courts have violated many of the due process principles. They impose punitive bonds, fail to hold open trial, refuse jury, and deny meaningful right to counsel. (Kadivar 2000:210-211; Mehrpour 2001:73, 111-113, 117)

Courts for Political Control

The Special Court for the Clergy –which has the crucial function of ensuring the loyalty of the core group of the theocracy’s supporters– is independent of the Judiciary; it is directly subordinate to the Leader. The Judiciary and the Guardian Council have been led by other forceful figures of the regime who have vigorously defended their institutional prerogatives. All these three organizations, however, have supported each other against challenges in the Majles, the Executive, the press, and the dissident clergy. As such they have constituted an integrated juridical system.

The head of the Judiciary, for example, has defended the legitimacy of the Special Court for the Clergy on grounds of the prerogatives of the Leader, and the Guardian Council has rejected the laws passed by the current (Sixth) Majles –dominated by the Reformists– which would have undermined that Court’s legitimacy. (RFE\RL Iran Report 5.32, 8/26/2002) On the other hand, however, this juridical system had an ally in the Fifth Majles –dominated by the Conservatives– which confirmed the Guardian Council’s sweeping interpretation of its supervisory power over the Legislature’s election process (Arjomand 2001:328) and pushed for press laws desired by the Judiciary. In both of these, the collaboration of that Majles and the juridical system was against the efforts of the Reformist Administration, while now the juridical system confronts both the Reformist Majles and the Executive branch.

This cohesion of the Conservative incumbents of the juridical system is only in part due to ideology. Attempts to Islamicize the laws –to enact the revolutionaries’ claim that Shiite Islam was a total way of life and total ideology– could not go much beyond the incorporation of a few archaic measures of punishment from the shari’a (notably, retaliation or qesas) in the criminal code. Further Islamic codification was abandoned when it became apparent that the shari’a lacked provisions to govern situations in modern Iran not contemplated by the traditional Islam. The extended application of the general principles of Shi’ite jurisprudence has also been seriously hampered by the shortage of judges with adequate training in Islamic law. Ultimately, the imperative of governance has forced the rulers of Islamic Iran to resort to the same foundation for laws as used by secular states: the interests of the regime. They have rationalized that this transformation is justified by a juristic principle, maslahat (expedient interest), long rejected by the Iranian Shi’ites. (Arjomand 2001:313-314; Schirazi 1998:161-253, 302-303) The controlling factor in the Iranian legal system, in fact, has been the interests of the ruling conservative clergy. The expedient of preserving the regime has been invoked to justify the deployment of the courts for the transparent purposes of political control. This mockery of the rule of law has aggravated the public’s cynicism and mistrust, ironically when people have been sensitized to the law’s potential virtues by the Reformists’ campaign.

The Judiciary’s reach into politics has been extensive. It has made highly charged statements on foreign policy and has maintained its own investigative arm for gathering information on national security matters. (Radio Azadi, 5/27/2002, 8/27/2002) Many key members of Khatami’s Administration have been summoned to court and intimidated (Khatami 2002:25). Reformist deputies and writers in the two pillars of Khatami’s support — the Majles and the press — have been relentlessly hounded. Rejecting the defense of parliamentary immunity, the Judiciary has jailed deputies, many on charges of violating the press law. Informal intercession with the Leader has proved more productive than the current Majles’s repeated efforts to pass new press laws. The Guardian Council has remanded three such bills. (RFE\RL Iran Report 5.32, 8/26/2002) While the motive behind many cases brought to court is political, the Judiciary refuses to acknowledge that fact so that it may deny jury and open trial which the Constitution requires for political charges. The Judiciary’s claim that the law does not clearly define political offenses has been refuted by President Khatami, whose efforts to further clarify the definition by new legislation has also been frustrated by the Guardian Council. (Khatami 2002:21; Radio Azadi, 7/29/2002)

Legislative Authority

There we see one instance of the interaction of three institutions claiming constitutional rights to shape the rule of law in Iran. There are still three more such claimants: the Majles, the Interests Council, and the Leader. If the implementation of the Constitution is the responsibility of the President, its interpretation the prerogative of the Guardian Council, and its enforcement the duty of the Judiciary, the Majles has the right to legislate, that is to enact in specific laws the principles embedded in the general clauses of the Constitution. This prerogative of the Majles, however, is absolute only with respect to initiating legislation. As mentioned before, the Guardian Council could remand legislation it deems incompatible with the Constitution or Islam and, should an impasse then ensue between it and the Majles, the Interests Council would have the privilege of advising the Leader about the final shape of the legislation. In such cases the Leader, or in practice the Interest Council, in effect becomes the sole legislator. This scenario is not hypothetical; the Reformists deputies have complained that the Guardian Council has opposed all their bills. (Radio Azadi, 8/21/2002)

Hard line members of the Guardian Council, on the other hand, have expressed regret that they allowed the Reformists even to be elected to the Majles. Indeed, the Council has claimed considerable authority over who could be a candidate for the Majles and the election process. The Constitution (Article 99) gives the Council the duty to supervise the Majles elections, and the Council has interpreted this as a “certifying” (estesvabi) responsibility, making the validity of all aspects of the election contingent on its approval. The Constitution requires that the candidates for the Majles be committed to Islam, which under the existing election law has included commitment to the principle of velayat-e fagih. While these restrictions have eliminated many aspirants, the Council has added further specific qualifications, and has refused the demand that it make public its deliberations on the qualifications of the applicants. Its decisions are not subject to appeal. Among certified candidates, the Council has used its strict supervision of the election process to help the type it favors, for example by designating many more mosques than universities as polling place. (Muhtashemipour 2000: 139, 146, 150, 154-55; Mehrpour 2001:115; Radio Azadi, 9/2/2002)

The import of these limitations on the choices of candidates available to the electorate is felt in the failure of the Majles to produce a strong Reformist leader, despite that institution’s history as the incubator of popular heros. Indeed, the elective Islamic Majles has been emasculated by the triumvirate of Guardian Council, Interests Council, and the Leader –all appointees of the conservative clergy oligarchy– not just by the forfeiture of its ability to legislate. It has also been refused the right to investigate those institutions which are under the direct control of the Leader, and has been pressed to obey the Leader’s command not even to debate those topics which he forbids. (Radio Azadi, 5/27/2002, 5/30/2002 ; Kar 2002:463)

Human Rights

The regime, however, could not stifle the growing public discussions –in the Majles as well as the press– about popular sovereignty as the ultimate legitimizing source of law, and the concomitant topic of inalienable individual (human) rights. Abstracted in the concept of “liberty” (azadi), these have been the persistent and continuous primary goals of popular movements in Iran for over a century. It is indeed in the penumbra of azadi that one observes the historical roots of the Iranians’ quest for justice and lawfulness, as in “the house of justice” (`adalatkhaneh) of the 1905 Constitutional Movement, and the “legally legitimate government” (hokumat-e qanuni) of Mosaddeq’s National Front movement of the early 1950s. It is on this tradition that the current Reformists’ rhetoric claims to rest.

The 1979 Constitution provides many rights for the individual. These human rights, however, are made subject to Islamic norms. Khatami’s explication of this portentous limitation is instructive. He rejects “liberalism,” which he considers as Islam’s only rival ideology, because it permits all freedoms naturally desired by individuals. This is not desirable for Khatami since he wishes the imposition of religious restraints on freedom in order to promote spiritual values that would lift humans to be “godly.” (Khatami 1993: 136-37, 205; Khatami 1997a:32) The anti-reformists represent an attitude on human rights harsher than Khatami’s, who views them as furnishing the antithesis to the liberals. As Khatami has put it, in the anti-reformist jurisprudence there are only duties and no rights for the individual, freedom and religion are deemed incompatible, and people have no say in governance and must obey their clerical rulers unconditionally. (Khatami 1999b:95-119) In practice, however, the Reformist Islamic jurisprudence differs from its conservative rival only in containing the extent of religious restrictions on freedom which the clergy would impose.

 

     Freedoms of Thought and Expression

The Islamic Republic restricts freedom of thought. The Baha’is are persecuted for their religious beliefs. Only the religions of the “people of books” –Christians and Jews– and the Zoroastrians are recognized. Much harsher treatment (death) awaits a Muslim who changes his religion. Freedom of expression is repressed in Iran. Not only publicly stating certain views, but even discussing certain topics are punishable. The sanctionable views are enumerated in various laws. The Constitution prohibits publication of views violating the principles of Islam or public interests. The press law is more detailed and adds such other specific instances of illegal acts as insulting the Leader and the high clergy. (Muhajerani 1999: 344, 378, 404) The Special courts have prosecuted defendants for offenses they ruled prohibited which do not appear in the laws: for example, publishing lies and causing public unrest. (Kadivar 2000:39, 85) All of these strictures are interpreted broadly and applied universally –to Majles deputies, the clergy, the press, and ordinary citizens. No forum has been immune, including the floor of the Majles, the mosques, and venues outside Iran. While the Constitution bars prior restraint, the chilling effect of self-censorship has been obvious.

The regime controls all media of mass communication. Because of the significance of radio and television these monopolies have been placed under the direct command of the Leader. In practice, they have functioned as the mouthpiece of the Conservatives, depriving the Reformists of the opportunity to broadcast their views. The same can be said about the unique institution of mass Friday prayers, which serve as the weekly town meetings throughout the country where current political issues are discussed. Only Conservatives are allowed as speakers. The Reformists have fared better with respect to the print press. Nonetheless, many Reformist publications have been ordered closed, and many editors and reporters have been charged and imprisoned, for virtually any writing the Conservatives considered offensive. Protections guaranteed the press under the law are ignored as courts of doubtful jurisdiction, and improper procedures, are employed.
Right to Assembly

Freedom of assembly is restricted in Iran. Those not loyal to the regime have long been prevented from holding mass public meetings. These open door “Demonstrations,” historically, have been a crucial political institution in Iran. The Conservatives have now effectively extended the ban on Demonstrations to the Reformists who have come to avoid their use lest they provoke unbearable physical attacks by the conservative forces –civilian and uniformed. (Radio Azadi, 8/2/2002) The regime also prevents organization of its opponents in guilds, labor unions, student organizations, teachers’ associations, physicians’ associations, lawyers bars, and writers’ unions. In general, only the Islamic version of these institutions are allowed. The Reformists’ persistent talk about civil society has created much expectation but little result in removing this stunting obstacle.

The regime has destroyed and suppressed all political parties not deemed loyal. The Reformists campaign for “political development” through expanding political “participation” (musharekat) has not aimed at tearing open this confining circle of “insiders” (khodi). Opponents who continue their political activities in exile are treated as enemies. Indeed, the Reformists groups are now complaining bitterly about the threat to their own freedom by the conservative forces. They point out that their members and followers are attacked, that all aspects of their lives are spied on by unauthorized agencies of the regime which are controlled by the Conservatives, that they are virtually prevented from having any publications, and that they live in the constant fear of assassination by agents of the Conservatives. The Reformists’ fear has increased as the Conservatives who control the regime’s instruments of coercion now imply that the Reformists have become enemies of the revolution. (Radio Azadi, 7/21/2002, 7,28,2002)

Conclusion

The public discourse on the rule of law in Iran has gained momentum. It is unlikely to end soon. It has introduced to the Iranian society some concepts which were not quite familiar, and it has encouraged it to examine its assumptions about power, rights, and government. Those in power have been challenged to show that their decisions are in accord with the Constitution. Arbitrary exercise of authority has become more difficult. Some of the adventures by rogue elements have been exposed and condemned. (Klein:11-12; Sciolino:233-248] Law and order has been largely maintained. The political battle among groups loyal to the regime has been essentially non-violent, with glaring exceptions such as the brutal use of force against student dissidents in July 1999. Revolutionary changes have been avoided.

The regime, however, has failed to protect basic human rights as they are universally defined. Its own definition of human rights denies individuals their fundamental right to choose and, instead, imposes on them the guardianship of a select group. Popular sovereignty is rejected in favor of religious beliefs. Due process is often disregarded, and the judiciary is abused in the service of factional political ends.

A written constitution, which was prepared in haste and in times of revolutionary turmoil in the unconventional theological image of a charismatic leader, now deceased, is adhered to as a dogma. Among its glaring defects is its incapacity to adjust to changing realities. This, when change is presaged by the internal demographics of unemployed restless youth, and the external requisites of relations with assertive foes.

Political participation is kept limited to those who pass strict loyalty tests. Among those excluded are some of the best Iran needs in order to join an increasingly integrated globe which is leaving it behind. The paradox of the architect of Iran’s rule of law is that Mohammad Khatami prides himself in having an open mind. (Khatami 1997a: 2) That is ironic; yet, it may be his redeeming promise of hope. Khatami’s timid leadership of a loose coalition of political organizations, confined only to those activists acceptable to the regime, has yet to prove that it could reconstruct the Islamic Republic by establishing the rule of law through the implementation of a Constitution that favors the resolute protectors of the status quo. This may be a futile effort to round the proverbial circle. The Reformist platform has relied on a jurisprudence of the meek who may be in the majority but very much act as the weak.

                                                                                                    References

‘Abdi, ‘A. 2000 Qanun, qudrat, farhang: yaddashathay-e siasi-ye ruznameh-ye salam (Power, Law, Culture; Salam Newspaper’s Political Notes), Tehran: Tarh-e No

Agence France-Press (French News Agency; the references are to its reproduction on the web site of Columbia University Gulf/2000 Project, Threads #2: Archive)

Akhavi, Sh. 1996 “Contending Discourses in Shi^h Law on the Doctrine of Wilayat al-Faqih,” Iranian Studies, 29.3-4, pp. 229-268

Amuzegar, J. 2002 “Khatami’s First-Term Presidency: An Outsider’s Assessment,” SAIS Review, Winter-Spring (The references are to its reproduction on the web site of Columbia University Gulf/2000 Project, Threads #2: Archive 4/22/2002)
Arjomand, S.A. 2000. “Civil Society and the Rule of Law in the Constitutional Politics of Iran under Khatami,” Social Research, 76:2, pp. 283-301

———– 2001 “Authority in Shi’ism and Constitutional Developments in the Islamic Republic of Iran,” in R. Burnner & W. Ende, eds, The Twelver Shia in Modern Times: Religious Culture & Political History, Leiden: Brill, pp. 301-32

———– 2002 “The Constitution of 1358 S./1979,” Encycolpedia Iranica, VI, pp. 152-158

The Constitution of the Islamic Republic of Iran (The references are to the translation reportedly used by the Government of Iran, available at <aghayan.com>)

The Economist (London weekly magazine)

Hajjarian, S. 2000 Tavan-e Eslahat (Damages of Reformation), Tehran: Zakr

Kadivar, M. 2000 Behay-e azadi: defa’eyat-e mohsen kadivar dar dadgah-e vizheh-ye ruhaniyat (The Price of Freedom: Mohsen’s Kadivar’s Defenses in the Special Court for the Clergy), Tehran: Nashr-e Ney

Kar, M. 2001 “Murrori-e bar eslahat as manzar huqui (A Review of Reforms from the Legal Perspective) Iran Nameh, XIX.4, pp. 453-478

Khatami, M. 1993 Bime mowj (Fear of the Wave), Tehran: Simay-e Javan

———-1997a “The Interview,” in Buffington, M. & Buffington, M. (Translators) Meet Mr. Khatami, The Fifth President of the Islamic Republic, Washington, D.C.: Middle East Insight, pp. 1-52

———– 1997b “Inaugural Address,” Hope and Challenge, The Iranian President Speaks, New York: Binghamton University, pp. 71-86

———-1999a A’in va andisha dar dam-i khudkamegi. Sayri dar andishih-i siayasi-yi musalmanan dar faraz va furud-i tamaddun-i eslami (Creed and Thought in the Trap of Arbitrariness. An Exploration of the Political Thought of Muslims through the Rise and Decline of Islamic Civilization), Tehran: Tarh-e No

———1999b “Hokumat-e dini va azadi (Religious Government and Freedom),” in Sotudeh, A. Rabeteh-ye din va azadi (The Relation of Religion and Freedom), Tehran: Zekr, pp 95-119

———– 2001 “Press Conference, 6/11/2001” (BBC Translation) (The references are to its reproduction on the web site of Columbia University Gulf/2000 Project, Threads #2: Archive 6/15/2001)

———- 2002 “Press Conference, 8/28/2002” (BBC Translation) (The references are to its reproduction on the web site of
Columbia University Gulf/2000 Project, Threads #2: Archive 9/1/2002)

Khosrokhavar, F. 2001 “Iran dar doreh gozar (Iran in the Period of Transition),” Iran Nameh, XIX.4, pp. 405-427

Klein, J. “Shadow Land,” The New Yorker, February 18 and 25, 2002 (The references are to its reproduction on the web site of
Columbia University Gulf/2000 Project, Threads #2: Archive 9/1/2002)

Mahanmeh Pezhvak (Northern California monthly magazine)

Mehrpour, H. 2001 Rais-e jumhur va mas’uliat-e ejray-e qanun-e asassi (The President and the Responsibility of Implementing the Constitution)

Muhtashemipour, ‘A. 2000 Chand sedai dar jam’eh va ruhaniyat (Multi Voices in Society

      and the Clergy), Tehran: Khaneh Andisheh Javan

Mhajerani, ‘A. 1999 Eestizah (Interpellation), Tehran: Ettela’at

Mujtahid-Shabistari, M. 1996 Hermenutic, kitab va sunnat (Hemenutics: The Book and Tradition), Tehran: Tarh-i No)

Radio Azadi (Electronic Text Archive of Radio Free Europe\Radio Liberty, Prague, Czech Republic)

RFE\RL Iran Report (A Review Prepared by Radio Free Europe\Radio Liberty, Prague, Czech Republic)

Schirazi, A. 1998 The Constitution of Iran; Politics and the State in the Islamic Republic,

New York: I.B.Tauris

 Sciolino, E. 2000 Persian Mirrors: The Illusive Face of Iran, New York: The Free Press

Seifzadeh, H 2002 “The Landscape of Fractional Politics in Iran,” (The references are to its reproduction on the web site of Columbia University Gulf/2000 Project, Threads #2: Archive 9/2/2002)

Tehran Times (Tehran daily newspaper)

——————————————————————-

NOTES

[i] “Be kudam jahat miravim, qununmandi ya khodmadari?,” reproduced in ‘Abdi 2000:71-73.

[ii] They were Khatami’s own Association of Militant Clerics (majma’e ruhaniyoun-e mubarez), and the Party of Agents of Construction (hezb-e kargozaran sazandegi).

[iii] The major Reformist groups are the Participation Front of Islamic Iran (jebheh-ye mosharekat-e Iran-e eslami), the Organization of Srtivers of the Islamic Revolution (sazeman-e mujahedin-e enqelab-e eslami), and the two listed in Note [ii] above. (Seifzadeh 2002:4)

[iv] The Conservatives main groupings are the Society of Militant Clergy (jame’eh-ye ruhaniyat-e mubarez), the Society of Instructors of the Seminaries (jame’eh-ye muddaresin huze-ye ‘elmiyeh), the Board of Islamic Coalition (heyat-e mu’talefeh-ye eslami), and the the Society of Muslim Engineers (jame’eh-ye eslami-ye muhandesin). (Seifzadeh 2002:2-3)

__________________________________________________________________________________________

The article, entitled The Rule of Law and the Politics of Reform in Post-Revolutionary Iran, was first published in the March 2003 issue of International Sociology. In 2007 it was re-published with an additional Postscript in a Book, Said Amir Arjomand (ed.) Constitutionalism and Political Reconstruction. Its abstract is electronically available at

                         http://iss.sagepub.com/cgi/content/abstract/18/1/96

The Rule of Law and the Politics of Reform — Postscript 2006

 

  ______________________________________________________________________________

Copyright Keyvan Tabari 2006. All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari.

              ____________________________________________________

            Given a chance to revise an article about current events published more than two years ago (The Rule of Law and the Politics of Reform in Post-Revolutionary Iran*),  it is tempting to rewrite, and perhaps rectify, one’s interpretation. This is resisted here with the rather audacious claim that history has mostly justified the underlying presumptions of that interpretation. Substantiating that claim is the goal of this postscript.

            On December 6, 2004, President Mohammad Khatami came to vindicate himself before a constituency that was once his most ardent supporter: the student body at Tehran University. He sat on the stage behind a small desk, which was half covered with a bouquet of red roses. The Martyr Chamran hall -named after an idealistic Berkeley graduate who lost his life soon after the 1979 Revolution- was not big enough. Khatami anxiously cautioned his security guards not to be rough on the overflow crowd. He then apologized to the students for the inconvenience. Civic gentility, inclusion, and tolerance were the principles which Khatami also demonstrated in his attentive listening to critical comments directed at him that day -many in anger and anguish. “I have never brought action against anyone (who attacked me),” he allowed, in contrast to “some other agencies” of the regime. He singled out the Judiciary. “Efsha kon, efsha kon! (Reveal, reveal!),” shouted the students. They wanted Khatami to lash out against the powerful who stalled their Reform Movement. Pressed, Khatami revealed the following fact which was emblematic of his tenure.

           In 2003, the Guardian Council, having just blocked Khatami’s two boldest initiatives aimed at limiting its role in elections, brazenly disqualified most Reformist candidates for the pending 7th Majlis. Khatami seriously considered using the President’s only remaining prerogative to postpone the elections. The Leader, Ayatollah Ali Khamaneh’i, opposed him. They met. They reached a compromise as the Leader accepted Khatami’s specified “conditions” to ensure “fair and free” elections. The elections were then held, but the Guardian Council “reneged on its promise and even ignored the Leader’s directive (nazar).” It did not observe Khatami’s conditions.

            The cheated elections of the Majlis produced an overwhelmingly majority of anti-Reformist deputies. Khatami’s reign was irreparably enfeebled. A year too late, Khatami’s revelation now was his vintage anemic protest.  “Why did you remain silent? Why did you retreat?” the students asked. Khatami responded: “If there was a retreat, … it was before a system I believe in.” “My belief has been in reforms inside the system. I consider the Islamic Republic the great achievement of … our revolution…. I consider it imperative to protect this system.” To Khatami reform was a way of strengthening the regime. His program was to implement the existing Islamic Constitution, not to change it.

            Continuing in his dialogue with the students, Khatami now lashed out against those who had wanted more. “I have a claim against them!” He admonished them for not learning from the experience of the past. Three times since the constitutional revolution, he argued, the progressives had failed because they alienated their potential supporters among “the majority of people who are religious (motedayennin)” by their obsession with “political demands” (Mansoorian, 2004). Khatami was justifying his personal beliefs in his depiction of the practical reality of Iran’s society.

            This was the season of the 9th Presidential election. The Constitution barred Khatami from running for a third term. His valedictory session with the students, planned in part to encourage them to preserve, turned, instead, to a requiem for his principles (Ghouchani, 2004).

