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

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                                     Copyright© Keyvan Tabari. All Rights Reserved.
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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
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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.

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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)

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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

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