Index of foreign names

Foreword

We encountered two obstacles in carrying out our research…

The first is inherent in the very form of our work. Indeed, its limited framework did not allow us to make a study as detailed and as study as detailed and as substantial as the subject itself would have required…

We are aware that we have skimmed over certain aspects of the subject and we hope to hope to make up for this lack by continuing our research in the framework of a thesis with the kind and benevolent help of M. Chevallier, Dean of the Chevallier, Dean of the Faculty of Law of Picardie and director of our of our thesis.

As a foreigner, our second obstacle was language. We tried to do our best to write this thesis directly in French. directly in French.

We would like to take advantage of this foreword to thank Ms. Catherine Poilly for proofreading our work on a friendly basis. Poilly for proofreading our work on a friendly basis.

Introduction

The popular movement that developed in Iran during 1978, which led to the overthrow overthrow of the imperial regime on 11 February 1979, is characterised by its is characterised by its unexpectedness, which makes it difficult to study its origins its origins, its evolution and the evaluation of the importance of the role of the role played by the different social classes and strata.

This revolution broke out suddenly. No one was expecting it, not even those who those who provoked it, nor those who repressed it, nor those who those who observed it from near or far.

The lack of preparation on the part of the insurgent people, as well as on the part of the regime, precipitated the events which followed one another at an extraordinarily the imperial regime collapsed long before the social forces involved in the the social forces involved in the revolution could consciously determine what they to consciously determine what they wanted from the revolution.

As a result, the revolution continued to march forward without an organized and programmed organized and programmed leadership. Khomeini’s own presence in Paris not only Paris not only did not fill the gap, but was evidence of it.

Khomeini had come to Paris to proclaim that there would be no other plan than the departure of the Shah and insisted that this departure would be plan other than the departure of the Shah and insisted that this departure did not even not even imply his coming to power: “everything will be decided after the fall of the shah by the people”. everything will be decided after the fall of the shah by the people" dixit Khomeini.

Khomeini’s name and words, disseminated and propagated by the vast international mass media network, were used to neutralise any attempt by any attempt by any organisation to secure a certain hegemony hegemony and to present a certain agenda.

It is quite significant that already on 12 February 1979 the crowd gathered at the gathered at the campus of Tehran University, chose, among other things, as the public discussion: “the establishment of the government of Mr. Bazargan, on the government of Mr. Bazargan, on the direct orders of Khomeini does it represent the failure or the victory of the revolution? A worker A worker promptly replies: “If this government wants to carry out the programme programme it has declared, namely the setting in motion of the bureaucracy bureaucracy and the army of the imperial regime paralysed by the revolution and revolution and put them at the service of the new regime, it is necessary to frankly declare that 11 February was the day of the definitive failure of our revolution. of our revolution”. A bearded man in the crowd replied: “We need We need patience”. Patience, a theme which constitutes the central theme of all government all government propaganda for more than a year – a period during which the during which the authorities of the new regime were preoccupied with the reorganisation of the state apparatus.

After this period the tone of government propaganda changes: “we have achieved everything we wanted”.

The complexity of the process of reorganisation of state power under the new regime The complexity of the process of reorganising state power under the new regime is compounded by the ambiguity of the conditions under which it emerged. In addition to the administrative and repressive organs inherited from the old regime, revolutionary regime, the revolutionary committees, the revolutionary courts and the the revolutionary courts and the corps of guardians of the revolution, the Islamic associations, etc., which acted more or less independently of the of the “provisional government”. They appeared to be the nuclei of a organisation which in the course of its development was to sweep away and and break up the old state apparatus. At that time, a whole series of analyses based on the concept of the concept of “dual power” by democratic organisations and forces, and by democratic and communist organisations and forces. The resignation of the “provisional government” and the total integration of these new bodies into the old state apparatus will increasingly deprive this kind of analysis of the old state apparatus will increasingly deprive this kind of analysis of any basis. Today, the very evolution of events of events has removed all illusions in this respect and it is easy to and everything that has happened in Iran since 11 February 1979 can easily be explained as the tireless efforts of a gigantic state machine reorganising itself in an attempt to reorganising itself in an attempt to control the revolutionary outburst in the in the midst of a deep and global crisis.

This statement would seem too simplistic if it were not backed up and deepened by a profound study of the elements of the revolutionary situation revolutionary situation as well as the fundamental characters of the state apparatus under the imperial regime and under the present regime.

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It is true that the Iranian revolution of 1979 was the result of a general crisis that embraced the whole of society from the bottom up. At the root of this crisis an economic crisis that from 1971 to 1976 manifested itself in the form of a manifested itself in the form of a constantly rising inflation rate, and since 1976 in the form of a recession, mainly due to the oil revenues as a result of global economic stagnation. stagnation. But this economic crisis cannot in any way explain the triggering of a political movement whose minimum demands were the overthrow of the the overthrow of the monarchy and the establishment of some kind of of a republic of some kind¹. Nor can it explain why this political movement did not go through a phase of economic and and economic struggle. And finally, it remains to be seen why the ideology of the economically dominant classes has not only not been not only not been refuted or denounced by the revolutionary movement movement, but that its domination has been maintained over the movement.

Even at the economic level, what has made a crisis, by definition temporary, the source of such a vast shake-up, is the crisis the source of such a widespread upheaval, is to be found in the structure of the the structure of the socio-economic system and the exceptionally important role of the of the state apparatus. A brief examination of the situation of the and social forces involved in the revolution is proof of this. This is demonstrated by a brief examination of the situation of the classes and social forces involved in the revolution. Firstly, the massive participation of the slum dwellers is very significant slum dwellers is very significant – participation that allowed the cities to become cities to become “the home of the revolution”. But a structural analysis shows us that it was the ruined peasants who that triggered the demonstrations in the cities. Without these many courageous the revolutionary movement would never have been able to grow to such an extent in the cities. the revolutionary movement in the cities to such an extent. If the land reform of 1963 had had some results other than the simple destruction of the rural the rural economy, if it had succeeded in carrying out a predetermined ambitious plan plan, namely, the creation of a rural economy based on large-scale based on large-scale agricultural and industrial production, the economic the economic crisis of the 1970s would certainly have had a very different impact on Iranian the economic crisis of the 1970s would certainly have had a completely different impact on Iranian society. Moreover, if, as a result of this reform reform, a part of the rural population had acquired the possibility of earning a living by the possibility of earning a living by cultivating their own plot of land², they could have could have acted as a factor in controlling the revolutionary outburst. If this was not the consequence, let us look for the reason! For us, the reason is to be found only in the very nature of the reform and in the circumstances in which it was carried out. Indeed, the 1963 land reform of 1963 was not the result of the peasant movement’s struggle against movement’s struggle against feudalism and government power, but rather was on the contrary, it was carried out in a context of submission of the peasantry on the contrary, it was carried out in a context of subjugation of the peasantry following a fierce repression.

Indeed, this reform was the work of an authoritarian regime that imposed itself on both the feudalists and the peasants. both the feudalists and the peasants. As for the motivations of this regime regime, it is necessary to look for them elsewhere, outside the Iranian countryside the Iranian countryside, namely in the globality of its external and internal relations internal relations – relations which were, moreover, at the origin of the direct the direct confrontation of the repressive state machine with the rural population. rural population. Secondly, in examining the role and motives of the other social forces social forces involved in the revolution, we will see that the same central question, i.e. the question of the state and its internal and external relations relations, arises again. Let us take the case of the the case of the religious who, in close liaison with the various layers of the bourgeoisie, especially in the bazaars, and with the help of a vast national network of mosques and bazaars³ did their best to both mobilise to both mobilise and control the popular masses. Why these forces of a reactionary and counter-revolutionary nature join the joined the revolution? The answer to this question requires the analysis of the state and its apparatus from two different angles. Firstly, they represented a part of the ruling class oppressed and suffocated by and suffocated by the state, and secondly, as part of the ruling class, they class, they saw it as a revolutionary perspective to prevent the total collapse the total collapse of the state apparatus. And it was to rescue this state apparatus that they entered the flames of the revolution: abolish the monarchy to save the state apparatus. Moreover, the the behaviour of these clerics as well as the changes in the tone of their political and ideological political and ideological propaganda — after their integration into the and ideological propaganda — after their integration into the state apparatus — can only be explained by a the functioning and organisation of the state apparatus. Finally, as regards the Finally, as far as the Iranian working class is concerned, it had learned from its own experience that direct intervention by the forces of law and order in favour of the intervention on behalf of the bosses (and sometimes even against their will) the bosses) gave a political character to any protest movement. protest. It was therefore not by chance that in the favourable situation the favourable situation resulting from the general crisis of the state, it has only the to strike a blow against the state machine.

In short, the fact that the economic crisis has turned into a political crisis so quickly is due to the political crisis, it is due to the extremely large place of the state in society and its specific society and the specific nature of its interventionist and repressive role. and repressive role.

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A look at the typical case of the evolution of the modern state machine in France machine in France will help us to explain more clearly the the advent and development of the modern state in Iran.

A balance of economic forces between the feudalists and the bourgeoisie, in an exceptional historical situation, ensures the relative independence independence of the state – an absolutist state – from the economically economically dominant classes. Thanks to this independence, the state machine develops and perfects itself rapidly⁴. The bourgeois revolution of 1789 prepared the ground for a liberal and centralised state. At this stage, the stage, the intervention of the state in the relations of production, and in general social relations in general, is considerably reduced; “civil society” is expanding. civil society’ is expanding. Finally, the accentuation of the contradictions of capitalist relations of production provokes the growing intervention of the the state in social relations: the “interventionist state”. In In sum, in a typical capitalist country like France, the evolution of the In short, in a typical capitalist country like France, the evolution of the “modern state” corresponds to the evolution of the national bourgeoisie. Indeed, the Iranian “modern state” is from its origin, so to speak, both absolutist and interventionist. both absolutist and extremely interventionist. But But the absolutism of this state does not stem from the balance between the social classes. In reality, from the end of the 19th century, it was primarily customs revenues and rents that were the main source of income. the end of the 19th century, it was primarily customs revenues and mining and oil rents that ensured the relative economic independence of the state. the relative economic independence of the state from landowners, thus landowners, making it dependent on foreign trade and foreign and foreign contracts. The increase in these revenues — especially oil revenues —, gives the state the means to control of the national economy. Thus, gradually, under the supervision and with the with the help of the state, a bourgeoisie appears which in turn is linked to foreigners. In short, it is a more or less centralised state which is at the origin of a bourgeoisie. bourgeoisie, a state that is politically manipulated and installed by the installed by the colonial countries.

Two military coups, one manipulated by England in 1921, the other by the United States in 1953, ensured the political domination of international finance capital under British and American hegemony and American hegemony in Iran. All institutional and functional aspects of the of the Iranian state apparatus are, from now on, determined by this dependent on political power. A centralised state, apparently independent⁵ state is trying to gradually establish capitalist relations of production so that international finance capital can capital can exploit all economic sectors and resources of the country. economic resources of the country. Due to the lack of a national class base base, the specific tasks in the economic, political and ideological fields and ideological fields fall to the state.

On the economic level, the absence of a class of owners within the relations of production on which the state is based and through which the state has been established. relations on which the state is founded and through which it intervenes through which it intervenes obliges it to act by its own means in these relations relations: this requires special steps on the part of the state. This gap is partly filled by state investments, mainly from oil revenues, but mainly from oil revenues; but, especially at the beginning, this was not was not enough. Much of the land belonging to large landowners is confiscated by force. landowners was forcibly confiscated, accompanied by an anti-feudal phraseology anti-feudal phraseology in favour of the new king and his entourage at the head of the head of the state apparatus. Reza Shah, who was born into a poor family family, became in less than ten years the largest landowner in the country country: “He confiscated nearly a million hectares from the large landlords⁶” without abolishing the traditional relations of production in the agricultural sector. Gradually a of the imperial dynasty and high ranking officials – and high ranking high officials – and high ranking army officers – who, thanks to their who, thanks to their connections with the state apparatus, hold a large part of the means of production. This process reached its peak in the years 65-75. In this period of increased investment, each investor, in order to ensure the security of his investor, in order to ensure the security of his capital, was implicitly implicitly obliged to register part of the shares of his company in the name company in the name of one of the members of the royal dynasty or their close relatives. This kind of appropriation took the form of outright plundering and appeared to the public to be and appeared to the public as a manifestation of the greed of the Shah and his of the shah and his entourage. But in reality, it ensured the state’s control over control over the relations of production by providing it with the means to to transform them, more and more, according to the needs of international financial international finance capital.

Politically, this state, not representing any social class, has to repress society as a whole with the help of those elements elements absorbed by the state apparatus. All social classes, including “the bourgeoisie including the “dependent bourgeoisie”, which develops, little by little under the care and supervision of the state are forbidden to to organise themselves politically. This submission of the possessing classes to the This submission of the ruling classes to the state is described empirically by the author of Earth moved in Iran:*

“[...]“The business bourgeoisie, giddy with the exhilaration of the economic boom of the last five years, had tacitly pacted with the government. economic boom of the last five years, had indeed tacitly made a pact with the Shah. with the shah. No official agreement had been sealed. It was Rather, it was the Iranian replica of a new Faustian pact. Give me Give me your soul,” the Shah suggested, “and I will give you fortune. The The Iranian owners could not resist the temptation. They sold They sold their souls for a few million tomans more. Their bank accounts Their bank accounts were magically filled overnight. The The regime’s accountants did their homework. But if one wanted to get rich, one had to But if you wanted to get rich, you had to respect an implicit and terrible clause in the pact: silence.

The regime had this to say: no obstacle will be placed in the way of your The regime had this to say: no obstacle will be placed in the way of your frantic race for profit, except that of submitting willingly to the imperial racket. imperial racket, but you will have to keep your mouth shut and refrain from You have the right, the duty and the obligation to You have the right, the duty even, to enrich yourselves You have the right, the duty even, to get rich, but not the right to think, and even less to speak. to think, let alone speak. The Iranian bourgeoisie has thus become self-obscured⁷.”

To console these ‘oppressed’ exploiters, the Shah repeated: ‘Economic democracy is more essential than economic democracy is more essential than political democracy”.

The political disorganisation of the economically dominant classes made them incapable of organising rendered them incapable of organising “civil society”. By Therefore, the state itself had to solve this problem in its own way by having “civil society” absorbed by “political society”. A Western-style army organised, trained and equipped respectively by the British and the Americans served as a by the British and the Americans respectively, provided the basis for a bureaucracy bureaucracy that expanded as traditional social relations were torn apart. torn apart⁸. A vast network of different control and surveillance bodies and surveillance will be added to the military and administrative bodies of the state in order to control society as a whole. This network operated in This network operated in very close liaison with the repressive body of the state apparatus and in the the Shah’s time, the military constituted the bulk of it. SAVAK and the Imperial Inspection Organisation, both of which were formed by the military, represent the most the most developed forms of control and surveillance. control and supervision. In every enterprise, whether state or private, security bodies or private, security bodies under various titles are installed installed; during the last decade of the imperial regime, the recruitment of the recruitment of retired military personnel by private or public companies was companies was almost compulsory. This network of control and surveillance and surveillance operated under the imperial regime in direct relation to with military justice.

Being deprived of class-specific political organisations, this is also felt in the is also felt in the structure of decision making. The parliament, elections and government parties all functioned as additional functioned as additional devices for framing the popular masses in the hands of the state. masses in the hands of the state. A carefully structured administrative hierarchy was in charge of decision-making. decision making. At the head of this impersonal hierarchy was a person, the head of state⁹ who with his immense power increasingly guaranteed the impersonality of this hierarchy. Despite the restrictions prescribed by the 1907 Constitution, the two kings of the Pahlavi dynasty wielded unlimited power. They were They were beyond all law and regulation. This This unlimited power was of paramount importance for a political power political power whose decisions were not made according to the demands of Iranian society itself. The absolutism of the king made it easy to the use of the state apparatus primarily in the interests of foreign foreign powers. However, in this area, another point should be made another point: the economically dominant classes were silent about the the state insofar as the state was capable of repressing the exploited, but repress the exploited, but as soon as they felt the slightest weakness on the part of the but as soon as they felt the slightest weakness on the part of the state in this area, they changed their attitude; they tried to create their political organisations and even their armed gangs. In terms of foreign policy, they entered into directly with foreign powers to replace the ruling team and change the and change the form of the political regime. In the history of the modern state in Iran there have been two periods of state In the history of the modern state in Iran there have been two periods of state crisis, one between 1942-1953, the other since 1976, during which these ruling classes rose up against the shah to save the system. shah to save the system. In these periods of crisis, the foreign powers foreign powers enter into negotiations with them to tinker with the political political regime; but as soon as the new regime is consolidated, everything regime, everything is taken over.

Finally, a mixture of religious worldview, glorification of the past past, admiration for a mindset of blind obedience, worship of the personality of the of the personality of the head of state and so-called westernised conduct Westernised conduct constituted a state ideology that was forcibly imposed on the whole of society. Almost all organs of the state apparatus were directly involved in imposing this ideology, so that sometimes it was difficult to it was difficult to identify ‘ideological apparatuses’ as such for example, the agricultural co-operatives, sometimes played a key role in the propagation of this ideology.

For more than fifty years, this state apparatus has been perfecting itself, has played an essential role in the transformation of Iran into an organic part of the organic part of the economy of the capitalist world.

In short, “the dominant feature of ‘modernisation’ for Iran, says Paul Vieille, is not the development of production and capitalist relations as a reciprocal of the capitalist relations as the reciprocal of the destruction of previous activities and relations, but this latter destruction as the and relations, but the latter destruction as a reciprocal of the the penetration of the world market; whereas peasant agriculture, handicrafts, the network of bazaars are dismantled, an economy dismantled, a ‘modern’ economy is created whose centres of decision-making, design, research, technical, management and marketing management, marketing, workshops for the manufacture of production goods and production goods and the main assembled components are located abroad. abroad”.

The state, he adds, has been the principal agent in the accelerated of the accelerated transformation of social relations and activities of production and it The state was thus universally present in the social relations within the of the formation¹⁰”.

Let us now look at the changes introduced in the socio-economic system and the system and the state apparatus under the new regime.

Among the various factors that determine the social conditions in which the new regime was in which the new regime was established, two factors in particular are of importance for our subject:

1. the organic dependence of the country’s economy on global capitalism ;

2. the huge state apparatus that was founded and developed in direct relation to this with this economic dependence and in order to guarantee it. guarantee it.

Of these two factors, the first is essential, because after the agrarian reform of the 1960s the process of reform of the 1960s, the process of linking all sectors of the sectors of the Iranian economic system with the world capitalist system system reached its peak; the preservation of the status quo, therefore means the preservation of dependence. On the other hand, any change means building an independent national economy. independent national economy.

A question arises: was the attempt made under the new regime to been made under the new regime to create an independent national economy? To give a positive positive answer to this question we have no evidence either in law¹¹ or in fact. neither in law¹¹ nor in fact. Certainly, because of the decrease in oil revenues, many of the oil revenues, a large part of the contracts concluded by the imperial regime with regime with multinationals has been cancelled or suspended; but this does not mean does not mean that there is a move towards building an independent national economy. independent national economy. On the contrary, the shortage of food, raw materials and of food, raw materials and equipment has increasingly revealed the reality of the reality of dependence, with the current regime doing its best to provide the to ensure the necessary conditions for the implementation of these contracts. these contracts. In this regard, part of an article published by the daily newspaper Kayhan¹² of 30 November 1982 gives a picture of the economic economic situation of the country:

“After the Iranian Islamic revolution, because of the difficulties the war imposed by Iraq on Iran, the embargo of international imperialism international imperialism, the sabotage of the counter-revolution and its internal agents, the economic authorities of the country authorities have not had the opportunity to save the country from monoproduction. The country’s financial system also did not suffer, The country’s financial system has also not undergone such a change during this short period that would put it in a position to The country’s financial system has also not undergone such a change during this short period as would put it in a position to return the occasional wealth tax to the public treasury. Even in the year 1360 (21 March 1981 to 20 March 1982), according to available statistics, the total Even in the year 1360 (March 21, 1981 to March 20, 1982), according to the available statistics, the total tax received from the country did not exceed 540 billion rials. 540 billion rials¹³ (wealth tax constitutes less than 3% of this sum). less than 3% of this amount), with revenues from monopolies and property property and public services, sale of goods and profit from foreign investment etc. foreign investments, etc., do not reach a level comparable to that of oil the level of oil revenue.

“Through oil income, i.e. the country’s most important natural wealth, the natural wealth of the country, each year between 12 and 14 14 billion of goods were imported each year, some of which was made available to the of which was made available to the country’s industries in the form of semi-finished products and equipment. Here a question arises: Are all these goods and equipment – or at least a large part of them – being imported? have been used in such a way that the “interests of the nation” are the interests of the nation” are secured as desired by our Eminent Imam desires? Certainly the answer to this question will not be positive. For, one can easily understand that some of the imported of the imported goods, in one way or another, will take the the “black market” and that it is sold at an extortionate price several times higher than the real price to consumers without alternative. The same is true for the products of some industrial > companies. industrial enterprises. Because of the inefficiency of the distribution Due to the inefficiency of the distribution network, a part of the industrial goods raw materials or machinery and spare parts purchased by oil currencies, pass through several hands. by oil currencies, pass through several hands before being the consumer because of intermediaries, speculators, and speculators, hoarders and other parasites…”

As for the second factor, i.e. the state apparatus of the imperial regime, the regime, the central problem of regime change revolved around the the army. A mission, led by the American General Robert Huyser, Deputy Commander of US Forces in Europe in early January 1979 in Iran ensured both the army’s support for the new regime and the maintenance of its cohesion¹⁴. In general, following secret secret negotiations between the religious leaders and the leaders of the Iranian Liberation Movement, on the one hand, and American authorities and senior Iranian officials on the other hand, the groundwork was laid for the state apparatus as a whole, in a peaceful manner to be put at the disposal of the new regime. The spontaneous uprising of 10 and 11 February 1979, which was enthusiastically welcomed by the left-wing forces forces, during which the insurgents stormed the garrisons, was brought under control by the clerics; Khomeini refused the request of of tens of thousands of demonstrators for the dissolution of the imperial the imperial army and the creation of a popular army.

In the atmosphere of enthusiasm and popular support for the new regime regime, a slight purge was all that was needed for the state apparatus to to get back on track. The subsequent purges were to rid the apparatus of opponents. the apparatus of the state from its opponents.

Since the establishment of the new regime, the state apparatus has been the state apparatus by the addition of new repressive and administrative administrative bodies. The network of state control and surveillance has The network of state control and surveillance was considerably expanded. The key positions in this network were occupied by clerics by clerics and it operates in direct liaison with the Islamic courts.