            Khatami’s last hurrah was to persuade all the major factions in the Reformist Movement to support his bid to recruit Mir Husayn MooSavi as their candidate for President. Long a favorite of the “left” wing of the Islamic regime, and famously supported by the late Imam Khomeini, Moosavi had distinguished himself as a popular Chief Executive (Prime Minister before that office was merged into the Presidency) during the 1980s war with Iraq. He was clearly the Reformists best hope (Karami, 2004).

            On October 12, 2004, Khatami and two old allies from his group of senior progressive clergy (Mehdi Karoubi and Musavi Khoeiniha) went to meet their mutual elementary school friend, Moosavi, in Tehran’s Saadabad Palace. That Palace from which the Pahlavi Shahs once ruled with authority was this day the stage for the pitiful fate of Khatami’s Reform Movement. Musavi rejected the offer to run because it was obvious to all observers that, even if he could win the Presidency, he would have no chance of success against the organized and mobilized Conservatives who now controlled the Majlis as well (Zibakalaam, 2004; Karami, 2004; Namazi, 2004).

            Moosavi probably could not win, had he run.  Neither could the Conservatives’ preferred candidate for President -not to mention any of the three candidates that the splintered Reformists eventually entered. Instead, the 2005 Iranian Presidential election proved that the decisive votes of the discontent, which had catapulted Khatami to Presidency in 1997, would this time side with the candidate who promised leveling the economic and social wall that separated them from the privileged (Sigarchi, 2005; Esfandiari, 2005; Hedayati, 2005; Sharibani, 2005).

            The new President, Mahmoud Ahmadinezhad, has been stressing values which have a provenance different from both the Reformists and the Conservatives. He finds them in the ethos of the Basijis, the paramilitary storm troops of the regime: resentful demand for social justice (zolm-setizi and edalat), wounded and prideful nationalism, defiant self-sacrifice (eesar), and romantic spirituality (manaviat))(Ahmadinezhad, 2005a; 2005b; 2005c).  Although Ahmadinezhad calls these the true message of Khomeini’s revolution, his rise may yet bring about profound changes in the hierocracy that Khomeini bequeathed.

            The Reformists’ once vibrant debate (gofteman) about the rule of law, and “political development,” has now been reduced to tiresome analysis of their electoral failures (Modarresi, 2005).  What passes for Constitutional politics in Iran at the time of this writing is scholastic arguments about whether Khomeini really meant his Islamic government to be subject to popular will (Ansari, 2006). The new phase of this old debate began with the followers of Ayatollah Mohammad Taqi Mesbah Yazdi (Tavassoli, 2006). His renewed prominence is due to the fact that Mesbah is President Ahmadinezhad’s marja’ taqlid (the religious source of emulation). The timing of the debate is important because the elections of the members of the Assembly of Experts -which is empowered to dismiss and appoint the Leader- are scheduled to take place soon.  In those elections, Mesbah is expected to be a key player (Razavi, 2006).

            Mesbah’s position is that the faqih (Leader) does not have to heed the people’s view. He may at times choose to defer to the public as an expedient, to facilitate their cooperation. Mesbah says that Khomeini also used the promise to establish a Republic in that expedient way, in the special circumstances prevailing just after the Revolution. The Reformists disagree vehemently and maintain that Khomeini really believed in listening to the people: he wanted both Republic and Islam.  The supporters of Khamaneh’i have taken a similar position (Shargh Online, 2006). Neither, however, denies the right of the Leader, “in special cases,” to overrule the people (Shargh, 2006).

            Several years ago, this subject was more thoroughly reviewed in a scholarly manner by Mohsen Kadivar. Kadivar is a progressive Reformist, but his conclusions about Khomeini’s views are essentially the same as Mesbah’s: Khomeini’s vision of an Islamic regime is incompatible with popular sovereignty (Razavi, 2006). The key conflict is in the concept of velayat-e faqih. For Khomeini the “real legitimacy,” is that of the “religious velayat (deputyship);” he employed “legal legitimacy (vote of the public)” only to “pacify the public and international opinion.” Kadivar argued that Khomeini could maintain that he did not lie or deceive; it was the adoring and trusting public’s fault if they did not notice Khomeini’s delicate distinction (Kadivar, 2002).

            Khomeini probably did not need the concept of velayat-e faqih to rule supreme himself; he was extraordinarily popular. His successors, however, are not so lucky. They are left with the contradiction inherent in the duality of his Islamic Republic. Sovereignty is not divisible and could not be shared. The contrary arguments of those who believe in the present Islamic Republic remain unconvincing.

References

Ahmadinezhad, M. (2005a) ‘Mosahebeh televizioni, 22 November 2005 [Press Conference, 19 September 2005], available at: http://www.president.ir

Ahmadinezhad, M. (2005b) ‘Mosahebeh televizioni, 22 November 2005 [Press Conference, 22 November 2005], available at: www.president.ir

Ahmadinezhad, M. (2005c) ‘Address to the Basijis Meeting’ Ekhabre riasat-e jomhouri the electronic archives of news about Iran’s President, 26 November; available at:

www.president.ir/farsi /ahmadinejad/cronicnews/1384

Ansari, H. (2006) ‘Aray-e khod ra beh emam khomeini nesbat nadahid [Don’t Attribute Your Views to Imam Khomeini]’, Rooznameh Shargh, 10 January; available at: http://www.sharghnewspaper.com/841020/polit.htm

 Esfandiari, M.S. (2005) ‘Dar entezar-e oposicion-e monji [Waiting for the Savior Opposition]’, Rooznameh Shargh, 6 July; available at: http://www.sharghnewspaper.com/840415/polit.htm

 Hedayati, Y. (2005) ‘Baz khoni-e entekhabat-e nohom ba alefbay-e matn-e shariati [Reading the 9th Election in the Text of Sharia’ti’s Alphabet]’, Rooznameh Shargh, 7 July; available at: http://www.sharghnewspaper.com/840416/polit.htm

 Ghouchani, M. (2004) ‘Doshanbeh rooz-e khasteh konandeheh’i bood[Monday was a Tiring Day],’ Rooznameh Shargh, 7 December; available at: www.sharghnewspaper.com/830917/html/index.htm 

Kadivar, M. (2002) ‘Risheh yabi hokoomat-e entesabi dar jomhoury-e eslami [In Search of the Roots of Appointed Government in Islamic Republic]’, Mahaneh Aftab 14: 54-61; available at:www.kadivar.com/Htm/Farsi/Papers/Paper003-9.htm

Karami, M. (2004) ‘Chera moosavi niamad? [Why Moosavi Did Not Come?],’ Rooznameh Shargh, 13 October; available at: www.sharghnewspaper.com/830722/index.htm

Mansoorian, N. (2004) ‘Goftogoy-e enteghadi-e daneshjooyan fa rais-e jomhour [Critical Dialogue of Students and the President],’ Rooznameh Shargh, 7 December; available at: www.sharghnewspaper.com/830917/html/index.htm

Modarresi, F. (2005) ‘Begoo magoohay-e pas az entekhabat [Arguments After the Election]’, Rooznameh Shargh, 11 July; available at: www.sharghnewspaper.com/840420/polit.htm

Namazi, A.M. (2004) ‘Moroori bar entekhabat-e riasat-e jomhouri [Review of the Presidential Election],’ Rooznameh Shargh, 19 October; available at: www.sharghnewspaper.com/830728/polit.htm

Razavi, H. (2006) ‘Eslahtalaban: emam jomhourikhah bood [Reformists: Imam was a Republican]’, Rooznameh Shargh, 3 January; available at: www.sharghnewspaper.com/841013/polit.htm

Shargh (2006) ‘Emam sadeghaneh beh ray-e mardom eteghad dasht [Imam Sincerely Believed in People’s Vote],’ Rooznameh Shargh, 6 January; available at: www.sharghnewspaper.com/841013/polit.htm

Shargh Online (2006) ‘Defa’-e  hosain-e shari’atmadari az jomhouriyat-e nezam va mesbah-e yazdi [Shari’atmadari’s Defending the System’s Republicanism and Mebah Yazdi]’, 6 January; available at: www.sharghonline.ir/news/archives

Sharibani, M. (2005) ‘Hezb-e karoubi va sonnatgara’i-e chap [Karoubi’s Party and the Left’s Traditionalism]’, Rooznameh Shargh, 7 July; available at: www.sharghnewspaper.com/840416/polit.htm

Sigarchi, A. (2005) ‘Rahbordi keh dar pey-e entekhabat-e nohom pish-e roy-e eslah talaban ast [The Solution Facing Reformists Following the 9th Election],’ Rooznameh Shargh, 6 July; available at: www.sharghnewspaper.com/840415/polit.htm

Tavassoli, M.R. (2006) ‘Dolat sazi-e emam khomeini va tahrif-e motehajereen [Imam Khomeini’s Government Building and Falsification by the Dogmatics]’, Rooznameh Shargh, 10 January; available at: www.sharghnewspaper.com/841020/polit.htm

Zibakalaam, S. (2004) ‘Agar moosavi miamad [If Moosavi Had Come],’ Rooznameh Shargh, 12 October; available at: www.sharghnewspaper.com/830723/polit.htm

________________________________________________________________________________________

The article entitled The Rule of Law and the Politics of Reform in Post-Revolutionary Iran was first published in the March 2003 issue of International Sociology. In 2007 it was re-published with this additional Postscript in a book by Said Amir Arjomand (ed.) Constitutionalism and Political Reconstruction. The article’s abstract is electronically available at the website below:  http://iss.sagepub.com/cgi/content/abstract/18/1/96

Law and Modernization: A Brief History of Iranian Civil Law

______________________________________________________________________________

Copyright Keyvan Tabari 2007. All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari.

____________________________________________________________________________________

 

abstract: This concise history and digest of the contemporary civil law of Iran was prepared for Encyclopaedia Iranica. It aims to serve general readers as well as scholars of the field. That dual goal restricts annotations, but the attached bibliography of sources used should provide ample specific references. At the same time, the themes explored here connect this essay to the more general topics of theoretical interest in jurisprudence. Among them are the challenges facing a tradition-bound legal system in accommodating changes required by modern times. The process is typically more complex when tradition is sanctified by religion, as it was in Iran. Furthermore, the tools for modifications of the laws were extrageneous. Like many other old countries of the East, Iran was awakened by the superiority of the Twentieth Century West and determined to bridge the gap by borrowing, among other things, from its legal system. The process of digesting this importation also prompts comparison with Western European legal systems’ earlier reception of Roman Law. The transition is never smooth. As the case of Iran proves, ultimately, the incremental evolution of customs determines the shape of enforceable law.

 _____________________________________________________________________________

                                                                          TABLE OF CONTENTS                                             

DEFINITION

BACKGROUND

MAKING A NEW SYSTEM                                                              

                  Integration

                Evolution                                                                                               

SUBSTANTIVE LAW                                                                                                       

                                Properties 

                                Personal Status

ENFORCEMENT

CHANGES AFTER THE ISLAMIC REVOLUTION    

                Compliance with Islamic Standards

                                Substantive Law

                                Enforcement 

 ______________________________________________________________________________

DEFINITION

Iranian civil law (hoqooq-e madani) is only a part of the legal system of that country. Iran is not a “Civil Law” country as that term is understood in the English language world with its, mostly, common law system. Iranian civil law is a “private law” as distinguished from “public law” such as constitutional law or administrative law. While the latter address issues in which government is involved, civil law   deals with issues arising from relations among individuals. In these issues, government is not a party. Hence civil law also excludes issues of criminal law.

Civil law is about the rights and duties of individuals vis-à-vis each other. It also covers their relations as members of groups, such as business entities.  In addition to enumerating the substance of those rights and duties, civil law provides the procedures for enforcing them [1].

The term civil law in Iranian is of recent coinage. Before the 1920s, the term that approximated it was orfi (customary) law denoting a body of laws different from canonical (sharii) laws. The term hoqooqi (legal) was also used in place of orfi, especially in reference to civil procedures. Both of these were inadequate equivalents for “civil” as they were too broad and imprecise. Civil law (-e madani) became current after its usage in the Civil Code (1927-1932) and the Code of Civil Procedure (1936-1939) -although the term civil (madani) had been used as an isolated instance in the existing Business Code to refer to the old form of partnership (sherkat-e madani) in Islamic law [2].

As a new term employed by the drafters of statutes, the exact referent of “civil law” was uncertain [3]. Definitive interpretation of its content has still not been provided by courts as judicial decisions have not been systematically compiled and reported [4]. The study of Iranian civil law is principally based on the commentaries of legal scholars, mostly university professors who have, incidentally, influenced judges and lawyers.

The term madani is a translation of the French Civile. The inevitable inadequacy of the Persian words chosen to render full and precise legal concepts from another language is a widespread problem. Iranian civil law is an edifice built with elements from European laws and existing Islamic law; and the texts of Islamic law were virtually all in Arabic [5]. (This essay, incidentally, also is not immune from the same potential problem of translation as it tries to convey the legal concepts used in Persian texts of the civil law.)

BACKGROUND

The notions of civil law are not alien to the Persian culture. In the ancient Mazdan divine law there was pronounced attention to regulating the material world with ideas of right, justice, and judges. The founder of the Medes Kingdom, Deioces (728-675 BCE), according to Herodotus, received his crown because of the people’s appreciation of his skill in resolving disputes among them. The Achaemenian kings (559-330 BCE) incorporated elements of customary law into canonical law, and established the principles of the rule of law enforced by the king and applicable to the king himself. The Sassanid dynasty (226-655 CE) secularized the law by institutionalizing legislation, and decriminalized civil action by compensating the victim for damage instead of punishing the wrongdoer [6].

Islamic law drew much from customary laws while developing rational legal constructs. The Abbasid Caliphs (758-1258) regularly appointed judges for Iran. After a hiatus, the Safavid  Shahs (1501-1722) established another judicial organization in Iran with a sheikh ol-eslam as the head of a board of clerical judges in each judicial district, and a sadr-e ol-sodoor at the top of the hierarchy in Tehran, appointed by the Shah. The law of Jafari Emamiyeh Shiite -named after the 7th Shiite Imam, Jafar Sadeq- came to dominate.  There were differences with the previously significant Sunni legal schools such as Hanafi, Maleki, and Hanbali.  The Safavid’s system of courts did not survive the dynasty. Yet, retrospectively, there was much more continuity than rupture in the thirteen centuries since Islam came to Iran. Islamic laws were sustained by a community of believers who closely watched each other’s conduct for conformity with the legal tradition that was sanctified as Islamic [7]. The breaking point came with the Constitutional Revolution of 1906.

On the eve of the Revolution there was only one tribunal resembling a standing court. It was the Royal House of Justice (divankhaneh-ye adliehe) in Tehran. Its work in resolving disputes was negligible, just as the impact of the Shah’s edicts as the source of laws was minimal. In a country that was not well integrated, the actual judges were either the clergy with personal influence in the local community or the respective bureaucratic officials. The latter had occasional administrative directives to guide them. The principal sources for substantive and procedural laws, however, were the treatises of Islamic jurists. They sometimes expressed conflicting views. Few clergy judges could have a clear grasp of their complex rules; the overwhelmingly illiterate public certainly did not. More often than not, disputes were handled by the traditional kadkhodamaneshi, a reconciliation method aiming at community peace and local notions of fairness [8].

The Constitutional Revolution fed on widespread grievances against arbitrary rule and injustice. Demands for a “house of justice” (edalatkhaneh) and law-making by a body representing the people evolved as the Revolution’s main goals. The success of the Revolution pitted two groups against each other in shaping the new judicial system: those who desired to follow the Western European model and modernize, and the clergy who wished to consolidate their hold. The compromise was reflected in the 1907 Amendment to the Constitution along the line of the dominant faction of the clergy led by Akound-e Khorasani. The right of a non-religious body – Majles, or the National Consultative Assembly (majles-e shoray-e melli)- elected by the people to legislate new laws (ahkam-e orfiyeh) was recognized in an admission that religious laws may not have the answer to the new issues of the changing times. The new laws, however, would not contravene Islamic standards (mavazin-e shareiyeh). To that end, a committee of clergy, to be appointed by the Majles, would be able to remand unacceptable legislation. Furthermore, all judges would be qualified clergy [9a].

By failing to appoint the members of the aforesaid committee, the Majles effectively avoided the clergy’s vetting of its legislation. The limited jurisdiction of the newly formed orfi (non-religious) courts modeled after the West, with a code of civil procedures was gradually expanded at the expense of the religious courts.  Supported by the merchant class of the Bazaar, the modernizers’ influence was clearly increasing. The military coup of 1921 enabled them to propose an ambitious program to overhaul the judicial system [9b]. The fulfillment of the promise of this program, however, had to wait until the real power behind that coup, Reza Khan, consolidated his control in 1925 as the new king of Persia [10].

MAKING A NEW SYSTEM

For the pridefully nationalistic Reza Shah, the urgency of modernizing the legal system was related to his desire to terminate the regime of extraterritoriality (capitulation) claimed by the major Western European powers in Persia. They maintained that their citizens were subject only to their own laws and their own special courts so long as Iran lacked a modern judicial system [11].

During the fourteen years from 1927 to 1941, Iranian civil law was constructed as a comprehensive new system. As its core were the 1335 articles of the Civil Code on the substantive law. The Code of Civil Procedure was enacted to enforce that law. These were augmented by many other codes: on probate and estate administration, marriage and divorce, business, and recording of real property titles. The organization for the administration of justice in civil action was set up. Rules for qualifications, training, and professional conduct of judges and lawyers were enacted [12].

Reza Shah did not waiver. An autocrat, he eliminated all political opposition. The Majles was pliant; the deputies were, in effect, his “appointees  [13a],” No pressure group overtly influenced legislation. The religious group acquiesced, accommodated, and cooperated [13]. The king was the ultimate law giver. Of his agents, the one who contributed the most was Ali Akbar Davar. An unabashed modernizer, Davar also had a proven record as a skillful parliamentarian. He had served briefly both as a judge and as a prosecutor. Perhaps his most valuable skill, however, was in managing people. As the new Minister of Justice, he assembled a commission of legal experts to prepare the draft of the Civil Code. It included prominent names- but not dominating figures. Few had extensive legal training in Europe. Several more, however, could be counted as young modernizers (motejaddedin) engaging in dialogue with religionists (motesharrein) –those more attached to their religious training- the other group in the commission [14].

The task was to graft borrowed laws from Europe onto a body of Islamic laws, to select and codify traditional laws relevant to contemporary issues and update and augment them with a selection of codified European provisions.

The process of codifying the Islamic provisions of the Civil Code resembled Blackstone’s work in the Common Law, except that the sources were commentaries by jurists and not court decisions. These commentaries were by Jafari Emamieh Shiites [15]. The commission did not give categorical preference to any one. When there were disagreements among the views expressed in the commentaries, the commission showed preference in its choice for the later over the earlier view, the majority over the minority view , the more flexible view over the rigid view , and the rational view over the consensus view. The chosen view then became authoritative [16]. Creating such certainty, along with a coherent arrangement of the provisions were among the major accomplishments of the Civil Code [17].

In selecting European laws, the commission mostly resorted to the French Civil Code, occasionally to the Swiss Civil Code, and a few times to the Belgian codes [18]. In some instances, the commission modified the chosen European and Islamic provisions.

                        Integration

The integration of the European provisions into the main Islamic body of the Civil Code was facilitated by several factors. To begin with, there was much in common between Islamic jurisprudence and Western legal tradition. It is estimated that more than half of the provisions of the Iranian Civil Code would be familiar to the students of the ancient Roman law [19]. The Iranian Islamic law contains most of the fundamental principles of a Western legal system [20]. It recognizes many of the rights existing in the European civil law [21]. Its rules of contract are not dissimilar [22].

The Islamic legal tradition was formed on much more than religion. Customs and reason played perhaps a greater role than belief. Of the four sources of the Shariat,  Islamic jurists used agl (reason) to articulate legal concepts -much like their Roman and Jewish predecessors-, while paying attention to customs in order to achieve ijma (consensus); the other two sources, the Koran and sunnat (conduct of the Prophet) were then invoked to sanctify the resulting rules. This is reflected in the four rational and logical Principles of Islamic Jurisprudence (osool-e feqh): ebra (presumed absence of that which did not exist), esteshab (presumed existence of that which existed), ehtiyat (caution), and takhyyr (non-interference) [23]. The mark of reason is also manifest in the Islamic methods of proof (hojjat), i.e., analogy (gyias and tamsil) and abstracting the general rule from the specific instances of its application (estegra) [24].

It is not even difficult to find parallels in the Western tradition for aspects of the Iranian Islamic law resulting more from customs than logic. Gender inequality is the legacy of all patriarchal societies, and religious discrimination is the left-over from the times when membership in the community was limited to the believers. The key difference was that Europe had moved on to the modern times while the Persians had stayed put [25].

Eager as the modernizers were to bridge the gap, they recognized that to take root, changes of the new Iranian legal system had to be both calibrated and proffered in a way that could be absorbed. Accordingly, areas where old customs were entrenched and resistance would be strong were left as the least and the last touched. These were categories of “personal status” -such as marriage, divorce, will, intestacy, guardianship- as well as civil procedures such as rules of evidence and time bar.

In the laws of property there was more freedom for innovation. Even here, however, the old forms of contract (ogood-e moayyan) were retained because parties and judges still preferred to use them [26]. In addition to their own rules, however, these contract forms were now made subject to the newly codified modern essential requirements. More important, by another provision, Article 10, the Civil Code provided for any kind of contractual agreement, free from the old forms [27].

The devices of ambiguity and silence were used in dealing with some other traditional laws that the drafters hoped would eventually change [28]. In the more sensitive issues special care was taken. As an example, time bar (statute of limitation) was objectionable to the religionists who maintained that in Islamic law rights did not expire. In response, when it was incorporated in the civil codes, the provision was so written as to avoid the concept of expiration: it merely said that beyond the specified time the court would not hear the claim [29].

The drafting as a whole was commendable. The Civil Code, especially, is concise and in simple, accessible Persian. It is not, however, devoid of occasional errors, mistakes of translation, and inadvertent insertion of rules of Islamic law in the European provisions and vice versa [30].

                        Evolution

The future of the new Iranian civil law depended on its acceptance by the people. It was believed that in the ongoing struggle between traditional customs and the need to change due to increased knowledge, custom would eventually retreat, but very gradually and slowly [31]. With an illiteracy rate of over ninety percent, Persians were not expected even to understand these laws for some time. Indeed, serious commentators argued that for now in Persia, ignorance of the law should be deemed an excuse [32]. Even some drafters of the civil law came to conclude that it was too advanced for the population on which it was imposed. They lamented that Iranians lacked the necessary tradition to assert their legal rights and to abide by their legal obligations [33].

The courts could not establish valuable precedents. Their decisions were binding only on the parties to the dispute. These were not compiled and reported as needed to influence future decisions. In effect, each judge could interpret the laws as he saw fit, subject only to the directed remand by the National Supreme Court (divan-e ali-e keshvar) meeting as a whole, in a cumbersome process [34].

