Index of foreign names

Foreword

There were two obstacles to our research…

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

We are aware that we have skimmed over certain aspects of the subject and we hope to continue our research in the framework of a doctoral thesis with the kind and benevolent help of Mr. Chevallier, Dean of the Faculty of Law of Picardie and director of our thesis.

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

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

Introduction

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

This revolution broke out suddenly. No one expected it, not even those who provoked it, nor those who repressed it, nor 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 imperial regime, precipitated the events that followed at an extraordinarily rapid pace — the imperial regime collapsing long before the social forces involved in the revolution could consciously determine what they wanted from the revolution.

As a result, the revolution continued to march forward without an organised and programmed leadership. Khomeini’s own presence in 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 did not even imply his coming to power: “everything will be decided after the fall of the Shah by the people” dixit Khomeini.

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

It is quite significant that already on February 12, 1979, the crowd gathered at the campus of Tehran University, chose, among other things, as a theme for public discussion: “Does the establishment of the government of Mr. Bazargan, on the direct order of Khomeini, represent the failure or the victory of the revolution?” A worker promptly replies: “If this government wants to carry out the programme it has declared, namely to put the bureaucracy and the army of the imperial regime paralysed by the revolution into operation and to put them at the service of the new regime, we must frankly declare that 11 February was the day of the definitive failure of our revolution.” A bearded man in the crowd replies: “We need patience”. Patience was the central theme of all government propaganda for more than a year – a period 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 got everything we wanted”.

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

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

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Certainly, the Iranian revolution of 1979 emerged from a general crisis that embraced the whole of society from the bottom up. At the root of this crisis we can easily identify an economic crisis which from 1971 to 1976 manifested itself in the form of a constantly rising rate of inflation, and since 1976 in the form of a recession resulting essentially from the decrease in oil revenues following the world economic stagnation. But this economic crisis cannot in itself explain the outbreak of a political movement whose minimum demands were the overthrow of the monarchy and the establishment of a republic of some kind¹. Nor can it explain why this political movement did not go through a phase of protest and economic struggle without a priori. And finally, it remains to be seen why the ideology of the economically dominant classes was not only not refuted or denounced by the revolutionary movement, but that its domination was maintained over the movement.

Even at the economic level, what made a crisis, by definition temporary, the source of such a vast upheaval, lies in the structure of the socio-economic system and in the exceptionally important role of the state apparatus. A brief examination of the situation of the classes and social forces involved in the revolution is proof of this. In the first place, the massive participation of the slum dwellers is very significant – participation that allowed the cities to become “the home of the revolution”. But a structural analysis shows us that it was the ruined peasants who triggered the demonstrations in the cities. Without these many courageous peasants, the revolutionary movement would never have been able to grow to the extent it did in the cities. If the land reform of 1963 had had some results other than the mere destruction of the rural economy, if it had succeeded in realising a predetermined ambitious plan, namely the creation of a rural economy based on large-scale agricultural and industrial production, the economic crisis of the 1970s would certainly have had quite different repercussions in Iranian society. Moreover, if, as a result of this reform, part of the rural population had acquired the possibility of earning a living by cultivating their own plot of land,² it 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 can only be found in the very nature of the reform and in the circumstances in which it was carried out. Indeed, the agrarian reform of 1963 was not the result of the peasant movement’s struggle against feudalism and government power, but on the contrary it was carried out in a context of submission of the peasantry following a fierce repression.

In fact, this reform was the work of an authoritarian regime that imposed itself on both the feudalists and the peasants. As for the motivations of this regime, they must certainly be sought elsewhere, outside the Iranian countryside, namely in the globality of its external and internal relations – relations that were, moreover, at the origin of the direct confrontation of the repressive state machine with the rural population. Secondly, when we examine the role and motives of the other social forces participating in the revolution, we will see that the same central question, i.e. the question of the state and its internal and external relations, arises again. Let us take the case of the clerics who, in close connection with the different layers of the commercial bourgeoisie, especially that of the bazaars, and with the help of a vast national network of mosques and bazaars³ did their best to both mobilise and control the popular masses. Why did these forces of a reactionary and counter-revolutionary nature join 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 the state and secondly, as a part of the ruling class, they saw it as a revolutionary perspective to prevent the total collapse of the state apparatus. And it was to rescue this state apparatus that they entered the flames of the revolution: suppress the monarchy to save the state apparatus. Moreover, the behaviour of these clerics, as well as the changes in the tone of their political and ideological propaganda — after their integration into the state apparatus — can only be explained by a detailed analysis of the functioning and organisation of the latter. Finally, as far as the Iranian working class was concerned, it had learned from its own everyday experience that the direct intervention of the forces of law and order on behalf of the bosses (and sometimes even against their wishes) gave a political character to the slightest protest movement. It was therefore no coincidence that in the favourable situation resulting from the general crisis of the state, it is only concerned with striking a blow at the state machine.