A state ideology composed of the religious worldview, conduct thoroughly justified by Islamic rules, the spirit of total obedience to the spirit of total obedience to religious leaders¹⁵ the cult of the personality of the personality of the Vali faqih (now Khomeini) is forcibly imposed by the imposed by the state apparatus. Let us now make some observations on the position and role of clerics within the state apparatus. These observations are particularly important for our work because because they help us to clarify both our theoretical viewpoint and our methodological and our methodological approach, as the integration of clerics into the the Iranian state apparatus has affected the judiciary more than its other other parts.

The role played and the place occupied by the clerics on the Iranian political scene and within the state machine has been political scene and within the state machinery has been the subject of controversy from the outset controversial both among Iranian intellectuals and abroad, to the intellectuals as well as those abroad, to the point that today there is a vast literature on the subject. literature on the subject. Many theorists and political organizations have changed or modified their and political organisations have changed or modified their analyses in this to the circumstances. Even the presentation of a brief account of these analyses is beyond the scope of this introduction.

It is true that the position that clerics occupy in the Iranian state apparatus today the Iranian state apparatus is a direct result of their presence in the movement against the Shah. movement against the Shah. But immediately after this statement, we must some reservations:

1. these clerics include only a part of all the clerics who fought the shah who fought the Shah;

2. their actions and words have undergone some changes since they came to power. since they came to power.

What are the other clerics and what is the change in the behaviour of behaviour of the religious in power? How can this be explained? The answers to these questions can contribute to understanding the relationship of relationship of the religious with the state apparatus.

In fact, the Shi’ite clergy in Iran had lost its cohesion and organizational unity since the organizational unity since the breakdown of feudalism and especially after the the final removal of the feudalists from political power by the 1921 coup. coup d’état of 1921. During the Constitutional Revolution of 1905-1907 the clergy was divided into two hostile camps, one constitutionalist one constitutionalist and the other absolutist. This hostility went as far as the execution of to the execution of a senior absolutist clergyman by the Constitutionalists. The material basis of this divergence was the the suppression of feudal prerogatives and the emergence of different of the bourgeoisie and petty bourgeoisie. The elements of the the clerical hierarchy to earn their living, gradually approached these social strata. This material dependence led to the ideal and intellectual representation of these social strata. social strata. This led to different interpretations of religion and Islam in the clergy. To this diversity of class origin of the clergymen attitudes towards the central government. The latter, after having completely driven the clergy out of power, tried to to buy their service. Hence a considerable number of religious known such as the SAVAK and Court clerics.

Therefore, the almost total participation of religious in the 1978-1979 movement of 1978-1979 is a reflection of the presence of almost all classes and classes and strata in the movement against the shah¹⁶. It does not It does not mean the existence of a unified and coherent Shi’ite “clergy” or “church”. church”. Immediately after the establishment of the new regime the differences of opinion between the clerics became apparent. Some of the of the clerics, supporters of Khomeini, occupy key positions in the state apparatus the state apparatus by using it against their religious opponents. This conflict, which is also a microcosm of a nationwide conflict aims at the total disorganisation and destruction of the religious independent of the state apparatus. On the place of the “Shi’ite Church in Iranian society, Paul Vieille writes that “it appears as civil society in the face of political power”. If we accept this language we can say that the political power has decided to exterminate this “civil society” by organising a “society’ by organising a state clergy organically linked to the state apparatus. the state apparatus.

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These preliminary remarks on political power in general, and on the Iranian the Iranian state apparatus in particular, are of vital importance for our study of the for our study of the judiciary, as the latter, neither institutionally nor functionally institutionally and functionally, is not independent of the state apparatus. the state apparatus.

The judiciary is primarily a law enforcement body, parallel to other state organs. As A. de Tocqueville, “governments in general have only two means of overcoming resistance from the governed: the material force that lies within themselves, the material force within themselves, and the moral force lent to them by the the judgments of the courts”.

For the definition of the order imposed by means of the judiciary, it is necessary to move from the judiciary to the government from the judiciary to the government: “… any activity of realising the legal order is about order and public action, government¹⁷”.

Thus, any changes in the Iranian judiciary since the beginning of the 20th century can be century can be explained, essentially, by changes in political power and the state apparatus in general. political power and the state apparatus in general. The constitutionalist The constitutionalist movement of the first decade of this century challenged the The constitutionalist movement of the first decade of this century challenged the monopoly of the clergy on the judiciary as an integral part of the political power of the feudalists. part of the political power of the feudalists. Then, the modernisation and the modernisation and professionalisation of the judiciary was implemented within the broader strategy of a political power supported by the foreign bourgeoisie. supported by the foreign bourgeoisie, and then in the context of the changes in the state apparatus to adapt to the demands of the crisis situation. the crisis situation.

The crisis of the Iranian judiciary is also rooted in the crisis of the state. In particular, the changes in the judiciary after the the judiciary after the establishment of the Islamic Republic reflect in a the deep crisis from which the entire state apparatus suffers under the under the impact of a popular movement and an economic crisis. economic crisis. Georges Lavau describes the effect of the crisis on the political political power towards justice as follows:

It is obviously especially in periods of installation or crisis that political power has difficulty resisting the temptations of the that political power has difficulty resisting the temptation to subordinate itself to subordinate the holders of a power which, by the very fact of these circumstances circumstances, may present increased dangers: it is then the ‘season’ for It is then the ‘season’ of purges and the time of ’temporary’ suspension of the security of tenure of magistrates¹⁸.

Robert Charvin in his study on political justice also refers to the effects of the the effects of the crisis of the state on justice:

Political justice plays a real role mainly in times of crisis. in times of crisis”.

But the law of justice is not only the object or the product of a struggle, it is also its instrument. of a struggle, it is also its instrument. In times of relative calm, established law is > sufficient, but in times of crisis it is not. In times of relative calm the established law suffices, but when a crisis arises this law inevitably law is inevitably overwhelmed by the facts, which themselves require require the elaboration of numerous texts governing the organisation and the functioning of political justice (new offences and courts are created, new new jurisdictions are created, penalties are modified and (new offences and courts are created, penalties are modified and > reinforced; procedures are modified, etc.)¹⁹”.

The popular uprising against the imperial regime naturally involved the the judicial system of this regime, as part of the state machinery and the instrument of of the state machinery and the instrument of repression, inflicting on it more or less effective blows. This fact is sufficient to explain the the need for the changes in the judicial system undertaken by the regime regime; but it hardly explains the content and form of these changes. the content and form of these changes.

The content of the changes in the judiciary, introduced by the regime, can essentially be explained through an examination of the political through an examination of the political aims of this regime, the social forces forces that make up the regime and the class struggle in which it is engaged engaged in; however, these same factors are not sufficient to explain the form of these changes. In this regard, it is necessary to consider the other factors: the history and culture of Iranian society in general and those of the and those of the forces making up the current regime in particular.

The simple observation that today in Iran, any change is presented in the name of the clergy and under the cover of the change is presented in the name of the clergy and under the cover of Islam, demonstrates the need for this historical research to explain the to explain the form of this representation; but this historical research cannot and historical research cannot and should not claim to explain the content of these changes, for changes, for example, by the nature and historical background of the clergy and and Islam in Iran.

Indeed, in feudal Iran, justice was the monopoly of the clergy, who enjoyed considerable freedom enjoyed considerable freedom, especially in the field of private law. private law. On the basis of this practice, a complicated and relatively system was founded, which through legal arguments and justifications was and legal justifications was linked in its most everyday details to the to the sources of the Koran and Tradition (hadith).

From the beginning of the second half of the 19th century, as a result of the development and the development and diversity of social relations requiring the central power, governments tried to create, gradually, a judiciary the clergy, governments tried to create a judicial system that was independent of the clergy.

The breakdown of feudal relations and the outbreak of democratic democratic movements required the establishment of a centralised the centralized organization of the intelligence service and the forces of forces, and alongside them, the appropriate courts, by the central central government.

The establishment of this apparatus alongside the so-called “canonical courts” imposed a double repression on the people. imposed a double repression on the people. It was therefore not that the democratic movement of the first decade of the twentieth century, which century, which led to a kind of constitutional monarchy, began with the constitutional monarchy, began with the slogan of “the establishment of the house of justice’. Nor was it by chance that a section of the of the religious hoping to regain the monopoly of the judiciary as in the past – the other, clearly aware of the circumstance – have supported this slogan. The constitution of 1907, apparently presents a compromise which temporarily satisfies both the both the religious and the democratic. The relative independence of the judiciary of the judiciary prescribed by this constitution, and at the same time the occupation of the most important positions by the religious in the judiciary the judiciary satisfied both parties. But following the the strengthening of Reza Shah’s power, a rapid process of secularisation of the secularisation of the judiciary and within less than a decade the clerics decade, the clerics were removed²⁰ almost completely from the judiciary, without ever justice, without ever giving up the idea of taking it over.

Yet, although this historical past may determine the shape of current changes in the changes in the judiciary, it is not at all able to explain their content. to explain their content. All those who try to explain the content of content of these changes on the basis of Islamic principles and and teachings of Islam, as well as the Islamic tradition, are making a mistake. They are not able to say why, for example, many of the They are not able to say why, for example, many clerics, either in Iran or in other other Muslim countries do not agree with these changes, which they categorically categorically describe as ‘un-Islamic’ and even ‘anti-Islamic’. anti-Islamic’. Moreover, they are not able to say why during the last four years the current leaders of the Islamic Islamic regime have presented themselves in a contradictory manner both in fact and in words, attributing all this to Islam, so that at present the comparison of these facts the comparison of these contradictory facts and words is a kind of amusement for Iranians and a source of propaganda for the regime’s propaganda for the regime’s opponents. The latter, in turn, very often The latter, in turn, very often use various verses and interpretations to give their propaganda an Islamic legitimacy.

We will try, through a concrete analysis of the changes in the Iranian the Iranian judiciary after the fall of the imperial regime, to examine these changes in the context of the political and social tasks the regime and in the process of changing circumstances and the and the composition of the regime’s leadership. It should be noted from the outset that that our research cannot address the subject in its entirety, and for and for good reason: the lack of documentation as well as the the incompleteness and often disharmony of these changes hinders a comprehensive to a comprehensive and systematic study. It is too early to It is too early to say that a proper judicial system based on well-defined principles and principles and rules, is in place in Iran; but the recognition of this fact does of this fact does not exclude the need to study what has happened there to this day. In our opinion, the concrete and timely study of what is happening in today’s Iran is not only the responsibility of Iranian Iranian intellectuals, but also to all those who consider themselves connected to the social sciences throughout the world. To refrain from studying this experience under the pretext that it is still unfinished, incomplete and uninstalled, and thus for fear of misunderstanding the true essence of the true essence of events, on the part of sociologists, economists politicians, lawyers and even historians is incompatible with the dynamics of social science. Even the mistakes made by today’s researchers of today will be instructive for the science of tomorrow.

For the study of the current judiciary of Iran, there is no other possibility than the partial and other possibility than the partial and concrete examination of partial and concrete cases cases, trying to explain them, as the case may be, in the context of the immediate and urgent needs of the regime to ensure its domination over the people. people. Naturally, this method will give our research a relatively fragmented and fragmented and scattered appearance, but this flaw in the research is research is only a reflection of the real objectivity of the current judiciary in Iran today. Attempting to explain these phenomena as a well organised and well founded on elaborate and consistent principles principles is only to impose the subjectivity of the researcher on the objective reality. objective reality.

Part One: The Westernisation of the Judiciary

Introduction

The origin of the Iranian judiciary, as it stood on the threshold of the 1979 revolution, is not very old.

It was at the beginning of the 20th century, during a general crisis that had bankrupted the government of the time, that a movement of the government of the time, that a democratic movement was created whose the vanguard of which was the petty bourgeoisie and the urban the urban bourgeoisie. The various strata of the clergy, and even some and even some politicians attached to feudalism, who no longer believed in the who no longer believed in the possibility of governing as in the past, rallied to this movement. England tried to recuperate this movement in order to to weaken the position of its colonial adversary, Tsarist Russia.

As far as internal affairs were concerned, this movement demanded the “the creation of the ‘house of justice’, i.e. a centralised judiciary judiciary enforcing written laws, and ’the constitution of a national of a national assembly’. On the external front, the abolition of concessions to foreigners and the control of the national assembly over on the granting of new concessions were demanded.

During this so-called “Constitutionalist” movement, the Constitution and its Supplement were promulgated successively in 1906 and 1907 by the kings of the time. These two documents proclaimed a kind of constitutional monarchy, theoretically based on the separation of powers. powers.

The Supplement to the Constitution presented the general outline of the judiciary to be created in Iran. the judiciary to be created in Iran. Indeed, it was an effort to the realisation of one of the slogans of the constitutionalist movement movement, i.e., the creation of the “house of justice”. justice”. At the same time it filled the vacuum created, especially from the second half of the second half of the 19th century, by the disorganisation of the judicial system. judiciary

In feudal Iran, the clergy as part of the ruling class class, while retaining its hierarchy, creates a more or less coherent apparatus, more or less coherent, alongside the political power – and relatively in relative harmony with it – based on sacred texts and the competence of the competence of the faqih and canonical judges to comment on them and and canonical judges to comment on and adapt them to specific cases. But during the 19th century, the feudal the feudal system is the target of blows from both within and without and from outside, causing its general collapse in the second half of the the second half of the 19th century: Western countries and Tsarist Russia gradually took countries and tsarist Russia gradually took control of the country’s foreign trade, customs and natural resources. the country’s natural resources. The development of the market economy The development of the market economy also undermined the pillars of the feudal system from within. Thus, the class basis of the regime weakened, its external dependence increases.

This situation, as far as the judiciary is concerned, has resulted in the of the state over the economic power bases of the clergy, i.e. the the clergy’s economic power bases, i.e., the pious foundations with their and also to the intervention of the State in the judicial field, which had hitherto monopolised by the clergy. The concrete result of this situation was the The concrete result of this situation was the increasing weakening of the centralization of the of the judiciary with the intervention of either state agents or clerics on a case-by-case basis agents or clerics, depending on the balance of power in force and without any without any precise criteria. The consequence of such a situation was judicial anarchy and, above all, a lack of security for the petty bourgeoisie and the urban bourgeoisie.

The attitude of the colonial countries, especially Russia and England to consular affairs, added more than ever to the weakness of the the weakness of the judicial system in the country. In the capitulation agreements with the Iranian government, these countries deprived the Iranian courts of the right to Iranian courts of the right to prosecute their citizens, which they to their own courts, and at the same time, in line with their interventionist interventionist policy, they easily rewarded with citizenship those citizenship to those Iranians who were willing, so to speak, to ‘come under their to pass under their banner’. One can imagine the weakness of the judiciary One can imagine the weakness of the judiciary that may have existed in these circumstances.

In any event, the Constitution and in particular its Supplement which provided for the creation of a relatively coherent judicial system, were not in themselves capable of creating the material conditions necessary conditions necessary for the realisation of this requirement. Therefore, it took therefore, it took years for effective steps to be taken to create a seemingly to create a judicial system similar in appearance to that provided for in the and ironically, this apparatus was not organised by the founders of the not by the founders of the constitutional regime but by those who inflicted the those who inflicted the last and most deadly blows on the democratic democratic movement of the peoples of Iran in the first two decades of the 20th century. of the 20th century. This judiciary was thus used not to protect individual freedoms to protect individual freedoms, as the Constitution timidly intended, but rather to the Constitution, but rather to strengthen the basis of an unprecedented dictatorial and centralised power.

The period between 1925 and 1940 should be considered the golden age of the building of Iran’s the building of Iran’s judiciary. During this period the central power – having succeeded in excluding from the political scene the democratic and revolutionary forces from the political scene, and then the conservative feudal and the clergy — quickly proceeded to translate the French penal and civil codes and and civil codes of France and had them voted on by the National Assembly composed members elected in fraudulent elections²¹.

However, this new judicial system owes its existence to a central power that centralized army created with the help of England after the October the help of England after the October Revolution in Russia and the latter’s retreat from the the latter’s retreat from the Iranian political scene. This army was was created with the aim of establishing a strong and centralised government on the borders of the the borders of the Soviet Union to prevent ’the contagion of Bolshevism’, as the Bolshevism”, as required by the global policy of the capitalist countries. capitalist countries. It is obvious that this “new army” wanted to to take over the key positions in the judicial field, which is its This culminated in the adoption of the law constituting the SAVAK (the of the SAVAK (the country’s security and intelligence organisation). (the country’s security and intelligence organisation).

Moreover, some of the powers attributed to the ordinary courts were to be transferred, after the the August 1953 coup d’état and especially after the agrarian reform of the 1960s, some of the the agrarian reform of the 1960s, to mostly administrative institutions and the institutions and the jurisdiction of the ordinary courts was limited to The jurisdiction of the ordinary courts was to be limited to minor disputes between individuals.

However, in this area too, the destructuring of rural society as a result of following the agrarian reforms and the unprecedented exodus of peasants to to the cities, has increased the number of disputes between individuals to the point of to the point of overloading these courts. This commitment has led to a crisis in the judiciary. The government to avoid the social consequences of these unresolved social consequences of these unresolved disputes – and also to control – created, alongside and with the help of the ordinary institutions such as Houses of Equity and Boards of Appeal, alongside and with the help of the ordinary courts. and Arbitration Councils, which in practice were themselves the source of themselves the source of new difficulties.

Chapter I - The circumstances prior to the creation of a centralised judiciary

The author of “Modern Iran” summarises the organisation of the judiciary and the and the jurisdiction of the courts in Iran as follows:

“The Iranian judicial system, reformed between 1926 and 1928, is adapted from the French system, except for the institution of the Court of Justice. The Iranian judicial system, reformed between 1926 and 1928, is adapted from the French system, except for the institution of the Supreme Court, which combines the powers of our Court of Cassation and the Supreme Court of Appeal. Supreme Court, which combines the powers of our Court of Cassation and the Council of State. Each of the 14 provinces (ostan) has a court of Each of the 14 provinces (ostan) has a court of appeal, composed of civil and criminal courts. The courts of The courts of first instance sit in the county (shahrestan) or district or district (bakhch). Lastly, justices of the peace have recently been appointed, settle disputes and deal with minor offences in the villages. villages. The courts martial are governed by the Code of Military Justice and military justice and judge crimes of treason, armed insurrection against the the country’s authorities, armed robbery and cases of political subversion. political subversion. In Iran, drug traffickers are punishable by death. death penalty. More than 100 offenders have been shot since 1969 under this law²²”.

This organisational description gives us a summary of all that such a study, however detailed, is capable of presenting. that such a study, however detailed, is capable of presenting. But before we move on from the organisation to the function, the description of the organisation in a scientific way is impossible. impossible²³. This is why the purely organisational works written on the institution of justice in Iran so far, have no scientific scientific interest. The Persian works on this subject are only translations of translations of French professors on the organisation of justice in France, and when a and when a Frenchman wants to write about justice in Iran in a purely organisational a purely organisational way, he must inevitably start with the almost total the almost total resemblance of Iranian justice to that of France. France.

But is there really such a resemblance between French and Iranian justice? and Iranian justice?

The examination of the judiciary, its relationship to the state machinery as a whole and to society, the evolution of the the state machinery as a whole and with society, and the evolution of these the evolution of this relationship over time reveals more and more the inadmissibility of of this comparison.

It is true that during the years 1925-1940, the codes translated from French were approved as law in Iran; but it is also true that from French were approved as law in Iran; but it is also true that that these codes were not the product of social development as they had been in development as they had been in France. The difference with the historical situation from which they emanated gave them a very particular character in this character in this foreign country. Regardless of this special character, any reference to the character, any reference to the French origin of the Iranian judicial system is not only insufficient judicial system is not only insufficient, but also illusory. The process of adaptation of these transposed codes and the crisis created by their by their implantation in a foreign body must be understood in any study any study of justice in Iran.

For this reason, we have devoted much of this work to examining the social the social conditions that led to the adoption of a Western system as part of the process of installing a Western-style process of installing a Western-style centralised state apparatus. Then we will go on to study the functioning and organisation of the and organisation of the judicial system thus created and put into operation in relation to the demands of political power. This examination will will contribute to an understanding of the causes and elements of change introduced introduced under the new regime and the extent of these changes. changes.

I - The repercussions of the clergy’s monopoly on the judicial system under feudalism

The total control of the judicial system by the clergy under feudalism directly influences both the installation of a westernised judicial system in the the installation of a westernised judicial system in the third decade of this under the Islamic Republic.

As for the effects of this clerical monopoly on the introduction of a westernised of a westernised judicial system, it must be said that the need for this transposition transposition is a direct result of the total absence of a secular system of of laws and legal concepts in feudal Iran, and even until the end of the 19th century the end of the 19th century. A comparison with what happened in Europe shows us that gradually the regulations and provisions regulations and provisions that originated with the monarch, the lords etc., developed. They regulate the activities of everyday material life without prior approval from the Church authorities. authorities. The development and implementation of these laws gave rise to a series of reflections and a series of purely legal reflections and techniques. All of this was in relation to and in combination with various philosophical and political and political trends, resulting from the development of bourgeois relations within bourgeois relations within feudal society. This formed the basis for a system of secular theories of law, which in turn enriched practice, i.e. practice, i.e. the making and application of laws and the organisation of the organisation of justice.

But in feudal Iran, the king, despite his absolute and despotic power is not the source of laws. He gives the orders and his orders are immediately applicable, but these ‘orders’ govern particular cases. particular cases. They do not have the force and universality of laws. The only sources of laws even for the most everyday regulations are the Qur’an The only sources of law for even the most everyday regulations are the Qur’an, Tradition and the practice of the saints. Any regulation must be confirmed by these sources; for this purpose the only the only competent authority is the clergy. Even the king when he wants to to give his orders the universality and vigour of the law, he must to the clergy to ask them for a fatva. The clergy, in turn, accepting the king as ’the shadow of God’ and paying him homage in in the introduction to his speeches²⁴ consolidated the relationship between the relationship between political power and canon law.

Thus, the clergy appeared as producers and propagators of the dominant ideology, legislator and judge.

At the same time, the political power on the one hand imposes the cult of the king on him as a the cult of the king as a central theme of the dominant ideology, and on the other control over the appointment and dismissal of high judicial authorities judicial authorities, especially that of the “judge of judges”, the highest judicial judicial authority. In addition, the king reserves an arbitrary right of intervention in each individual case.

Another factor consolidating the position of the clergy over the judicial system system under feudalism in Iran is the intimate relationship between commerce and trade and land ownership. Indeed, many of the large landowners were landowners were at the same time engaged in trade and lived in the cities. trade and lived in the cities at the same time. The absence of the contradiction between merchant capital and land ownership is one of the characteristic features of of Iranian feudalism. The reflection of this situation The reflection of this situation in the clergy is that in Iran, unlike in Europe, the clergy Europe, the clergy did not give rise to any reform movement and consequently and therefore did not experience any splits in its ranks.

Thus, the domination of the clergy over the judicial system remains unquestionable. The clerical hierarchy, by appropriating a certain share of of land rent and market profit, forms a more or less disciplined and efficient apparatus and efficient apparatus which, apart from religious matters, manages justice and education.