The only source for a generally applicable interpretation of the law (tafsir-e qanooni) was the Majles. Instead of interpreting an existing law, the Majles generally chose to pass a new, and in effect repealing, law. The Majles could do so with abandon because there was no tribunal to declare a law unconstitutional, short of a difficult to convene elective Constituent Assembly [35a]. 

The proliferation of new laws compounded both the absence of precedent and people’s ignorance of the law. The new laws, however, did address the requirements of the evolving Persian society, especially regarding the rights of women, workers, peasants, and urban dwellers, as well as business and economic developments.  These needs were further met by the device of not implementing restrictive laws, such as those that prevented full participation of members of religious minorities [35b]. There was also a major revision of the Code of Civil Procedure, mostly to expedite the administration of justice. Furthermore, there were some innovative measures for adjudication of small disputes -in an underdeveloped country with inordinately scattered communities- through a combination of traditional method of kadkhodamaneshi and supervision of the court, such as the House of Equity (khaneh-ye ensaf) for rural areas and the Council of Arbitration (shora-ye davari) in urban centers [36].

Most of these new laws were enacted after Reza Shah’s son and successor, Mohammad Reza Shah (1941-1979), had established nearly the same autocratic dominance in law making with a similarly pliant parliament [37]. In that sense, therefore, there was continuity during the Pahlavi period.

            SUBSTANTIVE LAW

The essential aspects of Iranian civil law’s system of rights and duties of individuals toward each other are set forth in the Civil Code -which still remains virtually unchanged today [38].

The Civil Code speaks of inalienable rights. Not only is this an odd place for such a concept as it more properly belongs in  constitutions, but also the language used is more that of an obligation: no person may categorically divest himself (salb) of their rights. The provision, one of the few borrowed from the Swiss law, is more understandable in the context of that nation [39]. Iranian Civil Code does not specify the source of these rights. Notably, neither religion nor God is mentioned [40]. The prevailing commentary in the Pahlavi period, instead, held that rights and duties in Iranian civil law were determined by the state, which enforced them by sanctions [41].

The legal theory in the Civil Code bifurcates rights and duties between those common to all residents and those appurtenant to the person and “traveling” with him. The latter – for example, in inheritance, and wills- are governed by customary rules of personal status rooted in history, economics, politics, and beliefs. The former -for example, ownership of goods-, based on situs, lend themselves to a more rational management, as evident in the laws of properties.

Properties

At the foundation of the Civil Code’s construct of property laws is the Islamic legal principle of the individual’s right of dominion (taslit).  A person’s dominion over his properties is only nearly absolute. To begin with he is liable for damage to others caused by illegal or unreasonable use, even if done unintentionally.  The remedy is making the victim whole [43]. This Islamic principle of no harm (la zarar) is the core of what might be called Iranian civil law’s theory of torts –  yet to be fully developed [44]. If the causation is direct (etlaf) no fault or negligence needs to be proven – an apparent incongruity with the reasonable standard. Fault is required if the causation is indirect (tasbib), but it could be due to omission or commission [45].

The Civil Code also recognizes the legal concept of proximate cause which may not be the actual cause. In cases of joint tortfeasors, based on Islamic law both are liable. In the auto insurance code of 1968, comparative negligence was recognized. Between the actual wrongdoer and the person who directed him, the Civil Code holds the actor liable unless the director is proven to be the real culprit [46].

A person’s right is also limited by operation of the law (gahri) in three enumerated areas: the laws of intestacy, how much and to whom one can make a gift in his will, and the right of first refusal (shofeh) for the partner in an undivided real estate ownership [47]. Additionally, specifically enacted laws could further restrict one’s right.

Quasi-contract is another source of legal obligation (elzamaat) recognized by the Civil Code. Unjust enrichment is both a European provision and founded on a Koranic verse [48]. Quantum meruit is also a European concept incorporated in the Civil Code with equivalence in Islamic law (estifa) [49].

Finally, a person could divest part of his right by contract. The Civil Code provides three ways for contractual transactions. The traditional forms of contract (oqood-e moayan) -including sale, rent, mortgage, loan, and gift- with their own established rules; extraneous (“secondary”) conditions attached to these contracts (shart-e zemn-e aqad), and any other contract not violating a written lawThe latter broke the boundaries of old contract forms, thus eliminating the need for “legal tricks” for transactions that Islamic law had not foreseen [50].

To be valid all contracts must meet four requirements: the parties’ legal capacity to contract, their intent, determinability of the subject of contract, and lawfulness of the purpose [51]. Mistake (eshtebah), undue influence (ekrah), fraud (tadlis), defect (ayb), and gross imbalance in the exchange (ghabn) are among the major reasons giving rise to the right to cancel a contract [52].

           

                        Personal Status

Unlike the generally applicable law of properties, Iranian laws of personal status are based on customs of the specific person’s community -regarding such issues as marriage and divorce, will, intestacy, custody, guardianship, capacity, paternity, and support. Since in Iran community had been defined by religion, these laws are different for non-Shiite Iranians. For this purpose, four other religious communities are recognized: the sizable number of Sunni Muslims, and the much smaller groups of Zoroastrians, Christians, and Jews.  All others are subject to general laws made for the Shiites. There was no change in this discriminatory practice because, it was thought, that would have caused “serious disturbances [54].”

Although most of the rules about wills are based on Islamic law, the types of will and the formality required for making them are modeled after the French law. The last will prevails. Conditions could be attached to gifts; there are, however, restrictions. Only a portion of the estate, one-third, could be given by will if there are heirs. Spouses and heirs could not be pretermitted. A legatee must accept or reject the entire gift. Suicide invalidates the will. A murderer could not be a legatee [55].

The order of priority in the distribution of a decedent’s estate is his debts, shares of legatees, shares of heirs, and escheat. A murderer does not inherit from his victim. Closeness of relationship to the deceased determines the priority of heirs. Children of temporary wives share equally with those of permanent wives. Heirship, however, is limited only to permanent wives, who share equally in one-fourth of only personal property. The husband takes his one-half of all types of property.  These are shares when there are no children. If there is a child, then the shares are wife one-fifth, and husband one-fourth. A son’s share is twice that of a daughter.  Illegitimate children and non-Muslims are not entitled heirs. Muslims may inherit from non-Muslims [56].

Only the father and grandfather could be the trustee of the estate of a minor. There is no provision for such trustee of an adult heir; he takes his share directly. The mother has preferential right to the physical custody of a son only until the age of two, and a daughter until the age of seven, but would lose this preference if she remarries. Adults who could not distinguish between their profit and loss require guardians. All those entrusted with a charge have the fiduciary duty of avoiding errors of commission (taaddi) and omission (tafrit) [57].

The difference between Iranian Civil law  and its European counterparts is perhaps most pronounced in marriage and divorce, despite  many attempts -beginning with the 1931 marriage law and, especially, by the 1967 Law to Support the Family- to improve the wife’s position [58]. With few changes, noted below, the positions have remained the same under the Islamic Republic.

A man can marry up to four permanent wives and an unlimited number of temporary wives. He cannot marry a non-Muslim as a permanent wife, but can marry a follower of one of the recognized non-Muslim religions as a temporary wife. A Muslim woman is barred from marrying a non-Muslim. The institution of temporary wife, conceived to regulate a principally sexual relationship with far fewer rights than the permanent wife, is specific to Shiite Islam [59].

As another Shiite peculiarity, a man cannot marry an enemy of the members of the House of Prophet (ahl-e beyt) who are treated as Shiite saints. Sexual consummation affects the extent of a wife’s property rights. A virgin adult girl needs the consent of her father and grandfather to marry -but if unreasonably denied she could petition the court. Although not specified in any law, heterosexuality is deemed to be, based on customs, a requirement for valid marriage [60].

Matters relating to marriage and divorce, uniquely, are sent to special religious courts with clergy as judges, who are required to apply the rules of religious judgment- to all regardless of their religion. Marriage of followers of other religions is governed by their own customary rules, provided they are not contrary to Islamic law [61].

Provisions borrowed from Swiss law regulate engagement before marriage.  From the same source, the requirement of a certificate of physical health capacity -effectively requiring the age of fifteen for women and eighteen for men- was incorporated into  Iranian civil law to prevent otherwise permissible marriage under those ages [62]. The Husband has the obligation of leadership (ryasat) of the family in return for his wife’s obligation to submit (tamkin). Submission includes having to live where her husband lives, requiring his permission for traveling abroad, and not taking a job he does not approve. There are mutual duties of good conduct between husband and wife. The property of each, however, remains separate. The husband owes his wife an initial payment (mahr) in addition to support (nafaqeh) for the duration of marriage [63].

Marriage can be annulled by either party due to fraud, defect, or failure of specified conditions. A man has the right to divorce his wife without cause. A wife can ask the court for divorce for causes specified in the law, e.g., refusal to support, impotence, bad conduct, and contagious disease. Wife could obtain a power of attorney from husband to divorce in his name. The husband has to pay his divorced wife support for a specified time. The duty to provide support extends to children, and needy parents, as well [64].

 ENFORCEMENT 

The system for enforcing Iranian civil law created in the Pahlavi period, described below, underwent significant changes after the Islamic Revolution of 1979, which are discussed in the section for that period. The Pahlavi organization for redress in civil law was centered on establishing a court of general jurisdiction which soon absorbed the jurisdiction of the old business court and, more gradually, the functions of the religious court [65]. Some special courts survived, including, notably, the military court whose intrusion in civilians’ life, however, was triggered by political considerations.

The general court was required to take up all cases except those expired due to time bar, or with unclear request, or where disclosure of the facts would be against public order or morals [66]. A non-guilty decision by the criminal court did not bar civil action against the defendant. Qualifications for judges were specified. Law schools were expanded to train them. When their graduates grew large in number, they became the primary authorized pool for judges. The executive branch appointed the judges, but to assure independence they could not be dismissed without cause. In case of conflict between the judicial branch and the executive, the final decision was by the Supreme Court [67].

For lawyers, licensing requirements, a code of professional conduct, and a bar association came into being. Civil procedures modeled after European standards were enacted. The parties had to prove the facts; the judge’s task was to apply the law. Burden of proof was on the claimant, and then it shifted to defense. Time bar and objection to jurisdiction had to be pleaded as affirmative defenses. There was no jury in civil action cases [68].

The sources of admissible evidence were the parties, witnesses, judges, and legal presumptions. A hierarchy of value was assigned to the type of evidence. Admission and recorded official (rasmi)) documents headed the list. The oral testimony of witnesses (shahadat) and oath (qasam) lost the esteemed position they previously enjoyed under the Islamic law. Private letters were not subject to discovery. Rebuttable presumptions were allowed, especially as a form of judicial notice. The use of expert opinion and site examination was introduced [69].

Judges were required to dispose of all cases before them. Their decision had to be based on the law, and not “generally” by kadkhodamaneshi. If there was no specific law on the issue, then they had to look to the spirit (ruh) of the law and to the established customs (orf va aadaat-e mosallam). The spirit of the law was understood to be the legal principles of Islamic law that provided the underpinning for Iranian civil law. Customs were similarly Islamic. The mention of both, however, allowed for differences as customs evolved. Notably, there was no order of priority directed in case of conflict between the two [70].

The judges’ decisions could be appealed. Trial de novo (dadresi mojaddad), however, was allowed only in exceptional situations. Only final judgments could be executed, but in exceptional situations a writ could be issued for the provisional execution of orders [71].

While much was achieved in establishing a coherent civil law system in the Pahlavi period, it was often subjected to criticism, not the least from some of those who played a pivotal role in shaping the system. Personnel shortage, backlog, corruption, and discriminatory application of the law were among the charges they levied [72].

            CHANGES AFTER THE ISLAMIC REVOLUTION

                  Compliance with Islamic Standards

The Revolution of 1979 brought to power in Iran a select group of high-ranking Shiite clergy, closely knit -in many instances by marital or tutorial bonds- and organized in a hierarchy designated by the Grand Ayatollah Khomeini. This hierocracy heralded -with redundancy- its ideological goal of ensuring the compliance of Iranian civil law with Islamic Standards (mavazin-e eslami): in the new Iranian Constitution, Article 4; in the revised Code of Civil  Procedure, affecting substantive rights under the Civil Code- including the freedom to contract under Article 10 – and in commands therein to judges [73].

There was no regression to the strict position that Islamic law was so complete as to obviate further legislation. Rather, the conceit was that all such legislation had to be derived from and developed upon Islamic principles. Therefore, a retroactive process of re-examining the existing laws was also called for [74].

The agency established for this task is a distinct board in the Guardian Council (shoray-e negahban). While the twelve-member Council as a whole rules on the constitutionality of the laws, only six of its designated members vote on the more important compliance of the laws with Islamic Standards. These are all clergy –faqih (Islamic jurist)- appointed by the Leader  of the Revolution (rahbar)who is himself a clergy appointed for life by the Assembly of Experts (majles-e khebragan), an elected body with exclusive clergy membership.

The Guardian Council cannot initiate legislation. That is done by the Islamic Consultative Majles (majles-e shoray-e eslami) whose members are popularly elected from candidates vetted by the Guardian Council. The Council remands legislation it finds against Islamic Standards, or unconstitutional. As the Majles’s revision often did not satisfy the Guardian Council, to help resolve the impasse, a new body, Interest Council (majma’-e tashkis-e maslahat-e nezam), whose members included the six clerics of the Guardian Council, has been appointed by the Leader to advise him. The Leader retains the final say and hence is the ultimate law giver. However, he usually heeds the advice of the Interest Council and hence maintains the integrity of the hierocracy [75].

                        Substantive Law

If laws are not made by true representatives of the people, those who shape them still have had to be responsive to the public. Effective governance required laws to fulfill such needs of the public that could not be denied. Indeed, established customs had by now surged beyond incompatible Islamic rules [76]. Secondly, the regime had come to power by a popular revolution and had to deliver on its promises to retain that base. Thirdly, it faced active pressure groups, notably, the women, workers, urban poor, and peasants.

The hierocracy’s response has always not always been consistent as it wrestled with two contesting views, one conscious of the imperative of accommodating the changing times and the other protective of its tradition of privileges [77]. It sought common ground in the unity of the source invoked for Islamic Standards on the civil law. In contrast with the different commentaries by many Islamic jurists consulted by the drafters of the Pahlavi Civil Code, there was now almost exclusive reference to one commentary, Khomeini’s tahrir ol-vasileh [78].

Although the multi-volume tahrir provided answers to more than four thousand questions that it assumed to be of interest to a Muslim -many of them in the general fields of civil law -it has been of limited use. Many of the hypothetical situations it discussed bore little relevance to the actual issues facing contemporary Iranian society. Its discussions were not detailed enough to allow much extrapolation. Its answers were too often in the negative, restricting the opening for adjustments in the law [79].

The basic problem, of course, was the general limitation of Islamic law in dealing with issues of relations in an economic and social environment different from the nomadic, agricultural, and mercantile culture for which it was developed [80]. That limit had been reached by the earnest efforts made in the drafting of the Civil Code. It is no surprise, therefore, that the Civil Code has been retained nearly intact by the Islamic Republic. The Guardian Council has repealed very few of its provisions.

There have been some cosmetic changes in the Civil Code, such as replacing references to the monarchy with the Islamic Republic, and insertion of provisions explicitly depriving the shrinking non-Muslim minorities from increasingly improbable intestacy opportunities with the Muslims [81]. The potentially meaningful changes, however, were in the provisions affecting enforcement, discussed below.

This pattern is discernable in other substantive codes of the civil law. Most of the existing laws in business, trade -both domestic and foreign-, land reform, urban land ownership, as well as family law and labor law have survived. The changes and evolution in these have been mostly the result of economic and social forces, and not efforts to implement the dictate of the Islamic law. Indeed, the new laws in these areas often called for greater government intervention in private relations, thus posing a serious problem of compliance with Islamic Standards which ordinarily opposed such intrusion [82a].

To the extent that public regulations were not voluntary -for instance, as requirements in labor contract- they could not be legitimized by the device of the Secondary Condition of Contract (shart-e zemn-e aqad) [82b]. Accordingly, the use of an alternative device became widespread: the Rule of Emergency (qaedeh-ye zaroorat). It was argued that the emergency conditions caused by the Revolution justified laws restricting individuals’ sacred right to property.[83]. As an Islamic principle, however, the Rule of Emergency could permit only laws which circumstances made imperative – not simply desired- and only for short periods [84]. This led the regime to the theory of the Interest of the State.

In a radical assertion contravening the Shiite Islamic tradition, Khomeini as the sole source for jurisprudential principles declared, in 1988, that if the interest of the Islamic regime (maslahat-e nezam) so required even the foundational rules  of Islam could be ignored. This is a justification now most commonly used. Accordingly, whatever the Islamic regime decides could be the law in compliance with Islam [85].This position then is not dissimilar to that espoused by commentators during the Pahlavi era who maintained that the law is what the state says it is and supports by sanctions.

            Enforcement

The changes under the Islamic Republic in the organization for the enforcement of the civil law according to Islamic Standards have been more consequential. The major focus has been on the judges. New qualifications of loyalty and religious learning have been established for them. They must meet Islamic juridical (feghi) standards. They receive special religious education. Judges are appointed by the High Judicial Council composed of learned clergy (mojtahed). In addition to the courts of general jurisdiction, the old religious courts have been resuscitated -now called Special Civil Courts- with jurisdiction over matters of divorce, wills, and public guardians [86].

Judges must rule in accordance with Islamic Standards. Within that framework, they have been given considerable discretion. The revamping of the Code of Civil Procedure, in 2000, has eliminated many of its internationally common standards. The prescribed Islamic rules of procedure are inordinately flexible [87]. Changes in the objective standards of the Civil Code -such as the elimination of a certain age for majority- has furthered reliance on judges’ determination. Equally significant has been the change in the rules of evidence.

The Civil Code provisions have been modified to allow greater use of oral witness testimony and oath -lifting the restriction of amounts and types of case for which they might be applied-, and judges have been encouraged to use religious evidence (adalleh-ye sharii) in general, thus increasing the judges’ subjective role. If there is no written law, judges are required to resort to fatvas and legal principles in accord with religious standards, instead of customs and the spirit of the law. The yardstick of contemporary time and place has thus been eliminated in favor of religious guidelines. Finally, the religiously learned (mojtahed) judges are allowed to recuse themselves from a case if they consider the applicable law un-Islamic, regardless of what the Guardian Council might have said [88].

Both time bar and late payment charges, as well as writs of execution for provisional orders, have been eliminated as contrary to Islam. This is only one of the factors that have contributed to the overloading of the dockets. The judicial system is also burdened by new Islamic laws that intrude into the hitherto private affairs of individuals, including their clothing. There is a shortage of judges and administrative staff. Basic rules of due process are often ignored.  The Ministry of Justice had to publicly warn the judges to stop the practice of hearing and ruling on cases so summarily as simply by a telephone conversation [89a]. Unequal application of the law is believed to be rampant. Fixers are deemed to be far more effective than lawyers in conventional practice [89b].

Some groups, especially women, have had remarkable success by their persistent resistance to excessive restrictions of their legal rights in the name of Islam. Wives have achieved the right to veto their husband’s choice of job; to contract with the husband for the option to divorce him if he takes another wife; to divorce him if he proves impotent even once; and to require the husband to ask court approval before divorcing his wife. Mothers’ preferential right to custody of their sons has been extended from two to seven years [90]. Other groups have not done so well.  Religious minorities, especially, have felt forced to leave the country in the face of increased discrimination [91].

The Islamic regime has not been insensitive to foreign criticism. It has justified its laws on grounds that they are true to local beliefs and customs. It has claimed compatibility with the universal general principles in civil law [92]. When faced with the need to adapt to specific rules for international transactions it has chosen to isolate their application to segregated areas of the country. Thus, to compete with other Persian Gulf States, it has established a Free Trade Zone in the south of the country where foreigners are allowed to open banks and insurance companies, a privilege denied elsewhere to Iranians. It that sense, arguably, a measure of extraterritoriality, the elimination of which was a significant impetus for the creation of Iranian civil law, has returned [93].

Notes

 

[1] (Emami, 1974a: 4; Emami, 1975a: 88-90; Adl, 1975:2-3; Yeganeh: 1; Nasiri, 1999b:1; Zeraat, 2005:31).

[2] (Matin Daftari, 1970:61-70; Lahidji, 2001a:8, 10, 11; Kadivar, 2006:3.; Katuzian, 2006:402; Emami, 1973a:137).

[3] (Adl, 1975:2-3; cf Jafari Langarudi, 1967: 239)

[4] (Katuzian, 2006:18; Matin Daftari, 1969:539)

[5] (Emami, 1975a: 89, 126-27,128)

[6] (Shaki: 1-2; Herodotus: 79-81)

[7] (Emami, 1973a: moqhaddameh (M)  34-35,335; Emami, 1975a:132; Matin Daftari, 1970:155-56)

[8] (Matin Daftari, 1970: 10-11,156; Zeraat, 2005: 30; Emami, 1975a: 130,149)

[9a] Kadivar, 2004: 1-3; Kadivar, 2006: 3; Lahidji, 2001a: 7-8, 11-12; Nasiri, 1999b:1; Emami, 1975a: 75-76; Pishgoftar, 2001:2). In Shiite religion all judging functions are the Imam’s. Imam Jafar Sadeq appointed all pious learned men as judges. (Matin Daftari, 1970: 155)

[9b] (Ghani, 2000: 207)

[10] (Matin Daftari, 1970: 10, 621; Zeraat, 2005: 30; Lahidji, 2001a: 4; Yeganeh: 1; Nasiri, 1999: 1; Kadivar, 2004:  3)

[11] (Matin Daftari, 1970: 621-622; Matin Daftari, 1969: 362, 531-532; Emami, 1975a: 107-108; Yeganeh: 1; Nasiri, 1999b: 2).

[12] (Katuzian, 2006: 14, 17; Ghani, 2000: 294; Matin Daftari, 1970: ghaf; Emami, 1974a: 570)

[13a] (Matin Daftari, 1970:  ze)

 [13b] Hasan Modarres, the most prominent political cleric of the time, set the example. In the matter of time bar, he swayed his reluctant religious colleagues among the Majles deputies by saying “we who don’t recognize the jurisdiction of these orfi courts in any dispute, why should we object to their restricting its jurisdiction (Matin Daftari, 1969: 29-30; Yeganeh: 13). Religious jurists, including several members of the commissions that drafted the civil codes later served as judges in the new system. (Nasiri, 1999b: 2)

[14] (Matin Daftari, 1970: 583-84, 622; Matin Daftari, 1969: 245; Yeganeh: 2; Ghani, 2000: 294)

[15] Examples of such commentaries were shaara-ye eslam by Abolqasem (Allameh) Helli, lama by the Shahidayn, and maktaseb by Shaikh Mortaza Ansáari. (Yeganeh: 2; Zeraat, 2005: 1518). For others see Emami, 1973a: 375-76, 384, 391, 402-403; Emami, 1974b: 10,12,13,99, 103, 118.

