Constitutional Obstacles to the Realization of Human Rights and Democracy in Iran – Part 12

Chapter Three
Security and Equality

Judicial security and social equality are two prerequisites of any social or political development. The rights and duties of citizens are defined in the context of legislation and laws, while the relationship between the citizen and the state is a mutual one and must be upheld by both sides. In the modern world, the citizen’s confidence in the state is secured only if his or her capabilities and aspirations are encouraged and the individual citizen is convinced of equal rights with others. It is only then that the state is accepted or perceived as the most reliable protector of the citizen’s legal rights.
Mutual respect between the citizen and the state also depends on the clarity of the citizen’s rights in the laws, along with the willingness and ability of the authorities to implement these laws. Therefore, for the citizen to feel secure, it is not only necessary to have laws based on equality, it is essential for the institutions responsible for the application of the laws and safeguarding the security and equality of citizens to carry out their mandated responsibilities.
The judiciary plays a crucial part in strengthening the relationship between the citizen and the state. Likewise, the judiciary can play a crucial role in undermining the relationship. The process of carriage out justice is one of the most important variables in creating the feeling of security in a given society. The quality of justice can improve the sense of well-being in a society or impede it. Litigation procedures are usually set in as well as regulations, requiring judicial authorities to remain independent and avoid involvement in any power struggle.
Though the judiciary claims independence in present-day Iran, it has largely taken on a political role by taking sides with those factions of the ruling strata largely opposed to citizens’ freedom. I will deal with the judicial structure in a later chapter. For now I will deal with existing laws, which are discriminatory in nature and do not respect the equality of all citizens.
Discriminatory Laws

The protection of the life, property and individual and social dignity of citizens is all but absent in Iran’s body of law. Women, non-Muslims, and independent thinkers are among the citizens who are not afforded equal rights with others. For instance, the following items indicate the discriminatory nature of the laws as they apply to women:
• Until very recently, according to Note 1 Article 1210 of the Civil Code on female age of marriage, girls were considered majors upon reaching the end of their ninth lunar year of life, while boys are major after the end of the fifteenth year. Since the legislature allows mature male and females to marry (Article 1401 of the Civil Code), it could have been said that in the Islamic Republic of Iran, it was until recently, possible to marry a nine- year-old girl to any man over fifteen. In the recent legislative session this legal age for marriage has been raised to thirteen.
• Upon reaching the age of legal or religious maturity, nine, girls are considered criminally responsible while boys face this condition six years later. According to Article 49 of the Islamic Penal Code, “children committing offenses are not liable to consequences of criminal responsibility and their rehabilitation will be left to their guardians or, if necessary, the center for children’s rehabilitation upon the discretion of the court.” Note 1 of the same Article goes on to say, “By a child it is meant a person not of the age of [legal and] religious maturity.” Hence, according to the legislations, girls over the age of nine and boys over the age of fifteen would be subject to legal treatment as adults.
• Women are not allowed to travel abroad without their husbands’ formal (written) permission. The Passport Act of 1972, which the Islamic Republic has maintained, directs women wishing to leave the country to submit a written permission by their husbands.
• Men are allowed to practice polygamy.
• Husbands enjoy the unconditional right to divorce their wives (Article 1133 of the Civil Code.)
• Divorced mothers have custody of their children up to the age of seven, and the father has natural custody if the court grants it(Article 1169 of the Civil Code).
• According to article 209 of the Islamic penal code, “if a Muslim man deliberately kills a Muslim woman he is sentenced to qissas (retribution of the same kind). However, before the custodians of the blood of the woman are allowed to carry out qissas, they must pay half the diya (blood money) of a man to the murderer.”
• The diya (blood money) for a woman is half that for a man.
• In many legal cases, the testimony of women witnesses is not acceptable as proof or the testimony of two women is equal to the testimony of one man. For instance, According to Article 137 of the Islamic Penal Code, “pandering is proven through the testimony of two men.” Article 74 of the same law states “committing adultery, whether it necessitates the religiously prescribed punishment of lashes or stoning to death, is proved through the testimony of four just men or three just men and two just women.”
• The law unequivocally bars women from sitting as judges and being male is an essential qualification to become a judge.
• Women are not allowed to become presidents of the republic. Article 115 of the Constitution states, “The president of the republic is elected from among prominent religious and political personalities.” Although the term “men” is not used in the Constitution, so far the term prominent personalities has been interpreted to mean only men.

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