Now, after the breakdown of feudalism, when it was necessary to replace the feudal political power, a major problem about this judicial system arose. system arose. How to replace the clergy and the judicial system? judicial system? The close connection between the clergy and the feudal power excluded, at least temporarily, any compromise that would allow it to be into a centralized state apparatus. By removing the clergy and the and the canonical judicial system there was no other country-wide system system to fill this void. Therefore, an almost ready-made system was imported from the West. Initially this was was supported by democrats and nationalists as well as by local and local agents of the colonial forces.

The struggle against the imperial regime of the Pahlavi dynasty and its foreign support foreign support took on both a democratic and a national character. In its development, the anti-imperial struggle challenged all the elements related to the Westernisation of the state apparatus. Taking advantage of this mentality, part of the clergy, in its desire to take over the the judiciary, based their propaganda on the Western and therefore ‘imperial’ origin of the Western and therefore ‘imperialist’ origin of the judiciary, presenting Islamic justice as a “national” and, therefore, “anti-imperialist” phenomenon. and therefore ‘anti-imperialist’. Hence the influence of the historical relationship with the judiciary on the changes in the judiciary the changes in this apparatus following the overthrow of the imperial regime²⁵.

It can be said that from the moment the feudal system began to be destructured and the clergy as part of the ruling class – living on the fruits of that system and thus maintaining its hierarchy on its its basis – lost its material basis, a new stratification was formed and the formation of a new stratification within the religious which corresponds to the appearance of the urban petty bourgeoisie, the landowners and the small peasantry in the villages. villages. While some of the religious still benefited from the privileges they had left over from the feudal system, others were not. privileges left over from the feudal system and another part went further by maintaining and another part goes further by maintaining good relations with the colonial policies colonial policies dominating the regime, some other layers of the clergymen are getting closer to the to the other affluent classes such as the national bourgeoisie, the petty bourgeoisie bourgeoisie, the petty bourgeoisie, the small landowners and even the even the small peasantry. This is why during the movement, the religious were present in all ranks: in the ranks of the ranks: in the ranks of the collaborators of foreign powers, in the ranks of the the ranks of the ruling feudalists, in the ranks of the urban bourgeoisie and and, finally, there were religious radicals expressing the demands of the the demands of the lowest strata of the people.

Thus, this omnipresence of the religious prepares the ground for to devote an important place to the ‘sacred rules of Islam’, but when the but when the discussion on the implementation of these rules begins, the rules begins, the divergence between the clerics becomes apparent and governments taking advantage of this divergence have been able, in practice easily dismiss these ‘sacred rules of Islam’.

II - The 1907 Constitution and the Judiciary Scheme

The Constitution of 1907, although declared, until the last day of the regime – that is, for almost 72 years – as the official basis of the the official basis of the regime, prescribed a political system that never actually came into being in Iran. In fact, this constitution was In fact, this constitution was drafted in an atmosphere of class struggle and anti-colonial struggle when the outcome of the struggle between the forces involved was not yet known. This constitution was the result of a compromise between the popular movement, the clergy and a semi-feudal semi-feudal power dependent on the colonial countries.

This situation influenced both the political system to be created under this Constitution and the judiciary that was to be a part of it. system to be created under this Constitution and the judiciary that was to form an important part of it. an important part of it. This precarious balance made the political system the political system prescribed by the Constitution and its judicial system unworkable. But, in any case, they could at least be used as a façade, depending on used as a front, depending on the situation.

We will take a quick look first at the political system and then at the judiciary then on the judicial system prescribed by the 1907 Constitution.

A - The political system prescribed by the 1907 Constitution

This constitution established a constitutional monarchy in Iran which above all confirmed the rule of the Qadjar dynasty which had been in power for 150 years²⁶. The constitution gives the king command of the armed forces. (Art. L of the Complement) The king’s reign no longer had a purely divine character. An equivocal expression apparently reconciled feudal legitimacy with the nationalism of the bourgeoisie nationalism: “Royalty is a deposit entrusted by Divine Grace on behalf of the Nation to the person of the of the Nation to the person of the Emperor” (art. XXXV of the Complement).

Article XXVI further confirms the principle of national sovereignty national sovereignty: “All public powers emanate from the Nation”. The national assembly elected by all citizens is the best expression of the national will. expression of the national will.

But this Constitution, while recognising the National Assembly as the sole as the sole legislative body and while proclaiming the submission of all to the law, Article II of the Constitution sets a condition for the validity of the validity of laws which reflects the enormous influence of the religious the time. This article states:

“The revered Madjless-e Shorāy-e Melli [the national assembly] “The revered Madjless-e Shorāy-e Melli cannot at any time contradict by his laws the Holy Islamic prescriptions and the laws enacted by the prophet Whereas the recognition of whether or not there is a contradiction between Whereas the recognition of whether or not there is a contradiction between the laws enacted by Madjless and the Holy The Ulema [the pontiffs of the Islamic religion] will always be responsible for the most learned pontiffs of the Islamic religion, it is It is formally prescribed that at all times a committee comprising at least 5 persons chosen from among the Ulema who also have knowledge of the requirements of the time shall be constituted.

These are recognised as members of the Madjah, to participate in the deliberations and to discuss in the deliberations and discuss the rules of the proposed projects in detail. proposed projects. The assembly will have to discard rules that contradict the sacred the sacred doctrines of Islam and ensure that they do not become that they do not acquire the force of law. The decisions taken by this Committee in this respect Committee shall be peremptory and final²⁷.

A detailed analysis could easily show that this situation prevails throughout the prevails throughout the Constitution. Everywhere, the powers were distributed among these three forces in such a way that it can be easily easily demonstrated that in practice their implementation was impossible, even for actors sincerely determined to implement it. But such an But such an analysis is beyond the scope of our work. We simply want to to explain how the 1907 Constitution outlines the regime regime it wishes to establish and how it hesitantly prescribes rules that rules which could have brought the country to a complete standstill if the course of events country if the course of events – with the help of colonial plots and the bayonets of the Cossacks – had not paved the way for the future authoritarian future of the regime.

Now, after the proclamation of the Constitution, the king presented to the the assembly as members of the government almost the same the same personalities he had previously appointed to these posts. In a In a situation where 90% of the population lived in rural areas subject to feudal relations, this assembly – theoretically the expression of the the expression of the national will – was filled by the feudal feudalists and their relatives. Thus the article concerning the clergy’s right of veto veto of the clergy fell into disuse once and for all.

In spite of this, the 1907 Constitution prescribed principles of political the political system whose long-term results were far more important than far more important than its immediate effects. For example, Article VIII of the Supplement states Article VIII of the Supplement, which states: “The citizens of Iran are equal before the laws of the equal before the laws of the Empire’ provided the groundwork for the abolition of abolish feudal privileges and to inflict the final blows on the political political power of the feudalists. Apart from the fact that these blows were inflicted not by the people but by Reza Khan with the support of England, history was nevertheless taking a step forward.

B - The outline of the judicial system given by the 1907 Constitution

The Constitution of 1907, in declaring the principle of the separation of powers, makes special provision for the the principle of the separation of powers, it makes special provision for the which can be divided essentially into two parts: the principles and legal bases, on the principles and legal bases, on the one hand, and the organs that and the organs that make up this power.

A brief analysis suffices to show the problems posed in practice by this Constitution, either because of its internal contradictions or because of its social environment.

a) Principles and legal bases

The most important principles prescribed by the Constitution in this regard are the following principles:

1. The principle of : “No punishment without law” (art. XII of the Complement).

2. The principle of the prohibition of unlawful arrest (art. X of the Complement).

3. The principle of the general jurisdiction of the ordinary courts (Art. LXXI of the Complement).

4. The principle of the inviolability and irremovability of judges (arts. LXXXI and LXXXII of the Supplement).

5. The principle of opening trials to the public (Article LXXVI of the Complement).

6. The principle of the need for a jury to hear political and press political and press offences (art. LXXIX of the Supplement).

b) The judicial bodies

The Constitution outlines the judicial organisation which prefigures to a certain extent the judicial institutions that were created later, the most important of which are the following:

1. The lay courts and the canonical courts (art. LXXI and LXXIII of the Complement). and LXXIII of the Complement).

2. The courts of appeal in the chief towns of all the provinces (art. LXXXVI of the Complement).

3. The military courts ’throughout the Empire’ (art. LXXXVII of the Complement).

4. The Supreme Court of the country, in the capital city, which is the instance for all courts (art. LXXV of the Supplement).

5. The public prosecutor’s office and the public prosecutor (Article LXXXIII of the Supplement).

c) Problems faced by the Constitution in this area

Article 71 of the Supplement states:

The High Court of Justice and the Judicial Courts are the only courts of jurisdiction in public affairs and the adjudication of matters of char’ is the responsibility of the pontiffs who are qualified for this function.

Here the distinction between “public matters” and “matters of char’” is not specified. From the point of view of the pontiffs themselves, all the matters of Muslims fall within the the jurisdiction of Islamic judges, and until then the canonical courts had declared themselves competent to hear all cases. Now that the Constitution wanted to establish secular courts, it should have specified the jurisdiction of the canonical courts, but as mentioned above, the the conditions under which the Constitution was drafted did not allow it to pronounce itself in a precise manner on these questions.

This same ambiguity as to the limits of the jurisdiction of canonical courts the validity and relevance of the other principles. According to this Constitution the law is an act passed by the National Assembly and signed by the king. At the same time it is stated that a person cannot be that a person cannot be judged or convicted without relying on a law prior to the offence. How can these principles be reconciled with the existence with the existence of canonical jurisdictions? Are these jurisdictions also subject to these principles? Are these courts also subject to these principles? Do Islamic rules, in order to become enforceable, have to be Islamic rules, in order to become enforceable, have to be passed by the Madjless and signed by the king, or do these rules automatically have the force of law? law? If we add to all this the differences of opinion between the pontiffs, one can see the theoretical and practical problems that this Constitution the theoretical and practical problems that this Constitution was likely to pose even if it was to be to apply it under democratic conditions.

Other obstacles to the creation of a constitutionally compliant judiciary the social conditions existing at the time of the drafting of the Constitution. conditions existing at the time the Constitution was drafted. In addition, the personnel required to create such a judiciary was a major obstacle, the personnel necessary to create such a judiciary was lacking. lacking. The weakness of the central power and the power of the clergy and local and local governors added to all these obstacles, so that until 1925 until 1925, attempts to enact criminal and civil laws were aborted.

The continuation of the democratic movement against absolutism, which had despite the Constitution, the conclusion of the treaty between Russia and the conclusion of the treaty between Russia and England, dividing Iran into two zones of influence, and the entry of foreign forces into Iran during the World War 1914-1918, created a situation so unstable that it made it impossible to impossible to organise the judicial system.

Chapter II - Strong central government and concrete efforts to create a judiciary

The fate of the judiciary as part of the state apparatus The fate of the judiciary as part of the state apparatus depended on the fate of the state apparatus, and the future of political power was linked to the outcome of a struggle that the constitutionalist movement had apparently only movement had only just begun.

In this chapter we will examine first the emergence of a strong state apparatus and and then the creation of a judiciary as part of the state apparatus. as part of the state apparatus.

I - The emergence of a strong and centralised state apparatus

The constitutionalist movement, while unable to overthrow the semi-feudal and foreign semi-feudal and foreign-dependent power, had succeeded in demonstrating two things in relation to this power: first, the feudalists in Iran were too weak to ensure were too weak to ensure their domination and that of their colonialist colonialist support; secondly, the ruling dynasty was too discredited for discredited for its support to ensure the interest of the colonialists.

The restoration of order in Iran after the advent of the October Revolution had acquired a double significance. had acquired a double significance. At that time the creation of of strong central powers in the Soviet Union’s neighbouring countries had become a necessity²⁸ and the previous colonial policy which supported the fragmentation of power and separatist movements in the dominated countries was to be abandoned.

Britain’s plan for direct control over Iran’s finances and direct finances and direct intervention to create a modern Western-style army army, after the First World War, following the disparate resistance of disparate resistance from some nationalist forces and influential feudal forces and some influential feudalists finally found a favourable ground for its following the 1921 coup d’état of Reza Khan. The new army The new army that was gradually taking shape began to suppress the democratic democratic forces and the centrifugal feudal forces. When finally in 1925 the Pahlavi dynasty replaced the Qajar dynasty, it could be said that the foundations of an organised and centralised dictatorship had already been laid.

A 1931 law on the registration of landed property ensured that the government had full control over land ownership.

The government’s monopoly on foreign trade was ensured by by a law of 1932. In this way, two major areas of the country’s economy economy, one of which had previously been considered the exclusive domain of the feudalists1 and the other was more or less the domain of the national bourgeoisie, were bourgeoisie, were brought under government control.²⁹

The government took over much of the domestic investment by creating the by creating the National Bank, disposing of the growing oil resources and resources and by participating in major industrial projects such as the industrial projects such as the construction of a railway from the North to the South to the South, the Foundry Factory,³⁰ etc. The monopoly of the cotton trade, and sugar increased the power of the government in the economic field. power in the economic field.

The political repercussions of the economic domination of the state political power of the feudalists, the abolition of all democratic freedoms democratic freedoms such as freedom of the press, freedom of speech and freedom of speech and freedom of association.

Feudalism, without having disappeared economically, has lost its political power. political power. The central government, while suppressing the political power of the feudal political power of the feudalists, kept the land for them and protected them against any threat of peasant insurrection. The gendarmerie, which The gendarmerie, which replaced the armed bands of the landowners in the villages, had the most important task of all. the armed bands of the landowners in the villages, had the most important task of helping these to collect the rents. The majority of the deputies of the National Assembly The majority of the deputies of the national assembly were the feudalists and their relatives, but the of the National Assembly were the feudalists and their relatives, but it had no right to vote on important matters and the government’s plans had to be voted on without discussion. and the government’s plans had to be voted on without discussion and often remained unchanged. Although most of the important administrative posts were in the hands of the feudal were in the hands of the feudalists,³¹ the administrative apparatus was not to the feudalists, but to the central government. The feudalism also more or less accepted this situation because it had had seen in the revolutions of 1905-1922 its near death; Now it saw in this government a “saviour”.

The democratic movement, which had initially been fooled by the anti-feudal phraseology of the of the founders of the new regime more or less contributed to the the arrival in power of its gravedigger. When Reza Shah began to repress the democratic movement, a the democratic movement, many of the movement’s leaders were faced with someone movement were confronted with someone whose takeover they had facilitated. to seize power³².

The new regime does not limit its interference in the life of the people to the economic and economic and political areas. Very soon this regime, under the cover of the cover of ‘modernism’, it began to interfere in the private lives of private life. The laws aimed at standardising people’s clothing and removing the veil from women women’s veils forced men to dress in the European style and ordered women to and ordered gendarmes and police officers to forcibly remove women’s veils on The laws aimed at standardizing people’s clothing and removing women’s veils forced men to dress in the European style and ordered gendarmes and police officers to forcibly remove women’s veils from public streets.

In less than 15 years (1925-1940), Iran had a centralised government and a government and a set of laws that had taken more than two centuries to emerge and and development in European countries had lasted more than two centuries. The the Civil Code, the Commercial Code, the Penal Code, the Code of Criminal Code of Criminal Procedure and the Code of Civil Procedure are copied from European European laws, especially French ones, and passed without discussion. discussion. Indeed, one could say that the seizure of power by the bourgeoisie was complete, without having first found, as in Western countries in the Western countries, its own place in the national economy. The bourgeoisie comes to power in Iran, but it is not the national bourgeoisie, it is a bourgeoisie, it’s a bourgeoisie that has its roots abroad.

In any case, the bureaucracy whose foundations were laid at that time has continued to dominate Iran to this day. has continued to dominate Iran to this day. The transformations and reforms that this bureaucracy has undergone, were all in the direction of generalising government power power in the political, economic and social spheres. economic and social fields.

II - The establishment of a Western-style judicial system

The new regime saw the establishment of a judiciary as part of its overall programme to create a country-wide bureaucratic apparatus. bureaucratic apparatus covering the whole country. To accomplish this, it was necessary to the canonical courts and the general removal of all clerical influence. all clerical influence in the judiciary in general, and secondly, it was necessary to create a judiciary on the Western model model, but in such a way that it remained completely subject to the to the Executive.

A - The suppression of the legal competence and influence of the clergy

The groundwork for dissolving the canonical courts was gradually being laid. prepared. At first the emergency canonical courts with criminal jurisdiction were dissolved and a jurisdiction were dissolved and a law of 1927 reintegrated the remaining of the canonical courts into the secular judiciary and finally a law of 1927 limited the competences of the reinstated canonical reinstated to a few specific cases by subjecting the validity of their judgements to the the validity of their judgements to the decisions of lay judges. The powers of the canonical courts were The powers of the canonical courts were as follows:

• “Disputes concerning the substance of the marriage and divorce;

Disputes which, according to a special law, can only be decided by religious by religious testimonial evidence or by oath;

Cases where, according to special laws, it is a question of appointing a guardian, or an executor of pious foundations³³.

The religious court has only one member. This member must be modjtahed, i.e. a member of the clergy He must be a member of the clergy who has obtained permission from another modjtahed, “edjāzeh”, to write his own Précis, and to make public his own opinions. The Tehran The religious court of Tehran, which is at the same time the court of appeal, may The Tehran Religious Court, which is also the Court of Appeal, may exceptionally have two other members, who are in fact the vice-chairmen of the court. They, too, must be They too must be > modjtahed. The Tehran court has regulated its The Tehran Court has regulated its > appellate court. For each case, one of the modjtahed In each case, one of the capital’s > courts whose name appears on the official list of the Ministry of Justice of Justice, will be chosen by lot. The decision of this modjtahed](#modjtahed)* > is final. is final³⁴.

Moreover, the development of the Law School and the appointment of judges from among law graduates increasingly reinforced the secular composition the lay composition of the judiciary.

It should be noted that this legislative approach could not eliminate the influence of the religious on legal matters between individuals particularly among the rural population, which at the time comprised nearly 85% of the country’s total population. 85% of the total population of the country. The clerics continued to contracts between individuals in the traditional way and in case of the courts were practically obliged to respect them in the event of a dispute. to respect them. Not least because, despite the modernisation and professionalisation of the judiciary, the professionalization of the judiciary, the bulk of the feq](#feq) on legal relations between legal relations between individuals was integrated into the new civil the new civil code, the clerics could well retain their position in this area. in this area.

Indeed, the exclusion of the clergy from the judiciary was part of the part of the government’s general policy of suppressing the influence of the influence in various fields.

At that time, the dispersed resistance of the clerics to the central power did not power did not attract popular support. After the fall of Reza Shah in 1941, his successor was faced with a critical situation – a state of state of war and the presence of foreign armies in the country, the weakness of central power and a popular movement more or less under left-wing political political leadership – tried to approach the clergy. In general the shah maintained good relations with the senior clergymen between 1941-1961. Indeed, the coup of 18 August 1953 against the Mossadegh Mossadegh’s government in favour of the shah was welcomed by welcomed by the high clerical authorities. It was in 1962-1963 that a part of the clerics, coming closer to the urban bourgeoisie and petty bourgeoisie bourgeoisie tried to mobilise the popular masses against the “excesses against the “excesses” of the monarch. Khomeini, who is at the head of these clerics, does not yet claim these clerics does not yet demand the dissolution of the constitutional monarchy. constitutional monarchy. He asked for some reforms. It was in 1969 that first time during his exile in Iraq, he taught a course on Islamic Islamic government in the school of theology in Najaf.

B - The creation of Western-style judicial bodies

As already mentioned, as far as judicial organisation and procedure are concerned, the laws of and procedure, the laws of Western countries have been copied identically. copied identically. At the beginning, this judicial organisation was the Ministry of Justice, which consisted mainly of the district courts courts of first instance sitting in the cities, courts of appeal sitting in the courts of appeal sitting in the provincial capitals and the Court of Cassation the Court of Cassation in the capital. In the provincial capitals, in addition to the next to the court of appeal sat the court of assize with the public prosecutor’s office at its side. parquet. Next to the Court of Cassation there was also a public prosecutor’s office with the public prosecutor at its head.

Minor disputes were decided by the district courts and major disputes were important disputes were subject to appeal and cassation. cassation.

In 1918, another jurisdictional body was created within the army which, in addition to purely military offences, also dealt with political offences committed by military personnel, and in some cases even those committed by civilians. The military judicial bodies were essentially made up of public prosecutors’ offices, magistrates’ courts and courts and courts of appeal, whose magistrates were appointed from among military from among military lawyers by the military authorities. The lawyers were also military and civilian lawyers were not allowed to plead before these to plead before these courts.

Three apparently legal steps allowed the government to better control the judges and control over the judges and, on the other hand, to practically close the to practically close the cassation appeal route for judgments handed down by military military courts:

1. Article LXXXII of the Supplement to the Constitution of 1907 which states: “The functions of the judges of the judicial courts may not be changed without their consent”, was without their consent”, was supplemented by an interpretative by an interpretative law in 1931, according to which the Minister of Justice was given the right to transfer judges without their consent consent;

2. according to the Constitution, the Court of Cassation should also have also have jurisdiction over appeals against judgments handed down by military military courts, but Article 268 of the Military Courts Act law of 1939 made any appeal in cassation or review subject to the King’s the King’s authorisation for any appeal in cassation or for review - an authorisation that was was virtually impossible to obtain, especially for those convicted of political offences convicts tried by these courts³⁵ ;

3. finally, the right of pardon entrusted to the king gave him a fairly wide margin of manoeuvre. of manoeuvre. In particular, the shah, by benefiting from this right the right to pardon, the shah was all-powerful over the fate of the condemned during the last decade of his reign³⁶. the last decade of his reign³⁶.

＊ ＊ ＊

In this way, by 1939, Iran had already developed a judicial system that worked, with some which functioned, apart from some adjustments, until the the threshold of the 1979 revolution.

Chapter III - The particularity of the Iranian judiciary

In its functioning, the judiciary enters into a series of interaction and of interaction and independence with other organs of the state. the state apparatus. Ultimately these relationships determine the place and role of the the place and role of the judiciary in the State. The army and the The army and the police are the state organs closest to the judiciary and the judiciary and consequently have a considerable influence on it. influence on it³⁷.

In almost all countries, the army has a special jurisdiction, ostensibly to maintain order in its ranks, but apparently to maintain order in its ranks, but everywhere there is a everywhere there is a relatively strong tendency among the military high commanders to extend the judicial powers of military courts. military courts. In addition, the constitutions of all countries provide for a ‘state of emergency’ during which the military has the right and duty to duty to completely replace the judiciary.

The police, while being the most effective instrument in the hands of the in the hands of the judiciary for its proper functioning, is in the best position to is in the best position to influence it. To a certain extent, it is the police who to some extent, it is the police who determine the scope of the judiciary’s the judiciary.