[16](Emami, 1974a: 16-17, 54-55, 148, 167,169; Emami, 1973a: 24, 43; Emami, 1975a: 75)

[17] (Emami, 1974a: 114)

[18] (Yeganeh: 1).

[19] (Yeganeh: 2).

[20] These principles, familiar to Western law, also existed in the Iranian Islamic law: liability (tasbit); logical implications (molazemeh); implicit interpretation (qaraen); rebutable presumption (farz ta dalil-e khalaf)(Emami, 1974a: 105, 107, 110-11); waiver (eraz and abra); proximate cause (asbab-e qanooni); fiduciary duties (Emami, 1974a: 129, 142-43, 147); wrongdoing ( jorm and shebh-he jorm) creating a right in the victim(Emami, 1974a: 128); duties (elzaamat)(Emami, 1974a: 159)

[21] Islamic law recognized the following rights: easement, license (Emami, 1974a: 98), ownership of the space above and below the property, and condominium ownership (Emami, 1974a: 116-17)

[22] In contract there were these familiar rules: presumption of validity of contract; duty to perform (binding); extent of rights and duties are according to customs; what is customary is implied; liability for damage due to non-performance; liquidated damage; right to have performance at the defaulting party’s expense; need to wait for due date before claiming damage for non-performance; excuse due to outside obstacles beyond control; disclaiming liability for non-performance as a binding condition except in cases of personal injury, intentional damage, and defamation (Katuzian, 2006: 210-18)

[23] These are ‘rational reasons’ (adalleh aqlieyeh). Even the principles of interpreting the meaning of words alfazi were logical, like esalat- ol-omoom (a word applies to all people and not some) (Matin Daftari, 1969: 254-58; Emami, 1975a: 128; Matin Daftari, 1969: 254-58; Schirazi, 1998: 168; Yeganeh: p 2)

[24] (Emami, 1973a: M30-31, 35)

[25] (Matin Daftari, 1969: dibacheh chop-e avval, sin-zhe; Lahidji, 2001a: 2, 5-6, 29; Emami, 1975b: 2; Pishgoftar, 2001: 2; Mayer, 2001a: 1)

[26] (Emami, 1974a: 267) As a sign of Iran being still a society in transition, many of these forms were appropriate for societies long left behind by the Europeans, e.g., free safekeeping (vadiah), free use of property (arieye), free loan (qarz) (Emami, 1973a: 161, 179,193, ) and various kinds of free grant (hebeh) such as prize (jayezeh), gift (hedyeh), and religiously charitable donation (hedyeh)(Emami, 1973a:p 373).

[27] (Yeganeh: 2).

[28] (Emami, 1974a: 218; Emami, 1975a:75)

[29] (Matin Daftari, 1969:   21-22, 31-32).

[30] (Emami, 1974a: 104,108, 160, 187, 218, 221-27, 426-27; Emami, 1973a: 24-25, 204-205; Yeganeh: 3; Ghani, 2000: 294) An example was the use of “religiously allowed motive” (mashroeyyat-e jahat-e moameleh), as a required element of valid contract. The intent must have been “legality of purpose,” as it was in the French code from which the element was borrowed. The verbiage was more appropriate in the provision about the elements of the Islamic form of sale; instead, however, in that provision the incongruous phraseology provision in the Code speaks of the “legality” (qanooni) of purpose (Emami, 1974a: 218, 221-27, 426-27)

[31]. The youth, especially, were impatient to catch up with modern world, but the majority of people with little contact with the West were so tied to customs that many considered  them based on religious commands and sacred, and thus deviation from them tantamount to apostasy(Emami, 1967:  be)

[32] (Emami, 1975a: 82)

[33] (Matin Daftari, 1970: noon-sin; Matin Daftari, 1969: dibacheh chap-e avval, ghayan-zhe)

[34] (Matin Daftari, 1970: 100; Emami, 1973a: M16-17; Emami, 1975a: 80-81)

[35a] (Emami, 1973a: M15-16)

[35b] (Nasiri, 1999b: 1; Katuzian, 2006: 50, 78; Pishgoftar, 2001: 2-3; Matin Daftari, 1969: 528-29)

[36] (Matin Daftari, 1970: 17-19, 549-56, 563-65, 571-74)

[37] (Matin Daftari, 1969: dibacheh chop-e avval, dal)

[38] (Other codes, however, also contributed)

[39] (Emami, 1975a:18; Yeganeh: 3). In Persia, at least two aspects are relevant: invalidity of contracting for servitude (permanent employment), and for giving up the right to choose one’s spouse (Katuzian, 2006: 570)

[40] There is no mention of God in the Civil Code as a requirement of oath as evidence, although this is required in the Islamic law. Nor is the name of God needed to be mentioned in taking the oath as a witness according to the Pahlavi Code of Civil Procedure. The reasoning was thought to be to allow for the name of the one in whom the witness truly believed (Emami, 1967: 226-27).

[41] (Emami, 1975a: 3, 9-10)

[42] (Emami, 1975a: 96-97, 100, 115, 134; Katuzian, 2006: 28; Lahidji, 2001a: 5, 6, 12)

[43] (Emami, 1974a: 390-93, 399-400,407-409; Emami, 1975a: 12-13, 117; Katuzian, 2006: 44, 94)

[44] (Katuzian, 2006: 44, 94-95; Emami, 1975a:115; Emami, 1974a: 394)

[45] (Emami, 1974a: 391-395; Katuzian, 2006: 268)

[46] (Emami, 1974a: 395, 405-406; Katuzian, 2006: 258, 270-71)

[47] (Emami, 1974b 6-7)

[48] (Emami, 1974a: 353)

[49] (Emami, 1974a: 413-14; Emami, 1975a: 12; Katuzian, 2006: 282)

[50] (Emami, 1974a: 267; Emami, 1973a: 282-83; Katuzian, 2006: 31)

[51] (Emami, 1974a: 176)

[52] (Emami, 1975a: 38-45)

[54] (Emami, 1973a: M34-35; Emami, 1975a:131-33; Lahidji, 2001a:18)

[55] (Emami, 1974b: 61, 68, 78, 85, 99-100, 111, 117, 119, 124, 139, 153, 157-60, 163-64)

[56] (Emami, 1974b: 208, 235, 240, 296-97, 306-308, 312; Emami, 1975a: 264-65)

[57] (Emami, 1974b: 124; Emami, 1975b: 196, 209, 212, 306; Katuzian, 2006: 564-65; Kar, 1997a: 5). The mother’s preferential right to custody of sons has been extended to age seven under the Islamic regime. See [90] below.

[58](Emami, 1975a: 268; Emami, 1975b: p 3; Matin Daftari, 1970: 580-85,592-97)

[59] (Emami, 1974b: 128; Emami, 1975a: 343, 347, 366; Emami, 1975b: 99-109)

[60] (Emami, 1975a: 277, 285, 344, 389-90, 394-95)

[61] (Emami, 1975a:344; Emami, 1975b:  146)

[62](Emami, 1975a: 270, 273, 276, 278 79, 288)

[63] (Emami, 1975a: 430-34, 448-49, 458; Kar, 1997a: 3-4)

[64] (mami, 1975a: 373, 460-62, 464, 469, 471; Emami, 1975b: 5, 40-41, 226-234)

[65] (Matin Daftari, 1970: 62-70)

[66] (Emami, 1967: 16-17)

[67] (Matin Daftari, 1970: 25-26, 30-31; Nasiri, 1999b: 1-2)

[68] (Matin Daftari, 1970: 263-87; Katuzian, 2006:  752-53; Emami, 1967: 2, 18; Nasiri, 1999b: 1-2)

[69] (Emami, 1975a: 207, 209; Emami, 1975b: 165; Emami, 1967:  2-3, 21-22, 66-67,71,79-87, 90-98, 182-83, 190-92, 209, 219-23, 226-28, 236-37, 245-46)

[70] (Emami, 1973a: M34-35; Emami, 1975a: 130, 142-43,149)

[71] (Emami, 1975b: 279-80; Emami, 1967: 214-15; Zeraat, 2005: 38, 1500)

[72] (Nasiri, 1999b: 1-2; Matin Daftari, 1970: lam, noon, ayn, 616; Matin Daftari, 1969: gim, dal, ve)

[73] (Lahidji, 2001a: 15, 18-19; Vatani, 1984: 6, 6/9; Nasiri, 1999b: 8; Zeraat, 2005: 34-35, 38-39; Tabari, 2003: 99)

[74] (Nasiri, 1999b: 7-9; Zeraat, 2005: 35)

[75] (Tabari, 2003: 100-102, 107; Kadivar, 2006:  3; Vatani, 1984: 6/3- 6/5; Lahidji, 2001a: 13)

[76](Kar, 1997a: p 2; Mayer, 2001a: 12)

[77] (Kar, 1997a: 8; Frings-Hesssami, Kh., 2001: 136-37)

[78] (Schirazi, 1998: 166; Lahidji, 2001a: 31)

[79] (Schirazi, 1998:  166-67, 169)

[80] (Katuzian, 2006: 19; Schirazi, 1998: 171; Frings-Hesssami, Kh., 2001: passim)

[81] (Katuzian, 2006: 542-43; Emami, 1974b: 208)

[82a] (Katuzian, 2006: 217; Namazi, 2000: 1-2; Schirazi, 1998: 163-66, 197-199, 206-220; Book annotations, 1986: 234)

[82b] (Schirazi, 1998: 175,206-13)

[83] The Rule of Emergency was used in matters of private real property, urban land, land reform, rent, domestic trade, nationalization of foreign trade, punishment of speculators (Schirazi, 1998: 175-202; Katuzian, 2006: 109).

[84] (Schirazi, 1998: 199)

[85] (Lahidji, 2001a: 13; Schirazi, 1998:  170-72, 213, 220)

[86] (Nasiri, 1999b: 3-4; Lahidji, 2001a: 28; Vatani, 1984: 6/7, 6/8; Katuzian, 2006: 680, 689, 732-33)

[87] (Nasiri, 1999b: 3)

[88] (Zeraat, 2005:  34-35; Katuzian, 2006:  763, 772-79,786, 788,791,803; Yeganeh: 2)

[89a] (Zeraat, 2005: 37)

[89b] (Nasiri, 1999b: 5-6, 12-14; Zeraat, 2005: 37, 1500, 1503)

[90] (Kar, 1997b: 1; Mayer, 2001a: 13-14; Kar, 1997a: passim; Katuzian, 2006: 671-72, 680, 682, 688, 705)

[91](Pishgoftar, 2001: 2-3) The total of the Christian population in Iran was estimated to have declined from the pre-Islamic Revolution level of 315,000 to about 215,000 and the Jewish population from 150,000 to about 30,000 by 2001. (Pishgoftar, 2001: 3)

[92] (Mayer, 2001a: 6, 12, 15-16; Hanessian, 1989: 328)

[93] (Nasiri, 1999b: 14; Namazi, 2000: 1, 3)

________________

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Book Annotations (1986) ‘Commercial Law of Iran by Sayed Hassan Amin’, International Law and Politics 19: 233-34.

Emami, H. (1346/1967) Hoqooq-e madani [Civil Law] Vol. VI. Tehran: Abu-reyhan.

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Emami, H. (1354/1975a) Hoqooq-e madani [Civil Law], Vol. IV. Tehran: Eslamiyeh.

Emami, H. (1354/1975b) Hoqooq-e madani [Civil Law], Vol. V. Tehran: Eslamiyeh.

Frings-Hesssami, Kh. (2001) ‘The Islamic debate about land reform in the Iranian Parliament, 1981-86’, Middle Eastern Studies 37.4:136

Ghani, C. (2000) Iran and the Rise of Reza Shah.  New York: I.B. Tauris

Hanessian, G. (1989) ‘”General Principles of Law” in Iranian-U.S. Claims Tribunal’, Columbia Journal of International Law 27:309-352

Herodotus. The History: Herodotus.  Translated by David Grene. Chicago: University of Chicago Press.

Homayoun, D. (1998) ‘Sad sal az rooznameh negari beh siyasat [One Hundred Years from Journalism to Politics]’, Iran Nameh XVI (2&3), available at website of Iran Nameh:

http://fis-iran.org/index.php/_32/________12345678

Jafari Langarudi, M. (1346/1967) Terminology-e hoguqi [Legal Terminology]. Tehran: Ebn-e Sina.

Kadivar, M. (2004) ‘Political Innovative Ideas and Influence of Molla Mohammad Kazim Khorasani, available at website of M. Kadivar:

http://www.kadivar.com/Index.asp?DocId=827&AC=1&AF=1&ASB=1&AGM=1&AL=1&DT=dtv 

Kadivar, M. (1385/2006). Jaygah-e din va -e mardom dar hokoomat-e mashrooteh az didgah-e akhoond-e khorasani [The Place of Religion and People’s Rights in the Constitutional Government from Akhoond Khorasani’s Point of View], available at website of M. Kadivar:

http://www.kadivar.com/Index.asp?DocId=1031&AC=1&AF=1&ASB=1&AGM=1&AL=&#8230;

Kar, M. (1997a) ‘Amniyat-e qaza’i-e zanan dar iran [Legal Safeguards of Iranian Women], Iran Nameh XV (3), available at website of Iran Nameh: http://fis-iran.org/index.php/_3/373

Kar, M. (1997b) ‘Legal Safeguards of Iranian Women’, Iran Nameh XV (3), available at website of Iran Nameh:

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Katuzian, N. (1385/2006) Qanoon-e madani dar nazm hoqooqi-ye konooni [Civil Law in Current Legal System]. Tehran: Mizan.

Lahidji, A. (2001a) ‘Moroori bar vaze i-e iranian ghayr-e mosalman [A Review of the Legal Conditions of Non-Muslim Iranians], Iran Nameh XIX (1&2), available at website of Iran Nameh: http://fis-iran.org/index.php/_121/200

Lahidji, A. (2001b)’Legal Status of Non-Muslims in Iran’, Iran Nameh XIX (1&2), available at website of Iran Nameh: http://fis-iran.org/index.php/xix1and2

Mansur, J. (1385/2006) Qanoon-e madani [Civil Code]. Tehran: Nashr-e Didar.

Matin Daftari, A. (1349/1970) A’in-e dadresi-ye madani va bazargani [Civil and Business Judicial Procedure], Vol. I. Tehran.

Matin Daftari, A. (1348/1969) A’in-e dadresi-ye madani va bazargani [Civil and Business Judicial Procedure], Vol. II. Tehran: Daneshgah-e Tehran.

Mayer, E. (1995) ‘Islamic Rights or Human Rights: An Iranian Dilemma’, Iran Nameh XIII (4), available at website of Iran Nameh: http://fis-iran.org/index.php?section=volxiii4andxiv1

Mayer, E. (2001a) ‘Tabeez-e jensi va -e bashar dar iran [Gender Discrimination and Human Rights in Iran], Iran Nameh XIX (1&2), available at website of Iran Nameh: http://fis-iran.org/index.php/_121/        1234

Mayer, E. (2001b)’Gender Discrimination and Human Rights in Iran’, Iran Nameh XIX (1&2), available at website of Iran Nameh: http://fis-iran.org/index.php?section=xix1and2

Namazi, B. (2000) The Legal Aspects of Doing Business in Iran. Euromoney Institutional Investor PLC

Nasiri, M. (1999a) ‘Nezam-e qazaii iran pas az enqelab [Judicial System of Iran after the Revolution], Iran Nameh XVII: 4 & XVIII: 1, available at website of Iran Nameh: http://fis-iran.org/index.php/_11/141

Nasiri, M. (1999b) ‘A Review of Iran’s Judicial System’, Iran Nameh XVII: 4 & XVIII: 1, available at website of Iran Nameh: http://fis-iran.org/index.php?section=volxvii4andxviii1

Pishgoftar [Introduction]’ (2001) Iran Nameh XIX (1&2), available at website of Iran Nameh:  http://fis-iran.org/index.php/_121/242

Schirazi, A. (1998) The Constitution of Iran; Politics and the State in the Islamic Republic. New York, I.B. Tauris.

Shaki, M. ‘Daud’, Encyclopaedia Iranica, available at website of Encyclopedia Iranica: http://www.iranica.com/newsite/authors/index.isc

Tabari. K (2003)’The Rule of Law and the Politics of Reform in Iran’, International Sociology 18.1:96-113

Vatani, M. (1363/1984) Majmoo’h-ye kol-e qavanin va moqarrarat-e hoqooqi [Collection of All Civil Laws and Regulations]. Tehran: Ferdusi.

Yeganeh, N. ‘Civil Code’, Encyclopedia Iranica, available at website of Encyclopedia Iranica:

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Zeraat, A. (1384/2005) Qanoon-e a’in-e dadresi madani dar nazm hoqooqi-ye iran [The Law of Civil Procedure in Iran’s Legal System]. Tehran: Ayandeh.

__________________________________________________________________________________

The article entitled Swimming with doctor Matin Da ftari; A brief history of Iranian civil law was prepared at the request of Encyclopedia Iranica,  and published on the following website of Iranian.com on June 13, 2006:            http://www.iranian.com/Tabari/2007/June/Daftari/index.html

That publication in Iranian.com had the following introduction:

Swimming with doctor Matin Daftari

As my friends who attended his classes at the Faculty of Law of Tehran University tell me, Dr. Ahmad Matin Daftari did not suffer fools easily. When a student finished his rambling non-responsive answer to the his question, ostad fixed his gaze at him for a few seconds and then said: “you are like a man who has rubbed his body with oil before going into the sea; you come out not even wet.” I thought of this parable when I recently waded into the Professor’s three volume tomb on Iranian civil procedure. My task was more daunting as I had to retrieve a concise essay that covered not only civil procedure but the much broader topic of the civil law of Iran -which meant diving into many more oceans of sources. 

            This honor I owed to another legendary Iranian Professor. In the cool shades of the garden of an Oxford college last summer, Dr. Ehsan Yarshater pulled me aside at a reception and asked me to write this essay for Encyclopaedia Iranica. I accepted because I have not been able to find a comparable source that would satisfy a need that is obvious.

            While this draft is now making its way in the distillery of the Encyclopaedia, I submit it herewith for publication in Iranian.com, as an appropriate contemporary forum most accessible to interested readers and hospitable to interactive response. The subject may appear dry to the general reader, but I have tried to make it accessible. It is, regardless, an undeniably significant topic as it relates not only to law but also to issues of customs, religion, politics, and modernization. 

            This is the third in the series of my attempts to write on topics of jurisprudence of Iran. You might have seen my previous papers on the Islamic Republic’s Constitution, published in the March 2003 issue of International Sociology, and on Mosaddeq’s Conception of Constitutionalism, posted on Iranian.com in 2006.  As those others, this piece inevitably suffers from the potential shortcomings of pioneer works. I hope it would generate thoughtful critique, resulting in a much better revised version. In the meantime, you would kindly please forgive minor warps, such as errant transliteration. Many thanks.

Constitutional Values in Iran

______________________________________________________________________________________           

Copyright Keyvan Tabari 2009 All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari.                                 

__________________________________________________________________________

abstract: The Islamic Republic of Iran is a signatory  of nearly all major international conventions and declarations on human rights. Together, these proclaim support for a comprehensive list of values which, if honored in practice, could be the foundations of a cherished universal civilization. Many of these values have roots in Persian culture. Heavily influenced by Islam, this culture borrowed from and lent to cultures on its West and East through frequent interactions. To the extent that it evolved in the last fourteen centuries in a different environment of social relations, however, the Iranian society came to define differently what might have once been shared values. That gap has fast been closing recently due to the impact of an increasingly connected and integrating contemporary world. 

keywords: Iran* Constitutional values* Islamic Republic

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Introduction

This paper is submitted as a contribution to a comparative study of constitutional values in selected nations. The goal of the study is to explore the existence of fundamental values shared universally. The contributors are seasoned students of constitutional law representing a number of countries from all five continents. The template for the project was extensively discussed by the authors in a four day meeting in the fall of 2008 at the Rockefeller Institute in Bellagio, Italy.  It was agreed that the project should address such questions as the composition of the core constitutional values in each country, the measure of congruity in their practice, the systems of beliefs shaping those values, and the nature of values restraining the exercise of power. The template also proposed as a guide to facilitate comparison a number of values that appeared to enjoy rather wide universal acceptance: “fairness/justice, equality, honesty/Integrity, community, family, freedom/liberty/independence, responsibility/accountability, compassion/caring, respect/tolerance, life, security, learning/education, dignity, environment, participation/inclusion, democracy, secularism, property, diversity/multiculturalism/pluralism, privacy, religion, and peace.”

This draft relating to Iran is proffered only as an introductory opening on the subject. It outlines the scope of the work and suggests the contours of the conclusions. It is hoped that it succeeds by showing directions for needed further research. That cautionary disclaimer allows certain bold strokes. The paper has undertaken an unprecedented analytical inventory of basic principles in Iran’s 1979 written Constitution based on a direct translation from the original Persian text. It argues that the text of the Constitution is the most reliable source available for investigating Iran’s constitutional values. It considers those values to be heavily influenced by Shiah Islam. It sees the tension between the traditionalists and the modernizers as the main force shaping values in Iran. It deems the non-urban majority population of the country to be still siding with tradition. It gives weight to the power of charismatic leadership as it does also to the complex motivations of those vying for power.  

Background

Iranians proudly trace their recorded history to the Medes who ruled the land more than 2,500 years ago. They have been ruled by many other dynasties since. The more consistent element in their background has been their religion. Islam has shaped their culture since the 7th century. For the last 600 years, the Twelver Shiite School (mazhab) of Isalm has been the state religion; it has been actively promoted by the rulers of Iran as an instrument to unite their subjects against outsiders.

Military defeat at the hands of Russia in the early 19th century awakened the better educated segment of Iran’s small ruling feudal class to the need for modernization. It was not long before these reformers concluded that modernization of the army required reorganization of the autocratic system of government, following the model of European countries. The movement for limiting the king’s power (mashrutiyyat), which is the origin of Iran’s written constitution, gained popular support around the dawn of the 20th century when it won over an influential segment of the clergy. [1]

The system that resulted institutionalized the basic structure of a Western nation-state in Iran. The Shah, however, retained much of his power, paying only lip service to the democratic aspects, and the clergy’s potential influence remained alive, albeit dormant, in the absence of competing agencies of civil society. The modernizing trend of Iran’s constitutionalism, nevertheless, has continued. In that sense the 1979 revolution was one of rising expectations: the Shah failed by violating the old constitution and, on the other hand, by effectively suppressing his critics.