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

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

A balance of economic forces between feudal and bourgeois, in an exceptional historical situation, ensures the relative independence of the state – the absolutist state – from the 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 intervention of the state in the relations of production, and in general, in social relations is considerably reduced; “civil society” expands. Finally, the accentuation of the contradictions of the capitalist relations of production provokes the increasing intervention of the state in social relations: the “interventionist state”. 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 very beginning, so to speak, both absolutist and extremely interventionist. But the absolutism of this state does not stem from the balance between the social classes. In fact, from 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 from landowners, making it dependent on foreign trade and contracts with foreign countries. The increase in these revenues — especially oil revenues — gives the state the means to control the national economy. Thus, gradually, under the supervision and with the help of the state, a bourgeoisie appears which in turn is linked to the foreigner. In short, it is a more or less centralised state that gives rise to a bourgeoisie, a state that is politically manipulated and installed by the colonial countries.

Two military coups, one manipulated by Britain in 1921, the other by the US in 1953, ensured the political domination of international finance capital under British and US hegemony in Iran respectively. All institutional and functional aspects of the Iranian state apparatus are now determined by this dependent character of political power. A centralised, apparently independent state⁵ is trying to gradually establish capitalist relations of production so that international finance capital can exploit all sectors and economic resources of the country. Due to the lack of a national class base, specific tasks in the economic, political 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 it intervenes obliges it to act by its own means in these relations: this requires special steps on the part of the state. This gap is partly filled by state investment, mainly from oil revenues, but especially at the beginning this was not enough. Much of the land belonging to the large landowners was forcibly confiscated, accompanied by anti-feudal phraseology in favour of the new king and his entourage at the head of the state apparatus. Reza Shah, who was born into a poor family, became the largest landowner in the country in less than ten years: “He confiscated nearly a million hectares from the large landowners⁶” without suppressing the traditional production relationships in the agricultural sector. Gradually, a privileged stratum of members of the imperial dynasty and high officials – and senior army officers – was formed who, through their connections with the state apparatus, held a large part of the means of production. This process reached its peak in the years 1965-75. In this period of increased investment, each investor, in order to ensure the security of his capital, was implicitly obliged to register part of his company’s shares in the name of one of the members of the royal dynasty or his relatives. This kind of appropriation took the form of outright plunder and appeared to the public as a manifestation of the greed of the shah and his entourage. But in reality, it ensured the state’s control over the relations of production by providing it with the means to transform them, more and more, according to the needs of international finance capital.

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

“[...] The business bourgeoisie, giddy with the exhilaration of the economic boom of the last five years, had indeed tacitly made a pact with the shah. No official agreement had been sealed. Rather, it was the Iranian replica of a new Faustian pact. Give me your soul, the Shah suggested, and I will give you your fortune. The Iranian owners did not resist the temptation. They sold their souls for a few million more tomans. Their bank accounts, overnight, were magically filled. The regime’s accountants did their homework. 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 frenzied pursuit of profit except that of submitting willingly to the imperial racket, but you must keep quiet and refrain from any manifestation of critical spirit. You have the right, even the duty, to get rich, but not the right to think, and even less to speak. This is how the Iranian bourgeoisie has become self-obscured⁷”.

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

The political disorganisation of the economically dominant classes made them incapable of organising “civil society⁸”. 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 by the British and the Americans respectively served as the foundation for a bureaucracy that expanded as traditional social relations were torn apart⁹. A vast network of different control and surveillance bodies would be added to the military and administrative bodies of the state in order to control society as a whole. This network operated in very close liaison with the repressive body of the state apparatus and in the Shah’s time, the military constituted the bulk of it. The SAVAK and the Imperial Inspection Organisation, both of which were formed by the military, represent the most developed forms of control and surveillance. In every enterprise, whether state or private, security bodies under various titles are installed; during the last decade of the imperial regime, the recruitment of retired military personnel by private or state enterprises was almost compulsory. This network of control and surveillance operated under the imperial regime in direct relation to military justice.

