Law and Society in Iran: Historical Overview and Projections into the Future
February 15, 2012
Legal Reform & Women’s Rights: Pre & Post Revolution
Reforming the Laws
Motivations behind reforms
Legal reform has been done with multitudes of motivations in the contemporary history of Iran, the historic onset of which can be assigned as Iran’s entry into the era of legal governance. Here, I will strive to clarify some of those intentions:
– Legal reform motivated by the revolution
– Legal reform motivated by desire to increase governmental power
– Legal reform motivated by partisan and factional fights inside and outside the regime
– Legal reform motivated by according with social realities and desires and needs of the populace (customary)
– Legal reform due to jurisprudence – reactionary motivations
Constitutional Revolution of 1906-1911 and legislation motivated by revolutionary and democratic incentives
After this revolution, modern form of legislating began in Iran. Iranian men achieve the right to vote and elect their representatives in free and open election for the newly formed Majlis. In its first legislation, the aforementioned Majlis deprived women of hte right to elect and be elected.
During Iran’s transition into a country governed by law, the absolute power of the kings became limited and the Majlis was given the power to supervise this power. A Qajar king signed the constitutional edict and another Qajar king bombed the Majlis. In spite of the multitudes of problems, Iran entered the era of constitutional law for the first time in its history.
1979 Islamic Revolution
After this revolution, monarchy was eradicated and jurists took control of the government. Constitution of the constitutionalists was replaced by that of the Islamic Republic. The first constitution was approved by the people in 1979. In comparison to the other one, this constitution is more based on jurisprudence and less democratic. The backbone of this constitution is the concept of Guardianship of the Jurist, a mere theory over which the jurists are in disagreement. Further, legislative process is designed so that legal reform cannot easily take place for reasons of according it with the social realities. The Majlis is not and independent legislative body; an organ under the name of the Guardian Council can veto any modern bill that the Majlis passes. However, another organ names the Expediency Discernment Council has also been prescribed to provide opportunities for the passing of laws that may not accord with Sharia but their passage is expedient for the regime.
Legal reform motivated by desire to increase governmental power
Although the absolute power of the kings was harnessed after the constitutional revolution, the dictators of each era either used force to ignore the concept of oversight of power by the Majlis or ordered legislation to increase their power, using political necessity as an excuse. Some of such “reforms” were carried out during Mohammad Reza Pahlavi’s rule by the Majlis and in the era of the Islamic Republic, after the passing of Ayatollah Khomeini, the constitution was amended in 1989 with the incentive to increase the power of the Supreme Jurist where emphasis was place on the “absolute power” of the aforementioned.
Therefore, although the definition of “legal reform” is to expand citizens rights while limiting that of the government and paving the way for the gradual expansion of democracy where is it demanded by the people, even at times when the law is digressing in Iran, the process is called “legal reform.” In the 33 years of the Islamic Republic’s life, majority of “legal reforms” were carried out with the intention of limiting and reducing the rights of the people and increasing those of the government. Of course, there are exception as well.
Legal reform motivated by partisan and factional fights inside and outside the regime
When in 1997 Mohammad Khatami was elected president in a landslide victory, the fifth Majlis (1996-2000) still had three years left of its legislative life. The conservative wing used this Majlis, with a majority conservative, as a tool to systematically reform sensitive laws. The motivation behind these legal reforms were purely partisan fightings; they intended to battle Khatami with his own weapon: Law abiding! They wanted to tire out the reform movement relying on the reformed laws. Some examples are:
– Proposing the Reforming the Published Press Law and its passing in the final days of the fifth Majlis in 2000 is an example of reform that was done with the incentive to weaken and gradually destroy the reformist press. This reform, significantly worsened the Published Press Law of 1985 and increased the limitations of the Published Press in releasing news and using the fundamental right of freedom of expression. Saeed Mortazavi, who was appointed head of the Published Press Court, used and abused this law for crushing and rounding up of the reformist press.
– Reforming the Law for Acquiring a Legal License on May 25, 1997 based on which the independence of the Bar Association, which was achieved in 1954 after much resistance and activism by the attorneys, was distorted. Based on the reformed version, any and all attorneys who candidate themselves for participating in the Board of Director’s election of the Association, if their competence is not affirmed by the Disciplinary Prosecution Office for the Judges, their names will be removed form the candidates’ list. This reform paved way for barring the entry of the attorneys who backed the reform movement into the Board of Directors of the Bar Association. In the last few days, the Disciplinary Prosecution Office for the Judges rejected the competence of 28 attorneys who has signed up as candidates. A brief look at their names shows that most of them were active in opening discourse about citizen’s rights and the importance of abiding the law during trials. Therefore, a digressing pattern existed in “reforming” the law and the reforms done were implemented with the intention to tighten the control around participation of the defense attorneys in legal challenges. More importantly, the Judiciary weakened the independence of the Bar Association and had become a barricade on the way of entry of law abiding attorneys into the board of that organization.