Over 100 political groups made claim to the fruits of the successful Revolution. There was no doubt about which group was dominant; the only unknown was how actively Ayatollah Rouhollah Khomeini and his group of clerics would rule. He made his intention clear within six months. Discarding the draft of the new European style Constitution which he himself had commissioned and approved, Khomeini arranged for a significantly different one to be drafted by an assembly the election of whose members he greatly influenced. Of the 72 members 55 were canonical jurists, many of them long-time Khomeini supporters.[2]

The draft that they produced closely reflected views about government expressed in Khomeini’s books on the subject -many unprecedented.[3] The other stakeholders in the revolution protested against both the process and the text. The nationalist-religious provisional government which Khomeini had installed voted to dissolve the drafting assembly. The government’s party and their nationalist affiliates, as well as the leftist parties, declared that they would boycott the referendum that was to be held to approve the Constitution. At the end, however, all were effectively intimidated by Khomeini who argued that the emergency conditions due to unrest by ethnic minorities and hostility of foreign powers did not allow any further deliberations. They all participated in the voting. The Islamic Republic’s Constitution was approved by 67% of those who voted in 1979.[4]

The supporters of the Constitution have maintained that it took into account the views of all major groups.[5] Indeed, the Constitution retained significant elements of the discarded earlier draft which had been prepared by lay jurists borrowing liberally from the 1958 French Constitution. It also has similarities with the earlier 1907 written constitution. It even addresses several specific constitutional issues that had troubled Iranian politics since then -such as the jurisdiction of the special military court and the legislative authority of commissions of the parliament (Majles)[6]. Its critics, however, are not few. To them the Constitution is not the true repository of Iran’s constitutional values. They argue that it distorts the common meaning of values through qualifications and contradictions.[7] 

 Values in the Written Constitution

 What are the fundamental values in the 1979 Constitution? How are they defined? What kind of society do they envisage? These questions are paramount for this study. The Constitution is a uniquely important document for several reasons. It established the first theocratic regime of our times. Further, it inaugurated an institution novel even in Islamic tradition: the absolute rule of a religious Canonical- Jurist Guardian (vali-ye faqih) over the people. Finally, its many and detailed provisions have been the supreme law of the land as they have remained intact except for a few amendments, in 1988, which only strengthened their existing tendencies.

Notwithstanding the incongruity in practice -which is discussed in the sections below- the text of the Constitution is by far the most reliable available source for investigating constitutional values in Iran. This is because other potential sources are far less helpful. Records of courts interpreting the Constitution have not been compiled.[8]  The body entrusted by the Constitution for authoritative interpretation, the Guarding (negahban) Council, usually limits itself to cryptic rulings, with inadequate indication of its reasoning.[9]  In the tradition of Civil Law countries, legal scholars have made contributions to the evolution and, accordingly, also to the understanding of the legal system in Iran.. A comprehensive commentary on constitutional values, however, remains to be written. As one student of the field has noted, there is no satisfactory work on much of the constitutional history of Iran; even in the best Western universities erroneous assumptions have distorted scholarship in the whole subject of public law in the region.[10]   Nor can we fully trust the nascent attempts by sociologists to gauge constitutional values in Iran. For one thing, quantitative methods such as taking polls could not produce highly credible results in the restricted political environment of Iran. Thus, partly by default, this study is mostly dependent on the written Constitution for its analysis of Constitutional values of Iran.

Despite all its novelty, the Constitution of the Islamic Republic can be described in terms of familiar values. Abstracted, the Constitution of Iran is a blueprint for rule by the religious spiritualists (ruhaniun) in order to establish a community conceived by them through interpreting the mysteries in the word of God as revealed in the Qur’an. The interpretation is done by ejtehad, that is striving in learning and education. These rulers must be just and pious, manifesting integrity and honesty. Their goal is to spread the justice of God in society. This includes respect and tolerance toward non-believers and compassion and caring toward all. Equally it means siding with the weak and oppressed. Liberation from foreign oppressors is a concrete objective. Dignity is a motivating value in this struggle. Reverence for life is thus sublimated, especially since a greater reward is joining the divine in the next world. Individual freedoms are subordinated to collective independence. Extended family is the foundational unit of human bonding. A bigger grouping to link it with the community at large is not encouraged. Individuals are expected to follow the religious guardians at the top of the community. They are urged to select representatives from among candidates approved by the guardians so that they may voice their views on the affairs of the state in the national and local consultative assemblies. The guardians, however, are not accountable to them. Even transparency in their decisions is not offered.

This summary of the values in Iran’s Constitution -and their order of priority-  requires much amplification and explication. The all important nuances can be seen only in a comprehensive digest of relevant provisions. Values such as freedom in the Iranian Constitution are, typically, a hybrid of borrowed and traditional notions. The distinct results of such combining can be understood only by a close reading of the articles of the Constitution. This is attempted in what follows. While familiar patterns are pointed out, the goal of avoiding undue generalization here presages a descriptive narrative. The treatment of values is topical, but occasionally the same provision may appear in more than one place as it serves more than one value. 

The Constitution does not use the specific word “value” in the fundamental normative sense employed in this study. The Persian word arzesh (value) appears twice in the Constitution, but for its other meaning: worth.[11]  There are three other words in the Constitution which connote a meaning close to the fundamental normative “value”. The first is asl (principle) which is used in seven articles, in all but one qualified by the word Islam, referring to the Islamic principles in abstract[12] -save in one instance when that Islamic principle is specified as just and ethical (Islamic) conduct toward non-Muslims.[13]  In one of these articles, in addition to Islam another collection of associated principles is mentioned: freedom, independence, and national unity. The one usage of asl without the qualifying Islam is in reference to the principles on which court decisions must be based.[14]

The two other words connoting value in the Constitution are mabani (foundations) and payeh (basis). In connection with all such usage, the Constitution qualifies them with Islam. In two of these articles the reference is to Islam in abstract but, in addition, also to the specific “the Islamic Republic”[15]; in the third the addition is “the rights of the public”.[16] Still in another article the reference is specific: “unity and alliance of Islamic nations”.[17]

Aside from the aforesaid words which approximate the meaning of “value” -stressing the significance of Islam, nationalism, and populism- constitutional values are manifested in the many rights provided in the Constitution. Only by considering those rights carefully can the full scope of Iran’s constitutional values be grasped. They are enumerated in the following subsections: Community, Family, Spirituality, Learning and Education, Individual Freedoms, Integrity and Honesty, Dignity, Reverence for Life, Independence, Democracy, Transparency, Responsibility, Accountability, Justice, Equity, Equality, Compassion and Caring, and Respect and Tolerance.

Community

The Constitution invokes a Qur’anic verse to declare that all Muslims form a single community.[18]  The community that the Constitution is focused on is, however, the Iranian nation-state, not that Islamic community (ommat). The Constitution uses the term ommat only twice more when it refers to the country’s highest official as the Leader of the Islamic Community.[19] Far more frequently, however, the Constitution employs terms connected with a modern nation -especially mellat (nation) and its derivatives, and keshvar (country) – which are distinguishable from the concept of the community of Muslims.  This national community has the geographic boundaries of Iran.[20]  The Army is responsible to guard the territorial integrity of the country.[21] The Islamic Republic of Iran is based on the belief in national solidarity.[22]   The President takes the oath of office before the Iranian nation to protect the boundaries and independence of the country.[23] The government has the duty to strengthen the foundations of national defense.[24]   National security justifies secret sessions of the Islamic Consultative Assembly (Majles).[25]  A High Council for National Security is established to secure national interests, and defend national sovereignty.[26]  The government must make all efforts to prevent the influence of all foreigners, not just non-Muslims.[27]  Agreements resulting in any foreign control over the pillars of the country are prohibited.[28]

There are, however, Islamic symbols characterizing this nation-state. Its religion is the Twelver Shiite Islam.[29]  Its flag declares the Islamic creed of “No God but Allah”.[30] Its calendar begins with the date when the Prophet migrated from Mecca to Medina.[31]  Furthermore, the Constitution encourages a broader vision of community. While the Shiite designation separates this community from other Muslims, the Constitution still commands the government of Iran to make efforts to bring to realization the political, economic and cultural unity of the Muslim world.[32]  Its foreign policy is to be based on defending the rights of all Muslims.[33]  Furthermore, in reference to even the non-Muslims, it will support the struggle of the weak against the strong everywhere in the world.[34]

Family  

The Constitution calls family the foundational unit of society.[35]  The government has the duty to help in its formation, stability, and protection of its sacredness.[36] There is a right to housing for every family.[37] Family relations must be based on Islamic rights and ethics[38]-which are patriarchal.  Women’s rights require protection and preservation of family by a special family court.  By saying that this court is to preserve keyan (ancestry) the Constitution notes that the concept of family extends beyond the nuclear group.[39] The prophet’s family is regarded as special and blessed[40] and, hence, it is a venerated religious model.  

Spirituality

The Constitution professes faith in a specific, sole metaphysical God, Allah.[41] Man’s ultimate goal is to evolve toward God. God’s laws are just.[42] Human beings must submit to God,[43] and their current Guardian, anointed by God.[44] Islamic principles are immutable. The Constitution cannot be amended or altered with respect to them.[45]

This faith in God -defined by a specific Shia’ school of a specific religion, Islam- is the source of basic epistemological, moral and legal, and ideological consequences. Allah is the Creator. We know about Him through His revelation[46] in the Qur’an.[47] Human beings have a God-mandated reciprocal duty toward each other to enjoin the good and forbid the evil.[48] The State must create an environment for the growth of moral virtues based on faith and piety and the struggle against vice and corruption.[49] Ethics of Islam must be observed in laws.[50]

God is the ultimate law-giver.[51] Man can make laws,[52] but they must be in compliance with God’s laws, or Islamic standards.[53] Judges can decline to apply government regulations which they consider not to be Islamic.[54] Especially, Islamic criminal laws preempt man-made legislation.[55] What is morally forbidden in Islam, such as usury or gambling, is legally a crime.[56] Islamic standards guide economic policy,[57] determine what can be broadcast on radio and television;[58] limit woman’s role;[59] set prerequisite qualifications for the President,[60] judges, and high officials of the judiciary;[61] and establish conditions for the application of justice and the laws.[62]

Spirituality is the source of the ideology of governance by a very small group of Iranian Shiite clergy. A group of six Islamic canonical jurists (foqaha) of the Guarding (negahban) Council determines what are the all important Islamic standards (mavazin) broadly stated in the Constitution.[63] This they do by interpreting the Qur’an and the tradition of Shiite saints.[64] They are appointed by another clergy, the Leader of the Revolution,[65]  who is in turn appointed by a group of clerics called Leadership Experts.[66] While those jurists serve to “guard” Islam, the Leader is deemed to be the current deputy of God on earth with absolute power over the people as their “guardian”.  Their freedom is ultimately defined at his will.

Learning and education

The Constitution considers the continuous ejtehad (striving) of Shiite scholars as the way to achieve its goals of justice, independence, and national unity.[67] Learning is an essential element in ejtehad. A qualification for the high officials of the Judiciary is that they be mojtahed, that is having already achieved a high level of religious learning.[68] The more important members of the Guarding Council who pass on the Islamic compliance of the laws must have a higher learning credential: they must be canonical jurists (foqaha).[69]  For the most important official in the country, the Leader, the highest level of learning which is necessary for issuing mandatory religious decrees (fatwa) in all fields of canonical law is a primary qualification.[70]

The Constitution also recognizes the value of using science and technology for achieving its goals.[71] It mentions education as one of the fundamental needs that must be met in order to achieve freedom and overcome poverty.[72] Free education is promised to all up to twelve years of school, and free higher education to the extent required for the country’s self-sufficiency.[73] The economy is to be based on the principle of using science and technology and training the needed skilled personnel.[74] Economic planning must take into account the need for all in the labor force to have sufficient time and energy to engage in intellectual activities.[75] To help in educating the masses, the use of the Army in peacetime is mandated;[76] and local councils are to be elected to encourage their involvement.[77] While all these provisions apply to all citizens, religious education is considered separately. The followers of the Sunni Schools of Islam are allowed freedom in their religious education;[78] as are the Zoroastrians, Jews, and Christians.[79]

Integrity and honesty

In the Constitution several qualities are mentioned which are close to integrity and honesty. Majles deputies are required to take the oath to be the “just or upright (adel)” trustees of the Revolution’s accomplishments.[80] Being trustworthy -conveyed by the word amin– is also specified in the President’s oath of office.[81] Taqva (piety or virtue) is a primary quality required of the Leader.[82] It is also in the oath of the office of the Majles deputies.[83] In the President’s oath it is substituted by the kin word parsa (devout or committed).[84]

The Constitution reflects regard for the value of honesty in forbidding the use of government positions for personal benefit. Thus all employees of the Executive branch are barred from holding any additional post in any institution financed by the government or any high position in a private company.[85] Similarly, members of the armed forces are banned from personal use of any military equipment or personnel, especially as servants and chauffeurs.[86]

Dignity 

The Constitution declares that belief in the human being’s keramat -meaning nobility, a term close to dignity- is fundamental to the Islamic Republic.[87] The President in taking the oath of office must affirm that he will protect the dignity (hormat) of all citizens.[88] The Constitution forbids, at the penalty of punishment, affront to the dignity of all those detained, imprisoned or banished. Used in conjunction with hormat in this provision is a related word, heysiyyat (reputation).[89]

Reverence for life

The Constitution declares that the life of a person is inviolable except in cases provided by law.[90] The one law which the Constitution specifically mentions and commands to be implemented, Islamic criminal law,[91] puts limits on the reverence for life by allowing capital punishment, based on  retributive or revenge justice (qasas), and by valuing lives unequally -women less than men and non-Muslims less than Muslims. Furthermore, that law sanctions the death penalty even in cases other than murder, such as adultery.[92] 

Individual Freedoms

The Constitution states that the Islamic Republic is based on belief in human being’s freedom (azadi).[93]  More specifically, it recognizes such abstract freedom for all Iranians[94] and all people of the world.[95] As discussed below, however, the Constitution imposes specific restrictions on freedom.

The components of freedom are enumerated as all human, political, economic, social, and cultural rights.[96] The Constitution makes ensuring “political and social freedoms” a main goal of the government.[97] These are elaborated to include -in an extensive list- the right to form “parties, societies, political and professional associations… (and) religious societies”,[98] freedom of publications and press,[99] freedom of expression and dissemination of thoughts on the radio and television,[100] the right to freely hold public gatherings and marches,[101] the right to citizenship and to abandoning it,[102] and the right to choose one’s residence.[103] Furthermore, freedom of belief is guaranteed as no one may be “molested or taken to task” simply for holding a certain belief.[104]  The right to communication by telephone, telex, and telegraph free of inspection, recording, disclosure, and censorship is assured.[105]   No one may be arrested except by the order of the law and by due process, or detained without immediate notice of charges. There is the right to a speedy trial;[106] the right to seek justice from competent courts, and the right to have counsel, even paid for by the state in case of need.[107] Economic rights are specifically included in the Constitution’s definition of human rights. All citizens are entitled to these “basic necessities  …housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family”.[108] The right to choose one’s occupation[109] is augmented by the right to employment opportunities which it is the government’s duty to assure.[110] The government has the duty to make sure that this right to occupation is free from “exploitation” of one’s labor by others.[111] One cannot be denied the fruits of one’s work “under the pretext of” another’s right to ownership.[112] The right to private ownership, on the other hand, is “respected”.[113] These “human rights” are specifically recognized also for all non-Muslims.[114]

 The Constitution imposes restrictions on individual freedom based on the following: rights of others, public rights and interests, interests of the country, national unity, independence, and territorial integrity.[115]  Within those limits, the Judiciary is assigned the task of expanding legitimate freedoms.[116] By “legitimate (mashroo),” the Constitution means religiously legitimate. Two types of legitimate rights are specified. A person is the owner of the products of merely his legitimate business and labor,[117] and only that private ownership is respected that has been legitimately acquired.[118] In many other provisions, the Constitution restricts freedom by the general requirement that they be in compliance with Islam.[119]   The Constitution does not specify the exact Islamic limitations of freedoms. To the extent that future laws could specify individual freedom, the Constitution has designated the canonical jurists of the Guarding Council to decide if they violate the limits of Islamic standards.[120] If the Constitution or statutory laws are silent in a specific instance, then the judge must make his own interpretation based on authoritative Islamic sources or authoritative opinions (fatwa).[121] Judges may also refuse to honor individual freedoms allowed in government regulations based on their own interpretation of Islam.[122]

Independence

When the Constitution speaks of independence it means collective national independence. It considers such independence to be the right of all peoples of the world.[123] It defines this right broadly to include political, economic, social, and cultural and military independence.[124] It deems it so valuable that no one has the right to infringe in the slightest way upon the independence of Iran under the pretext of exercising freedom.[125] The Islamic Republic has the duty to safeguard the independence of Iran;[126] the President must take the oath to guard it;[127] and the Army is responsible for guarding the independence of the country.[128]

Unity is said to be inseparable from independence.[129] National solidarity is mentioned along with independence as a major goal of the Islamic Republic.[130] Territorial integrity is another objective that is said to be inseparable from independence.[131] It is a term often used in conjunction with independence.[132] To preserve independence the establishment of any kind of foreign military base in Iran, even for peaceful purposes, is forbidden.[133] Similarly, the granting of concessions to foreigners for the formation of companies or institutions dealing with commerce, industry, agriculture, mines, and services is absolutely forbidden.[134]. Self-sufficiency in sciences, industrial technology, agriculture, military matters, and the like, is the stated goal.[135] 

 Democracy under the Guardians

The Constitution recognizes the benefits of democracy. It is valued as both contributing to the legitimacy of the rulers and in obtaining the active participation of the people in their support. Democracy is shaped, however, by the overriding value of guardianship: the belief that the ultimate decision must rest with the supervising clerical guardians. According to the Constitution, absolute sovereignty (hakemiyat-e motlaq) over the world and human beings belongs to God, and it is He who has made human beings the masters of their “social destiny”. No one can deprive the human being of this divine right. The nation shall exercise this God given right in the ways that are prescribed in the Constitution.[136] A human being’s mastery of his destiny is not allowed to cover all matters. Certain specified provisions in the Constitution are absolutely “unalterable.” These include the principle of the “Guardian of Our Time (wilayat al-amr) and the Leadership of the Community (emamat-e ommat)”.[137] Accordingly, the powers of government in the Islamic Republic must be exercised under the “supervision” of that Guardian or Leader.[138]

The Leader’s “duties and powers” are far from the mere supervisory. They include: setting the general policies of the country and resolving those problems of the regime which cannot be solved by conventional methods; assuming the supreme command of the armed forces;

appointing and dismissing the chief of the joint staff, the chief commander of the Islamic Revolutionary Guards Corps, the supreme commanders of the armed forces, and the canonical jurists on the Guarding Council and the supreme judicial authority, and formalizing the election of the President and his dismissal.[139] The Leader is a canonical jurist.  He is not necessarily a marja taqlid (Source of Emulation) which requires direct allegiance of individual members of the community. Instead, he is appointed by 86 Leadership Experts[140]  who could also dismiss him.[141] The Experts are chosen by the people.[142] However, the Guarding Council -whose members are in effect the Leader’s appointees-, is responsible for approving the Experts’ qualifications and supervising their election.[143]

People in the Democracy

The Constitution states that the affairs of the country must be administered in reliance on (be etekka) public opinion by the means of election or referenda;[144] elsewhere, resort to “popular votes” is also mentioned.[145] The Constitution specifically provides for election regarding three institutions of government: the Islamic Consultative Assembly (Majles), the Presidency, and the local Councils.[146] All elections, recourse to popular votes, and referenda are under the supervision of the Guarding Council.[147] The authority to interpret the Constitution is vested in the Guarding Council,[148] allowing it to define its right to “supervise” elections as the power to reject candidates to the Majles. The Majles members are to be elected directly and by secret ballot. The qualification of voters and candidates and the conditions of the election will be specified by law.[149]   

The function of legislation is exercised through the Majles, but distilled -including revised through remand- in other organs of government as specified in the Constitution.[150] All laws are initiated in the Majles by its members or the Executive branch.[151]  Majles can pass laws on all matters within the limits laid down by the Constitution.[152] All legislation passed by the Majles must be sent to the Guarding Council which must review it within ten days -extendable for another ten days[153] -to ensure compatibility with Islam and the Constitution. If incompatible it will be returned to the Majles for revision.[154] When the Majles cannot meet the Council’s requirements, the Leader will convene the Exigency Council for “consultation” on what he should do in the best interest of the regime.[155] The President must sign the legislation which has completed these legal stages.[156]

The Majles also has the right to investigate the affairs of the country;[157] to pass the budget;[158] and to approve international treaties.[159] The President must obtain a vote of confidence from the Majles for his cabinet.[160] The Majles may interpolate the Cabinet or an individual Minister, or the President and, if it chooses, pass a vote of no confidence leading to their dismissal -in the case of the President subject to the ultimate decision by the Leader.[161] The President is elected[162] after his qualifications as a candidate have been approved by the Guarding Council.[163] The President only has such executive powers that are not given to the Leader by the Constitution.[164]

To obtain the cooperation of the people, locally elected councils from the village to province levels are provided for in the Constitution so that they may “supervise” the administration of local affairs.[165] Similarly, to ensure cooperation in all units of production, councils of workers, peasants, employees and managers shall be formed in industry and agriculture with powers and functions to be determined.[166]  

Transparency

The Constitution requires transparency in court proceedings and the work of the Majles, but not with respect to the decisions of the more important Guarding Council, the Assembly of Experts, the Exigency Council, or the Leader. The Majles deliberations shall be open and the full minutes are to be published in the official gazette and the state radio. In emergencies due to national security, closed sessions may be held and laws may be enacted, but after the emergency has ceased the minutes and legislation of such closed sessions must be made available to the public.[167] The National Accounting Agency’s report to the Majles on its inspection and audit and its conclusions regarding the way government has spent the general budget shall be made public.[168] The results of Majles’s investigation of complaints to it on issues of public interest must be announced.[169]

Trials are to be held in open court and every person may attend them except in cases where the court decides that it would be detrimental to public morality or public order and in private cases where both parties so request.[170]

Responsibility

The Constitution declares that all people in Iran have the mutual duty to each other to encourage doing good and avoiding evil as commanded by Islam and defined by law.[171] It specifies only one civic duty for all: they must be trained for national defense.[172] In over twenty other Articles, the Constitution assigns specific duties for the State and various government institutions and officials. In one instance, it fails to deliver in the promise to define the duties of one important organ, the Exigency Council.[173] The duties of some are explicitly left to future laws.[174] To one important institution, the Assembly of Experts, is given the right to change its own duties.[175]

Some of the Constitutional duties can be delegated such as some duties of the President.[176] Some cannot be delegated such as the Majles’s duties regarding non-provisional laws.[177] Some duties belong to only certain members of an institution such as to the canonical jurists of the Guarding Council.[178] Some duties are shared by more than one institution such as legislation which is shared by the Majles,[179] the Executive branch,[180] the Guarding Council,[181] the Exigency Council[182] and the Leader.[183]

Accountability

The Constitution considers all human beings accountable to God.[184] The President is accountable to the nation, the Leader, and the Majles.[185]  Every Majles deputy is accountable to the entire nation.[186] The Ministers are accountable to the Majles. The Constitution envisages accountability for the action of one’s appointees, as in the case of the President, for the decisions of his cabinet.[187] It also recognizes joint accountability for colleagues as that of the Ministers for cabinet decisions.[188]

To enforce accountability the Constitution creates a National General Inspector to investigate the work of Administration officials,[189] a National Audit Agency to audit expenditure of the general budget by government agencies,[190] and a Court of Administrative Justice to hear complaints against Administration officials.[191]  According to the Constitution, the Head of the Judiciary shall investigate the assets of the Leader, President, his Deputies, Ministers, and their respective wives before and after holding office to make sure that the assets did not increase unduly.[192] Judges are personally liable for violations in their judgments; they could be brought to court.[193]

The fact that the President, the Majles deputies, and the Experts of Leadership must stand for election provides a popular sanction for their accountability. No such sanction exists for the Leader who is accountable to the Experts -elected from among those candidates allowed by his appointees in the Guarding Council. Nor does it exist for the members of the Guarding Council or the Exigency Council members who are also appointees of the Leader.