Being deprived of class-specific political organisations, this is also felt in the decision-making structure. Parliament, elections and governmental parties all functioned as additional devices for framing the popular masses in the hands of the state. A carefully structured administrative hierarchy was in charge of decision-making. At the head of this impersonal hierarchy was a Person, the head of state¹⁰ 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 beyond all laws and regulations. This unlimited power was of paramount importance for a political power whose decisions were not taken according to the requirements of Iranian society itself. The absolutism of the king made it easy to use the state apparatus primarily in the interests of foreign powers. However, in this area, another point should be made: the economically dominant classes were silent towards the state to the extent that the state was capable of repressing the exploited, but as soon as they sensed 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 direct contact with foreign powers to replace the ruling team and change the form of the political regime. In the history of the modern state in Iran there have been two periods of state crisis, one between 1942-1953 and the other since 1976, during which these ruling classes rose up against the Shah to save the system. In these periods of crisis, the foreign powers enter into negotiations with them to tinker with the political regime; but as soon as the new regime is consolidated, everything is resumed.

Finally, a mixture of religious worldview, glorification of the past, admiration for a mindset of blind obedience, the cult of the personality of the head of state, and so-called westernised behaviour 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 identify ‘ideological apparatuses’ as such; for example, agricultural co-operatives sometimes played a key role in the propagation of this ideology.

For more than fifty years, this state apparatus, as it was perfected, played an essential role in the transformation of Iran into an organic part of the economy of the capitalist world.

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

“The State, he adds, was the main agent of the accelerated transformation of the activities and social relations of production and was thus universally present in the social relations within the formation¹¹”.

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

Among the various factors that determine the social conditions under which the new regime was established, two factors in particular are of key importance to our topic:

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 economic dependence and in order to guarantee it.

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

A question arises: was the attempt made under the new regime to create an independent national economy? To give a positive answer to this question we have no evidence either in law¹² or in fact. It is true that, because of the decrease in oil revenues, a large part of the contracts concluded by the imperial regime with the multinationals was cancelled or suspended; but this does not mean the orientation towards the construction of an independent national economy. On the contrary, the shortage of foodstuffs, raw materials and equipment has increasingly revealed the reality of dependence, with the current regime doing its best to ensure the necessary conditions for the implementation of these contracts. In this regard, part of an article published by the daily Kayhan¹³ on 30 November 1982 gives a picture of the economic situation in the country:

“After the Iranian Islamic revolution, due to the difficulties arising from the war imposed by Iraq on Iran, the embargo of international imperialism, the sabotage of the external counter-revolution and its internal agents, the country’s economic authorities did not have the opportunity to save the country from monoproduction. The financial system of the country also did not undergo, during this short period, such a change as would put it in a position to return to the public treasury the tax of occasional wealth. Even in the year 1360 (March 21, 1981 to March 20, 1982), according to available statistics the total tax received from the country did not exceed 540 billion rials¹⁴ (wealth tax constitutes less than 3% of this sum), the income from monopolies and public ownership and services, from the sale of goods and the profit from foreign investments etc., do not reach a level comparable to that of the oil income.”

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

As for the second factor, i.e. the state apparatus of the imperial regime, the central problem of regime change revolved around 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 rallying of the army to the new regime and the maintenance of its cohesion¹⁵. In general, as a result of secret negotiations between the religious leaders and the leaders of the Iranian Liberation Movement on the one hand, and the American authorities and the senior Iranian officers on the other, the ground was prepared for the entire state apparatus to be put at the disposal of the new regime in a peaceful manner. The spontaneous uprising of 10-11 February 1979, which was enthusiastically welcomed by the leftist forces and during which the insurgents stormed the garrisons, was brought under control by the clerics; Khomeini refused the demand of several tens of thousands of demonstrators for the dissolution of the imperial army and the creation of a people’s army.

In the atmosphere of enthusiasm and popular support for the new regime, a slight purge was enough to get the state apparatus moving again. Subsequent purges should rid this apparatus of opponents.

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

A state ideology consisting of the religious worldview, conduct thoroughly justified by Islamic rules, the spirit of total obedience to the religious leaders¹⁶ and the personality cult of the Vali faqih (now Khomeini) is forcibly imposed by the state apparatus. Let us now make some observations about the position and role of clerics within the state apparatus. These observations are particularly important for our work because they help us to clarify both our theoretical viewpoint and our methodological approach, as the integration of clerics into the Iranian state apparatus has affected the judiciary more than its other parts.

The role played and the place occupied by clerics in Iranian politics and in the state machinery has been the subject of controversy from the outset, both among Iranian and foreign intellectuals, to the extent that today there is a vast literature on the subject. Many theorists and political organisations have changed or modified their analyses in this regard depending on the circumstances. Even a brief account of these analyses is beyond the scope of this introduction.

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

1. these clerics include only a part of all the clerics who fought the shah;
2. their actions and words have undergone some changes since they came to power.