Apart from the army and the police, the growth of state intervention in socio-economic in socio-economic affairs through the expansion of the bureaucratic apparatus the bureaucratic apparatus has led to the establishment of purely administrative administrative bodies to settle the ever-increasing disputes between public bodies and individuals. The undeniable practical advantage of this approach makes governments indifferent to criticism of administrative the intervention of the administrative in judicial matters.

With regard to the place and functioning of the Iranian judiciary in relation to other the Iranian judiciary in relation to the other state organs under the Pahlavi the Pahlavi dynasty, the study of two particularities is essential for our essential for our work: first, the effects of the intervention of the the effects of the intervention of the army and the bureaucracy in judicial matters and the restriction of the competences of the ordinary courts and secondly, the subordination of this apparatus to the torturing police.

I - The scope of the jurisdiction of military courts

Generally speaking, military tribunals in Western democracies are considered to be courts of exception. are considered to be courts of exception. Some Iranians have also adopted the same terminology. But, in our opinion, if this terminology is terminology is accurate in these countries, in Iran it does not correspond to reality. reality. In these countries, the judiciary is presented as the tool of a more or less independent judiciary and with such an approach to with such an approach to the judiciary, the military courts, dominated by the dominated by the executive, can be seen as courts of exception. courts of exception. But in Iran, such a separation of powers, although proclaimed by the Constitution subject to certain restrictions, has never been achieved under any has never been achieved under any government. The National Assembly which in principle should be the body of legislative power controlling all affairs affairs, was as much manipulated and dominated by the government by the government as the judiciary, and the ordinary courts lacked lacked independence from the government as much as the military military courts. Moreover, the military courts, as we shall see, had a more Moreover, the military courts, as we shall see, had greater jurisdiction than the ordinary courts. This is why we prefer to consider the ordinary courts and the ordinary courts and military courts as an integral part of the same judicial judicial system

About the military courts with regard to the legal texts, in addition to the aforementioned Military Courts Act of 1939, two other laws are particularly important: firstly, the 1911 State of Siege Act the State of Siege Act of 1911, and secondly the 1957 Act establishing the SAVAK of 1957.

A - The Law of Siege

This law, which was used frequently, especially during the tumultuous years years of 1941-1956 and also during the last years of the Shah’s rule, gave the government reign, gave the government the authority to declare martial law. martial law. Under this law, when martial law was in force, all individual and collective freedoms were all individual and collective freedoms were suspended and special military suspended and special military courts were given the power to try to deal with offences against ‘public safety’. In 1950, a In 1950, a supplementary law made the declaration of a state of siege subject to the “the existence of exceptional circumstances’ and ‘prior approval approval’, but at the same time authorised the government to declare to declare martial law when the exceptional circumstances exceptional circumstances, subject to ‘approval by Parliament within one week’. Parliament within one week”.

According to the 1911 law, ’the judges of the provisional military courts must be military” (art. 3). According to this law, again, ‘any person suspected of being opposed to the constitutional regime and to public security and public order, may be arrested by the Executive (art. 5). Also, searches in case of suspicion are authorised by the forces of law and order” (art. 7). And: “associations and associations and gatherings are absolutely forbidden during the period of martial martial law” (art. 10).

B - The 1957 SAVAK Act

This law, which creates the famous SAVAK, makes the SAVAK the judicial police of the military courts on the one hand, and on the other hand extends the powers of the SAVAK to include the judicial police of the military courts and on the other hand extends the the jurisdiction of military courts in an unprecedented way. Article 2 of this law lists the numerous areas of jurisdiction of this body and makes the military courts competent to deal with the offences enumerated by the present law. This article is worded as follows This article is worded as follows:

The security and intelligence organisation of the country SAVAK is responsible for the following tasks:

1. Obtaining and gathering intelligence necessary for the

1. Obtaining and collecting information necessary for the > maintenance of the country’s security;

2. the prosecution of all kinds of espionage and of elements acting against the

3. the prosecution of actions of all kinds of espionage and of elements acting against the independence and independence and integrity of the country or for foreign interests;

4. the prevention of the activity of organisations whose establishment and

5. the prevention of the activity of organisations whose creation and leadership have been or have become illegal, and the prevention of the establishment of organisations whose the ideology and practice of which are contrary to the Constitution;

4. the prevention of any conspiracy or conspiracy against the > security of the country

security of the country;

5. the inspection, discovery and investigation of the following the following offences:

6. the offences referred to in the Law of 12 June 1931 relating to offences against the security and independence of the country;

7. the offences listed in Chapter I of Part II of the Part II of the Penal Code of 13 January 1925;

8. the offences referred to in Articles 310, 311, 312, 313, 314, 316 and 317 of the 1939 law relating to military courts military courts³⁸.

Some subsequent scattered laws increasingly extend the jurisdiction of military jurisdiction of military courts, for example :

1. the law of July 1954 on “armed robbery”;

2. the law of November 1957 relating to “sabotage in the oil industry industry”;

3. the 1969 law on “drug smuggling”;

4. the law of 5 April 1972 on “arms smuggling”;

5. the law of 16 March 1974 on “sabotage in factories”;

6. the law of 23 March 1974 on the “monopolisation of consumer goods consumer goods³⁹”.

II - The limitation of the jurisdiction of the ordinary courts

It is clear that the extension of the jurisdiction of military courts the jurisdiction of military courts meant in fact limiting the jurisdiction of ordinary courts. But it was not only for this reason that the ordinary courts were to lose their jurisdiction. The various laws various laws enacted especially in the 1960s and 1970s entrusted the to bodies other than the courts. The Labour Act of of 15 March 1959 entrusts the hearing of disputes between employers and disputes between employers and workers to a labour tribunal within the Ministry of Labour composed of a representative of the Ministry of Labour, a representative of the representative of the employers and a representative of the workers.

The Agrarian Reform Act of January 1962 gives an administrative commission the power to administrative commission to settle disputes between peasants and landowners.

The tax laws entrust the hearing of disputes in this area to a special commission within the Ministry of Finance.

And finally, the laws on the nationalisation of water, forests and pastures and grazing lands entrusted specialised administrative commissions with the to settle disputes arising from these matters. And so the law of law, the law on the order of doctors and the law on corporate affairs and the law on corporate affairs were along these lines.

In any case, these extra-judicial bodies were multiplying day by day, not to mention day, not to mention the administrative courts, which have acquired a great deal of power power, especially recently.

III - The support of the judiciary to the torturing police

Under this heading we will examine, first, the functioning of torture and the torturing police, in general, and then the relationship of this police with the judicial system

A - The role and organisation of torture

The process of modernisation, professionalisation and westernisation of the The process of modernisation, professionalisation and westernisation of the Iranian state apparatus affects above all the army and the police that it has organised. The ‘achievements of Western civilisation’ can easily be observed there. The shah’s army The shah’s army was the 5th largest in the world in terms of equipment and training. training. The shah’s secret police had a worldwide reputation.

The study of the development of the modern army and police in Iran not only reveals the process of modernization of the state apparatus, but also the development of a new police force. not only reveals the process of modernisation of the state apparatus, but also but also shows us the relationship of dependence of this apparatus The equipment and training of the Shah’s army was imported from abroad. The equipment and training of the shah’s army were imported from abroad and the shah’s secret police was organised by the CIA. organised by the CIA. The SAVAK torturers were trained by the Americans and the methods and Americans and the methods and instruments of torture were imported from imported from the United States or Israel.

Indeed, contemporary torture is a phenomenon that originated in industrialised countries and is applied in dependent countries. countries and applied in dependent countries. D. Bacry and M. Ternison, on the role of industrialised countries in the organisation and practice of torture in ‘underdeveloped’ countries, write:

We are witnessing a kind of international division of labour; rich countries are exporting their technology of oppression We are witnessing a kind of international division of labour; > rich countries are exporting their technology of oppression, giving the poor countries the benefit of their knowledge”: “Indeed, most of the countries Indeed, most of the countries where torture is practised against opponents, can be classified in the world of underdevelopment⁴⁰.

Indeed, institutionalized and systematic torture in Iran begins with the beginning of the modernisation and professionalisation of the state machine⁴¹. This state machine has the task of preparing the ground for the ground for the domination of monopoly capital over the different sectors of the national sectors of the national economy.

Torture in the hands of a well-equipped and well-organised police force, with a vast network of snitches and informers, is an effective way to ensure an effective means of ensuring the equilibrium of a state which, due to the lack of a national class base is still in crisis. As the the dependence of the national economy on the imperialist economic system economic system, the practice of torture and the organisation of the of the torture police is perfected. In the 1960s when the the process of dependence is completed and all sectors of the country’s the country’s economy were “organically” linked to the imperialist economic system, torture economic system, torture reached its peak. The real organiser of this of this torture, i.e. the CIA, no longer hides its initiative in this in this regard. The application of torture in all dependent countries is is indicative of the fact that torture must be studied not as a dreaded evil, but as an evil, but as an institution indispensable to the maintenance of the relationship of dependence.

B - Torture in the service of the judiciary

The first thing to say is that the torture and interrogation by the interrogations by the torturing police were by no means specific to specific to political prisoners but were also carried out on common prisoners, as a practice for the discovery of offences. discovery of offences. Taghi Arani who died under torture in the police prison in 1940, during the time of Reza Shah, said of torture in his statement to the torture in his statement to the Tehran Assize Court: “Torture is practiced in the police torture is practised in the police force on everyone and especially on political prisoners⁴²”.

Of course, one can imagine that systematic torture was more necessary for political necessary for political prisoners, most of whom were active in underground who mostly carried out their activities in clandestine and well-structured organisations the precautions imposed by this kind of activity, than for common prisoners who generally committed occasional offences. occasional offences. But when it came to But when it came to uncovering criminal networks such as those But when it came to uncovering criminal networks such as drug trafficking or theft, systematic torture was frequently by the police in order to obtain information.

About the control of the police over court judgements, Arani quotes a junior police officer as saying the court will never dare to acquit or convict anyone without the without the permission of the police. If you want to be acquitted, try to get If you want to be acquitted, try to get the police’s approval⁴³.

But it should be noted that in disputes that are rather judged by the ordinary courts, the influence of the police on the judgement is not so great. by the ordinary courts, the influence of the police on the judgement influence on the judgement is less and judges enjoy a certain independence in independence in these areas. But because the ordinary courts do not have any the police and gendarmerie to carry out searches and investigations, the and investigations, the prosecutors’ offices build up the case files essentially on the basis of police statements and refer them to the to the courts, which render their judgements on the basis of these files. In Iranian courts, defendants frequently retract their confessions. defendants often retract their confessions, attributing them to pressure under interrogation. The indifference to the statements of the defendants and their lawyers before the of the accused and their lawyers in court and the mere reference to the to the first confessions made to the police in court judgements are customary. are customary.

On the different kinds of torture in his above-mentioned statement, Taghi Arani cites the following cases:

1. physical torture… ;

2. psychological torture… ;

3. insults… ;

4. poor detention conditions… ;

5. threats of murder… ;

6. the threat of indefinite detention without trial⁴⁴.

In later years, and especially in the last fifteen years of the Shah’s reign, the list of these tortures grew longer. of the shah’s reign, the list of these tortures grew longer⁴⁵.

Torture has a variety of uses for the police: from creating a climate of from creating a climate of terror in society to putting pressure on individuals to pressure on individuals to collaborate with the regime⁴⁶, but the focus here is on the regime,⁴⁶ but the focus here is on the use of torture to extract torture in order to extract confessions; this is directly related to the functioning of the directly related to the functioning of the judiciary⁴⁷.

This torture cannot be considered as a sordid practice used by the regime. used by the regime, but in our opinion, when the regime lacks such a social and national social and national base, it inevitably needs it for its safeguard. safeguard. While any opposition, however simple, is is harshly repressed, inevitably opponents try to organise themselves away from the eyes of the away from the eyes of the police; the discovery of these clandestine organizations, in a context of mistrust of the people, is only possible through by torture. This is why cases of discovery of political opposition organizations political opposition organisations directly by the police and without resorting to torture were rare in Iran. Any political prisoner can tell easily say by whom and under what conditions he was denounced and these conditions conditions are usually conditions of torture.

On the other hand, the prevailing atmosphere of asphyxiation creates a social situation situation to the point where a spark is enough to set fire to everything. everywhere. This is why the police cannot simply discover opposition political organisations once they are created. political opposition organisations once they have been created and arrest arresting opponents after they have acted. If opponents If opponents find the opportunity to act and organise, it is quite possible that social conditions no longer allow the police to suppress them. This is where the police are forced to search the intentions and even the and even the thoughts of individuals, and such a search is only possible by torture.

Other uses for torture include: it is used, It is sometimes used to force people whom the police want to keep in prison to to confess to the commission of offences that in reality never took place; it is also used to It is also used to obtain false confessions about others. about others. However, these are secondary uses of torture of torture that the police may be able to avoid, whereas the first two the first two cases are vital for the maintenance and safeguarding of the of the regime.

The same applies to the discovery of organised common law offences. the rupture between the people and the police, the use of torture becomes torture becomes inevitable and the judiciary is forced to rely on the information forced to rely on the information thus obtained.

Conclusion

A centralised state machine, specific to the bourgeoisie, is being set up in Iran, not on the basis of a capitalist mode of production. on the basis of a capitalist mode of production developed within the feudal system, but on the developed within the feudal system, but on the ruins of the latter. It is not the result of the political power of a social class at a certain stage of its development. of its development. It represents the political power of a foreign capital which seeks to restructure the whole society according to its interests; it is therefore the origin of capitalism. As time goes by, it creates its own it creates its own class base, i.e. that of a bourgeoisie totally bourgeoisie totally dependent on the imperialist bourgeoisie.

The lack of a national class base is at the root of a chronic crisis crisis whose only remedy is the use of the most naked forms of violence against violence against all opposition. While the centralised bourgeois state in Iran has never had a democratic form, this is due to the demands of power imposed on the whole of society, not the intentions or the ’exceptionally cruel’ nature of intentions or the ’exceptionally cruel’ nature of this or that leader.

The state excludes all social classes, including the economically dominant classes, from political power. economically dominant classes, from political power. It prohibits any political or trade political or trade union activity for anyone; it tries to control the cultural and ideological organs of society. All this is essential to ensure its dominance over the All this is necessary to ensure its dominance over the economic life of the country. The state fills the vacuum created by the political-ideological absence of the by the creation and development of purely governmental political formations political formations as well as an official ideology imposed by force. ideology imposed by force. The imposition of governmental political formations formations and official ideology constitutes a considerable part of the of the repressive actions of the state apparatus. The completion of the agrarian reform in the early 1970s marked a new phase in the a new phase in the development and imposition of the official ideology to ideology in order to better control the population. The “2500th ^{year of the imperial regime imperial regime” is celebrated in the presence of chiefs and high from most of the world: adherence to the one-party government and and commitment to the official ideology becomes compulsory for and finally the national calendar is changed to an imperial calendar. changed to an imperial calendar.}

The undemocratic and even anti-democratic nature of the state leaves no room for independence of the powers and the Executive exercises absolute power in absolute power in all areas. In the hands of such a state, the In the hands of such a state, the judicial system, modelled on that of Europe, has its own function. It It serves to eliminate the privileges of the feudalists, to drive out the clergy as ally of the feudalists from the judiciary and to prepare the conditions for conditions for the growth of capitalist relations in the country.

Part Two: The Islamisation of the Judiciary

Introduction

To fully understand the transformations and evolution of the judiciary under the new under the new regime, it is necessary to look first of all at the problems the problems that the regime faced in restoring order, and secondly, the the possibilities at its disposal to achieve this objective. The understanding of all this requires consideration of the social social situation of the country, the nature of the new regime and its elements within a specific historical framework:

1. The regime that came to power on 11 February 1979 and called itself the “Islamic Republic” on 1 April 1979. Islamic Republic” on 1 April of the same year, replaced an imperial regime in which the last replaced an imperial regime where the last king had ruled for more than 37 years. 37 years. Obviously, this regime was to change at least the appearance of most affairs and even remove many of those who owed their existence to the who owed their existence to the imperial regime, crushing their resistance resistance if need be.

2. The new regime came to power in conditions where for several months the months, the forces of order and the army had been openly shooting at demonstrators in the streets. Many people knew the killers of their relatives among these forces. who knew the killers of their relatives among these forces by name by name, arrested them themselves during the uprising of 10-11 February or in the 10-11 February or in the days that followed and handed them over to the authorities of the new regime, urging their punishment. This regime, contemplating keeping these forces for itself, was nevertheless forced, in many cases, to forced, in many cases, to take these demands into consideration. requests.

3. This regime came to power as a result of a huge popular movement involving movement involving almost all social classes and strata and and it appears to most people as the fruit of their own revolution. revolution, so that after the establishment of the new regime, every regime, every grouping and class sought to realise its demands with the to realise their demands with the help of the new regime. In fact, the revolution which led to the fall of the imperial regime was not only completed with the completed with the establishment of the Islamic regime but, on the contrary on the contrary, it was accelerating and expanding. Many workers occupied factories and workers occupying factories and peasants confiscating land from landlords the land of the landlords, asking for the government’s support against the capitalists and the big landowners, even though the the regime was not in principle opposed to such private property. private property.

4. The new regime relied mainly on its Islamic ideology and in all its propaganda tried to ideology and in all its propaganda tried to show itself in harmony with in harmony with the principles of Islam. But this reliance on religious ideology and the role of the clergy provoked its own reaction and and increased the political significance of religious ideologies and and the role of religious figures. Because of the fact that interpretations of Islam among Iran’s religious intellectuals and the intellectuals in Iran and the fact that Iran’s clergy no longer constituted a homogeneous a homogeneous caste, relatively large religious forces rose up against the religious forces rose up against the regime. In fact, the Islamic character of the regime In fact, the Islamic character of the regime accentuated the religious oppositions and ensured a relatively broad popular base for these oppositions. base for these opponents.

5. In general, the popular masses and especially the national and ethnic minorities national and ethnic minorities saw the new regime, above all, as a negation of the previous one, the negation of the previous regime and saw their situation under regime as the result of a struggle that had to be continued by taking advantage of the weakness of the central power and the disintegration of the repressive of the repressive machinery. This was the situation of some tribal chiefs and locally This was the situation of some tribal chiefs and locally influential figures. As a result, the As a result, the regime was confronted with workers’ strikes, peasants’ insurrections and autonomous movements of national minorities, and finally disobedience and disobedience and rebellion of tribal leaders and local notables. local notables.

6. The composition of the new leadership team that took power on 11 February 1979 power on 11 February 1979 was itself fraught with contradictions which were to be resolved in time. It is true that all It is true that all the regime’s leaders initially called for simply certain the administrative apparatus and the cultural and ideological superstructures of the and ideological superstructures of the previous regime while maintaining and stabilising the existing socio-economic system, bureaucracy and the existing socio-economic system, bureaucracy and army, but they disagreed among themselves on how to to carry out these reforms. These disagreements in the course of their evolution and and as the crises deepened, they sometimes led to bloody bloody clashes.

7. The main cause of all this, i.e. the economic crisis – from inflation resulting from unproductive investments, the increasing destructuring of the the increasing destructuring of the rural economy, and the subsequent The main cause of all this, i.e., the economic crisis – arising from inflation resulting from unproductive investments, the increasing destructuring of the rural economy, and the subsequent depletion of oil resources, etc. – which had begun in – which had started in 1975, resulting in several million unemployed, was spreading and under the new regime. The rise in prices and the and shortage of goods, and consequently their hoarding and and the appearance of black markets were all problems resulting from this crisis. of this crisis.

8. And finally, the repercussion of the regime’s external conflicts, especially the war with Iraq, on the country’s internal situation and the the war with Iraq, in the internal situation of the country and the the existence of more than two million war refugees and more than more than one million Afghan refugees created and still create their own their own problems.

The importance of the task that the judiciary had to take on in such a situation to ensure to maintain order, stabilise the regime and finally to repress the to maintain order, stabilise the regime and finally to repress the opponents. opponents.

In other areas, the new regime used the organs and institutions inherited from the institutions inherited from the old regime with minor alterations and very very often as they found them. In contrast, in the case of the judiciary, what remained of it was the judiciary, what was left of it was hardly usable for the new regime. new regime.

It is true that the ordinary courts remained more or less untouched by the the attacks of the revolution, but these courts were of little use in meeting the useful to meet the basic needs of the new regime.

Firstly, these courts, even under the Shah’s regime, as we have said above, were the shah’s regime, as we have said above, were essentially responsible for settling disputes between individuals and had no role in the security issues that were security issues that were essential to the regime. Obviously, entrusting such a role to an such a role to an apparatus that was not designed for it, in a critical situation situation did not seem reasonable.

Secondly, the ordinary courts relied on the police and gendarmerie to carry out their task. the police and gendarmerie, which, more than any other body, were the target of the revolution’s attacks. In many cities, the police stations were occupied by the people and the police stations were occupied by the people and the gendarmerie, even before the fall of the shah, had even before the fall of the shah, had closed its posts in many villages and many police and gendarmerie officers who, because of their who, because of their mission, had directly and daily confronted the demonstrators, were now captured or had fled. In addition, prisoners held in police jails had escaped.

It was hoped that these courts, with minor reforms, could be used by the new regime for the same tasks as before, could be used by the new regime for the same tasks as before, nothing more.

The part of the judiciary that was responsible for security issues was the main target of the the main target of the popular movement’s attacks, It had been dismantled before the establishment of the new regime. The military courts, SAVAK and the army’s intelligence service were The military courts, SAVAK and the army intelligence service were to be presented, at least officially, as the main enemies and the source of all the main enemies and the source of all the defects of the old regime. In such conditions, it was unimaginable to foresee any role for them. role for them. It was possible to use their structures in other ways, but to do so structures could be used in other ways, but for that to happen, the new regime had to be able to The new regime had to be able to develop a comprehensive plan to solve its security problems.

The vacuum created by the absence of the judiciary was further widened by the The vacuum created by the absence of the judiciary was further compounded by the non-existence of laws to address security issues.

The new regime did not need to repeal laws of the old regime in other areas. regime in other areas. The bureaucracy it used operated on the basis of laws that were more or less suitable for its tasks. tasks. Also, since the legal relationships between people remained the repeal of the laws that governed them was not necessary. necessary.

But laws relating to security issues were obviously closely linked to the existence of the closely linked to the existence of the imperial regime and in these new conditions were conditions, were unenforceable and non-invocable.

Religious ideology and the presence of clerics in the new regime could easily fill these two gaps. regime could easily fill these two gaps. Thus, all modjtahed](#modjtahed) could deal with justice and execute his judgement, because the laws invoked by him existed beforehand: what is prescribed by the Qur’an, Tradition and Islamic law books (feq). In this way, the In this way, the new courts, in the name of the revolution and Islam established themselves and obviously began their work where the support of the people support of the people was strongest, i.e. the repression and punishment of the punishment of the ‘collaborators of the old regime’. This popular support support gave these courts – as well as the “committees” and “revolutionary committees” and “guardians of the revolution” who were to act as auxiliaries to these These courts – as well as the “committees” and “guardians of the revolution” who were to act as auxiliaries to these courts – were able to organise themselves easily. The only thing that remained to be done was the co-ordination, the concentration of of these courts, the establishment of governmental control over them and the harmonisation of the ordinary courts with these ‘Islamic revolutionary courts’ and the drafting of homogeneous laws, both in the field of procedure and and the drafting of uniform laws in the field of legal procedure as well as in other areas. This process is still unfinished.