Justice

The Constitution values justice as an abstract concept. One of the two primary qualities required of the Leader is being just – the other is being pious.[194] The President must take an oath to uphold justice.[195] The Head of Judiciary [196] and the Chief of the Supreme Court[197] and judges must be just.[198]

In the Constitution justice is sometimes used along with the word haq.[199] Haq could mean both right and truth. Elsewhere, however, the Constitution specifies the justice that it has in mind. It is called God’s justice,[200] Islamic justice,[201] and Qur’anic justice.[202]  While the Constitution envisages man-made laws,[203] it insists that they must conform to Islam. The ultimate arbiter in this test is God’s anointed Guardian, the Leader, after the laws passed by the Majles are first reviewed by the Islamic jurists of the Guarding Council for compliance with Islam.[204] When there is no written law, judges must apply Islamic sources and opinions.[205]

Unequal Equity

 In conjunction with the word justice, the Constitution also uses a term akin to it, Islamic qest (fair share or equity).[206]  The Constitution states that men and women are equal based on Islam.[207] However, not every one has an equal share in Islam. This may help explain the inequality in the system of justice under the Constitution. Their unequal Islamic shares are reflected in both substantive law and procedures such as the evidentiary value of their testimony. The Constitution implicitly confirms this inequality by the very fact of providing special provisions regarding women’s rights.[208] No such specific provision was needed for men.

 Similarly, religious minorities are not equal to Muslims. Judges must be qualified according to Islamic standards.[209] The Constitution is explicit that non-Muslims are to be treated with justice and qest, so long as they do not conspire or act against Islam.[210] Followers of other Muslim Schools are not equal to the Shiites whose different jurisprudence is to be used as the test of Constitutional compliance with Islam. Finally, members of ethnic minorities are not equal to the majority as they lack the latter’s full share of privilege in using their language.[211]

Another jurisprudential peculiarity of the Constitution should be noted here. The Constitution extends the Islamic concept of retributive justice initiated by the State from criminal law into civil matters when it commands that the government seize property that has been legally or morally misbegotten and return it to the rightful owner.[212]

Equal Justice

Within the limits noted above, the Constitution provides the following remarkably detailed system of justice for all. No one is justified to harm others in the exercise of his rights. [213]  Even the Leader is equal to others before the law.[214] The President and Ministers can be tried in court for wrongdoings not related to their work.[215] All persons have the indisputable right to seek justice from courts.[216] Courts are the place all should resort to for justice.[217]  All have the right to counsel and, if they can not afford it, the right to free counsel.[218] All matters are dealt with in courts of general jurisdiction except in specified cases. The   only specified special courts are the military court for military acts and omissions,[219] the Court of Administrative Justice for complaints against acts of government officials,[220] and the special court for the protection of family.[221]

Judges must accept and resolve all disputes properly brought before them.[222] Trials must be open, unless the court decides otherwise.[223] Trials must be speedy.[224] Charges against the press and political crimes must be tried before a jury.[225] Judges must base their ruling on reasoning based on applicable law.[226] There is a presumption of innocence until a court decides otherwise.[227] No act or omission can be deemed a crime based on a law passed afterward.[228] Defamation of a suspect, detainee, or convict is prohibited and shall be punished.[229] There shall be no torture in order to collect information or confession. Confession or testimony obtained under duress is not valid.[230] There shall be no punishment unless based on a court order and carried out in accordance with the law.[231] Independence of judges is promised in that there shall be no removal or transfer of them, except in case of necessity determined by the Head of the Judiciary.[232]  The judiciary shall supervise the proper implementation of the law through a National General Inspectorate.[233]

Compassion and Caring

The Constitution treats compassion and caring as a religious duty toward all, with special attention to Muslims. The scope is extensive and government obligations in this respect are detailed and specific. Majles deputies and the President shall begin their oath of office by the common Iranian invocation of the name of God which stresses that he is compassionate (rahman).[234] A Qur’anic verse (9:71) is quoted in the Constitution to declare that all Muslims are guardians of one another.[235] The Islamic Republic is said to believe in active opposition to the infliction of and submission to all forms of oppression.[236]  The government is commanded to direct all its resources to expand and strengthen Islamic brotherhood and cooperation among all people.[237] Its foreign policy must be based on “brotherly commitment to all Muslims and unsparing support for all the weak of the world”.[238] The Islamic Republic supports the just struggles of the weak against the strong in every corner of the world.[239] It offers political asylum to the deserving.[240]

Among the principle objectives of the economy of the Islamic Republic are uprooting poverty and fulfilling human needs.[241] The government must provide social security services with respect to retirement, unemployment, old age, disability, absence of a guardian and benefits relating to being stranded, accidents, health services, and medical care and treatment.[242] The government must provide all citizens with free education.[243] It must make available means to satisfy the right of everyone to suitable housing.[244] One goal of the Islamic Republic’s economy is to provide the conditions for employment for all.[245] In peace time the Army must be utilized in relief operations, education and construction campaigns.[246] The preservation of the environment is declared to be a public duty.[247]

Respect and Tolerance

 The Constitution states that all Iranians enjoy equal rights, and that color, race, language, and the like, do not bestow any privilege.[248] Religion is missing in this disclaimer and, furthermore, ethnic minorities are not fully equal. The Constitution elsewhere makes it clear that all Iranians equally enjoy all rights in conformity with Islamic standards.[249] The official religion of the country is declared to be the Twelver Jafari Shiite School of Islam, and this is eternally unalterable. Five other named Sunni Schools of Islam (Hanafi, Shafi’i, Maleki, Hanbali, and Zaydi) are fully respected.  The followers of these schools are free to act according to their own religious jurisprudence in religious rites. Such right is also recognized for them in religious education, and personal status matters (marriage, divorce, intestacy inheritance, and wills) and litigations concerning those matters. Further, in areas where followers of any mentioned Sunni Schools are in the majority, local regulations will be based on their teaching, keeping in mind the rights of the followers of other schools.[250]

The Constitution recognizes only three non-Muslim groups- Zoroastrian, Jewish, and Christian Iranians- which are specifically called religious minorities. Like the Sunnis, they are free in performing their religious rites and in personal status matters and religious education may act based on their own rules (a’in).[251] They have the right to send their own elected representatives to the Majlis.[252] These Majles deputies will take their oath of office on their own sacred book. This oath, however, includes the promise to guard the sanctity of Islam.[253] The Constitution provides that the government and all Muslims must treat all others kindly and gently, in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights, provided that they refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran.[254]

As to ethnic minorities, the Constitution declares that Iran’s official language and script are Persian and all official documents and correspondence and text books must be in Persian. Other regional and tribal languages may be used in the press, mass media, as well as the teaching of (only) their literature along side Persian.[255] The Constitution bans regional discrimination in the use of national resources commanding that capital and other facilities be provided commensurate with each region’s needs and capacity for growth.[256]

Priorities among the Constitution’s Values

The Constitution makes one value supreme by declaring that a certain principle prevails over all other provisions of the Constitution:  all laws and regulations must be in accordance with Islamic standards.[257]  This is emphasized by further requiring that Majles legislation[258] and Government regulations not contravene just the Constitution but also Islamic standards, principles and laws.[259] The Constitution then establishes priority for certain other values by stating that its provisions covering them are “unalterable.” These are the principle that Shiah Islam is Iran’s official religion [260]and other principles  relating to “the objectives of the Islamic Republic of Iran, the democratic character of the government, the religious Guardianship of the community, and the administration of the affairs of the country based on national referenda “.[261]

                                                Constitutional Values in Practice

Gaps between Practice and the Constitution

The 1979 Constitution reflects a distinctly Iranian historical experience. Its closest contemporaries, the post-cold war written constitutions of the former Soviet bloc countries might have celebrated the triumph of capitalism and democracy, but the Iranian Constitution, on the contrary, protested perceived Western domination and exploitation. It was as much a manifesto of self-determination as liberation from monarchical autocracy. Indeed, domestic tyranny (estabad) was seen as principally sustained by foreign colonialism (estemar).[262] The hovering evil of colonialism and imperialism was not a new specter; even the Shah and his secular nationalist opponents led by Mohammad Mosaddeq had frequently invoked it. The 1979 Constitution as detailed above leaves no doubt that individual freedoms would be subordinated to the demands of collective national independence. In the era of the cold war cultural independence from both the East and the West was sought in the Persian exceptionalism of Shiah Islam. The new rulers of Iran have justified their practice in this context. They point out that values given priority in the Constitution have been upheld: national independence, Guardianship of the religious leader, compliance with his Islamic standards, and popular elections. They could also argue that they promoted such Constitutional values as education and learning, compassion toward the poor, and dignity. In the broader field of human rights, justice, and equality, however, the gap between practice and the Constitutional values of Iran is too glaring to gloss over.

In the immediate period after the 1979 Revolution individual freedoms mentioned in the Constitution were suppressed. The first waive of suppression began in August 1979 when the most important moderate secular party, the National Front was effectively prevented from further political activity.  By 1981 all parties were brought under control as they were required to have a government permit -not envisaged by the Constitution. In 1983 the most important leftist party, the Tudeh was banned. The Liberation Movement of Iran, the moderate Islamic nationalist party that had formed the first government after the Revolution was gradually and progressively suppressed. In 1990, its leaders were arrested. The official policy was that Iran needed no more than a single party of God.[263]

Contemporaneously, the free press was silenced. Within a year following the Revolution the number of newspapers declined from 444 to about 200. By 1988 there were 121 and they all now adhered to the official line[264] Major pre-Revolution newspapers were taken over by the loyalists. In contrast to them, opposition publications were denied subsidized paper which was vital for their economic survival. A government appointed board was established to supervise the press.[265] Censorship and consequently self-censorship became common. Other mass media faced the same stern policies, as did artists, writers, and scientists.[266]

Freedom of occupation was denied. By 1984, nearly 10,000 high ranking government officials and 3,500 university teachers were purged. New eligibility requirements disqualified many more. High positions in government and the Army were closed to the non-Muslims.[267] Women were, additionally, barred from judicial positions and from studying for certain other professions. Programs for comprehensive Islamization of the culture led more than one million educated secular professionals and intellectuals to exile abroad. Many more who stayed were forced into internal exile, intimidated into avoiding public political and social life.[268]

The judiciary and the Revolutionary Court engaged in unconstitutional interferences in the operation of the free press.[269] Torture of political prisoners was not uncommon.[270] A court to discipline dissenting clergy was established, contravening the Constitution’s bar on special courts expect those it specifically authorized. New laws and court rulings undermined the due process protections of the Constitution[271] and intensified inequality, especially for women[272] and minorities.[273] The wearing of Islamic veil was imposed and polygamy was encouraged.[274]

These gaps between practice and constitutional principles were readily admitted by Iran’s rulers, not the least by their leader, Ayatollah Khomeini. Initially, they proffered as justification the extraordinary conditions which the country faced as the tumult of the revolution was aggravated by the subsequent uprisings of ethnic minorities, active foreign hostility in the form of economic boycott, and the long war of the 1980s with Iraq.[275] The same breaches of the Constitution, however, continued far beyond these emergencies.[276]  By 1997, the United Nations still had an extraordinary special human rights representative assigned for Iran who for the past 16 years had reported on relentless and extensive violations.[277]  That year a Commission appointed by Iran’s new President, Mohammad Khatami, undertook its own investigation. Its findings enumerated six areas where the Constitution had not been implemented, and eight areas where it was being violated: courts jurisdiction; legislation; protection of life, property, and reputation; freedom of belief; freedom of occupation; criminal law and procedure; prohibition of torture; and press freedom.[278]

Systems of beliefs shaping values

Khatami, the regime’s ardent constitutionalist, has explained that the real problem was the Iranian people’s negative attitude toward the law. At best they considered the laws as mere formality. More often they were at war with the whole concept of law.[279] This is not an uncommon observation. The cultural proclivity for lawlessness has been noted by other observers of Iran. It is related to the tendency toward anarchy (harj o marj). The two opposites of anarchy and despotism are a favorite framework for some students of Iranian history.[280]

Ayatollah Khomeini had also made clear his fear of anarchy as it could lead to injustice and insecurity.[281] The view that lawlessness had historical roots in despotism is shared by his critics and supporters alike. The latter emphasize the impact of the rule of the Shahs which they had overthrown.[282] Their critics find despotism in the current regime. Indeed, Khomeini who ruled as an autocrat overriding the legislature, executive branch, and judiciary,[283] claimed that he had the right to absolute rule as the vice-regent of God on earth. These two positions are reconcilable when one considers that prominent clerics as late as the onset of the constitutional revolution argued in support of the absolute rule of the king.[284]

Because of his charismatic personality, his leadership of the Revolution, his position as the religious Source of Emulation, and his active and public involvement in the every day operation of government until his death in 1988, Khomeini has had a unique impact on shaping constitutional values in Iran.[285]  His copious pronouncements in this period, officially complied in the 21 volume Sahifeh-ye nur (The Book of Light), are frequently invoked by the current rulers of Iran. For Khomeini, the Koran contained everything that man needed.[286]  Its mystery, however, could only be known with the help of the select, “initiated in the knowledge (ahl-e marefat),” [287] who were the spiritualists.[288] They, the select clergy, must rule as the guardians of the people.[289] Indeed, according to Khomeini, having the additional facility of guardianship (velayat), was what distinguished the Shiites from the Sunnis, who only had the revelation (vahi).[290]  Khomeini wished that the Constitution which he bequeathed be applied as interpreted by the Shiite canonical jurists.[291]

No single person could be found to replace Khomeini who died in 1989. Instead, a few of his leading clerical followers established a hierocracy that rules in councils, with a Leader who is first among equals.[292] The members of the Assembly of Experts, who choose the Leader, all have to be qualified as learned clergy by the Guarding Council.[293] The cleric members of this Council are appointed by the Leader; its other members are nominated by the cleric who heads the Judiciary, himself appointed by the Leader.[294] The hierocracy has ensured its domination by making extensive use of the Guarding Council’s authority to interpret the Constitution and approve new laws -especially the criminal code, civil code of civil procedure, press law, and the law on qualifications of judges. The hierocracy has established new supervisory, security, economic, and judicial institutions to safeguard its increasing powers.[295] Correspondingly, it has reduced the role of the elective organs of the government. The Guarding Council has asserted a Constitutional right to approve candidates for President and the Majles- broadly interpreting its right to supervise their election. The requirement that the Leader be a Source of Emulation – who depends on the direct affirmation of confidence by the people – has been eliminated by amending the Constitution. Decisions of the ruling Councils are made in closed sessions and announced oracularly. Typical is the Guarding Council which generally does not offer explanatory reasons for it cryptic rulings.[296]  The non-clerics who have been employed by the hierocracy for their needed special expertise have shared its inclination toward authoritarianism.[297]

Unabashedly ideological (maktabi), the hierocracy has used its power of government, and its control of the media, the mosques, and Friday prayer gatherings to impose its own values on society. Believing that it has attained power through a popular revolution,[298] it has been eager to obtain signs of public support through frequent elections.[299]

The hierocracy’s value system does not allow freedom of belief. It allows only such belief that is based on thought and not on emotions.[300] Liberalism is denounced because it tolerates all beliefs. In doing so, liberalism hinders a person’s transcendence to Godliness; it lowers him to the level of animals.[301] Humanism is denounced as it is based on taking distance from God.[302] Everything is the wish of God.[303] Materialism is renounced.[304] Reaching the divine is the ultimate goal.[305] This world is worthless.[306] The sacrifice of life for God is a source of joy.[307] Iranians must fight foreign cultural invasion.[308]  They should not “mimic” them as such an imitation is deplorable begging.[309] The great foreign powers only aim to exploit Iran.[310] Only when the messianic rule of the just (hokoomat-e adl) is established, will everyone be free to express their diverse views. Until then, in these unsettled (ashofteh) times and turbulent environment the people may argue with each other, but they must always remain united.[311] Tolerance of sectarian and ethnic minorities must be balanced with caution regarding the danger of their irredentist demands encouraged by foreign enemies.[312]

Some of these pronouncements resonate even with those educated Iranians who had been looking abroad for guidance in modernizing their country. They share the national resentment toward a history of Russian territorial ambitions and Anglo-American economic exploitation and political meddling in Iran.  They differ, however, on the meaning of such values as freedom and democracy, not just with the hierocracy but even among themselves, since for some these notions came from Socialist sources and for others from capitalist countries. These mostly urban Iranians have not mattered much to the hierocracy as they have been in external or internal exile[313] -their discourse is dismissed as based on a superficial impression of Western culture, without regard to Iranian traditional values.[314] Far more important for the hierocracy has been the mostly rural population of Iran, including those who were just migrating to the cities. They were the core of the tradition-bound majority.[315] They have been deemed to be “submissive,” “sinecure,” “non-assertive,”[316] “always expecting someone from above to solve their problems.”[317] In short, they were ideal subjects for the rule of the Guardian.

Long isolated in small towns and villages, this majority’s attachment to tradition has been strong.[318] Their tradition is patriarchal both in their treatment of women and in exhausting social capital on the family, extended to the clan. From here they have no intermediate social grouping until the abstract community of Muslims. Islam has dominated their world view: their notion of reality, their rules of conduct, and their concept of government.[319] In a broad sense, they follow their prayer leader (pishnamaz). The elite of the hierocracy has reflected affinity with this social behavior. Their political factions have been clusters formed around prominent personalities where “connections” and not “principles” mattered.[320]

Values restraining exercise of power

The clerical rulers and their subjects, however, live in a nation-state that is Iran of today. This is a society with different needs from the agricultural, nomadic, and mercantile community for which the Islamic law was developed. Khomeini recognized this fact when he boldly decreed that the pursuit of the interest of the State could justify not only the violation of the Constitution, but even prevail over the fundamental ordinances of Islam.[321] The absolute rule of God’s vice-regent, on occasions, has had to yield to pressures from the people as a modern state could not last long in opposition to them.

Accordingly, when the very women who were mobilized in the service of the Revolution, the war with Iraq, and the enforcement of Islamic public demeanor, awakened to their legal inequality with men, their demands were heeded by the hierocracy who toned down the implementation of Islamic marriage and divorce laws and allowed women to practice law and serve as court advisors in civil cases.[322] Similarly, demands by workers forced the hierocracy to avoid Islamization of labor laws which would have barred government regulatory intervention in labor relations. Farmers prevented plans to comply with Islamic law’s respect for private property through the reversal of the Shah’s land reform measures. The importance of education, especially sciences and technology, for the cherished goals of economic self-sufficiency and independence could not be denied.[323]  Finally, the need for greater participation by the people in the reconstruction after the Iraq war, especially in the private sector, made the government promise to ease restrictions on forming associations.[324]

People who took part in the Revolution have now become, as a result, almost fearless in expressing their criticisms openly in the streets.[325] Tehran’s “shared” taxis are notorious venues. Equally important are student gatherings. The number of university students has grown exponentially as the State has heeded the Constitution’s call for education as a necessary tool to achieve its goals. Iranian Presidents have famously attended student forums to defend charges voiced against the regime.[326] Even these inchoate types of venting force caution in the exercise of power. In the same vein, the rulers of Iran are pressed to profess honesty, dignity, and integrity which are the values lauded by the Constitution.[327]

The Iranian hierocracy is also sensitive to international criticisms of its conduct. It has felt unease in the fact that the United Nations had lumped it with regimes -such as the Taliban of Afghanistan- which Iran has condemned for their records of human rights violations.[328] It has considered this “a challenge to its sense of dignity (kasr-e sha’n),” compelling a response. It has implicitly acknowledged the weakness of its arguments that the United Nations’ condemnation was political, instigated by Iran’s enemies,[329] and did not take into account Iran’s special culture. Even the Leader is said to have called for restraint in government’s human rights abuses,[330] mindful of the Constitutional values to which Iran has also committed itself in at least twenty two major international conventions and agreements.[331]

The 1979 Iranian Constitution attempted to harness the meaning of the universally familiar terminology of values it espouses by subjecting them to Islamic standards. That qualifier may only delay the convergence of the Iranian meaning of those values with the global standards in an increasingly integrating world. In reconciling with modernity, Iran’s Shiah tradition would be helped by the three characteristics that separate it from Islamic rigidity: its espousal of rationalism (falsafeh aqli); its active embracing of change (ijtehad); and its roots in the mellow temperance of mysticism (erfan).

_______________________________________________________________________________

Notes

[1] Adamiyyat, 1976:203, 225-28, 460

[2] Schirazi, 1998:32

[3] Khatami, 2000: 428; Kadivar, 1999: 166-68

[4] Schirazi, 1998: 47-52

[5] Mehrpur, 2001: 228

[6] Tabari, 2006

[7] Schirazi, 1998: 1, et passim.

[8] Katuzian, 2006:18

[9] Mehrpur, 2001:49, 64, 65, 108

[10] Amir Arjomand, 1996: 332-34

[11] Constitution: Arts. 2.5, 38

[12] Constitution: Arts. 4, 12, 26, 85, 172

[13] Constitution: Art. 14

[14] Constitution: Art. 166

[15] Constitution: Arts. 67, 115

[16] Constitution: Art. 24

[17] Constitution: Art. 11

[18] ibid

[19] Constitution: Arts. 109, 177

[20] Constitution: Art. 78].

[21] Constitution: Art. 143

[22] Constitution: Art. 2.6

[23] Constitution: Art. 121

[24] Constitution: Art. 3.11

[25] Constitution: Art. 69].

