THE FUTURE OF IRAN: JUDICIAL REFORM Is there a Future for Iran s Judiciary?

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1 THE FUTURE OF IRAN: JUDICIAL REFORM Is there a Future for Iran s Judiciary? By Hamid Sabi GLOBAL TRANSITIONS PROSPERITY STUDIES

2 THE FUTURE OF IRAN: JUDICIAL REFORM Is there a Future for Iran s Judiciary? ABOUT THE AUTHOR: Hamid Sabi Hamid Sabi was born in Tehran, Iran on 18 July His father, Musa Sabi, was a prominent lawyer in Iran who acted for multinational companies and major governments. Hamid Sabi completed his studies in Tehran University in 1970 with a BA in economics and obtained an LLB Degree from Dundee University in Scotland (1974). Between 1974 and 1979 he practised in the firm of Musa Sabi Law Offices. He left Iran after the Iranian Revolution in October 1979 and established Sabi & Associates Law Offices in London, where he practises to this day. Hamid Sabi has acted for multi-national companies and various governments. He represented American nationals in the Iran-US Claims Tribunal in more than 40 cases. Hamid Sabi has been active in human rights issues involving Iran and has co-operated with human rights organisations and activists. This working paper was produced for the Legatum Institute s workshop on Judicial Reform in May The workshop was part of The Future of Iran project, which is designed to encourage Iranians to begin thinking about the challenges they will face if, or when, they suddenly find themselves in a position to carry out major political, social and economic reforms. Iranian s were the first nation in Asia to rise against the autocratic rule of the kings and demand their rights be respected. The movement in 1905, which in these days would be termed as pro-democracy movement, succeeded in 1906 when the king signed an edict authorising the establishment of a parliament and free elections. It is possible that Iran was the first Asian country to have a constitution. Parliament was established and populated with representatives of the people. However, the people soon realized that a fair judicial system was needed to support this fledgling democracy. The main complaint of ordinary people was the chaotic and corrupt judicial system led by the clergy who exposed citizens to the mullah s whims and excessive demands. From all provinces, people began sending telegrams to Tehran requesting a bill of rights. Eventually a supplemental constitutional law was passed that, at least on paper, protected the rights of individuals, equality before law, and the establishment of a court system. It was not, however, easy to wrest the Judiciary from the control of the clergy. The clergy claimed to be the only group qualified to pass judgments and, to some extent, the parliament was under their influence. The government was also careful not to cross the red lines that the clergy had set. Despite the establishment of the Ministry of Justice and the adoption of rules of procedure, the Judiciary remained in chaos. Eventually, in 1925, the then Minister of Justice, Ali Akbar Davar, who was protected by his powerful ally, Reza Shah, took a bold step by dissolving the entire judicial system and setting up a new system of justice based on the French system. His main aim was to reduce the influence of the clergy in the administration of justice, but he was careful not to clearly spell this out, and somehow managed to ally himself with some of the strongest religious powers (including Modarress, one of the most powerful, religious members of Parliament). 1

3 THE LEGATUM INSTITUTE The efforts of Davar and his legacy provided Iran with a Judiciary that was semiindependent. As always, there were red lines that the Judiciary did not dare to cross, especially during the autocratic rule of Reza Shah, and also after the collapse of the National Government of Mosadegh in 1953, and establishment of the unchallenged rule of Mohammad Reza Shah. The Judiciary generally functioned well, although it became more corrupt towards the end of Mohammad Reza Shah s rule and the red lines started moving in many directions. Nevertheless, the judiciary showed some teeth and independence in 1978, just before the collapse of the Monarchy and establishment of the Islamic Republic of Iran. With the establishment of the Islamic Republic, respect for the rule of law was abandoned; the advent of the Revolutionary Courts and their total disregard and disrespect for the rules of procedure and rights of individuals turned the court system and Iran s judiciary into an unashamed instrument of power and terror for the regime. With the establishment of the Islamic Republic, the rule of law was abandoned My dear colleagues, Karim Lahiji and Mehrangiz Karr, have spoken extensively about the mismanagement of justice during the 33 years of the Islamic Republic of Iran. It is a matter of regret that the movement that started 107 years ago the successful establishment of Edalat-Khaneh and the House of Justice is now back to square one, where again, the Judiciary is run by the mullahs, and regrettably, it has generated one of the worst mishandling of justice in the recent history of mankind. The level and depth of corruption that is now endemic in the judicial system has not only deprived many people of their lives and liberty on the political front, but also has brought extreme misery and financial burden for the ordinary person in relation to the day-to-day legal disputes and petty crimes. I ve heard several first-hand accounts of bribery, pay-offs and corruption. Let me come back to the topic of this paper: Is there a future for Iran s judiciary and how can it be achieved? Of course there is a future, but the future can only be built on the ruins of the present system. There is not a single part of the present system that can be saved to rebuild the future judicial system of Iran. Like Davar in 1925, the entire judicial system should be dissolved and a new organization of justice should replace it. The first and foremost requirement for any judicial system is of course its independence. It is said that the judiciary should bow to agreements and not governments. Without an independent judiciary, free elections, freedom of speech and other liberties have no serious meaning. An independent judiciary is the backbone of every democracy. In order to secure the independence of the judicial system there should be a completed delineation between judicial and executive power. Therefore there should not be a Ministry of Justice as part of the executive branch. The day to day management of the judicial affairs should be run by the judges themselves. There should not be any intermingling between the judicial system and the prosecutor s office. The executive 2