In any case, after the entry into force of the new Constitution and the Constitution and the creation of the Superior Judicial Council with a very competence, placed at the head of the judicial system, the ground has become the ground for harmonising and organising this apparatus better than before, this apparatus.

In the first chapter of this part, we will examine the general pattern of the the general scheme of the governmental system and the judiciary as the Constitution of the Islamic Republic; in the second chapter, we will follow the In the second chapter, we will follow the transformations of the old In the second chapter, we will follow the transformations of the old judiciary in the new situation. In the third chapter, we will In the third chapter, we will examine the “Islamic Revolutionary Courts In the third chapter, we will examine the “Islamic Revolutionary Courts” and related bodies, firstly, from the point of view of their organisation and secondly, from the point of view of the In the third chapter, we will examine the ‘Islamic Revolutionary Courts’ and related bodies, first from the point of view of their organisation and then from the point of view of their practice.

Chapter I - The Constitution of the Islamic Republic of Iran and the Place of the Judiciary in this Constitution

It is true that the Constitution of the Islamic Republic only came into force ten months ten months after the establishment of the new regime, but the problems relating to problems relating to this Constitution occupied, from the very first days a very special place among others. Moreover, the the Constitution formalised in many areas what had already been practically the Constitution formalised in many areas what had already been practically achieved, while at the same time defining the lines of future future development. So the examination of the problems relating to this Constitution on the one hand helps us to on the one hand, helps us to become more precisely and concretely acquainted with the events and political conflicts of the last three years and, on the other the last three years and, on the other hand, allows us to know the the general framework of the Islamic regime’s state apparatus and the the official place of the judiciary within this apparatus.

We will look at the problems concerning the Constitution in the following three sections the following three sections: the preparation, drafting and adoption of the of the Constitution; the analysis of the text of the Constitution; and some additional remarks on the Constitution.

I - The preparation, drafting and adoption of the Constitution

Khomeini in his decree concerning the appointment of Mr. Bazargan as Prime Minister of the “provisional government” had cited the the post of Prime Minister of the ‘provisional government’, had cited the the formation of the Constituent Assembly as one of the duties of this government. Before that date he had also promised the election of the election of the constituent assembly in a free and democratic atmosphere, in his democratic atmosphere, in his speech delivered on the day of his arrival from Paris in the cemetery of Tehran on the tomb of the martyrs of the revolution. But less than a month after taking power he called for a referendum to name the new regime the “Islamic Republic”, without the name of the “Islamic Republic” to the new regime, without determining the form or content. In response to Mr. Bazargan, who proposed the name “Islamic Democratic In response to Mr. Bazargan who proposed the name “Islamic Democratic Republic” for the regime, Khomeini said literally: “the Islamic Republic, not a word more, not a word less”.

After giving the regime this name, Khomeini and his entourage made another proposal another proposal that an “assembly of experts” would replace the would replace the constituent assembly. This assembly was to draft and adopt the Constitution. They justified this replacement by the lack of time. They said that in return, the text of the Constitution after being drafted and adopted by this assembly will be submitted to a referendum.

The Constitution of the Islamic Republic is drafted and approved by “Assembly of Experts”, which met for the first time on 19 August 1979. Khomeini in his inaugural message frankly determined the lines along which the the lines along which the future Constitution should be drafted. He said:

The Constitution and other laws under this Republic, must be one hundred percent Islamic and even if a single article is contrary to the rules of Islam it will contradict (the principles) of the Republic and the votes of the majority of the people. the Republic and the votes of the majority of the nation. For this reason For this reason, any opinion or proposal given by one or more For this reason, any opinion or proposal given by one or more > representatives contrary to Islam will be discarded and, therefore, in opposition to the leadership of the Islamic Republic. In principle, representatives elected on this basis will have a limited mandate within the The representatives elected on this basis will in principle have a limited mandate within the > framework of the Islamic Republic and the discussion and consideration of proposals contrary to Islam or contrary to the republican system The discussion and consideration of > proposals that are contrary to Islam or contrary to the republican system are beyond the limits of their mandate.

He added: “The distinction of opposition or conformity to the The distinction of opposition or conformity to the rules of Islam will be exclusively within the competence of the faqih of Islam Islam, some of whom, thank God, are present in the assembly and As this is a technical matter, the intervention of other As it is a technical matter, the intervention of the other revered representatives in this edjtehād and the deduction of the rules of Islam, from the Qur’an and Tradition would be an interference in the speciality of others This would be an interference in the speciality of others without having the necessary competence and knowledge.

He even orders the religious members of this assembly that :

The scholars of Islam present in the assembly, if they see any article of the draft constitution⁴⁸ or proposals submitted to them If they see any article of the draft constitution⁴⁸ or proposals submitted to them, they must denounce it. that are contrary to Islam, it is imperative that they denounce it in the most explicit manner and without fear of controversy. the most explicit manner and without fear of controversy from Western Westernised newspapers and writers, for the latter, seeing themselves as defeated The latter, seeing themselves defeated, do not cease to discuss and criticise.

However, the Constitution of the Islamic Republic was put to a referendum on 15 November 1979 on 15 November 1979 while different groups criticised it from different from different points of view. Above all, the proclamation of Shi’ism as the official religion of the official religion of the Islamic Republic not only incited opposition from those opposition from those who were in principle in favour of the separation of of religion and politics, but also from non-Shi’ite Muslims Muslims, with some Sunni leaders even protesting openly.

The institution of the Velāyat-e faqih was increasingly controversial even by the faqih Shi’ites who supported Khomeini. Some of them considered Some of them considered the inclusion of this institution in the Constitution as a kind of innovation’ in Islamic principles, whereas, by definition, any definition, any innovation in Islamic principles is ‘inadmissible’. “inadmissible’.

In any case, the institution of the Velāyat-e faqih, which we will discuss later, is considered by the Khomeinists to be so essential to the Islamic Islamic Republic that they usually use the terms ‘Islamic Republic’ and ‘Islamic Islamic Republic” and “government of Velāyat-e faqih](#velayat)⁴⁹”

II - A brief review of the text of the Constitution of the Islamic Republic of Iran

According to the introduction to the Constitution :

In the creation of political organs and institutions, In the creation of political bodies and institutions, which form the basis for the organisation of the community, and In the creation of the political organs and institutions, which constitute the foundations of the organisation of the community, and in accordance with the ideological bases, worthy personalities will be the government and administration of the country and the legislative activities, which are the expression of the criteria of social management, will be carried out according to the Qur’an and Qur’anic Tradition. Qur’anic Tradition”.

The notion of the government of ‘worthy personalities’, i.e. ’elites’, and the absolute validity of Qur’anic “and the absolute validity of Qur’anic laws dominate all articles of this constitution. all the articles of this Constitution. Institutions such as the National Assembly and the Presidency of the Republic elected by universal elected by universal suffrage are successively subject to the control of the faqih](#faqih) members of the of the Supervisory Board⁵⁰ and the Vali faqih](#valifaqih), so that the principle of elite government and Islamic legislation are ensured. We will first examine the general scheme of this Constitution of this Constitution and then the place of the judiciary in this in this Constitution.

A - The Velāyat-e faqih

The Constitution gives the Vali faqih considerable power in all affairs. affairs. On the powers of the Vali faqih the introduction to the Constitution states Constitution reads:

On the basis of the velāyat-e-amr and the emāmat* the Constitution paves the way for the realisation of the the leadership of a fully qualified faqih, who is recognised by the people the people as a guide, and thus be the guarantee against any deviation of the any deviation of the various organs from their essential tasks Islamic tasks”.

As is evident, the Vali faqih is not elected by the people but is recognised by them as their guide. Article 107 gives the example of Khomeini as a guide thus recognised by the people; according to the same article :

If not, experts elected by the people will examine and consult on all those who have the necessary conditions. and consult on all those who possess the necessary conditions for religious authority and leadership. If they find an If they find an authority possessing the special superiority for the exercise of the If they find an authority with the particular superiority to exercise the > functions of leadership, they will present him as a leader to the people. Otherwise three or five religious authorities who meet the > requirements of leadership will be Otherwise three or five religious authorities who meet the > requirements of leadership will be appointed as members of the Leadership Council and presented to the people[^]. Otherwise three or five religious authorities who meet the > requirements of leadership will be appointed as members of the Leadership Council and presented to the people⁵¹.

The Vali faqih being: “just, virtuous, aware of the evolution of of the times, courageous, efficient and skilful”, (art. 5) must have have the “scientific competence and virtues necessary to pronounce on the problems and to pronounce on the problems and references of religion” and “the political and social political and social insight, courage, power and sufficient management management capacity” (art. 109).

The term of office of the Vali is unlimited and in the event that “the guide or one of the members of the Board of Directors no longer has the capacity to the fulfilment of his legal duties or no longer fulfils one of the conditions conditions mentioned in the one hundred and ninth article, he shall be deprived of his office. The experts referred to in the one hundred and eighth article⁵² shall decide in this respect” (art. 111).

According to Article 57, the legislative, executive and judicial powers are “placed under the control of the absolute guardianship of the jurist and the guide of the community’ (Velāyat-e motlagh-e amr va Emāmat-e Ommat)⁵³.

According to Article 110, “the duties and powers of the Directorate are the following:

1. Appointment of theologians (faqih) to the Supervisory Board;

2. Appointment of the highest judicial authority in the country;

3. supreme command of the armed forces; > ⁵⁴[...]

4. signing of the mandate of the President of the Republic after his election by the people. The conditions for candidacy for the The conditions for candidacy for the > Presidency of the Republic are those mentioned in the The conditions for candidacy for the Presidency of the Republic are those mentioned in the > present Constitution and they shall, before the election, be confirmed by the > Supervisory Council, and confirmed by the Supervisory Board, and in the first round by the the Directorate⁵⁵ ;

5. dismissal of the President of the Republic taking into > consideration the interests of the country

consideration of the interests of the country after a ruling of the Court confirming his violation of his legal duties or after a vote of the National Assembly on his political incapacity.

6. The right to pardon or reduce the sentences of convicts within the the limits of Islamic precepts, upon the proposal of the Supreme Court. Supreme Court.

B - The Presidency of the Republic

Although Article 113 states that “after the Governing Authority, the President President of the Republic is the highest official authority in the country’, his position in the country’, his position in the Constitution is rather symbolic. The remainder of the same of the same article considers the President as ‘responsible for the application of the Constitution, the organisation of relations between the three the three branches of government” and “the head of the executive branch – except in matters matters falling directly within the competence of the Executive”. But, considering that the supervision of the Constitution, as we shall see later, is entrusted to the is entrusted to the Supervisory Council and that the command of the armed forces the command of the armed forces is in the hands of the Vali faqih and that, finally, “the organisation of the relations between the three relations between the three powers” prescribed by Article 113 without limits is an interpretable and ambiguous right, one can imagine that the the President has a secondary and ceremonial role and his role as head of the role as head of the executive branch, according to articles 124 and 133, is also limited to a few ceremonial acts such as the presentation of the the Prime Minister to the Assembly and the approval of the appointment of the ministers chosen by the Prime Minister.

The candidate for President of the Republic, not only according to Article 115, must be Article 115, must be “Iranian by origin, Iranian by nationality, experienced administrator, with a good record, trustworthy, virtuous, pious and virtuous, pious and committed to the foundations of the Islamic Republic of the Islamic Republic of Iran and the country’s religion’, but also, as we have seen above, he the Supervisory Board, but also, as we have seen above, it must be confirmed by the Supervisory Board.

The 114th article states that “the President of the Republic shall be elected by direct universal suffrage for a period of four years and may not be elected for a second term. direct universal suffrage for a period of four years and may only be re-elected be re-elected consecutively only once”.

The President of the Republic can be removed from office by both the Supreme Court and the Assembly, subject to the approval of the by both the Supreme Court and the Assembly subject to the approval of the approval of the Governing Authority.

C - The Supervisory Board (shorā-ye negahbān)

Twelve members of this Council, according to Article 91, belong to two distinct groups with different competences. distinguished groups with different competences: the first is composed of “six six faqih who are just and aware of the requirements of the time and the time and the problems of the day. Their choice will be made by the guide or the Board of Directors”. And the second is composed of “six jurists \elected by the Assembly from a list of Islamic jurists presented to the National Assembly by the Supreme Judicial Council Judicial Council⁵⁶…” These two groups are not equally competent. In most cases the faqih members of the Council enjoy special prerogatives which we have already prerogatives, some of which we have already mentioned.

The most important task of the Supervisory Board is to monitor the ‘conformity’ of laws passed by the Assembly, firstly, with the ‘principles of “The most important task of the Supervisory Board is to monitor the ‘conformity’ of laws passed by the Assembly, firstly, with ’the principles of Islam’ and, secondly, with the Constitution. If If the Supervisory Board finds these laws to be contrary to the principles of If the Supervisory Board finds these laws to be contrary to the principles of Islam, ‘it shall return them to the Assembly for revision’. (Art. 94) The determination of the conformity of laws with the commandments of of Islam is the responsibility of the majority of the faqih](#faqih) members of the Supervisory of the Supervisory Board, while the determination of the conformity of laws with with the Constitution is decided by a majority of all the members of members of this Council (art.96).

In addition, “the interpretation of the Constitution is within the competence of the Supervisory Board, whose decisions shall be taken by a three-quarters majority of three quarters” (art. 98).

“The control of the election of the President of the Republic, elections to the Assembly, popular consultations and referendums elections to the Assembly, popular consultations and referendums” are also are also the responsibility of the Supervisory Board (art. 99).

D - The National Assembly

The Constitution provides for two kinds of legislation, one by one by the National Assembly composed of 270 members, elected by universal suffrage universal suffrage, who vote the laws, under the control of the S.C., the other by the the other by the referendum prescribed by Article 59, according to which “when it concerns very important matters: economic, political, social and cultural, the cultural matters, the legislative power may adopt the referendum and direct referendum and direct recourse to popular consultation”. But in this case, the request for a referendum must also be approved by approved by two-thirds of all deputies.

The deputies of the National Assembly are elected directly and by secret ballot for a period of four years (Art. 62 and 63). vote for a period of four years (Art. 62 and 63).

E - The place of the judiciary in the Constitution of the Islamic Republic of Iran

In the introduction to the Constitution on the judiciary the following observation is made: “the establishment of a judicial system based on Islamic justice and composed of judges who are fair and and familiar with the precise religious precepts”. This preliminary remark This preliminary remark highlights the so-called Islamic nature of the judiciary in the Islamic Republic.

Article 61 provides that “the functioning of the judiciary shall be carried out by the courts of justice to be established in accordance with Islamic norms. by the courts of justice to be created according to Islamic standards and which are dedicated to the settlement of disputes, the safeguarding of rights of citizens, the extension and enforcement of justice and the execution of the execution of divine punishments”.

According to Article 157, the judiciary is headed by a strong body called the ‘Conseil Supérieur Judiciaire’. a strong body called the “Superior Judicial Council”. This council is composed of “five members :

1. the President of the Supreme Court ;

2. the Attorney General;

3. three judges modjtahed (theologians) and just chosen by the judges of the country⁵⁷” (art.158).

The tasks of this council are defined by Article 157 as follows:

• the creation of the necessary organisation of justice;

• the development of judicial projects in line with the Islamic Republic Islamic Republic;

• the recruitment of just and worthy magistrates⁵⁸, their dismissal and appointment, removal from their place of employment, determination of the determination of their duties, promotion and other similar decisions in similar decisions in administrative matters, in accordance with the law⁵⁹”.

Faced with this powerful Council is the Minister of Justice, proposed by the same Council to the Prime Minister, who lacks any power. by the same Council to the Prime Minister, and who lacks any power in the judicial system. He has only “responsibility for all affairs concerning the relations of the judiciary with the executive and executive and legislative powers” (art.160).

The other judicial body provided for in the Constitution is the country’s Supreme Court. Court of the country. In this regard, Article 161 states: “The Supreme Court is established to control the sound application of laws in the courts courts, create unity in judicial activities and the application of the of the responsibilities devolved to it by law and in accordance with the standards set by the Supreme Judicial Council.

“The Chief Justice and the Attorney General must be (modjtahed)(#modjtahed)* (theologians) who are fair and knowledgeable in judicial matters and the country’s leadership (velâyat-e faqih) appoints them for five years appoint them for five years after consultation with the councillors of the Supreme Court Supreme Court” (art. 162).

Finally, Articles 173 and 174 provide respectively for the establishment of of the Court of Administrative Justice and the Organisation of the both under the control of the Superior Judicial Council; the former being responsible for “the examination of complaints, grievances and complaints, grievances and protests of individuals against government officials, agencies or regulations or concerning the recognition of their rights”; and the last one having for its rights”; and the latter having the task of ensuring “the control of the judiciary over the the judiciary over the proper conduct of business and the sound administrative agencies”.

In this Constitution, certain judicial principles are prescribed such as: the prohibition of unlawful arrest (art. 32), the right to choose a lawyer in all courts (art. 35), the prohibition of torture (art. 38) of torture (art. 38), the prohibition on judges refusing to render judgment (art. 167) judgment (art. 167), the need for a jury in trials concerning “political political and press offences” (art. 168) and “no punishment without law” (art. 168). “No punishment without law” (art. 169).

III - Some remarks on the Constitution of the Islamic Republic

In relation to the state apparatus in general and the judiciary in particular, the the Constitution of the Islamic Republic provides for new institutions and institutions and procedures whose influence on the reorganisation of the the reorganisation of the state machinery must be examined here.

A - The institution of the Velāyat-e faqih

The absolute power of a person is nothing new in itself. In to a certain extent it guarantees the proper functioning of the administrative and repressive bodies. What is more, this authoritarian power has been exercised by the Pahlavi dynasty for almost fifty years, despite the Constitution of 1907. In this area, the Constitution of the Islamic Republic Islamic Republic only legalises and institutionalises this power.

What is especially important about the institution of the Velāyat-e faqih](#velayat) as provided for in as provided for in the Constitution of the Islamic Republic is the role it the role it gives to the clerics especially in the mechanism of decision making. In this regard, a question arises: given the important role important role entrusted to clerics, is the state apparatus as a whole subject to the control of the clerical hierarchy? If If so, this would undoubtedly have decentralising effects on the decentralising effects on the state apparatus and, even more so, on the the judiciary. If not, what would be the mechanism for integrating of the religious into a centralised state apparatus?

Indeed, although the Vali faqih is a religious leader, his appointment is not subject to the same procedure as that which applied in the past to the the appointment of the head of the clerical hierarchy. According to the Constitution of the Islamic Republic, two different procedures are provided for the choice of the Vali faqih: the first is the “recognition” and and almost spontaneous acceptance by the people – which has more political than religious political rather than religious significance. The second is the designation of the Vali faqih or Governing Council by an by an assembly of experts, in turn elected by universal suffrage.

These two procedures differ radically from that of the appointment of the of the clerical hierarchy, which was the result of the relatively implicit consensus of the high clerical authorities, without intervention of the people.

The procedure provided by the Constitution for the selection of the Vali faqih](#valifaqih) has a political political aspect. And the reservation of popular “recognition” or the election of the or the election of the assembly of experts ensures the control and influence of the and influence of the state apparatus over it.

B - The notion of law in the Constitution of the Islamic Republic

Despite the Constitution’s formal attachment to the Qur’an or tradition, in the final analysis, the laws in force are those adopted by the adopted by the National Assembly and the Supervisory Council. This is different from the tradition of the Islamic legal system. In this system the provisions of the Qur’an and Tradition had immediately, and only through the intermediary of the fatva of the faqih](#faqih), the force of law. Notably, Islamic judges in their verdicts directly referred to the Qur’an and referred to the Qur’an and Tradition. But according to the Constitution of the Islamic Republic, it is the Assembly and the Supervisory Board that the Assembly and the Supervisory Board who are responsible for adapting the laws to the rules of Islamic law. and the judges only apply these laws. This ensures the the possibility of creating a coherent system of laws necessary for a centralized centralized state.

In practice, the Islamic Assembly, in adopting the laws deemed ‘un-Islamic’ even by pro-Khomeinist faqih, has resorted to the “principle of necessity”.

C - The establishment of the Superior Judicial Council

This Council ensures the control of a governmental body over the recruitment of judges. The Constitution of the Islamic Republic has The Constitution of the Islamic Republic has completely discarded the practice of the Islamic The Constitution of the Islamic Republic has completely discarded the practice of the Islamic judiciary in the era of feudalism that faqih and *modjtahed modjtahed](#modjtahed) gave a certificate of competence in the judiciary to their students after found them competent, legally as well as morally.

The Supreme Judicial Council, although mainly composed of religious of clerics, prevents the intervention of a non-governmental body i.e. the Shi’a clergy, in matters concerning the judges. Moreover, it has absolute power over the judiciary. In principle, it can be a very strong centralising body within the judiciary. the judiciary. At the same time, he can impose the will of the authorities on the judiciary through its almost absolute power to recruit, purge absolute power to recruit, purge and move magistrates.

In short, the Constitution of the Islamic Republic is such that it is well suited to a centralized and professionalized state apparatus. well suited to a centralised and professionalised state apparatus. As for the judiciary, if the provisions of this Constitution are realized, the clerics will be integrated into this apparatus, at the same time as the As for the judiciary, if the provisions of this Constitution are fulfilled, the clerics will be integrated into this apparatus, while its professionalized and the same time as its professionalized and impersonal character will be preserved.

The attachment of the Constitution to Islamic rules and sources of Islamic law has a purely ideological law has a purely ideological aspect and the administrative administrative dimension of these rules has been abandoned. In the field of organisation of power, even the terminology used by the the Constitution is directly borrowed from the Western judicial system.

Chapter II - Changes and the place of the ordinary courts and the Ministry of Justice

The Ordinary Courts within the Ministry of Justice were too weak to be an immediate target for the Justice were too weak to be the immediate target of the revolution. As we have seen, the imperial regime relied on the military courts to suppress political opponents. military courts to suppress political opponents. Some reformist opponents of the Shah demanded the application of the jurisdiction of the Ordinary Courts provided for in the Constitution. These The latter had somehow managed to put themselves at the forefront of the in the forefront of the revolution during the last months of the imperial regime regime; they seized, in particular, the posts of Prime Minister and Minister of Justice. and Minister of Justice in the ‘provisional government’. government’.

Another factor that increasingly shielded the ordinary court from the attacks of the from the attacks of the revolution was the progressive participation of the magistrates and officials of the judiciary in the anti-imperial movement; and when, during the last months of the imperial regime, some political regime, some political opponents and demonstrators arrested by the police were the police were brought before the Ordinary Courts, they were welcomed, more often than not, by their judges.