[26] Constitution: Art. 176

[27] Constitution: Art. 3.5

[28] Constitution: Art. 153

[29] Constitution: Art. 12

[30] Constitution: Art. 18

[31] Constitution: Art. 17

[32] Constitution: Art. 11

[33] Constitution: Art. 152

[34] Constitution: Art. 154

[35] Constitution: Art. 10

[36] Constitution: Arts. 10; 43.1

[37] Constitution: Art. 31

[38] Constitution: Art. 10]

[39] Constitution: Art. 21.3

[40] Constitution: Art. 17

[41] Constitution: Art. 2

[42] Constitution: Art. 2.3

[43] Constitution: Art. 2.1

[44] Constitution: Arts. 2.5, 177

[45] Constitution: Arts. 12, 177

[46] Constitution: Art. 2.4

[47] Constitution: Art. 2.6-1

[48] Constitution: Art. 61

[49] Constitution: Art. 3.1

[50] Constitution: Art. 10

[51] Constitution: Art. 2.1

[52] Constitution: Art. 72

[53] Constitution: Arts. 72, 85, 61, 91

[54] Constitution: Art. 170

[55] Constitution: Arts. 61, 156

[56] Constitution: Art. 49

[57] Constitution: Art. 44

[58] Constitution: Art. 175

[59] Constitution: Art. 21

[60] Constitution: Art. 115

[61] Constitution: Art. 162

[62] Constitution: Arts. 61; 167

[63] Constitution: Art. 96

[64] Constitution: Art. 2.6-1

[65] Constitution: Art. 91

[66] Constitution: Art. 107

[67] Constitution: Art. 2.6

[68] Constitution: Arts. 157, 162

[69] Constitution: Art. 91

[70] Constitution: Art. 109

[71] Constitution: Art. 2.6

[72] Constitution: Art. 43

[73] Constitution: Arts. 30; 3.3

[74] Constitution: Art. 43.7

[75] Constitution: Art. 43.3

[76] Constitution: Art. 147

[77] Constitution: Art. 100

[78] Constitution: Art. 12

[79] Constitution: Art. 13

[80] Constitution: Art. 67

[81] Constitution: Art. 121

[82] Constitution: Arts. 5, 109

[83] Constitution: Art. 67

[84] Constitution: Art. 121

[85] Constitution: Art. 141

[86] Constitution: Art. 148

[87] Constitution: Art. 2.6

[88] Constitution: Art. 121

[89] Constitution: Art. 39

[90] Constitution: Art. 22

[91] Constitution: Art. 156.4

[92] Ebadi, 2004: 76-84, 88

[93] Constitution: Art. 2.6

[94] Constitution: Art. 121

[95] Constitution: Art. 154

[96] Constitution: Art. 20

[97] Constitution: Art. 3.7

[98] Constitution: Art. 26

[99] Constitution: Art. 24

[100] Constitution: Art. 175

[101] Constitution: Art. 27

[102] Constitution: Art. 41

[103] Constitution: Art. 33

[104] Constitution: Art. 23

[105] Constitution: Art. 25

[106] Constitution: Art. 32

[107] Constitution: Art. 34

[108] Constitution: Art. 43

[109] Constitution: Art. 21

[110] Constitution: Art. 43.2

[111] Constitution: Art. 43.4

[112] Constitution: Art. 46

[113] Constitution: Art. 47

[114] Constitution: Art. 14

[115] No one is free to choose an occupation that might be against the rights of others (Constitution: Art. 28], publication and press are not free to say what might harm “public rights”(Constitution: Art. 24] and no one is free to choose an occupation that might be against public interest (Constitution: Art. 28), publication and press are not free to say what might harm the interests of the country (Constitution: Art. 175), the formation of parties, societies, political or professional associations, and religious societies are allowed provided that they do not violate national unity (Constitution: Art. 26], and no one has the right to infringe upon the political, cultural, economic, and military independence of Iran under the pretext of exercising freedom (Constitution: Art. 9].

[116] Constitution: Art. 156.2

[117] Constitution: Art. 46

[118] Constitution: Art. 47

[119] The Islamic Republic is a system based on belief in human being’s freedom “coupled with responsibility before God” (Constitution: Art. 2.6). Publications and the press have freedom of expression except when that harms the foundations of Islam (Constitution: Art. 24). The formation of parties, societies, political or professional associations, and religious societies are allowed provided that they do not violate Islamic standards (mavazeen) (Constitution: Art. 26). Freedom of expression and dissemination of thoughts on the radio and television is to be guaranteed with due respect to Islamic standards (Constitution: Art. 175). Human rights of those non-Muslims are respected who refrain from engaging in conspiracy or activity against Islam (Constitution: Art. 14). All citizens enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic standards (Constitution: Art. 20). Public gatherings and marches may be freely held provided that they are not detrimental to the foundations of Islam (Constitution: Art. 27). Everyone has the right to choose any occupation he wishes, if it is not contrary to Islam (Constitution: Art. 28). The judiciary is entrusted with the duty to implement Islam’s criminal law and regulations (Constitution: Art. 156.4). Every person has the duty of intrusion in others’ life, imposed by the Islamic mandate to “enjoin the good and forbid the evil” (Constitution: Art. 8).

[120] Constitution: Art. 4

[121] Constitution: Art. 167

[122] Constitution: Art. 170

[123] Constitution: Art. 154

[124] Constitution: Arts. 2.6, 9, 121

[125] Constitution: Art. 9

[126] Constitution: Art. 3.11

[127] Constitution: Art. 121

[128] Constitution: Art. 143

[129] Constitution: Art. 9

[130] Constitution: Art. 2.6

[131] Constitution: Art. 9

[132] Constitution: Arts. 9, 3.11

[133] Constitution: Art. 146

[134] Constitution: Art. 81

[135] Constitution: Art. 3.13

[136] Constitution: Art. 56

[137] Constitution: Art. 177

[138] Constitution: Art. 57

[139] Constitution: Art. 110

[140] Constitution: Art. 107

[141] Constitution: Art. 111

[142] Constitution: Art. 107

[143] Constitution: Art. 99

[144] Constitution: Art. 6

[145] Constitution: Art. 99

[146] Constitution: Art. 6

[147] Constitution: Art. 99

[148] Constitution: Art. 98

[149] Constitution: Art. 62

[150] Constitution: Art. 58

[151] Constitution: Art. 74

[152] Constitution: Art. 71

[153] Constitution: Art. 95

[154] Constitution: Art. 94

[155] Constitution: Art. 112

[156] Constitution: Art. 123

[157] Constitution: Art. 76

[158] Constitution: Art. 26

[159] Constitution: Art. 83

[160] Constitution: Art. 87

[161] Constitution: Art. 89

[162] Constitution: Art. 114

[163] Constitution: Art. 110.9

[164] Constitution: Art. 113

[165] Constitution: Art. 100

[166] Constitution: Art. 104

[167] Constitution: Art. 69

[168] Constitution: Art. 55

[169] Constitution: Art. 90

[170] Constitution: Art. 165

[171] Constitution: Art. 8

[172] Constitution: Art. 151

[173] Constitution: Art. 112

[174] Constitution: Art. 150

[175] Constitution: Art. 108

[176] Constitution: Art. 127

[177] Constitution: Art. 85

[178] Constitution: Art. 96

[179] Constitution: Art. 58

[180] Constitution: Art. 74

[181] Constitution: Arts. 91, 94, 96, 97

[182] Constitution: Arts. 112, 177

[183] Constitution: Arts. 110, 112

[184] Constitution: Art. 2.6

[185] Constitution: Art. 122.

[186] Constitution: Art. 84

[187] Constitution: Art. 134

[188] Constitution: Art. 137

[189] Constitution: Art. 174

[190] Constitution: Arts. 54, 55

[191] Constitution: Art. 173

[192] Constitution: Art. 142

[193] Constitution: Art. 171

[194] Constitution: Art. 109

[195] Constitution: Art. 121

[196] Constitution: Art. 157

[197] Constitution: Art. 162

[198] Constitution: Art. 158.3

[199] Constitution: Art. 121

[200] Constitution: Art. 2.4

[201] Constitution: Art. 154

[202] Constitution: Art. 1

[203] Constitution: Art. 61

[204] Constitution: Art. 96

[205] Constitution: Art. 167

[206] Constitution: Arts. 14; 104

[207] Constitution: Art. 20

[208] Constitution: Art. 21

[209] Constitution: Art. 163

[210] Constitution: Art. 14

[211] Constitution: Arts. 15; 19

[212] Constitution: Art. 49

[213] Constitution: Art. 40

[214] Constitution: Art. 107

[215] Constitution: Art. 140

[216] Constitution: Art. 34

[217] Constitution: Art. 159

[218] Constitution: Art. 35

[219] Constitution: Art.  172

[220] Constitution: Art. 173

[221] Constitution: Art. 21

[222] Constitution: Art. 167

[223] Constitution: Art. 165

[224] Constitution: Art. 32

[225] Constitution: Art. 168

[226] Constitution: Art. 166

[227] Constitution: Art. 37

[228] Constitution: Art. 169

[229] Constitution: Art. 39

[230] Constitution: Art. 38

[231] Constitution: Art. 36

[232] Constitution: Art. 164

[233] Constitution: Art. 174

[234] Constitution: Arts. 67; 121

[235] Constitution: Art. 8

[236] Constitution: Art. 2.6.3

[237] Constitution: Art. 3.15

[238] Constitution: Art. 3.16

[239] Constitution: Art. 154

[240] Constitution: Art. 155

[241] Constitution: Art. 43

[242] Constitution: Art. 29

[243] Constitution: Art. 30

[244] Constitution: Art. 31

[245] Constitution: Art. 43.2

[246] Constitution: Art. 147

[247] Constitution: Art. 50

[248] Constitution: Art. 61

[249] Constitution: Art. 20

[250] Constitution: Art. 12

[251] Constitution: Art. 13

[252] Constitution: Art. 64

[253] Constitution: Art. 67

[254] Constitution: Art. 14

[255] Constitution: Art. 15

[256] Constitution: Art. 48

[257] Constitution: Art. 4

[258] Constitution: Art. 112

[259] Constitution: Art. 85

[260] Constitution: Art. 4

[261] Art. 177

[262] Khatami, 2000: 434

[263] Schirazi, 1998: 125-131

[264] Schirazi, 1998: 135

[265] Mehrpur, 2001:313-14

[266] Schirazi, 1998: 136-38

[267] Mehrpur, 2001:109, 172

[268] Schirazi, 1998:138-139

[269] Mehrpur, 2001:110-11, 117-118

[270] Mehrpur, 2001:114

[271] Mehrpur, 2001:127, 130

[272] Schirazi, 1998: 141

[273] Mehrpur, 2001:175

[274] Schirazi, 1998: 141

[275] Mehrpur, 2001:34, 100, 229

[276] Mehrpur, 2001:228

[277] Schirazi, 1998: 138

[278] Mehrpur, 2001:243

[279] Mehrpur, 2001:34-35

[280] Katouzian, 1999: xii-xiii;  Adamiyyat, 1976:196, 198, 202, 481

[281] Khomeini, 1990:39, 137

[282] Mehrpur, 2001:35, 230; Khatami, 2000: 11, 17, 436

[283] Schirazi, 1998: 61-62, 64-66, 74

[284] Adamiyyat, 1976:200, 266-67

[285] Some of Khomeini’s views had been expressed before by religious proponents of absolute  rule of the king (Adamiyyat, 1976: 200-201, 166-67).

[286] Khomeini, 1990:20, 21, 102, 125; Schirazi, 1998: 17

[287] Khomeini, 1990:21, 83

[288] Khomeini, 1990:19

[289] Khomeini, 1990:157; Schirazi, 1998: 55

[290] Khomeini, 1990:157

[291] Mehrpur, 2001:34, 100

[292] Tabari, 2007:122; Sadjadpour, 2008: 1, 28

[293] Schirazi, 1998: 20, note 30

[294] Tabari, 2007:120

[295] Schirazi, 1998: 151

[296] Mehrpur, 2001:49, 64, 65, 108

[297] Schirazi, 1998: 131; Sadjadpour, 2008: 8, 13

[298] Khomeini, 1990:5, 50, 84; Schirazi, 1998: 50; Sadjadpour, 2008: 3

[299] Khameneh’i, 2007: 14-16, 19

[300] Schirazi, 1998: 145

[301] Khatami, 1993: 136-7, 205; 1997: 32; Schirazi, 1998: 146

[302] Schirazi, 1998: 143

[303] Khomeini, 1990:236

[304] Khameneh’i, 2007: 17

[305] Khomeini, 1990:18

[306] Khomeini, 1990:3, 130

[307] Khomeini, 1990:17, 59, 187; Sadjadpour, 2008: 11; Khameneh’i, 2007: 13

[308] Schirazi, 1998: 146; Sadjadpour, 2008: 17-18

[309] Khomeini, 1990:242

[310] Khomeini, 1990:238; Sadjadpour, 2008: 15-16

[311] Khomeini, 1990:238

[312] Sadjadpour, 2008: 13, 14

[313] Khomeini, 1986: 131; Khatami, 2000: 435

[314] Khomeini, 1986: 131; Khatami, 2000: 435

[315] Tait, 2008; Schirazi, 1998: 32, 138-139, 292; Sadjadpour, 2008: 2

[316] Mehrpur, 2001:318

[317] Mehrpur, 2001:40; Matin Daftari, 1970: noon-sin; Matin Daftari, 1969: dibacheh-ye chop-e avval, ghayn-zhe

[318] Schirazi, 1998: 291

[319] Tabari, 2007: 135; Mansurian, 2004; Emami 1967: be; Sadjadpour, 2008: 10; Mehrpur,  2001:319-320;  Adamiyyat, 1976:245, 352-53

[320] Tabari, 2007:117; Mehrpur, 2001: 320; Schirazi, 1998: 101

[321] Akhavi, 1996: 262-6; Mehrpur, 2001:229

[322] Schirazi, 1998: 141-42

[323] Sadjadpour, 2008: 11, 22; Khameneh’i 2007, 17-18

[324] Schirazi, 1998: 135

[325] Mehrpur, 2001:32

[326] Tabari, 2007:134-135

[327] Khomeini, 1990: 242, 245; Sadjadpour, 2008: 1, 9

[328] Mehrpur, 2001:104-105

[329] Khomeini, 1986: 23, 63-64, 260

[330] Mehrpur, 2001:104-105

[331] Ebadi, 2004: 135-327

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References

Adamiyyat. F. (1976) Ideologie-e nehzat-e mashrutiayyat-e iran [The Ideology of Iranian Constitutional Movement]. Tehran: Entesharat-e Payam

Akhavi, S. (1996) ‘Contending Discourses in Shi’ah Law on the Doctrine of Wilayat al-Faqih’, Iranian Studies 29 (3-4): 229-68.

Constitution of the Islamic Republic of Iran (1979) the translation available (on April 14, 2008) at: http://www.iranonline.com/iran/iran-info/Government/constitution.html

Ebadi, S. (2004) Hogug-e bashar dar iran [Human Rights in Iran]. Tehran: Roshangaran va Motaleat-e Zanan.

Emami, H. (1346/1967) Hoquq-e madani [Civil Law] Vol. VI. Tehran: Abu-reyhan.

Kadivar, M. (1999) Hokumat-e vela’i [The Guardianship Government]. Tehran: Nashr-e Nay.

Katouzian, H. (1999) Musaddiq and the Struggle for Power in Iran. London: I.B. Tauris.

Katuzian, N. (1385/2006) Qanoon-e madani dar nazm hoqooqi-ye konooni [Civil Law in Current Legal System]. Tehran: Mizan.

Khameneh’i, A. (2007) ‘Leader’s Speech at the Commemorative Ceremony Marking the 18th Departure Anniversary of Imam Khomeini’; available (on December 6, 2007) at: 

http://www.leader.ir/langs/en

Khatami, M. (1993) Bim-e mowj [Fear of the Wave]. Tehran: Simay-e Javan.

Khatami, M. (1997) ‘The Interview’, trans, M. Buffington and M. Buffington, Meet Mr. Khatami, The Fifth President of the Islamic Republic, pp. 1–52. Washington, DC: Middle East Insight.

Khatami, M. (2000) A’in-o andisheh dar dam-e khodkamegi [Religion and Thought Trapped in Tyranny]. Tehran: Tarh-e No.

Khomeini, R. (1986) Sahifeh-ye nur [The Book of Light], Vol. 18. Tehran: Sazman-e Madarek-e Farhangi-ye Islami.

Khomeini, R. (1990) Sahifeh-ye nur [The Book of Light], Vol. 20. Tehran: Sazman-e Madarek-e Farhangi-ye Islami.

Mansurian, N. (2004) ‘Goftogoy-e enteghadi-e daneshjooyan fa rais-e jomhour [Critical Dialogue of Students and the President],’ Rooznameh Shargh, 7 December; available (on January 7, 2006) at: www.sharghnewspaper.com/830917/html/index.htm

Matin Daftari, A. (1348/1969) A’in-e dadresi-ye madani va bazargani [Civil and Business Judicial Procedure], Vol. II. Tehran: Daneshgah-e Tehran.

Matin Daftari, A. (1349/1970) A’in-e dadresi-ye madani va bazargani [Civil and Business Judicial Procedure], Vol. I. Tehran.

Mehrpur, H. (2001) Rais-e jumhur va mas’uliat-e ejray-e qanun-e asassi [The President and the Responsibility of Implementing the Constitution]. Tehran: Entesharat-e Ettela`at.

Qanun-e asasi jumhur-ye islami-ye iran [Constitution of the Islamic Republic of Iran] (1979); available (on January 18, 2008)  at: http://www.gozaar.org/template.php?id=423

Sadjadpour, K. (2008) Reading Khamenei: The World View of Iran’s Most Powerful Leader. Washington: Carnegie Endowment.

Schirazi, A. (1998) The Constitution of Iran; Politics and the State in the Islamic

Republic. New York: I. B. Tauris.

Tabari, K. (2007) ‘The Rule of Law and the Politics of Reform in Post-Revolution Iran’, in S.A. Amirarjomand (ed.) Constitutionalism and Political Reconstructions, pp. 115-137. Leiden: Brill.

Tabari, K. (2006) ‘Musaddiq’s Conception of Constitutionalism -Based on his Arguments before the Court that tried him in 1953,’ available on April 14, 2008 at: http://www.iranian.com/Tabari/2006/September/Constitutionalism/index.html

Tait, R.  (2008) ‘As the regime Cracks down, life goes on behind closed curtains’ The Guardian, 7 January; available (on April 13, 2008) at: http://www.guardian.co.uk/world/2008/jan/07/iran.pressandpublishing

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This paper was submitted as a contribution to a comparative study of constitutional values in selected nations based on a template discussed by the authors in a four day meeting in the fall of 2008 at the Rockefeller Institute in Bellagio, Italy.

Law and Social Conditions: ADR for Transitional Americans

[This was a lecture given at the Golden Gate University (San Francisco) Law School in April 1998]

 

ADR for Transitional Americans: Mediation as the Preferred Method

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Copyright 1998- Keyvan Tabari.

The information contained in this article may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of Keyvan Tabari.”

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This is a brief about the impact of culture on law.

I will present it to you and ask you to judge it. I propose you do that by asking me questions, challenging my assumptions and conclusions, and offering your comments and ideas.

In the Bay Ares, we live in a community where a material number of people are transitional  Americans. For the purpose of this brief,  transitional Americans are those who are not sufficiently socialized to interact with the legal system quite the same way as the system presumes for its subject. The rebutting of that presumption is the argument of this brief. As the operative consequence, I submit that because of their differences, for the transitional Americans mediation is the preferred method of ADR.

Now let us first more precisely identify transitional Americans. They are not necessarily the same as hyphenated Americans, ampersand Americans, ethnic Americans, or first generation Americans, although they could be any or all of the above.

They are, however, mostly those who were born abroad. This is a crucial fact. Not claiming any special knowledge of child psychology, I nevertheless believe that the early years form quite  a bit of one’s outlook. The later in life one migrates to the States, the more he or she brings their the cultural heritage of their land of birth. Transitional Americans also include those who, even if they are only children of foreign-born, happen to remain not-socialized, e.g., due to living in a cultural ghetto. There have been few of these in the past, but they could increase by trends favoring ethnic ghettos.

People come to this country from all of the world. Although according to the U.S. Census Bureau Latin America and Asia were the primary sources of newcomers in 1997, your own episodic observation would tell you that there are many more nationalities represented in the newcomers to the Bay Area. Specially, the nearly insatiable demand of the high tech industries in recent years has brought in a group from diverse lands who though not huge in sheer number, are significant because of their legal needs and impact.

But let us talk about numbers. In 1997, 9.6 percent of U.S. residents were born elsewhere. This is the highest percentage since 1930. The foreign-born peaked at 14.7 percent in 1910. [AP, April 9, 98, the Internet] I have not read any analysis of the impact of such a huge percentage of the population on the working of the American legal system in the early part of the century. But I venture the guess that is was not as great as the significant impact of the foreign-born today. For one thing, a century ago, the immigrants were almost all European. Secondly, their mobility and mobilization were much more limited. Thirdly, the legal system was not as sensitive to their needs. On the last point consider this: in those days legal documents were mostly prepared in long-hand. The pace of life was slow; change did not take place fast. By the time the legal system got around responding to the special needs of the transitional Americans they were dead. Their successors in such right to change had become socialized, melted in the pot. They did not need the change.

Now some more numbers. In San Francisco, according to the S.F. Chronicle’s data bank, 26.7% of the residents are foreign-born. We are not sure if that is the current statistics which could show even a higher percentage. But 26.7 is almost 3 times higher than the 9.6% national average. Ponder this figure: in nearly 60% of the simple two-party cases, you could potentially expect to have a foreign-born party. What does this mean?

First, remember that historically mediation became a preferred method of dispute resolution among the yet not-assimilated Jews and Chinese. To them the attraction of mediation was symptomatic of their rejection of an unfamiliar legal system, including its dominant method of resolving disputes by judicial means. The lumping together of such diverse communities as the Chinese and Jews is instructive in this conclusion. Despite internal differences we can make certain generalizations applicable to all transitional Americans regardless of their country of origin. This is for two reasons: not only to all of them the American legal system is unfamiliar; but also the cultural outlook, that is the attitude and behavior, toward law in the rest of the world is so different from that in the United States that in contradistinction we can treat all foreign-born the same way (as one) for much of this brief. Let me just give you a few examples. Nowhere in the world you have nearly as many lawyers per capita as in the United States. In international business negotiations the prominent role of the lawyer for the American side contrasts sharply with the subdued role of the lawyer for the non-American side, indeed sometimes he is not even brought to the negotiations at all! This I can tell you from first hand experience of nearly 23 years of practice. And, of course, the rest of the world is puzzled at the role that the judiciary is playing in what to them seems to be a political battle between the presidency and a congress controlled by a different party.

What are the common characteristics of the attraction of mediation, versus judicial resolution and arbitration, for the transitional Americans? Let me enumerate some candidates, not necessarily in the order of significance, based on my own experience.

1. The cost is less. Transitional Americans are far less likely to accept high legal costs than socialized Americans.

2. Mediation is possible without hiring an attorney. Transitional Americans are much more reluctant to hire an attorney. They are more likely to want to represent themselves, with their own arguments.

3. Mediation is the quickest way to resolve a dispute. Transitional Americans are less ready than the socialized Americans to accept the prolonged stress of litigation as a fact of life.