4 branch should run the police, law enforcement authorities, and the prosecutor s office. The present connection between the two administrations should be totally severed. There should not be any promotion from the office of the prosecutors to the rank of judges and vice-versa, and the two bodies should work independently from each other. The prosecutors and their assistants should not have any judicial powers. They should seek and obtain judicial approval for exercise of any power of detention, investigation and the like. The future system of justice will require laws and a legal system that respects the right of individuals and guarantees equality before the law. The establishment of the rule of law requires that the laws themselves are aligned with international commitments of Iran and in particular the guarantees that are required under Covenant for Civil and Political Liberties. The fundamental requirement of equality of all citizens, irrespective of their religion, political beliefs, race, colour, and gender is fundamental to any legal system and Of course there is a future, but the future can only be built on the ruins of the present system. There is not a single part of the present system that can be saved to rebuild the future judicial system of Iran. should be enshrined in the new constitution. Those guarantees shall be without exception and without condition. The present phrase, Except as permitted by ordinary laws which appears at the end of every principal of the constitution, should be eliminated. The independence of the Bar Association should be guaranteed, this time by the constitution. Any denial of the right to counsel shall be punishable and a trial taking place without the right to counsel being properly exercised shall be null and void. The lawyers should be immune to prosecution and harassment for representing clients. Further, all special courts by nature are illegal and improper and should also be eliminated. Outside the judicial power, there should be no right or authority to detain and arrest people, except in cases of emergency and, even then, they require approval by a judge within the first 24 hours of arrest and detention. All the detention centres (belonging to non-judicial organizations) should be closed and disbanded. Finally, the selection of judges. The system that was employed during the Shah s time that elevated judges from lower ranks had the fundamental problem of breeding the civil service mentality in judges who expected their benefits and remuneration to be aligned with their promotion. Nothing is worse than the selection of judges by the Islamic Republic, where totally ignorant and illiterate judges are appointed simply on the basis of their devotion to the Supreme Leader. The previous prosecutor general did not have a high-school diploma. In the new system of justice, judges should be selected from experienced and reputable lawyers. Judges should be barred from involvement in commercial transactions and shall not be allowed to join the bar as a practising lawyer once they retire from the bench. 3

5 THE LEGATUM INSTITUTE By separating the office of the prosecutor from the judicial system and making them two independent administrations, the Judiciary and the prosecutor s office will no longer have a cosy relationship. Like Davar s reforms, the new Judiciary should invite respected jurists, academics, and lawyers to join and set up the new judicial system. The judges cannot be removed from their position except with proper proceedings and with Parliament s approval. An independent fund should be established by Parliament to pay judges remuneration, not from the government s budget. The administration of the affairs of the judiciary should be left in the hands of the judges. The judges powers should be extended to be able to impose penalties in cases of contempt of court, including detention. Access to the Courts of Justice should be made free for every citizen. All court costs and fees should also be eliminated. All trials should be open to the public. The entire prosecutor file, once an indictment is issued, shall be disclosed to the accused. No one may be questioned or interrogated by the prosecutor s office without the presence of his lawyer. The wish list goes on but I hope that one day, we can build that judicial system that guarantees every citizen s right is independent from our executive power. 4

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