But while the ordinary court adapted easily to the revolutionary the revolutionary movement, it was not able to harmonise so easily with the with the regime that succeeded the imperial regime. The new regime had adopted a traditional interpretation of Islam as an ideological ideological cover for its sovereignty, and thus saw itself as the the heir to a relatively complex judicial system in which each cleric considered himself an expert. considered himself an expert. If this ideology was to be propagated globally, the If this ideology was to be propagated globally, the judicial system as an part of this ideology, should be considered as the foundation of the judicial system. of the judiciary It is obvious that it was necessary to introduce to introduce some changes in this system to adapt it to new conditions, but these to new conditions, but these changes had to be introduced under the name of the same system and with the same ideological cover. Hence the the origin of the rather irreconcilable contradiction of the new regime with the judicial system inherited from the imperial regime. The regime that used other parts of the state apparatus almost as they were as they were, sought from the outset to change profoundly the judicial the judiciary. As it overcame its internal contradictions, it became more the Iranian judiciary was, in any case, based on the principle of was, in any case, based on a system other than Islam. It is true that the Iranian judiciary, even within the limited limits suffered from a crisis, stemming from bureaucratic formalism, corruption bureaucratic formalism, corruption and disorder; it is true that there were There were a lot of backlogs of files that had been circulating from one office to from one office to another without ever being processed.

However, this crisis cannot in itself explain the changes introduced under the new introduced under the new regime in the judiciary. The The main cause of these changes is the change in the ideological ideological cover of the state. Obviously, the Islamic regime was trying to to secure popular support for these changes by alluding to these inefficiencies. these inefficiencies. But it can be said even now with certain that these changes are not in the direction of eliminating these inefficiencies. of these inefficiencies. It cannot be said that the Western-style judicial system was in a It cannot be said that the Western-style judicial system was at an impasse in Iran because it was society and that the Islamic judicial system, being better suited to the mores of that the Islamic judicial system, being better adapted to the mores of that society, was therefore spared by this crisis. The Iranian judicial system at the time of the Pahlavi dynasty Pahlavi dynasty was not a Western judicial system as such and the and the Islamic judicial system as described by faqih](#faqih) is not better suited to the current situation than the previous system. These changes are mainly the result of the change in the political regime and the and the ideological coverage of the state. The slow pace of these changes The slow pace of these changes is mainly due to differences of opinion on the interpretation of Islamic ideology and its judicial system. Islamic ideology and its judicial system. However, the change in the legal principles and organisational structure of the judiciary of the judiciary does not change the functioning of the judiciary and its and its relationship with the state apparatus as a whole.

Today, as in the past, the judiciary is directly and totally at the disposal of the and totally at the disposal of the Executive to ensure its political and social political and social goals.

As alluded to above, the Ordinary Courts and the Ministry of Justice in general were slow to act. in general, the Ministry of Justice were slow to adapt to the the requirements of the new situation. One of the essential elements that allowed them to One of the essential elements which enabled them to adapt [gradually]{.ul}, was the existence of Islamic revolutionary courts across the country and their the country and their availability to meet the immediate needs of the regime. If these had not existed and if the task of maintaining order and and repression of opponents had been left solely to the Ordinary Courts and the to the Ordinary Courts and the Ministry of Justice, it is certain that and the Ministry of Justice, it is certain that the latter would have been obliged to adapt suddenly and without circumstances.

In an effort to replace the Islamic Revolutionary Courts with courts by the Ordinary Courts within the Ministry of Justice, part of the part of the ruling team had an ordinance passed by the Revolutionary Council on the by the Revolutionary Council on the establishment of emergency courts Although this law was never put into effect, its review by the Although this law was never implemented, its examination is useful in understanding the impact of political the impact of political conflicts among the leaders on the judiciary. judiciary

The establishment of the Islamic Revolutionary Courts and the the gradual increase in the power of those who supported them in the the state apparatus, as well as the slowness of the Ordinary Courts and the and the Ministry of Justice to adapt to the new situation, has created a kind of contradiction that manifested itself in various forms of the revolution to attacks by organised gangs. the revolution to attacks by organised gangs on the headquarters of the courts of justice, etc. courts of justice, etc.

In this chapter we will follow this slow movement of the Ordinary Courts and and the Ministry of Justice in the direction of adapting to the new to the new conditions by relying on the provisions in force. Then, by tracing the general lines of their problems, we will examine some concrete cases.

I - Organisational changes in the ordinary courts and the Ministry of Justice

In this section, based on the ordinances of the Council of the Revolution and other and other applicable provisions, we will briefly follow the process of the process of evolution of the Ordinary Courts and the purging of and the purging of magistrates and judicial officials. Then we will examine the formation of the canonical courts under the name of “Special Civil Courts” and also the reorganisation of the Ordinary Courts through the Ordinary Courts by the creation of “General Courts”. Also, the ordinance of the Council of the Revolution on the creation of the “Tribunaux of Justice”, although it was never put into effect, will be examined at the end the end of this section because of its own political importance. political importance.

A - The purge and recruitment of magistrates

The Constitution of the Islamic Republic gives quasi-absolute power to the Supreme Judicial Council to the Supreme Judicial Council in “the recruitment of fair and worthy judges and worthy judges, their dismissal and appointment, the relocation of their place of their place of assignment, the determination of their duties, their promotion and other similar decisions in administrative matters (art. 157). Since its establishment on 13 July 1980, this body has Since its establishment on 13 July 1980, this body has been examining the files of all serving magistrates to decide on their retention or removal from office. But, the purging of the judiciary had begun well before that date. In Indeed, the first ordinance of the Council of the Revolution relating to the “reorganisation of the Ministry of Justice, the purging of existing magistrates and the recruitment or recall of former magistrates as well as as well as magistrates who have resigned” is dated 8 March 1979, i.e. less than a month after the establishment of the new regime.

According to this ordinance, a commission of seven magistrates is responsible for the purification of “the administrative and judicial organisation of the Justice” (art.1). The members of the commission are chosen upon proposal of the Minister of Justice and approval of the cabinet of ministers.

In order to accomplish its tasks, the Commission shall have the right to “dissolve any court and judicial body, if necessary, and to re-establish re-establish them after having purged them in case of need” (art. 2).

The commission also has “the right to move, degrade, dismiss, and dismiss, and remove magistrates, temporarily or permanently, from their from their judicial functions’ (art. 3). According to the the last paragraph of this article, decisions taken by a majority of the members of the commission will be final.

This ordinance gives the Executive considerable power in matters concerning the matters concerning the judiciary. While it is true that the commission is commission is composed of magistrates, they are chosen by the ministers who have the the right to dismiss and replace members of the commission is reserved. reserved. In addition to the fact that magistrates who are members of this commission are not subject to any particular conditions, the cabinet of ministers is completely free in its choice⁶⁰.

The magistrates of the Supreme Court are exempted from the application of this from the application of this ordinance. In their regard, an order of the same day states:

From 16 March 1979, the Supreme Court and its prosecution service as well as the Court of Discipline of Magistrates and its appeal body will be established. Court of Discipline of Magistrates and its appellate body will be dissolved and the new organization will be established and declared in a dissolved and the new organisation shall be established and declared within within 30 days. \All those who are not recalled within this period all those who are not recalled within this period shall be considered as retired or their case shall be examined in accordance with the provisions of the Ordinance on the Reorganisation of the Ministry of Justice” (ibid.).

B - The Special Civil Courts

These courts, generally known as “Canonical Courts”, are established under the Canonical Courts”, are established according to the order of 30 September 1979 of the Council of the Revolution. “The special civil court is composed of a modjtahed](#modjtahed) qualified person or a suitable person designated by a modjtahed](#modjtahed) and one or two judicial counsellors; but the judgment is by that modjtahed, or his representative, depending on the president of the court’ (art. 1).

According to Article 2, the appeal body for decisions of this court is another modjtahed, appointed by the Ministry of Justice subject to the approval of a high clerical authority (mardja-e-Taghlide)⁶¹.

Family and personal matters such as marriage, divorce divorce, filiation, etc. fall under the jurisdiction of the Special Civil Courts. Special Civil Courts. In addition, other disputes, provided that both parties consent, may be parties can be examined by these courts (art.3).

Ayatollah Rabbani Amlachi, member of the Supreme Judicial Council and acting acting head of the Special Civil Courts, declared on 10 May 1981: “200 chambers of the Special Civil Courts will be established throughout the country. the country”.

C - The General Courts

The ordinance of 11 September 1979 of the Council of the Revolution concerning the the establishment of the General Courts states: “all the courts of first instance all courts of first instance, all courts of appeal and the Court for the offences of civil servants and the Arbitration Councils shall be dissolved and replaced by the replaced by the General Courts composed of three magistrates”. The The decisions of these courts are final. They examine both civil and criminal cases. both civil and criminal cases.

This same ordinance re-establishes the old District Courts under the title of title of Tribunaux de Paix and the Tribunaux Généraux are assigned as the instance of appeal of their decisions.

In general, a large part of the provisions prescribed by the the codes of civil and criminal procedure concerning the execution of judgments the execution of judgments, the hearing of witnesses, expert opinions and notification, is eliminated by this ordinance.

D - The Court of Exception for counter-revolutionary cases

In addition to the two types of courts discussed above, the Revolutionary Council Order of of 25 June 1979 of the Revolutionary Council provided for the establishment of a a kind of emergency court within the framework of the Ministry of Justice which, as the last article of this ordinance explicitly stated, was to explicitly announced, was to replace the Islamic Revolutionary Courts (T.R.I.).

This ordinance, which could not be applied because of the competition with the competition with the I.R.T., is interesting in some respects:

Firstly, the competences removed from the military courts and other emergency and other special courts are entrusted by this ordinance, once again, to again to the special courts. Although these are organisationally located within the Although they are organisationally part of the Ministry of Justice, neither their their composition and procedure are not subject to the general regulations general regulations governing the other courts.

These tribunals were to be composed of three members chosen by the Minister of Justice from among Minister of Justice from among serving or retired magistrates judges, or from among other jurists familiar with the jurisdictional principles of principles of Islam and loyal to the Islamic revolution (art. 2).

They were not to be subject to procedural rules and trials were to be conducted “expeditiously and without loss of time” (Art. trials were to be conducted “expeditiously and without loss of time” (Art. 13).

Secondly, after having long spoken in a general and ambiguous manner of “counter-revolutionary counter-revolutionary offences”, this ordinance gave a list, if not a definition, of such a list, if not a definition, of such offences. The almost all of the offences discussed in the section on the jurisdiction of section devoted to the jurisdiction of military courts under the imperial regime This ordinance describes almost all of the offences we have dealt with in the section on the jurisdiction of military courts under the imperial regime as ‘offences against the law’. laws, as counter-revolutionary offences.

In addition, some other offences, such as the offences defined by the Code of 1925, which were under the imperial regime under the jurisdiction of of the Ordinary Courts, are also included in the list of counter-revolutionary counter-revolutionary offences retained by this ordinance. In Examples of this are: the crimes and misdemeanours of public officials in the exercise of their public officials in the exercise of their functions (paragraph b of article 4 of the of the Penal Code), the appropriation of forests and illegal profits from their from their exploitation (1969 law), illegal occupation of government or land belonging to the government or municipalities (the 1960), etc.

Other offences deemed counter-revolutionary include include offences committed by “those who in any way cause disorder in the cause disorder in the affairs of the factories and plants of the country by country by provoking and encouraging the workers to stop working and to close down and the closure of factories and plants”.

The judgements of these courts were to be final except in cases of life imprisonment or capital punishment. sentence.

Article 16 of this ordinance provides for the dissolution of these courts when the Cabinet of Ministers deems it necessary.

To conclude: considering the above-mentioned provisions, it can be observed that the Ordinary Courts and in general the Ministry of Justice are gradually adapting to the requirements of the new regime.

The fundamental feature of the changes introduced in this sector of the judiciary is the The fundamental feature of the changes introduced in this sector of the judiciary is the total control exercised by the high authorities over these changes and their implementation in an entirely in an entirely bureaucratic manner from above, so that first, the Minister of Justice and then – after the implementation of the of the Constitution of the Islamic Republic – the Supreme Judicial Council Council, itself ultimately appointed by the Minister of Justice. Vali faqih](#valifaqih), are endowed with almost absolute power to purge and reorganise the courts and bodies incorporated into the Ministry of Justice.

Another feature of these changes is that they bring the religious and modjtahed into the and the modjtahed into the Ordinary Courts and generally into the ministry of justice in order to the Ministry of Justice in order to prepare the ground for the for the implementation of so-called Islamic laws.

In parallel with these organisational changes in the judiciary, the the Superior Judicial Council prepared four bills consisting of 2400 2400 articles submitted to the Assembly on 6 June 1982. These were the Code of of Civil Procedure, the modification of some articles of the Civil Code Code, the Code of Criminal Procedure and the Islamic Penal Code. The Assembly entrusted the power of discussion and approval of these bills to the Justice Committee of the Assembly. But apparently, the slowness of this committee to fulfil this task prompts Khomeini, prior to any decision by the Assembly, to declare on 22 August 1982 that “*” *laws contrary to the law must be renounced char’ (Islamic (Islamic principles). No one has the right to act contrary to Islam. The excuse of enforcing laws, he added, is not valid. What law ? The law contrary to Islam? The law contrary to char’⁶²?”

Immediately after Khomeini’s speech, the Supreme Judicial Council abrogated all the laws it called ‘un-Islamic’ and asked the Parliamentary Judicial Commission and the the Parliamentary Judicial Commission and the Supervisory Board to Council to “submit draft laws as soon as possible and within ten days and within ten days at the latest”. In the same statement, the Superior Judicial Council warns the magistrates that “the disciplinary court will judge and condemn according to the rules of the char’](#char) any magistrate according to non-Islamic laws⁶³”.

The distinction between ‘Islamic’ and ’non-Islamic’ laws has apparently The distinction between ‘Islamic’ and ’non-Islamic’ laws has apparently created disorder in the functioning of the courts and the administration. administration. To solve this problem, the assembly quickly passed a law to resolve this problem, the assembly quickly adopted a law under which the Supervisory Board is designated as the competent authority to determine the as the competent authority to determine the conformity or non-conformity of conformity or non-conformity of existing laws with the principles of Islam. But the Supervisory Board apparently did not want this difficult task difficult task, the Supervisory Board qualified this law as contrary to the Constitution of the Islamic Republic.

II - The competition of the ordinary courts and the Ministry of Justice with the Islamic Revolutionary Courts

In order to understand the situation of the Ministry of Justice and the process of its adaptation to the new circumstances, it is not enough to look only at the of its adaptation to new circumstances, it is not enough to limit oneself to the laws and regulations that have been promulgated, because, on the one hand, in the anarchy caused by the revolutionary conditions the anarchy caused by the revolutionary conditions, many of these provisions never found the anarchy caused by revolutionary conditions, many of these provisions never found a suitable ground for their realisation, and on the other hand, under revolutionary under revolutionary conditions, the elaboration of laws and regulations is only a subjective and preliminary effort to solve problems, and the implementation often requires open conflict and demonstrations of force in the public arena. the political arena. We will try, therefore, to take a look, albeit briefly, at the situation of the Ministry of of the Ministry of Justice under the Islamic regime and its attitude towards other authorities, based on concrete cases.

1. As we have already seen, under the imperial regime, justice was completely Justice was completely free from the intervention of the religious and religion. It is obvious that the functioning of this apparatus under a regime that claimed to be based on religion gave rise to certain contradictions. The intention of the new regime to replace the the previous judicial system with the Islamic judicial system accentuated these contradictions.

   Moreover, during the showdown between the leaders of the new regime the new regime, while the clerics and the so-called forces “in the line of the the line of the Imâm” had, as it were, established their own judicial judicial apparatus – i.e., the I.R.T. and its auxiliaries, committees and pasdaran – using it boldly and effectively in political effectively in political conflicts, their opponents tried to rely on the and their auxiliaries, committees and pasdaran – by using it boldly and effectively in political conflicts, their opponents tried to rely on the courts and bodies dependent on the Ministry of Justice. This stance of the so-called ’liberal’ leaders in the Ministry of Justice “This position of the so-called ’liberal’ leaders in the Ministry of Justice gave the latter an important an important role in political conflicts within the leadership. the leadership.

   These contradictions manifested themselves in various forms such as the harsh criticism of the ministry of justice, the ordinary courts and and magistrates by the religious leaders; the use of force against magistrates and of force against the judiciary and ministry of justice officials by some religiously manipulated groups; and Conflicts between officials of the Ministry of Justice and and I.R.T. officials over the limits of their respective jurisdictions.

2. One of the problems in the relationship between the religious leaders and the and the secular magistrates was that the latter refused to collaborate with collaboration with the ITR and other religious authorities. In In a press conference on 27 September 1979, Mr. Naraghi, the spokesman for the I.R.T. in Tehran said, for example

   Previously, we had a problem of status, which meant that the legal member of the Revolutionary Courts had to be a lawyer. The legal member of the revolutionary courts had to be a magistrate of the Ministry of Justice. a magistrate of the Ministry of Justice, but due to the fact that Unfortunately, our brother magistrates from the Ministry of Justice were not ready to Justice were not prepared to collaborate with the revolutionary courts. the revolutionary courts, we were not able to increase the number of the number of courts; but with the approval of the Council of the Revolution, this law was amended so that the jurist member of the of the tribunal does not have to be a magistrate⁶⁴.

   In a similar case, after the government forces recaptured the city of Sanandadj, the capital of Kurdistan, the of the city of Sanandadj, the capital of Kurdistan, it is decided to dissolve all public administrations suspected of collaborating with the insurgents, reinstating them by transferring transferring officials from other provinces. Ayatollah Mousavi Ardabili, then Prosecutor General, said in this regard:

   The decision was taken to select a few ten or twenty magistrates who would approach their mission in the spirit of the law. The decision was made to select some ten, twenty magistrates who would approach their mission in a spirit of crusade and martyrdom. The decision was made to choose some ten, twenty > magistrates who would consider their mission in a spirit of crusade and martyrdom, but it was reported to me that not even one > magistrate was ready to go to Sanandadj[^69 I was informed that not even one > magistrate was ready to go to Sanandaj⁶⁵.

   On 6 January 1980, Hodjatol-Islam Hashemi Rafsanjani, then Minister of the Interior, attributed Minister of the Interior, attributed the disorder “to a certain extent to the lack of activity of the Ministry of Justice and the police”. police”.

   One of the most interesting cases of the conflict between the two fractions of the leadership team to regain control of the Ministry of Justice is their the Ministry of Justice is their confrontation to occupy the key positions in the the Superior Judicial Council: At the time of the “provisional government government”, this council was under the influence of the non-religious At the time of the “provisional government”, this council was under the influence of the non-religious, or as it was then called “liberal”, faction. On 15 January 1980, some forty basic officials of the Ministry of Justice under the under the aegis of the Islamic Association of the Ministry of Justice occupied the headquarters of the Supreme Judicial Council and the offices of of the Ministry of Justice and expelled the members of the council. members of the council. In a statement, which was even broadcast by Radio Iran, the occupiers broadcast by Radio Iran, the occupiers denounced the members of the Council as “collaborators of the imperial regime” and demanded the purging of demanded the purging of this council and the Ministry of Justice. justice. While F. Banisadr, then Prosecutor General of Tehran denounced “a plot manipulated by agents of the former regime”, the prosecutor of the Islamic court of Qom admired the “revolutionary action the revolutionary action of the members of the Islamic Council of Civil Servants of the Ministry of Justice’, asking the Revolutionary Council both on his behalf and on behalf of the judicial and administrative members of the Revolutionary Court of Qom, that it “give the necessary orders to establish the Islamic judicial unity”. Islamic judicial unity”.

   Ayatollah Behechti, later appointed President of the Supreme Judicial Council by Khomeini Council by Khomeini, says in this regard: “some forty officials forty officials occupied the seat of the council having some criticism of the members of the Supreme Judicial Council Judicial Council…”. He reveals, finally, the purpose of this occupation: “The occupants of the Palais de Justice demanded that in accordance the principles laid down by the Constitution, the Attorney General and the President of the Supreme Court⁶⁶ be elected by Imam Khomeini from among the modjtahed”.

   Regarding the measures taken by the clerics against the magistrates and the Ordinary Courts, the daily newspaper Kayhan published a list, on 2 September 1980, of which the following are some examples:

   “In March 1980, following events that occurred during the the interrogation of an accused person at the courthouse in Languéroud [a town in northern Iran] the prosecutor and two judges of this two judges of this court were arrested by the prosecutor of the Islamic court in this city”.

   In March 1980, the prosecutor of Malayer, a city in western Iran, was arrested. Iran, was arrested. As a result of this event the officials and and magistrates of Malayer and Nahavande, another city in western Iran, went on strike. A few days later seven members of the Islamic Committee of Malayer were arrested in connection in connection with this arrest.

   In a similar case, ’the courts in the towns of Ilâm and Boucher went on strike because of the lack of judicial immunity and the intervention of and the intervention of irresponsible individuals in the affairs of the Justice’.

   In general, one can read similar news frequently in Iranian newspapers Iranian newspapers after the 1979 revolution. For example, after the filing of a complaint by the magistrates of the courts of Arāk, the capital of the central province, a crowd of courts of Arāk, the capital of the central province, a crowd agitated by the city’s prayer Imam walled up the doors of the courthouse courthouse⁶⁷.

   And finally, in Nūr-ābād-e Mamasani, a town in Fars province, the president of the district court was sentenced to 25 lashes. lashes. He was arrested by the Pasdaran in the cafeteria of the court headquarters He was arrested by the Pasdaran in the cafeteria of the court’s headquarters because he was smoking on a day of Ramadan.

   These attacks on the judiciary and the bodies under the Ministry of Justice were Ministry of Justice were aimed at intimidating the magistrates of that the magistrates of this ministry and, on the other hand, to diminish their their prestige and authority in the eyes of the people. In this way the ground could be better prepared for the implementation of the and regulations already approved.

3. In order to show the limitation of the competences of the Ordinary Courts by the by the I.R.T. and its repercussions we will choose, from a large number of from a large number of available documents, an interview of 14 October 1979 with the October 1979 of the Tehran prosecutor. This interview not only provides a more or less accurate picture of the situation and the of the situation and the functioning of the I.R.T., but also reflects the form and content of the form and content of the criticisms of the so-called secular fraction of the of the so-called secular fraction of the management team with regard to the intervention of the religious in judicial matters judicial affairs:

   In the laws of no country in the world, even Islamic countries, It is not permissible for anyone, whatever his authority, to establish a court at will, to establish a court of law at will, even if it is to render the most just judgments. the most just judgements…”.

