Background

Following the constitutional reforms of 1906, Iran laid the foundations for a modern judicial system based on the French model. True, the 1906 reforms were not completed right away: the religious establishment that had enforced Sharia law for centuries maintained power for another two decades.

But in 1925, Reza Shah established a secular judicial system as a part of his modernisation programme. Judicial independence was also reinforced through a constitutional amendment, Article 81. During the subsequent 50 years, Iran had no Sharia courts. There were other problems, however: the judicial system was weakened by the introduction of military courts that were aimed at political opponents and did not involve a jury. Additionally, the law did not treat all citizens equally.

In 1979 Sharia law returned to Iran in the wake of the revolution, and the Islamisation of the judiciary began. Clerics became judges; eventually, the entire judiciary fell under control of the religious establishment. Secular judges were forced into retirement or dismissed. Iran ceased to adhere to the UN principles and international resolutions which it had signed. The situation remains the same today.

“The biggest harm that the Islamic Republic has actually inflicted on the Iranian society is what it has done to the law and judiciary—the reform of which is going to take a few generations.”
— Karim Lahidji, International Federation of Human Rights and Iranian League for the Defence of Human Rights

Challenges

In order to prepare for the future, the workshop participants sought to identify the most important challenges in the present. These include:

  • Lack of Independence: The Supreme Leader appoints the head of the judicial system. The government controls the Ministry of Justice, and trains and promotes lawyers and judges. As a result, judges carry out political favours and financial corruption is the norm.
  • Inequality: There is no proper system in place to protect individual rights, which are secondary to Islamic law. Justice is at the mercy of the cleric judges. Women have no right to be judges.
  • Lack of Transparency: Regime servants conduct secret investigations and have unlimited detention powers. Lines between judges and prosecutors are blurred.
  • Corruption: Bribery and misappropriation of funds are common practice. The judicial system serves as a lucrative business for those in charge of it.
  • Weakness of Civil Society: There is no mechanism to demand or enforce change. Although projects designed to explain the concept of rule of law have been launched, they have not yet had a full impact.
  • Education: Lawyers and judges are ideologically trained. Those educated in Islamic seminaries receive employment privileges.
  • Women’s Rights: The abolition of family courts has deprived women of their rights in marriage, divorce and child custody. Women also suffer from the widespread use of Sharia law, which recognizes a woman as only one half the value of a man.
“An independent judicial system is the backbone of any democracy. You cannot have a democracy without an independent judiciary and vice versa. You cannot have an independent judiciary without a proper democratic system”

—Hamid Sabi, Sabi & Associates

The Way Ahead

To establish a modern, secular legal system, one that complies with UN standards and meets international norms, the government and judiciary must be separate. But what are the practical considerations?

Political Framework

True judicial reform cannot take place without a constitutional reform that guarantees the protection of civil and political rights.

One advantage for Iran is that the country’s former Constitution is still part of national collective memory. Iran has also signed a number of international conventions. These can serve as a starting point.

Continuity

A process must be in place to replace the existing system. Simply dismissing the entire judiciary—though some workshop participants thought this might be the only solution—would leave a void that could potentially take years to rebuild. Options include:

  • Nominate a non-partisan judicial panel to appoint judges
  • Invite qualified lawyers and judges (those who received independent education and were retired or banished) to set-up interim courts
  • Implement a formal review and a plan for retraining and re-educating legal professionals who are open to reform, similar to South Africa’s “sunset clauses”.

Citizen Involvement

  • Beginning with top-down reform and having results to show will gain citizen involvement, which is crucial to legitimacy
  • Educate journalists—their reporting of the legal process will lead to much-needed transparency
  • Civil society—changing mentalities and raising public awareness about the importance of constitutional law
  • Without a cultural change, the law will be open to misuse and corruption. This discussion can begin now.
“The Constitution is a very important starting point, but then there is a long, long way to go. And with such people, the other question is what do you do? Where do you draw the line? Where do you close the past and open the future?”

—Adam Lazowski, University of Westminster

Role of the International Community

  • Despite a deep skepticism of foreign actors, identifying a support group of trusted non-partisan professionals can facilitate future change:
  • Provide access to information and exposure to legal mechanisms outside of Iran; for example, translation of legal theory from European books, creation of documentaries on constitutional justice and examples of historical transitions
  • Set-up distant learning and training centers to “train the trainers” of the incoming judiciary or to retrain the open-minded legal professionals within Iran
  • Supply courts with adequate technology to function, which will lead to efficiency and reinforce legitimacy.

Role of Domestic Activists

Several participants offered examples from other countries. Julio Faundez pointed out that in Chile, a group of lawyers and legal professionals put together a proposal with 100 points and sent it to others in the legal establishment even before the Chilean transition from authoritarianism to democracy was complete. Most of the proposals were eventually adopted after the transition. Perhaps something similar could be set up in Iran?


To review a summary of discussions on transitional justice, click here.

To review related workshop papers, click here.