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

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

Therefore, the almost total participation of clerics in the 1978-1979 movement reflects the presence of almost all classes and strata in the movement against the shah¹⁷. It does not mean the existence of a unified and coherent Shi’a “clergy” or “church”. Immediately after the establishment of the new regime, the differences of opinion between the clerics became apparent. Some of the clerics, supporters of Khomeini, occupied key positions in the state apparatus, 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 independent clerics in the state apparatus. On the place of the “Shi’ite church” in Iranian society, Paul Vieille writes that “it appears as civil society facing political power”. If we accept this language, we can say that the political power has decided to exterminate this “civil society” by organising a state clergy organically linked to the state apparatus.

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These preliminary remarks about political power in general, and the Iranian state apparatus in particular, are of paramount importance for our study of the judiciary, as the latter is neither institutionally nor functionally independent of the state apparatus.

The judiciary is above all an organ of law and order, parallel to the other organs of the state. As A. de Tocqueville states, “governments in general have only two means of overcoming the resistance put up against them by the governed: the material force that lies within themselves, and the moral force lent to them by the decisions of the courts”.

For the definition of the order imposed by means of the judiciary, it is therefore necessary to move from the judiciary to the government: “… any activity of realising the legal order is about order and public action, the government¹⁸”.

Thus, any changes in the Iranian judiciary since the beginning of the 20th century can be explained, essentially, by changes in political power and the state apparatus in general. The constitutionalist movement of the first decade of this century challenged the monopoly of the clerics over the judiciary as an integral part of the political power of the feudalists. Then, the modernisation and professionalisation of the judiciary was implemented first within the broader strategy of a political power supported by the foreign bourgeoisie, and then within the overall changes of the state apparatus to adapt to the demands of 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 establishment of the Islamic Republic reflect in a remarkable way the deep crisis of the entire state apparatus under the impact of a popular movement and an economic crisis. Georges Lavau describes the effect of the crisis on the attitude of political power towards justice as follows:

“[...] It is obviously especially in periods of installation or crisis that political power resists the temptation to subordinate the holders of power which, by the very fact of these circumstances, can present increased dangers: it is then the “season” of purges and the time of “provisional” suspension of the irremovability of magistrates¹⁹”.

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

“[...] Political justice plays a real role essentially 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. In periods of relative calm the established law suffices, but when a crisis occurs this law is inevitably overtaken by the facts, which themselves require the elaboration of numerous texts governing the organisation and functioning of political justice (new offences and jurisdictions are created, penalties are modified and reinforced; procedures undergo modifications, etc.)²⁰.”

The popular uprising against the imperial regime naturally challenged the judiciary of that regime as part of the state machinery and the instrument of repression, inflicting more or less effective blows on it. This same fact is sufficient to explain the need for the changes in the judiciary undertaken by the successor regime to the Shah’s; but it hardly explains the content and form of these changes.

The content of the changes in the judiciary introduced by the successor regime to the imperial regime can essentially be explained through an examination of the political goals of this regime, the social forces making up this regime and the class struggle in which it is engaged; 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 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 Islam, demonstrates the need for this historical research to explain the form of this representation; but this historical research cannot and should not claim to explain the content of these changes, for example, by the nature and historical background of the clergy and Islam in Iran.

In fact, in feudal Iran, justice was the monopoly of the clergy, who enjoyed considerable freedom, especially in the field of private law. On the basis of this practice, a complicated and relatively developed legal system was founded, which in its arguments and legal justifications was linked in its most everyday details 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 diversity of social relations requiring the strengthening of central power, governments tried to create, gradually, a judicial apparatus independent of that of the clergy.

The breakdown of feudal relations and the outbreak of democratic movements necessitated the establishment of a centralised intelligence and law enforcement organisation, and alongside it, the appropriate courts, by the central government.

The establishment of this apparatus alongside the so-called ‘canonical courts’ imposed a double repression on the people. It was not by chance, therefore, that the democratic movement of the first decade of the twentieth century, which led to a kind of constitutional monarchy, began with the slogan of ’the establishment of the house of justice’. Nor was it by chance that a part of the religious hoping to regain the monopoly of the judiciary as in the past – the other, clearly aware of the circumstance – supported this slogan. The 1907 constitution, apparently, presents a compromise that temporarily satisfies both the religious and the democrats. The relative independence of the judiciary prescribed by this constitution, and at the same time, the occupation of the most important positions by the clerics in the judiciary satisfied both sides. But following the strengthening of Reza Shah’s power, a rapid process of secularisation of the judiciary began and in less than a decade the clerics were almost completely removed²¹ from the judiciary, without ever giving up the idea of taking it over.