   He adds:

   While we produce only 7% of the goods needed for domestic consumption, our domestic consumption, relations with foreign countries We need to have courts established by legal authorities established by legal authorities and following clear procedures. procedures. In order to do justice within our borders To deliver justice within our borders, offences and penalties must be defined and declared in advance. This is not about the legal system It is not about the legal system from which these courts, laws and statutes derive, but of their very existence…; but if anyone with a few people at hand can set up a court under any title, but under any title, punishing people according to his taste and pleasure his own pleasure in the name of char’, we will end up with judicial > anarchy and a lack of justice. judicial anarchy and the insecurity of the country.

   Protesting against the interference of the religious and the and the I.R.T. in the competences of the Ordinary Courts and of the bodies dependent on the Ministry of Justice, he said:

   *” *in my opinion, if they do not accept the Ministry of Justice In my opinion, if they do not accept the Ministry of Justice in its current form, it would be better to dissolve it by an order of the Respectful Council of the Islamic Revolution. I think that if they do not accept the Ministry of Justice in its present form, it would be better to dissolve it by an ordinance of the Respectful Council of the Islamic Revolution by the Ministry of Justice in its present form, it would be better to dissolve it by an order of the Respectful Council of the Islamic Revolution by But it should not be allowed to set up courts anywhere in the country at the be established anywhere in the country at the desire and will of individuals outside the principles and provisions of the law. principles and legal provisions.

   Finally, he resigned on 4 November 1979, twenty days after this interview. interview, stating: “the intervention of the authorities in power authorities” and the lack of power of the “provisional government” to to “support and exercise the decisions taken by the judicial authorities authorities and the public prosecutor’s office”, as the reason for his resignation.

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It should be borne in mind that the Iranian judiciary is still in a transitional in a transitional phase. It has not yet taken its final shape. Therefore, it is not yet possible to make a definitive statement on the place, form, role and function of the courts. the place, form, role and function of the courts and bodies under the and the bodies dependent on the Ministry of Justice within this notwithstanding the considerable changes they have already undergone. have already undergone.

Chapter III - Islamic Revolutionary Courts

If in examining the organisation of the Ministry of Justice and its courts we have we have confined ourselves almost exclusively to the laws and provisions provisions in force in this field, and can claim to have succeeded in presenting a general to have succeeded in presenting a general outline, on the other hand, in the case of the the organisation of the Islamic Revolutionary Courts, to place any reliance on the the regulations available to us, would prevent us from knowing their role and would prevent us from knowing their role and nature.

In fact, these courts came into being in a situation where there was no law providing for their existence and without their functioning or law provided for their existence and without their operation or procedure being their operation and procedure were not subject to any specific rule. The research in this area increasingly shows that their conduct is not is not based on any rules whatsoever and that only the political and social interests of the and that only the political and social interests of the regime can explain the causes and of their actions.

The first text intended to govern the IRTs dates from 17 June 1979, i.e. nearly four months after the start of their activity and nearly four months after the start of the activity of these courts and yet it is only yet it is only an ordinance of the Council of the Revolution the title “Statute of the Revolutionary Courts and Prosecutor’s Offices”, which the title “Statute of the Revolutionary Courts and Prosecutor’s Offices”, which sought to legalise the existing system rather than to create it. the work of creation.

The I.R.T. came into being at the beginning of the “revolution”, in circumstances that were not very clear. circumstances that were not very clear. The execution, at the beginning, of certain certain personalities and criminals of the imperial regime, although it surprised the population by the urgency and secrecy their trials, nevertheless aroused the interest and enthusiasm of almost all of almost all the actors of the revolution.

Alongside these courts, and sometimes with them, there were revolutionary committees which had been committees which had been organised by the people in a certain spontaneity spontaneity in the course of the revolutionary movement but which remained remained under the control of the clerics. Among the Pasdaran of these committees were communist activists, revolutionary Muslims, conservative believers and Muslims, conservative believers and even “lumpen” and fugitive criminals who had criminals on the run who had gone everywhere in search of, in their own words the “faithful of the old regime” in order to punish them personally, either immediately or to punish them personally or to take them to the homes of the monks to whom they had the religious, to whom they had given the name of “tribunal revolutionary court”. These committees roughly filled the vacuum the absence of the then relatively paralysed police and gendarmerie. paralysed.

Although these committees, especially during the first months after the the establishment of the regime, were the most effective instrument for controlling the control the outbursts of the popular revolution, their local and regional nature and regional nature and the heterogeneous composition of their the regime could only rely on them in the long term for local security. the regime could only rely on them in the long term for local security in towns and villages, and after having thoroughly purified them. It therefore seemed necessary to to create a well-organised shock force composed of carefully selected elements elements who were carefully selected and completely faithful to the religious ideology of the regime. This is how the Islamic Revolutionary Guard Corps Corps came into being, according to a practically predetermined plan and from the outset and from the beginning in connection with the I.R.T.

Relying on these two organs, i.e. the committees and the guardians of the revolution, the new and the Revolutionary Guards, the new regime gives itself the opportunity to reorganise and reactivate the police and gendarmerie, which had been demoralised during the revolutionary movement, especially after the fall of the especially after the fall of the imperial regime. In addition, he decided to found a judicial police force comprising the “most experienced and competent” elements of the and most competent” elements of the committees, the guardians of the revolution, the the revolution, the police and the gendarmerie.

In this chapter, we will first briefly study the laws relating to I.R.T. We will then try to deal with the functioning of these tribunals the functioning of these tribunals on the basis of concrete facts. Finally, a section will be devoted to the auxiliaries of these courts, especially the committees. In order to carry out our study, we will be to pay more attention to the actions and words of the people involved and the of the people involved and the officials of these bodies than to the laws and principles principles that should govern their behaviour.

I - Provisions concerning the Islamic Revolutionary Courts

The first text relating to the IRTs is an order dated 17 June 1979. 17 June 1979, although they had already begun their work in the early days of the first days of the establishment of the new regime.

Then the ordinance of 20 November 1979 ordered the “establishment of the Revolutionary Courts of the Army” and finally, the Constitution of the Islamic Republic lays down certain judicial principles whose observance is the observance of which is obligatory for all courts, including the In this section we will briefly examine these provisions to show the legislative In this section we will briefly examine these provisions in order to show the legislative efforts made order in these courts, emphasising once again that these provisions cannot that these provisions can by no means provide even a general outline of their organisation and their functioning.

A - “Statute of the Revolutionary Courts and Prosecutor’s Offices

In accordance with Article 4 of the Ordinance of 17 June 1979 of the Council of the Revolution, the of the Council of the Revolution, the IRTs will be composed of three members and two members and two alternates. The members belong to the following categories:

1. a religious judge proposed by the Revolutionary Council and approved by the Imam (Khomeini). approved by the Imam (Khomeini).

2. A magistrate appointed by a religious judge.

3. A person enjoying popular confidence and aware of the requirements of the of the Islamic Revolution, appointed by the Revolutionary Council or by an Council or by an authority having a mandate from the Council for this purpose. Council for this purpose. The two alternate members belong to this third category. category.

According to Article 5 of this ordinance the court is presided over by the religious judge. Article 11 adds that “only the sentence pronounced by a majority of the members including the president of the tribunal shall be valid’. The second paragraph of the same article states that ‘in the absence of such a majority, two other two other religious judges shall be added to the original judges. judges. The decision of the majority of this court shall be final.

The penalties applicable by the I.R.T. listed in Article 12 are the following: “execution, imprisonment, banishment and confiscation of illegally confiscation of illegally acquired property, after settlement of debts”. debts”.

The offences to be examined by these courts are set out in Article 2 as follows:

1. assassination and massacre in order to consolidate the Pahlavi regime and suppress the struggles of the Iranian people as instigator or perpetrator.

2. Imprisonment and torture of activists, as instigator or perpetrator.

3. Major economic crimes, i.e. the looting of the public treasury or the squandering of the country’s wealth for the benefit of foreigners.

4. Plotting against the Islamic Republic of Iran by armed action, terror and sabotage in institutions and espionage for the foreign interests.

5. Armed robbery; rape; production, importation and distribution of drugs drugs”.

What is most interesting to mention here is that this article enumerating the titles of the offences does not specify the penalties applicable for each of them. It is left to the judge judge to determine the applicable penalty in each case, among those authorised by the punishment of the char’ of Islam” (and recalled in Article 12).

Article 7 and the second paragraph of Article 8 provide for the right to choice of ‘an Iranian lawyer’, specifying that ’the accused and his lawyer the accused and his or her lawyer” a period of time for the defence before the court which not less than ‘15 hours’.

Article 3 attributes the establishment of these courts and prosecutor’s offices to the “order of the Imam” and specifies that they will be dissolved “on the proposal of the dissolved “on the proposal of the government and approval of the Council after obtaining the permission of the Imam”, the second paragraph of the second paragraph of this article adds that in any case it is up to the to decide on the “necessity or lack thereof” of the existence of these necessity’ of the existence of these courts and their prosecutor’s offices.

Articles 14 to 33 of the ordinance are devoted to the provisions the establishment of public prosecutors’ offices alongside these courts in the of the provinces, headed by the public prosecutor, as well as the rules relating to the different stages of the procedure such as: ‘arrest, investigation, notification and enforcement of and the execution of decisions’. “The judicial members of the public prosecutor’s office and the local revolutionary prosecutor’s offices The judicial members of the public prosecutor’s office and of the local revolutionary prosecutor’s offices shall be elected from among the The judicial members of the public prosecutor’s office and the local revolutionary prosecutor’s offices shall be elected from among the jurists and magistrates of the Islamic revolution” (art. 18). “Arrest without the prior permission of the prosecutor is prohibited” by Article 31. This article makes an exception for the case the accused is likely to abscond and his personal situation is such that such that no delay or leniency in arrest is permissible. admissible.

The application of the death penalty is subject to a special formality: “the death penalty must be the death penalty must be communicated ten days before its application to the ten days before it is carried out to the public prosecutor of the revolution and within this within this period the convicted person must be visited by his family” (art. 32).

B - The Army Revolutionary Court

On 20 November 1979, an ordinance concerning the “establishment of the Revolutionary Tribunal of the Army” was approved by the Council of the Revolutionary Council, according to which an exceptional revolutionary tribunal composed of a religious judge, a civil magistrate and a military magistrate would be magistrate would be established to judge “counter-revolutionary” offences “This tribunal would be composed of a religious judge, a civilian magistrate and a military magistrate. This court should aim “to safeguard the Islamic revolution and the independence of to combat conspirators against the security of the country to investigating the offences committed by the provocative and sabotaging elements saboteurs within the army” (introduction to the order).

The judgments of this court are rendered according to the principles of char’](#char). From a procedural point of view, this court is subject to the From a procedural point of view, this court is subject to the general the general provisions for revolutionary courts and prosecutor’s offices, as mentioned in paragraph “A” of this section.

The decisions of this tribunal are “final and of immediate application”. immediate application”.

The ordinance specifies: “this law applies exclusively to the personnel of the army, the gendarmerie and the police”. \ [absent from French text: Of course, in practice, civilians are now also tried by these courts. today also judged by these courts.]

II - Islamic Revolutionary Courts in practice

According to the “Statute of the Revolutionary Courts and Prosecutor’s Offices”, the religious religious judges of these courts must render judgments according to the principles of the principles of char’. There is no precise definition of the offences and the respective penalties. In this regard, the Constitution provides that the courts shall render justice according to the principles of char’, but because these that these ‘principles’ are not yet developed; no fixed and uniform rule uniform rule dominates the conduct of these courts. In this regard In this regard H. Ladjevardi, Prosecutor of the Islamic Republic of Tehran, in an interview on the implementation of capital punishment in the provinces provinces said:

In principle, the courts are independent and the judge is free in his decision. Of course, it is possible that some verdicts In principle, the courts are independent and the judge is free > to decide. or to obtain permission to be executed. But, in general, the courts are independent[^]72 But, in general, the courts are independent⁶⁸[...]”.

This ‘independence’ of the judge in the absence of any written law is unimaginably unimaginable extent. The religious judge is not subject to any law, obeys the rules of the “char’”, of which he must give his own interpretation. In these conditions, it is conceivable that for the same crime the same crime, completely divergent decisions could be taken by these courts. courts.

In practice, the IRTs did not implement the Revolutionary Council Order of 17 June 1979. June 1979 of the Revolutionary Council. The adoption of the Constitution of the of the Islamic Republic – having emphasised principles such as the right of the such as the right of the accused to a defence and to appoint a lawyer, and the right of the accused to a defence and to appoint a lawyer, and the prohibition of the application of sentences without a text – did not changed their attitude in any way. So we found ourselves obliged to reflect the functioning of these courts by examining concrete cases. examination of concrete cases.

A - Conceptual flexibility of the ‘counter-revolutionary’ offence

The basic task of the I.R.T. is to examine the offences to which the to which the leaders of this regime apply the title counter-revolutionary offences”. But, as time goes by and the political situation and the evolution of social events, these “counter-revolutionary “counter-revolutionary offences” acquire new meanings. meanings. Moreover, each religious body or judge may have his or her own have its own conception of the “counter-revolutionary offence”. If during the first two months the “counter-revolutionary offence” was generally counter-revolutionary offence” was generally directed against the “faithful of the old regime”, today the term “counter-revolutionary “counter-revolutionary” brings to mind primarily the communists and the *Modjāhed and the Modjāhedin of the People. Here we shall present a number of these of these offences and the mode of their disposition and promulgation in promulgation in chronological order:

The Council of the Revolution in a declaration of 17 November 1979 announces:

From now on, any attempt to occupy, take hostages and go on a “bogus” strike will be considered a counter-revolutionary act and will be punished. strike will be considered as a counter-revolutionary act and will be subject to its intervention. will be subject to its intervention”.

It should be noted that the Council of the Revolution at the time had both governmental and legislative governmental and legislative responsibilities and that this is the result of its governmental competence and not of its legislative legislative competence.

In another case, the daily Kayhan published on 6 July 1981 an interview with interview with Ayatollah Mohammadi Guilani, President of the I.R.T. of Tehran, in which, in response to the Tehran, in which, in response to a question from the Swedish Radio correspondent about the arrests in the Swedish Radio correspondent about the arrests in the factories, he says:

Yes, in some factories, after the bombing of 81⁶⁹, a number of counter-revolutionary elements were expressing their joy and dancing while spreading poisonous ideas against the Revolution. They were arrested and put on trial. They were arrested and their files will be examined very quickly.

In the same issue of Kayhan H. Ladjevardi, prosecutor of the Islamic Revolution in Tehran, gives a new definition of the counter-revolutionary counter-revolutionary offence:

We consider all the Marxist forces to be counter-revolutionary. counter-revolutionary. It is not possible for a person to be a Marxist Marxist and at the same time support the Islamic regime.

It should be noted that this reply by H. Ladjévardi follows a question from the question from the correspondent of the organ of the Socialist Workers’ Party, of Trotskyite tendency, which precisely supported the Islamic regime. Islamic regime. The question concerned the fate of two members prisoners of this party.

In a televised message on 11 July 1981, Ayatollah Rabbani Amlachi, the country’s Prosecutor General, stated:

We do not hesitate to carry out the sentences pronounced by the courts. The punishment of those who rebel against the people of God and want to We have no hesitation in carrying out the sentences passed by the courts. The punishment of those who rebel against the people of God and want to engage in corruption on earth, those who aim to fight God, His Prophet, the Imam and the Imam’s surrogate. Those who aim to fight God, His prophet, the Imam and the Imam’s substitute (i.e. Khomeini) will be punished by death.

He adds:

“From our point of view those who are disobedient (baqi) and rebel against the regime (baqi) and rebel against the regime are sentenced to death and those who in any way those who engage in corruption in any way on the land, including and those who, in any way, engage in corruption on the land, including > drug trafficking, to any degree, as soon as it degree, as soon as it endangers the health of society, they are considered those are considered “corruptors on earth”. (mofsed-e fel’arz). This is the case if the people are attacked with “cold” and “hot” weapons. cold’ and ‘hot’ weapons that cause corruption on earth.

What is most important in these remarks is the willingness to any crime into two crimes of Quranic origin, namely, fighting against God and corruption on earth.

In the Kayan of 12 August 1981, the Attorney General announces the characteristics of characteristics of the ‘corruptors’ and ‘disobedient’ (mofsed and baqi) as as follows:

1. all active activists and supporters (of political opposition organisations) political opposition organisations) ;

2. Those who in connection with the above-mentioned groups – directly or indirectly – disturb directly or indirectly – disturb public order by unleashing revolt and and terror;

3. Those who attack and storm places or persons with a weapon people;

4. Those who hide arms and ammunition for these groups;

5. Those who provide housing, money and other facilities to these groups”.

In the Kayhan of August 24, 1981, the Attorney General gives a warning to “capitalists and those who support warning to “capitalists and those who support the groups by putting their residences at their disposal”. According to this their houses will be confiscated in favour of the disinherited, and they will be tried and executed as moharebe [fighting against God] and baqi \ [disobedient]”.

In the Kayhan of 23 July 1981, the Hodjatoleslām Moussavi Tabrizi, former religious judge of Tabriz and Prosecutor General of the Revolution, said: “If anyone makes a disturbance on the day of the the day of the [presidential] election he will be considered the equal of the Modjāhedin and the militants of the mohareb](#mohareb)e”.

This same person on the occasion of the Friday prayer of 13 November 1981 said:

We consider insurrection against such a country, such a leader, and such a nation as heresy and unbelief, and also as a fight against the enemy. We consider insurrection against such a country, such a leader, and such a nation as heresy and unbelief and also as a fight against Islam. against Islam. And the blood of its author is worthless and its killing is not only permissible, but it is also a crime. is not only permissible but necessary. This is Islam, it is the Qur’an and it is the fatva of faqih](#faqih)* Shi’ites".

Then he adds:

If we accept the emāmat as an ideology, the “uprising and insurrection against an ideology” is not considered to be an ideology. The uprising and insurrection against an ideology is not considered as a political insurrection, but as an insurrection. as a political insurgency, but is as an insurgency against the ideology It is an insurgency against the ideology and therefore a fight against Islam and the Qur’an. Moreover, those who do not rise up firmly against these They will be guilty; they will be accomplices to these ideologies. They will be accomplices of these “mohareb”.

On 6 October 1981, Ayatollah Rabbani Amlachi, the country’s Prosecutor General, declared in an interview with the daily *Kayhan in an interview with the daily Kayhan:

As long as there are criminals, opponents of independence As there are criminals, opponents of the independence of this nation and country and enemies against Islam, there will be executions and punishments. There will also be executions and punishments. We are not afraid to say that we have executed We are not afraid to declare that we have executed fifty Modjāhed or enemies of Islam and Muslims. We frankly declare that those who those who exceed the limits set by the Qur’an, according to the Qur’an their The punishment for them is death, and mercy is not admissible for them, So we will execute them.

In the Tehran I.R.T. verdict on the execution of M^me Massoumeh Chadmani, a member of the People’s Mujāhedin, among the “crimes” listed listed, one can read: “2. Application of the American monāfeqin organisation American monāfeqin [hypocrites]⁷⁰ [...] 9. attempted suicide attempt at the Tehran I.R.T. prosecutor’s office⁷¹ [...]”.

Following the publication of a notice to clean the walls of Tehran, the city the city’s municipality warns private companies and institutions that institutions that if they fail to clean the walls, “according to judge and in accordance with the permission of the Islamic prosecutor of Tehran, the Islamic prosecutor of Tehran, the necessary measures will be taken to disconnect for the disconnection of the violators’ telephone⁷²”.

As can be seen, therefore, the political interests of the regime play a major role in a major role in the definition of offences without any hindrance from the judges and prosecutors of the by the judges and prosecutors of the I.R.T. It has frequently happened that that acts deemed legal during one period were later reclassified as reclassified as “counter-revolutionary” crimes and the perpetrators punished. and the perpetrators have been punished. The definition of crimes depends directly on the judges and prosecutors of the I.R.T. They are the ones who They decide whether what is done is a crime or not.

Furthermore, the definition of crimes and penalties is not the responsibility of of specific bodies and authorities. Each body or even each authority can determine the crimes and their penalties.

This freedom of action gives the IRTs a particular effectiveness and capacity to repress opponents, and in general, any element that disturbs order. disturbing the order.

Of course, this is a transitional situation and as the regime succeeds in restoring order, this order, this anarchy will be reduced and measures will be taken to ensure will be taken to ensure centralisation within the I.R.T.

B - The Diversity of Islamic Revolutionary Courts

In principle, the IRTs examine all cases for which they consider themselves competent. they consider themselves competent. But sometimes, if necessary, specialised IRTs are set up. are set up, the most important of which are :

1. The Special Drug Court: This court has been one of the busiest courts since the the establishment of the Islamic regime; especially after the appointment of Ayatollah Khalkhāli as the president of this court by President President Banisadr on 10 May 1980, it has been very active in the arrest, conviction and especially the execution of drug traffickers as a group. drug traffickers. From August 1979 to September 1980, 382 people were executed⁷³ by this court and in the month of Tir 1361 (22 June to 22 July 1982) 1557 people were people were tried before this court where 18 people were executed⁷⁴.

2. The Special Islamic Court of Corporations: It is responsible for offences concerning illegal price hikes and hoarding. hoarding. Very often, it imposes fines, whippings and confiscations. confiscations.

3. The Islamic Revolutionary Court sitting in the Tehran City Hall Tehran: It examines the specific case of land and buildings confiscated by private confiscated by private persons during the revolution whose ownership status is the ownership status of which is unclear. The president of this court in an interview on the activities of this tribunal says: “Since since I took up my responsibilities at this court, it has has dealt with nearly a thousand cases for which judgments of char’ have been the beginning of my work,” he added, “the Islamic Revolutionary Prosecution the Islamic Revolutionary Prosecutor’s Office in the town hall began its function. The inspection, investigation and compilation of files are the responsibility of this prosecution⁷⁵.

4. The Islamic Court for Combating Evils: This court was essentially responsible for monitoring the conduct of the population and to impose the so-called Islamic conduct. According to the deputy of the According to the deputy Islamic prosecutor general of this court: “The prosecutor the prosecutor general of the revolution has dedicated one of the chambers of the I.R.T. to the fight against evil. From a procedural point of view, this court is subject to the same rules as the From a procedural point of view, this court is subject to the same regulations as the other IRTs. On On the definition of “evils”, he says: “Evils are the sins mentioned in the books of Islamic law”.

On the activities of this tribunal he says: “for more than a year since the creation of this tribunal more than 5000 cases have been examined and appropriate judgments have been rendered. Most of the charges were related to the organization of prostitution and large casinos throughout Tehran, illegitimate sexual relations, homosexuality, prostitution homosexuality, prostitution, vagrancy, etc.”

This court was dissolved in December 1982, and its cases were transferred to the referred to the Ordinary Courts

C - The procedure of the Islamic Revolutionary Courts

On the subject of procedure, the only thing that can be said with certainty is that in no is that in no area have these courts observed definite and uniform regulations.

a) On the competences of the ITRs

In terms of jurisdiction, the available documentation suggests that crimes and that crimes and disputes of all kinds have been tried in these courts. tried by these courts. In addition to the cases listed above, there have been several cases considered by these tribunals which, according to the Statute of the I.R.T. Statute, were outside their jurisdiction⁷⁶.