4. In more than 80% of cases mediation leads to a conclusive resolution of the dispute. This near certainty of the outcome appeals to the transitional Americans who are mostly unaccustomed to and uncomfortable with the unpredictability of the largely discretionary judge and jury decision-making, which is unlike a system familiar to them where laws are mostly statutory.

5. The terms of the resolution are not imposed by the mediator, but are the results of the agreement of the parties. This gives a valued sense of controlling the outcome that mitigates the anxiety the transitional Americans feel about an unfamiliar legal system

6. In case of failure of mediation, there still remains the right to arbitration and judicial resolution. This escape option allows the transitional American to approach mediation more relaxed. It is more valuable to them than for the socialized Americans, because, again, even mediation is a device of a system less familiar to them.

7. Knowledge of the law is not necessary for participation in mediation. This helps the transitional American to use the logic and means of persuasion he normally uses, which are usually less akin to American legal reasoning than are those of the socialized Americans.

8. Rules of evidence and procedure are not observed in mediation. These are areas almost arcane to the transitional Americans. The extra-legal context of the dispute is often more important to them than to the Americans who are socialized to compartmentalize the legal context. They are more likely to take a view broader that the law; they would want to deal with the underlying (sometimes long-standing) emotional aspects of the dispute.

9. Mediation is more familiar to them than the other methods of dispute resolution. Asking a third party to facilitate negotiations is both universal and ancient.

10. Mediation can be held at any place that parties choose. Not only does this provide for the desired convenience, but it also gives mediation the informality that makes it more accessible to the transitional Americans. The value of this element is reflected in the fact that a transitional American is more reluctant than a socialized American to meet his attorney in the latter’s office. He prefers his own office or home as the venue.

11. Mediation is possible in any shared language of the parties, which often might not be English. This is a major advantage over judicial resolution and arbitrations which must be conducted in English (at least, to allow the observance of the rules of evidence). Mediation in another language, however, requires that the mediator also speak that language.

            This requirement creates a problem, but it also points out a significant qualification for mediators in cases involving transitional Americans.

            The problem is that the pool of otherwise qualified mediators will be limited if being versed in a language other than English is requirement. On the other hand, even if all the transitional American parties are well versed in English, the pool of otherwise qualified mediators is limited by another requirement: the mediator must have sensitivity and awareness of the impact that the different outlook of the transitional Americans has on the process of mediation. Let us explore this more.

            Consider the fact that mediation is essentially really facilitated negotiations between the parties. My experience is that international negotiations are more complex than domestic negotiations, because in them parties manifest dissimilar expectations rooted in different cultural values. Let me give you some examples from a recent article I posted on the Internet.

            “In negotiating an [agreement] an American would ordinarily be more interested in limiting his exposure, while his foreign counterpart may focus on enlarging the scope of his authority; the American would aim at direct expression of his goals, while his counterpart may prefer circumspection; the American would seek pragmatic solutions to the problems, while his counterpart may insist on logical consistency; and the American would want clarity in the projected plans [for settlement], while his counterpart may desire the flexibility of nuanced vagueness . These objectives, observed in dealing with different nationalities, may not be incompatible, but their synthesis requires understanding and finesse [by, inter alia, for our purpose, the mediator].

In crafting an international agreement (including a mediated settlement agreement), even the basic task of communication could be difficult. In order for the parties to express their intent unmistakably, a shared language is essential. English may well have become the (global) lingua franca, but often it is not the native tongue of one or more of the parties to the negotiations. In such circumstances, the same word could have different connotations for various parties, allowing for potentially conflicting interpretations. The awkward language sometimes found in international agreements and conventions is symptomatic of this problem and the unsatisfactory attempts to deal with it.

 

Nonverbal communications are equally important in international negotiations. They, too, are rooted in the diverse cultural backgrounds of the parties. What is an innocuous pause for one party in response to a proposal during the negotiations could appear portentous to another, and thus adversely affect the negotiations. The choice of the negotiators, the scheduling of the negotiations sessions, and the social events arranged in connection with the negotiations (lunch?) all could deliver messages with unintended significance.

Disparate cultures also produce distinct styles of negotiations. Some emphasize bargaining for every part of the settlement agreement, while others aim at long-term relationships. Some require decision-making by consensus, while in other cultures one person makes the significant decisions. What might be acceptable practice in some cultures, may appear unethical in other cultures. All of these differences must be fully taken into account for the international negotiations to reach fruition.”

            You have probably read about the few studies undertaken about mediation across cultures in the United States, including the one by the University of New Mexico Schools of Law and Sociology. A noteworthy conclusion in the latter study is that, at least in the context of civil disputes where the amount in controversy is less than $5,000, the otherwise apparent disparity in mediated outcome for white disputants compared with disputants of color (the latter receiving fifteen percent less if claimant, and paying eighteen percent more if respondent), disappeared when the case was meditated by two co-mediators of color.

            To some “[t]his strongly suggests that the ethnicity of the mediators… has a powerful impact on the outcome of the mediation…. We don’t know what causes this… that is, whether mediator actions and attitudes, disputant actions and attitudes, or both, are causing these results, [but] we do know that there is a problem which cannot be dismissed by saying that a good mediator can mediate anything.” [Bennet & Hermann, The Art of Mediation, pp. 115-116]

            Having said that, there are ways for any mediator to become better at serving a transitional American disputant. His or her competence is bound to improve by training in awareness, attitude, and behavior. Here are some suggestions for the mediators, offered by an observer, in which I concur:

    “. Be self conscious of your tendencies toward stereotyping and labeling                       

            . Recognize the limits of your own ability to understand someone from a different cultural background 

            . Anticipate different expectations from participants than you would have                       

            . Don’t assume that what you say is being understood or that you understand what is being said

            . Assume that differences within a given culture are profound, perhaps as great as differences between cultures

            . Seek information about the way people in different cultures view the problems or the situation 

            . Take the time to learn about people as indviduals

            . Test and validate your hypotheses and assumptions that relate to culture. [Id. p.117]

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This article titled ‘ADR (Alternative Dispute Resolution) for Transitional American is a lecture given at the Golden Gate University (San Francisco) Law School in April 1998.

Law, Religion, and Protocol of Civility

 

 

Protoco1 of Civi1ity in the Dialogue of Religions

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Copyright@ 2001 Keyvan Tabari. All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari.

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 The traditional American protocol of conversation in a sports bar calls for avoiding topics of religion and politics altogether. Chris Russo, the “Mad Dog” host of the sports-talk show at New York’s celebrated radio WFAN, has articulated the rule: “I hate to get involved in it. Religion, politics, you’re wasting your time. One ear, and out the other.”

You simply don’t mix sports and religion. Charlie Ward, a player for the New York Knicks, recently failed to observe this protocol at demonstrable cost. He caused a major controversy by telling the New York Times his views about the Jews: “Jews are stubborn,” “They had (Christ’s) blood on their hands,” “There are Christians getting persecuted by Jews every day.”

You would think that all the fans of Russo’s talk show would condemn the expressing of such views. Not so. Here is how one caller saw it: “If you are a practicing Jew, part of being that is believing that the Christians don’t have it right. And if you’re a practicing Christian, if you really believe it, you believe the other guys are wrong, so how come, when people say the things they know they think, everyone gets all fired up? I think it is silly.”

But what about coexistence between the Jews and Christians? The caller would not be mollified: “Coexisting peacefully is one thing, but if you’re a man about it, and you choose a religion, whatever it might be, part of that is saying, -Well, you know what? I think the other guys have got it wrong, maybe, and that’s why I’m picking this one.'”

Does the “First Amendment” right, then, perhaps compel a duty to exercise freedom of expression? Another caller did not think so: “It was a couple years back where it seemed that after every game, after every win there was a reference to God being on their side, and I mean, it’s just ridiculous to think that God is on one team’s side in a stupid basketball game.”

So, religious expressions have a proper, and therefore, limited place. Right? The caller thought so. “I mean, if you wanna go with recovering from a serious ailment or something like that and God is on your side, I’m all for it. But a basketball game? Please. I mean, enough already.” [The New Yorker, May 7, 2001]

But where exactly do you draw the boundaries of the sphere of religion? The response depends not so much on the metaphysics of morality as on the practical requirements of the statecraft. The First Amendment to the United states Constitution begins with “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Just 11 days after its ratification, on New Year’s day 1802, the newly elected President Thomas Jefferson interpreted this clause to mean that thus, the American people built “a wall of separation between church and State.

To the extent that Jefferson’s wall keeps religion out of the affairs of the State, it is controversial. No less a figure than the present Chief Justice of the Supreme Court, William Rehnquist, has blamed “Jefferson’s misleading metaphor, II for freighting the establishment clause and causing bad decisions by the Court in the recent half a century: there is no foundation, “in language or intent of the Framers,” that they meant to build such a wall. [Wallace v. Jafree, 1985 in [hhtpjjwww.achw.orgjspecs.html]]

On the other hand, Jefferson was replying to the Danbury Baptist Association, in Connecticut, that had solicited his support in their hope to keep state out of Religion: “Our sentiments are uniformly on the side of Religious Liberty – That Religion is at all times and places a matter between God and individuals- That no man ought to suffer in name, person, or effects on account of his religious Opinion.” Jefferson was eager to concur: “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith .or his worship; that the legislative powers of the government reach action only, and not opinion I shall see … the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.” [hhtpjjmembers.truepath.comjsaltsitejpage 18a.html] 

This, of course, was merely an affirmation of the Constitution, reflecting the raison d’etre of the Puritans’ escape to this land: to worship in ways they deemed pure, free from domination of the Church of England. [Robert L. Bartley, The Republic’s Debt to Religion, WST, Apr. 16, 2001 ]

Promoting religious free-thinking was also the original goal of the oldest continuous international interfaith organization, the International Association for Religious Freedom (IARF), which was founded, under a different name, in Boston on May 25, 1900. Consisting of Unitarians and other Liberal Religious Thinkers and Workers,” from the united states, England, and four European countries, it aimed “to open communication with thqse in all lands who are striving to unite Pure Religion and Perfect Liberty, and to increase fellowship and cooperation among them. II In the following year, a representative from the Brahma Samaj movement in India, and one representing liberal religious groups in Japan joined the new organization. [Robert Traer, A Short History of the IAEF, [hhtp//www.geocities.com/-iarf/shorthistory.html]

 Even before, the first Parliament of World Religions which was held in Chicago in 1893, provided a forum for dialogue among Christian spiritual leaders and theologians, Zen, Jain, Vedanta, and Buddhist monks, a Moslem, Shintos, Zoroastrians, and Confucians. Among the remarkable pronouncements made at the Parliament was a profound theological one: “We must try to listen for the understanding of our own faith, in the faith of the other.” [Dianna Eck, in interview, A Parliament of Souls, pp. 92-93] But the Parliament which was fortuitously convened in conjunction with the World Columbian Exposition was not institutionalized. The second Parliament would not meet until a hundred years later. 

  In the meantime, scholars grounds among followers of diverse faiths,) but the perception of the common man did not change easily. Thus emblematically, in 1923 the Supreme Court stripped a Sikh from … [Dianna Eck, in interview, A Parliament of Souls, p. 92, see p. 5] It was not until 1965, when the new immigration law abandoned the system of national origin quo that the door was opened to many immigrants of different fait s. [More than a million legal immigrants arrive in this country every year. A Parliament of Souls, p. 5.]. The resulting religious landscape has been dramatic. All of cities in the United States are multi-religious now. [Dianna Eck, in interview, A Parliament of Souls, p. 88] What may appear as a suburban home, an industrial building, or store in a shopping center may in fact be a Hindu, or a Buddhist, or a Vietnamese temple or a mosque. [Dianna Eck, in interview, A Parliament of Souls, p. 88 “Because we are all together in this, aware of one another, and within shouting distance, if you will, of every religion, every belief system, every individual ‘the old ways of … exclusivism can not do for us anymore.’ [Michael Tobias, quoting Diana Eck, Introduction, A Parliament of Souls, p. 5] Fortunately, [m]ost of us are not so hung up on racial identity that we can’t be comfortable with a member of another race and relate to them and enjoy their company.” [Imam W.D. Mohammad, in interview, A Parliament of Souls, p. 236)

Interfaith dialogue could take many forms: parliamentary style, institutional, theological, community (to achieve better relationships), spiritual (to learn about prayer and meditation), and inner (conversation with self). [Dianna Eck, in interview, A Parliament of Souls, p. 92) The Internet has facilitated dialogue among religions. The North American Interfaith Networks lists a selection of 31 web sites and online indices, and runs an interfaith chat room, hosted by the veteran observer participant Bettina Gray.

The goals and the results of interfaith dialogue have been several. As Gray says, “[h]onest encounter eventually means a surrender of misconceptions in the face of contradictory evidence.” critical evaluation need not be abandoned. It is hard, however, to “throw stone,” when “no religion has an exclusive claim on authoritarian abuse, hypocrisy, … the perpetuation of violence” Further, “[k)nowing the worst is not a reason to avoid examining the best…” [Bettina Gray, Preface, A Parliament of Souls, p. 14)

Secondly, interfaith “dialogue is not simply about understanding one another, but developing a deeper understanding of ourselves.” In that sense it enhances each one’s religion. Religious or secular, we have to encounter the question of our own identity “in the context of people whose faith is different.” [Dianna Eck, in interview, A Parliament of Souls, pp. 90, 93]

 Thirdly, we are Contemporary America compels “pluralism” which requires an encounter producing mutual education and exchange and living together in the common give and take of life.” [Dianna Eck, in interview, A Parliament of Souls, p. 88.)

On the first Sunday of the new century, the Episcopal Bishop William Swing stood up at the Berkeley Buddhist Monastery to welcome the guests from the Downes Memorial Methodist Church in Oakland, California. “The idea that Buddhists and Methodists can make peace and this was not possible a short time ago, that news is going to inspire Hindus and Sikhs, Muslims and Jews to make the same discovery.” [UAR, 72 Hours] Reconciliation of religions is another fruit of the dialogue.

Indeed, fifthly, from this exchange a multilayered spirituality is emerging. Especially among the young Americans, a considerable syncretism of religious belief and practice could be observed, such as remaining a Presbyterian while at the same time exploring Zen Buddhist teaching. “Even more common is the phenomenon of picking and choosing a belief from a variety of sources,” while remaining within organized religions, which results in “Vegetarian Unitarians, Lambs for Christ, Quakerplians, Creation-Spirituality Catholics, macrobiotic kosher observant Jews” [Wade Clark Roof, A Generation of Seekers, quoted in [A Parliament of Souls, p.93]

We have not yet arrived at one world religion. But, sixthly, we have expanded our definition of religion. Hans Kung, attending the Second Parliament of World Religions, in Chicago described his religion: “I cannot prove, but I have reason to trust that there is a deep meaning in our lives that we have to discover, that we are coming from somewhere and going to somewhere, that even death is not the end or everything. So that is, of course, religion. We call this God in our Jewish/Christian/Muslim tradition. II [ In interview, A Parliament of Souls, pp. 128-129.] Thus he lumped together the majority of the religious (52% of the world population) as the followers of basically one religion. [ A Parliament of Souls, p. 88]

 Middle Eastern monotheism, which also encompasses the Baha’is and Zoroastrians, still leaves out 13% of the population of the world who, as Hindus [A Parliament of Souls, p. 88], have many more gods, three hundred and thirty million gods to be exact. They are, however, brought in by Eck’s definition of god.

 [In Hinduism] there is the sense of the visual nature of… [our] apprehension of the divine. We are people of the book and of ear. It’s ‘Hear, 0 Israel,’ or the sense of the logos as revealed. There is in the Hindu tradition a sense of the abundance of the divine. And our main human problem is opening our eyes, to be able to see the divine in the many, many places where God shows Godself, you might say. So polytheism isn’t about the numbers of gods there are. It’s about the abundance of the divine in the world. [ In interview, A Parliament of Souls, p. 91]

 In this manner, the only major religious group this is excluded are the Buddhists (6% of the population of the world), along with a few other groups (Sikhs, Jains, and Confucians who together constitute a mere 0.55% of the world population). [A Parliament of Souls, p. 88] The Buddhists simply do not consider the question of God relevant. Buddhism, however, is not deemed incompatible with God. [Alan Lou, “To the best of our knowledge,” KQED, Sun 6.17.01] And Dalai Lama’s encompassing definition of religion is accepted by others in the interfaith dialogue: “I believe, in spite of different philosophies, all religions teach us to be a good person. Those human qualities such as patience, tolerance, forgiveness, mutual respect- these are the essence of religions.” [In interview, A Parliament of Souls, p. 62]

 Sant Rajinder Singh explains that what the. Sikhs have in common with other religions is the message of universal harmony underlying all other realities. [Michael Tobias, Introduction, A Parliament of Souls, p. 6] Kung refers to this “ultimate reality” as God [Kung, in interview, A Parliament of Souls p. 129.  http://www.cpwr.org/calldocs/Call InstTOC.html]; while some prefer to call it “spiritual reality”.-[Kung, in interview, p. 129; and Michael Tobias, Introduction, A Parliament of Souls, p. 6] Accordingly, the agenda of the 1993 Parliament of World’s Religions was to discuss the role of religion and spirituality [http://www.cpwr.org.aboucpwr.html p. 1]; and the 1999 Parliament of World’s Religion recognized that the Ultimate Reality could be called various names, including the Absolute, God, or Great Spirit, by its different constituent “traditions”.  [http://www.cpwr.org/calldocs/Call_InstTOC.html. p. 3]

 Spirituality is perhaps a more encompassing term than religion. It was defined by members of the 1993 Parliament, variously, as the belief in “the possibility of a whole new civilization built upon love, compassion, and living in sustainable kinship with earth;” the ability to forgive; and the commitment to freedom of thought and equality between men and women. [sri Chidanandan Sarawati, Brother Wayne Teasdale, Rabbi Emil Fackenheim, Rabbi Irving Greenerg, Susannah Heschel, Azizah AI-Hibri, all summarized by Michael Tobias, Introduction, A Parliament of Souls, p. 6]

But what is “tradition”? The 1999 Parliament implied that the followers of a tradition, are also religious and or spiritual persons, and “center their lives in an Ultimate Reality.” [http://www.cpwr.org/calldocs/Call InstTOC.html, p. 3] However, another major interfaith organization, the United Religions Initiative (URI), assigns a distinction to tradition, at least when used in conjunction with “indigenous”. In its application for membership form, “Cooperation Circle Information,” URI specifies as its diversity requirement for each circle, “at least three members from different religions, spiritual expressions, or indigenous traditions.” The disjunctive “or” indicates that the reference in URI’s Preamble to “religions, spiritual expressions and indigenous traditions” (and the same language in singular cases in its Principles) should not be interpreted as subsuming tradition as a part of religion or spirituality. Special deference paid to indigenous people at URI’s meetings enhances the impression that with the addition of tradition, URI means to “unite” (or build bridges among) more than just “religions”, or spiritual peoples. Does tradition then expand the definition of “faith” in the interfaith dialogue? And what is the next step in this broadening of the definition of the concept which began as “religion”?

 The dialogue with the other than religious, of course, has taken place. In 1991, thirty two Nobel laureate and other eminent scientists circulated an Open Letter to the American Religious community urging them to take measures to change in the values of civilization in order to prevent the destruction of human habitat: “Efforts to safeguard planetary environment need to be infused with a vision of the sacred and as a universal moral priority.” Major coalition of American Christian and Jewish organizations responded and, in 1993, established the National Religious Partnership for the Environment. [http://www.nrpe.org/nrpefiles/newabout.html. pp.1-2]

 The 1993 Parliament of World Religions issued a statement called Towards a Global Ethic: An Initial Declaration, setting forth principles for “behavior”. [Hans Kung, in Interview, A Parliament of Souls, p. 125; http://www.cpwr.org/calldocs/Call Intro.html p. 4]. To develop this into A Call to Our Guiding Institutions for the 1999 Parliament of World’s Religion, views and assistance of “leaders, scholars, workers, teachers, executives, interpreters, activists, ethicists, and others” were solicited.[http://www.cpwr.org/calldocs/Call_InstTOC.html. p. 1] The Call was in recognition of the fact that “the choices shaping a just, peaceful, and sustainable future are choices we must make together. Unique to this moment is the possibility of a new level of creative engagement between the institutions of religion and spirituality and the other powerful institutions that influence the character and course of human society.[http://www.cpwr.org/calldocs/Call Intro.html. p. 2] The call was addressed, in addition to religious organizations, to institutions of government, agriculture, labor, industry, and commerce, education, arts and communications media, science and medicine, international intergovernmental organizations, and organizations of civil society.[http://www.cpwr.org/calldocs/call InstTOC.html. P. 4]

It is a detailed exploration of “new modes of creative engagement of each institution with every other and with the critical issues which confront the planetary community. [http://www.cpwr.org/99Record1.html]

 The World Conference on Religion and Peace (WCRP) held its 1999 World Assembly in Amman, Jordan with “civil and political leaders from across the world” attending, as well as the religious and faith leaders. It points out that the religious communities are “the largest and most well organized forms of civil society in the world today,” and it has mobilized this force “often in close cooperation with governments and preeminent civil counterparts” in the areas of Conflict Transformation and Reconciliation, Human Rights and Responsibilities, the Child and the Family, Development and Ecology, Disarmament and Security, Pace Education. [ttp://www.wcrp.org/profile/whois.html. pp. 1-2]

 This spring, the Pope was, once again, practicing his version of protocol in the intercourse of religions. He was on a historic visit to Athens “where he voiced regret for all sins committed by Catholics against Orthodox” Christians. Then he went to the Great Umayyad Mosque in Syria to pray, and to urge that Moslem and Catholic clergies “present our two great religious communities as communities in peaceful dialogue, never more as communities in conflict.” The pundit’s promotion of interfaith dialogue had already taken him to Israel the previous year in his crusade against anti-semitism. [The Los Angeles Times, May 7, 2001] Thus the graceful contrition for the inquisition– which began at the other Ummayyad Mosque, in Cordoba– was now complete.

The United Nations has proclaimed this, the year of the Dialogue of Civilizations, heeding a call first made by a Shiite cleric, who is the current President of Iran. six years earlier, at the invitation of the United Nations, Bishop William Swing of San Francisco hosted an interfaith service on the occasion of its 50th anniversary of the founding of that world organization.

From that service grew the united Religions Initiative with the ambitious goal of inviting all “to join in imagining what a United Religions might be.” [United Religions Initiative, Building Global Interfaith Cooperation]

The idea of interfaith exchange is, of course, not new. The first Parliament of Religions met in Chicago in 1892. What distinguishes URI from those earlier efforts…is its institutionalization of interfaith dialogue and, hopefully, collaboration. It is fast becoming an effective global congregation of people of diverse faiths; along the way it has received the enthusiastic blessing of Mother Teresa and Dalai Lama, among others.

 Perhaps the old protocol of avoidance is becoming obsolete. We may have no choice but to engage in talks about our religions, and politics. If so, we need to develop a protocol of civility for our dialogues.

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 This article titled ‘Protoco1 of Civi1ity in the Dialogue of Religions was written in 2001.