Legal reform motivated by according with social realities and desires and needs of the populace (customary)
Multiple examples of such legal reform can be seen during the rule of Mohammad Reza Pahlavi to benefit the women. For example:
– Election Law was reformed in 1963 granting women the right to elect and be elected.
– Reforming the laws about family through passage of the Family Protection Law (1967) and amending it in 1975.
– Offering a modern interpretation of the Law to Elect Judges which encompassed women, ending their depravation from judging. This event happened in 1969, around 10 years prior to the revolution.
– Passage of the Citizenship Rights Law in 2005 by the government of the Islamic Republic which was a modern and important reform on the procedural Code of the State Prison Organization. Women’s rights activists and other critics have cited to this law many times, so long as the political and security makeup of the regime allowed them to do so.
– Law to Reform the Regulations Governing the Divorce passed by the Expediency Discernment Council in 1992 partially improved the legal situation of women in a marriage. To make up for the annulment of the Family Protection Law immediately after the revolution, this law attempts to offer certain reforms such as in the case of divorce by request of women.
– Amending article 1041 of the Civil Code by the Expediency Council in 2002 based on which age of marriage for girls was increased from 9 lunar years to 13 solar years.
– Law to reform article 1173 of the Civil Code, passed on 1997, to benefit children living in custody of unfit parents which was a step in bringing attention to children of divorce.
– Amending article 1169 of the Civil Code and increasing the right of the mother to have custody of her daughter and son until the age of 7.
– The law to grant custody of infants or ailing children to their mothers, passed in 1985 during the Iran – Iraq war.
– The law to reform note 5 of the bill for adding 5 notes to the Law of Electing Judges, passed in 1984. Although this law, passed under pressure by social realities and legally trained women, does not recognize women as befit to occupy the seat of a judges, it is still a step that demonstrates the legislative centers’ understanding of certain social realities. It shows that when the achievements of pre revolution was annulled using the revolution as an excuse, the citizenship rights and the acquires rights of the iranians were stepped upon.
Legal reform due to jurisprudence – reactionary motivations
– Passage of the bill to annul all laws that oppose the Civil Code in regards to custody and guardianship, passed in 1979 which effectively annulled article 15 of the Family Protection Law (1975) to the disadvantage of women.
– Opinion 1488 – July 31, 1984 of the Jurists of the Guardian Council regarding article 1 of the Marriage Law and Article 17 of the Family Protection Law. the Jurists announced that “punishment of the marrying party and the man carrying out the marriage, in the case of an unofficial marriage act mentioned in Article 1 of the Marriage Law and a remarriage act of Article 17 of Family Protection Law is not in accordance to the Sharia law.” Based on this, a large part of the Family Protection Law that had placed limitations on the polygamy of Iranian men was annulled to the disadvantage of Iranian women.
– Closing of the family courts and returning to the era of male dominance in requesting divorce and re-instating article 1133 of the Civil Code, passed in 1931, based on which “a man can divorce his wife whenever he so wishes.”
– The Law for Electing Judges, passed on May 4, 1982, based on which the judges are to be elected from amongst eligible men.
– Passage of the Islamic Penal Code, based on which women are bound to obey Islamic dress code, losing the right to choose their own outfits.
– Based on the same law, age of criminal responsibility of women, which prior to the revolution was 18, as was with men, was reduced to 9 lunar years. Women’s testimony lost value. Their rights on life became unstable and stoning was descended upon them as a form of punishment. Their blood money was assigned to be half of that of a man and the diyah for their dismemberment half of that of a man. One eye of a man is equal to both eyes of a women…
During the Islamic Republic era in Iran, the meaning of legal reform has reversed. Social realities, such as the high rate of educated and expert women inside Iran, as well as the economic conditions and present day demands of women in relation to the vast communication opportunities with the rest of the world is not the basis for legislation. The only basis for legislation is the Sharia law which is interpreted by the six jurists appointed by the leader (the supreme jurist) in the most conservative and shortsighted way when it comes to women. In such legislative arenas, to which women’s rights activists are barred from entry, and while the Majlis members are approved by the Guardian Council and there is no semblance of free election, the law has become a tool to neutralize the humanity of women. The hands of Sheikh Fazlollah Nouri are still at play and Mohammad Ali Shah Qajar is still barring Iranian’s entry into modern life through bombing the Majlis.
Law and Society in Iran: Historical Overview and Projections into the Future