The imprecision of the limits of the competences of the IRTs has always been one of their of the I.R.T.’s competences has always been a concern of their managers. In the resolution of the seminar of 200 prosecutors and judges of the I.R.T. from all over the country, dated 13 October October 13, 1979, the participants demanded that “the heads of the jurisdiction of the I.R.T. should be determined and dedicated to the cases required by the revolutionary state of the country”. They added: “the civil disputes and minor problems and litigations” occupying the time of the time of the courts must be refused. Finally, they demand, in this the development and improvement of the Statute of the I.R.T. in the sense of increasing the competence of the courts with regard to counter-revolutionary offences”.

b) On the intervention of lawyers in proceedings before the Regional Court of Justice

Although none of the officials of these courts, in principle, object to the the intervention of lawyers in trials, and although the statute of these courts of these courts as well as the Constitution of the Islamic Republic the Constitution of the Islamic Republic, in practice, to date, lawyers have not been In cases where the accused have presented their lawyers to the I.R.T. have presented their lawyers to the I.R.T., the latter, under various pretexts, have pretexts, the latter have refused them.

Ayatollah Rabbani, the country’s Prosecutor General, in an interview with the Pars News Agency with the Pars news agency on 7 March 1980, sets out conditions for the presence of for the presence of lawyers at the trials taking place before the I.R.T.:

Because the defence is a legitimate matter from the point of view of Islam and the Constitution of the Islamic Republic Islam and the Constitution of the Islamic Republic, the accused and the prosecution are entitled to a lawyer in court. The accused and the prosecution are entitled to a lawyer before the court; Of course, a lawyer who is the defender of Islam and the Constitution of the Islamic Republic the Constitution of the Islamic Republic, and not a lawyer who wants to A lawyer who, for a large sum of money, wants to transform reason into the Islamic Republic, and not a lawyer who, for a large sum of money, wants to turn reason into > wrong and, by using seductive phraseology, make the unjust sit in the unjust in the place of the just.

In response to the correspondent of this news agency who asked him about “the defence by lawyers of prisoners of conscience”, he said questions about “the defence by lawyers of prisoners from groupuscules mohareb and elhadi](#elhadi) [non-croyants]”, he said:

Their lawyers can defend the prisoners, provided that at least they confess to the character of elhadi and *[mohareb Their lawyers may defend the prisoners, provided that at least they admit to the elhadi and mohareb nature of these groups and that they focus their defence on the degree of the offences by requesting mitigation. They defend themselves on the basis of the degree of the offences by asking for mitigation not that they want to declare these terrorists, these agents of the state, innocent. These terrorists, these agents of foreigners, these those mohareb and those mofsed by demanding their return to society to repeat their old crimes. repeat their former crimes.

In any case, until now, under no conditions the intervention of lawyers in the trials of the I.R.T. has been permitted.

c) On the implementation of the decisions of the Islamic Revolutionary Courts

In this respect, too, there is no uniform procedure, for example the execution of death sentences is usually carried out by shooting in prison yards. But there have also been cases of of hanging or publicly shooting the condemned and even a few cases of stoning stoning of convicts for sexual crimes. There were several reports of hanging of convicts in the presence of other prisoners and also of shooting of convicts by ‘repentant’ prisoners have been officially released.

In one case, two unknown people were shot. The news of these executions was broadcast on 6 July 1981 along with twenty-one others.

In another case two people were shot ‘24 hours after arrest⁷⁷’.

In one case, following the ‘discovery of the drug trafficking village by the group, five drug traffickers were shot at the scene of their arrest⁷⁸. shot at the place of their arrest⁷⁸’. They had been arrested the day before.

In another very particular case a married woman, accused of adultery was found alive after being shot and taken to the hospital morgue hospital morgue; she was ‘shot again by court order⁷⁹’. by decision of the court⁷⁹’.

Similarly, on the enforcement of other sentences there are no general rules or or uniform procedures. For example, in one case “through the mediation of mediation of the inhabitants of a neighbourhood and the forgiveness of the civil party, the trader, who had practised illicit price increases, was saved from whipping⁸⁰’.

In another case, five hundred drug addicts in four corners of Tehran after being whipped were released “into areas of the city”. whipping were released “in desert areas near Tehran”⁸¹. desert areas near Tehran”⁸¹.

d) On the conduct of trials

The procedure for conducting trials before the IRT is also not subject to any regulation. subject to any regulation. Most trials are held in camera, but Most trials are held in camera, but sometimes a trial is declared, to a certain extent public without any specific reasons being given. The film of a trial trial may be shown on television.

During the trial of a left-wing activist in the summer of 1980, after the fourth session, the session, the president of the court resigned. The trial continued uninterrupted continued uninterrupted, with another Islamic judge presiding. Islamic judge.

What is certain is that ITRs are strongly influenced by political circumstances and political circumstances and the interests of the executive and, in this case act in perfect harmony and relatively without indulgence. The Islamic judges are chosen directly under the supervision of Khomeini and his and his relatives; his orders are absolutely followed by the courts⁸².

e) On the review of the decisions of the Islamic Revolutionary Courts

While in principle the decisions of the I.R.T. are considered final and final and immediately enforceable⁸³, in practice some cases of review of cases of review of the decisions of these courts have been observed. In the aforementioned statements of H. Ladjevardi, Prosecutor of the of the Islamic Republic of Tehran, the possibility of review is not excluded, but no authority is presented in this regard. Ayatollah Mohammadi Guilani, the president of the I.R.T. of Tehran, in order to underline the the accuracy of the judgments rendered by these courts says: “Even for some people there were two some people, there were two hearings⁸⁴”. But he also does not specify any regulation or authority in this regard.

Following the resignation of Ayatollah Khalkhāli from the presidency of the Drug Enforcement Court, his successor of the Anti-Drug Trafficking Court, his successor declared that : “all the judgments rendered” by this court “will be revised”; but but he too did not give precise reasons for this decision.

The latest information on the review of ITR decisions shows that that at present only capital sentences and property forfeitures are reviewable in the High Court confiscation of property are reviewable before the High Court sitting in Qom. This is also true for the appeal. The others are not subject to appeal.

III - Auxiliaries of the judiciary

The police and gendarmerie, who were the main auxiliaries of the judiciary during the of the judiciary during the revolutionary movement were too disorganised and too disorganised and demoralised to be of any use to the new regime, at least the new regime, at least initially. For example on the situation of the police, the Minister of the Interior, on 20 January 1982, in response to a question from a member of the Islamic Assembly said:

The police, before the victory of the Revolution, numbered nearly people. After the victory of the Revolution, it went down to Because of the crimes committed by a large number of policemen under the old regime, some of them fled and some were tried and executed. some of them were tried and executed. At present, he continues, from the ideological point of view we have some plans for the police. We have to work on them. A real change change is not being achieved in the police.

Therefore, the new regime had to create appropriate bodies.

The revolutionary committees which had spontaneously arisen during the movement against movement against the imperial regime, and which had rapidly multiplied multiplied immediately after the establishment of the new regime, provided the latter, at the outset, with the most effective and available means available. Later, according to a precise plan, the Guardians of the Islamic Revolution (sepāh-e pāsdārān-e enghelāb-e eslāmi) was created which, in turn, functioned as an auxiliary of the After the occupation of the US Embassy and following Khomeini’s order to Khomeini’s order to ‘create the army of 20 million’, a paramilitary force, under the paramilitary force, under the title [basidj-e mostazafin]{.ul} (mobilisation of the disinherited) (mobilisation of the disinherited) was organised which also serves the service of the I.R.T.

On the proposal of the Ministry of Justice, the following was developed and implemented the project to create a judicial police force that would function exclusively exclusively as an auxiliary of the judiciary

And finally, after 11 August 1981 and in particular after the promulgation of the fatva](#fatva) of Khomeini’s fatva describing the provision of intelligence reports to the as a religious duty, the Islamic Associations began to function as a source of to function as a source of intelligence for the latter⁸⁵.

In this section we will look at these bodies, the majority of which, apart from their own functions, fulfil the role of the the majority of which, apart from their own functions, fulfil the role of auxiliary to the judiciary. It should be noted that, in the absence of It should be noted that, in the absence of precise written laws and regulations, one will be obliged to rely to rely almost exclusively on the words of officials and the actions of and the actions of these bodies.

A - The Islamic Revolutionary Committees

At present, these committees exist in almost every town and village in the country and under a recently approved law, they have been and villages of the country and by virtue of a recently approved law they are administratively dependent, like the police and the gendarmerie, on the Ministry of the Interior. They originate from the committees that were created almost spontaneously during the spontaneously during the popular movement against the imperial regime, immediately imperial regime, immediately after the installation of the new regime. Initially, the pasdaran of these committees were composed of people committed to the revolution, with various political leanings. They worked voluntarily and part-time and a large part of them had acquired their of them had acquired their weapons during the occupation of the barracks of the barracks during the insurrection of 11 and 12 February. The maintenance of order in the cities, especially Tehran, was ensured by these same pasdaran. the same pasdaran. In practice, they exercised unlimited power. Especially with regard to the arrest of those they called “agents of the old regime”, they did not have the power to arrest them. of the old regime” they accepted no restrictions. On their own on their own initiative they carried out searches, arrests and arrests and even administered punishments. After the the consolidation of the position of the fundamentalists within these committees they committees they began to intervene in even the most private matters under the under the pretext of controlling “Islamic conduct”.

These committees were initially the most effective and immediate means in the in the hands of the new regime to maintain order – for the Khomeini clerics and the clerics and the Khomeinist bazaris had, from the beginning hegemony in these committees. However, as the unanimous popular support for the new support for the new regime disappeared, the loyalty of the pasdaran committees to the regime became increasingly doubtful. For this reason, the regime decided to Therefore, the regime decided to purge the committees by creating a central committee. committee. The process of purifying these committees was accompanied by their centralisation. Henceforth, the heads of the committees, very often religious appointed directly by Khomeini and to remove non-Khomeinist clerics from the non-Khomeinist clerics from leading the committees, for a time these committees were called “the time, these committees were called ’the committees of the Imam’ to emphasise the emphasise Khomeini’s control⁸⁶.

Ayatollah Mahdavi Kani, then head of the country’s Islamic Revolutionary Islamic Revolutionary Committees, made the following observations about the the emergence and evolution of these committees:

In the early days of the Revolution, there were nearly 1,500 committees in Tehran. In the early days of the revolution, there were nearly 1,500 committees in Tehran which we divided into 14 main committees. We have divided them into 14 main committees which are in charge of controlling the sub-committees. Unfortunately, for the past two months we have been facing enormous difficulties Unfortunately, for the past two months we have been experiencing enormous difficulties, as many of the able pasdaran have been absorbed by the Guardian Corps. by the Revolutionary Guard Corps. There is only a small part of the There is only a small fraction of the fit ones left, the rest being incompetent. incompetent”.

Without referring to the diversity of political tendencies of the Pasdaran he says about their composition:

The most competent were integrated into the Guardians (of the Islamic Revolution). Some of the most competent have been integrated into the Guardians (of the Islamic Revolution), some others have resumed their own occupation. There are still a number of students, high school students and people who are too young. and a handful of escaped prisoners and former convicts. and former convicts.

In September and October 1979 a vast purge was carried out among the committees. For example, in the ninth district of Tehran the total of 100 committees was first reduced to 33 and then to 9. total of 100 committees was first reduced to 33 and then to 9, adjoining the police stations of the district.

The stated tasks of the committees were:

Fight against the counter-revolution⁸⁷ ;

2. Fight against smuggling and drug traffickers ;

3. Combating evils (so-called un-Islamic conduct);

4. Fighting against hoarding and illicit rise so that this hoarding and rise causes the weakness of the system.

5. Fighting against hoarding and illicit rise so that this hoarding and rise causes the weakness of the economic system of the Islamic republic and the economic system of the Islamic republic and lead to popular discontent[^92 and result in popular discontent⁸⁸.

Mr. Kani considers the committees as “the auxiliary of the public prosecutor of the Islamic Revolution” by stating that “no committee acts arbitrarily. It is only according to the orders of the Islamic Revolutionary of the Islamic Revolution that we arrest the accused; and it and it happens that the accused stays 24 hours in our detention house or with the permission or agreement of the Public Ministry the duration of this arrest of this arrest is prolonged”.

The Islamic Revolutionary Committees played a key role in suppressing opponents and repression of opponents and the supervision of the population, especially since since 20 June 1981. Above all, their integration in the neighbourhoods and their personal knowledge of the inhabitants of each neighbourhood their personal knowledge of the inhabitants of each neighbourhood give them a particular advantage in the supervision of the population and the the collection of information.

In August 1982 the Statute⁸⁹ of the Committees was approved by the Islamic Assembly and the committees were officially integrated into the framework of the of the Ministry of the Interior. The head of the committees, according to this statute, is appointed by the Minister of the Interior subject to the permission of the Vali faqih](#valifaqih).

B - The Islamic Revolutionary Guard Corps (IRGC)

Unlike the committees, which had more of a police function, the C.G.R.I. had both an army and a police function.

The C.G.R.I. was founded immediately after the establishment of the new regime under the leadership of a deputy prime minister and the direct supervision supervision of a representative of Khomeini, according to the statute approved by the Council of the Islamic Revolution. The pasdaran of this corps were carefully recruited according to their loyalty to the regime and their to the regime and their dedication to its ideology. The pasdaran of this corps were, from the start, the object of The pasdaran of this corps were, from the outset, subject to constant purges as political conflicts political conflicts within the ruling team⁹⁰.

In the beginning, the C.G.R.I., apart from security matters, intervened in almost all matters of social life, intervened in almost all matters of social life. These interventions were very often the cause of conflicts between the the C.G.R.I. and other governmental bodies, in which it was generally supported by the Khomeinist clerics, but after the resignation of the ‘provisional government’ and the resignation of the ‘provisional government’ and the integration of the Khomeinist clerics into the state machinery, steps were gradually taken to determine the limits of its taken to determine the limits of its powers and responsibilities. powers and responsibilities.

The Constitution of the Islamic Republic, in its 150^th article has officialized the IRGC — which was established before the adoption of the Constitution — as one of the main organs of the Islamic Republic Islamic Republic⁹¹. It prescribes:

The Islamic Revolutionary Guard Corps, which was formed in the early days of the victory of the Islamic Revolution, was the first to be established. The Islamic Revolutionary Guard Corps, which was formed in the early days of the victory of the Islamic Revolution The Islamic Revolutionary Guard Corps, which was formed in the early days of the victory of this revolution, will continue to exist in order to continue its role in safeguarding the revolution and its achievements. of the Revolution and its conquests. The limits of the tasks, scope and responsibility The limits of the tasks, scope and responsibility of this body are determined by the The limits of the tasks, scope and responsibility of this corps are determined by the law in its relationship with the tasks, scope and responsibility of the other armed forces. The limits of the tasks, scope and responsibility of this corps are determined by the law in its relationship to the tasks, scope and responsibility of the other armed forces, with the emphasis on cooperation and fraternal harmonisation between the armed forces and the police. cooperation and harmonisation between them.

On 4 May 1982, the Islamic Assembly approved the Statute of the ICRC in 50 articles according to which the IRGC is commanded by a Supreme Command Council Council within the framework of the Ministry of the Islamic Revolutionary Guard Corps. Islamic Revolutionary Guard Corps. The divisions of the IRGC on a national scale are provided for in Article 38 as follows: “each city in proportion to each city in proportion to its size and population is divided into a few resistance regions, each resistance region into a few each resistance region into a few resistance districts and each resistance district into a resistance bases of which each resistance base will comprise organised groups”.

As an auxiliary of the judiciary, the C.G.R.I. is responsible for the the discovery and prosecution of offences under the Public Ministry of the Islamic Revolution. In fulfilling this task, it has established its own and a centralized intelligence service. The enforcement of sentences handed down by the I.R.T. is often carried out by the carried out by the C.G.R.I.

The ICRC, through the Basidj-e Mostazafin (Mobilisation of the Disinherited), armed a large force force. Following the hostage-taking at the US Embassy in Tehran Tehran, the nuclei of this organisation were created with the declared aim of protection of towns and villages against a possible foreign invasion invasion, on the initiative of some governmental bodies. Later, the leadership of this organisation was entrusted to the C.G.R.I.

In practice, the Basidj Organisation played a major role in the repression of demonstrations by opponents of the regime and especially on 20 June 1981 was very active in identifying and arresting militants and of militants and sympathisers of clandestine organisations and in the population. It also sent a large number of volunteers, mainly teenagers, to the front line of the war with Iraq. Iraq.

According to paragraph 2 of article 37 of the C.G.R.I. statute small towns, villages and villages of the country will have the resistance cells of the Basidj".

Finally, Article 39 of the statute states: “the expansion of local units units must be carried out in such a way that resistance cells be created in all districts in the shortest possible time”. possible".

According to the latest official statistics, the Basidj Organisation has, to date, organised “six thousand resistance bases and nine thousand resistance groups’. More volunteers have been sent to the fronts the war with Iraq and almost people have received military training from the military training by the Basij organisation⁹².

C - The judicial police

The judicial police is, by definition, an armed force that functions solely as an only as an auxiliary to the judiciary and does not deal with security. security. The original plan for the judicial police had already been during the last years of the imperial regime, but the revolutionary The original plan for the judicial police had already been drawn up in the final years of the imperial regime, but the revolutionary movement prevented it from being implemented.

At the beginning of 1981 it was taken up again and the preparatory measures for the creation of a judicial police force were taken. the creation of a judicial police force was taken and finally the finally the draft law providing for the creation of this police force was approved by the the Islamic Assembly on 7 January 1982, setting 21 March 1982 (the first day of the 21 March 1982 (the first day of the Iranian year 1361) as the date of commencement of its operation.

According to the Head of the Judicial Police, the Judicial Police ‘is responsible for the administrative affairs of the judiciary in the discovery of offences, the the arrest of the accused, the preliminary interrogation notification and execution of civil and criminal sentences. It is responsible for many of the functions currently performed by the the police, the gendarmerie, the committees and the C.G.R.I. as auxiliaries of the as auxiliaries of the judiciary⁹³.

In practice, it does not appear that this police force has yet been able to to be able to replace the above-mentioned bodies. the above-mentioned bodies.

D - Islamic associations

These associations were gradually organised in all administrations, schools, universities and factories schools, universities and factories as soon as the new regime was the establishment of the new regime by taking over the control of their their management. At the same time they ensured the ideological and political representation of the the ideological and political representation of the Islamic Republic Party in the face of the the active presence of other political formations. Gradually, the field of activity of these of activity of these associations expanded and they controlled the observance of Islamic conduct and the management of these institutions. In particular, they had a major role in the purification of the bureaucracy as advisors to the purification commissions. They also played a very active role in the downfall of the ‘provisional government’ and the removal of government’ and the removal of Banisadr from the presidency of the Republic. But after 20 June 1981 and especially after the famous Khomeini’s famous speech to the members of some of these associations, on 11 August of the same year, they were officially instructed to to cooperate with the judiciary to identify and arrest opponents of the opponents of the regime. In his speech Khomeini said: “You yourself must be the intelligence association and the intelligence grouping intelligence⁹⁴…”

Since then, the activities of Islamic associations have been officially controlled and centralised by the government. Indeed, the “Statute of Islamic Associations” describing the qualification of their activities activities is drafted by the government. Thus, the Deputy Prime Minister Minister in charge of “revolutionary institutions” in explaining this statute states:

The activities of Islamic associations must be carried out under the supervision and with the collaboration of the clergy, in harmony with other cultural institutions and with the institution of propaganda⁹⁵. propaganda⁹⁵”.

The General Prosecutor of the Revolution asks the student members of the “Islamic High School Association”, to “inform the prosecutor of the slightest of the slightest suspicious movements of certain students in relation to the groupuscules and certain released prisoners”.

In practice, the Islamic Associations have played an important role in the identification and arrest of opponents of the regime in schools, universities and factories.

Conclusion

The adoption of religion as the sole source of state ideology and the integration of the religious into the state apparatus radically the process of reorganisation of the judiciary under the Islamic under the Islamic Republic. The Islamic Revolutionary Courts composed essentially of clergymen constitute the backbone of this apparatus. Khomeini’s position as head of state facilitated the creation of these courts and ensured their the creation of these courts and ensured their organisational centralisation. organisational centralisation. The relative independence of the judges in defining of offences and the allocation of sentences according to the Islamic judicial system system allows the Islamic Revolutionary Courts to legitimise their their often arbitrary decisions, taken under the influence of urgent political political events.

The Ministry of Justice, under the Islamic Republic, is still The Ministry of Justice, under the Islamic Republic, is still kept out of important justice-related matters. But the occupation of key positions in this ministry by the ruling clerics and the adoption of so-called Islamic laws for all courts make it possible that this ministry will become the essential embodiment of this apparatus in the future. The creation of the Supreme Judicial Council which absolute power and composed solely of high religious authorities, directly authorities, directly chosen by Khomeini, can contribute to the creation of a kind of the creation of a kind of organic unity within this judicial apparatus. judiciary. The integration of the Islamic Revolutionary Courts into the the Ministry of Justice is currently supported by many judicial judicial authorities. Thus, the organisational development of the of the Ministry of Justice, especially during the past year, has prepared the the ground for the realisation of this idea.

It is therefore clear that the Iranian judiciary is currently in a state of transition. in a state of transition. The leaders of the new regime, upon coming to power, have claimed to “apply Islamic laws”. came to power claimed that “Islamic laws should be applied by the courts”. But in practice so far the ordinary courts courts have based their judgements mainly on the laws adopted during the laws adopted during the old regime; and the Islamic Revolutionary Islamic Revolutionary Courts have found themselves without a legal reference. This This legal vacuum benefited the Islamic regime, which was totally free vis-à-vis the people. This legal vacuum, an important factor for the maintenance and and cohesion of the regime in the short term, would be fatal to it in the long long term. Thus, over the past year, the regime has efforts to establish a system of laws that it calls Islamic, but which until now has not been Islamic, but whose effects are so far unknown.

Bibliography

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• J. Chevallier, D. Loschak, Introduction à la science administrative administrative science, Mémento Dalloz, 1974

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• R. Khomeini, “Ressāleh novine: massāel-e-siassi va hoghoughi (New Handbook: Political and Legal Problems), ed. Sepehr, 1360 (1981)

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Journals, articles and newspapers

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• A. Mignard, “Spritualisme, sans voile”, 1975

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• Collection of Laws of the year 1357 (1978-1979)

• Collection of laws of the year 1358 (1979-1980)

• Collection of laws of the year 1359 (1980-1981)

• The Penal Laws*, edited by A. Kamangar, Djavidan ed, 1354 (1975)

• The World

• Kayhan