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

By means of a concrete analysis of the changes in the Iranian judiciary after the fall of the imperial regime, we will try to examine these changes in the context of the political and social tasks facing this regime and in the process of the changing circumstances and composition of the regime’s leadership. It should be noted at this point that our research cannot address the subject in its entirety, and for good reason: the lack of documentation as well as the incompleteness and often disharmony of these changes hinder a comprehensive and systematic study. It is too early to say that a proper judiciary based on well-defined principles and rules has been established in Iran; but the recognition of this fact does not exclude the need for the study of what has happened there to date. In our opinion, the concrete and timely study of what is happening in Iran today is the responsibility not only of Iranian intellectuals but also of all those who consider themselves connected with 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 out of fear of misunderstanding 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 will be instructive for tomorrow’s science.

For the study of the current judiciary of Iran, there is no other possibility than the partial and concrete examination of partial and concrete cases by trying to explain them, as the case may be, in the framework of the immediate and urgent needs of the regime to ensure its domination over the people. Naturally, this method will give our research a relatively fragmented and scattered appearance, but this flaw in the research is only a reflection of the real objectivity of Iran’s current judicial system. Attempting to explain these phenomena as a well-organised and well-founded system based on elaborate and consistent principles is merely imposing the subjectivity of the researcher on 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 led to the bankruptcy of the government of the time, that a democratic movement was created whose vanguard was the petty bourgeoisie and the urban bourgeoisie. The various strata of the clergy, and even some politicians attached to feudalism, who no longer believed in the possibility of governing as in the past, rallied to this movement. England tried to use this movement to weaken the position of its colonial opponent, Tsarist Russia.

On internal affairs, the movement demanded the ‘creation of the house of justice’, i.e. a centralised judiciary applying written laws, and ’the constitution of a national assembly’. On the external front, the abolition of concessions to foreigners and the control of the national assembly over 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. Both documents proclaimed a kind of constitutional monarchy, theoretically based on the separation of powers.

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

In feudal Iran, the clergy as part of the ruling class, while retaining its hierarchy, created a more or less coherent judiciary alongside – and relatively in harmony with – the political power, based on the sacred texts and the competence of the faqih and canonical judges to comment on them and adapt them to specific cases. But during the 19th century, the feudal system was targeted by blows from both inside and outside, causing its general collapse in the second half of the 19th century: Western countries and Tsarist Russia gradually took control of the country’s foreign trade, customs and natural resources. The development of the market economy also undermined the pillars of the feudal system from within. Thus, the class basis of the regime was weakened and its external dependence increased.

This situation, as far as the judiciary is concerned, led to the gradual takeover by the State of the economic power bases of the clergy, i.e. the pious foundations with their landed properties, and also to the intervention of the State in the judicial field, which had previously been monopolised by the clergy. The concrete result of this situation was the increasing weakening of the centralisation of the judiciary, with the intervention of either state agents or clerics on a case-by-case basis, depending on the balance of power in force and without any precise criteria. The consequence of such a situation was judicial anarchy and, above all, the absence of security for the petty bourgeoisie and the urban bourgeoisie.

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

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

The period between 1925 and 1940 must be considered the golden age of 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, and then the conservative feudalists and the clergy — proceeded rapidly to translate the French penal and civil codes and to have them voted by the National Assembly composed of members elected in fraudulent elections²².

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

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

However, in this area too, the destructuring of rural society as a result of the land reforms and the unprecedented exodus of peasants to the cities increased the number of disputes between people to the point of overloading these courts. The government, in order to avoid the social consequences of these unresolved disputes – and also to ensure better bureaucratic control – created, alongside and with the help of the ordinary courts, institutions such as the Houses of Equity and the Arbitration Councils, which in practice were 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 justice and the competences 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 Supreme Court, which combines the competences of our Court of Cassation and the Council of State. Each of the 14 provinces (ostan) has a court of appeal, consisting of civil and criminal courts. The courts of first instance sit in the county seats (shahrestan) or district seats (bakhch). Finally, there are recently established justices of the peace who settle disputes and deal with minor offences in the villages. Courts martial are governed by the Code of Military Justice and judge crimes of treason, armed insurrection against the country’s authorities, armed robbery and cases of political subversion. In Iran, drug traffickers are punishable by death. More than 100 offenders have been shot since 1969 under this law²³”.

This organisational description gives us a summary of all that such a study, however detailed, is capable of presenting. But before one moves from organisation to function, the very description of organisation in a scientific way is impossible²⁴. Therefore, the purely organisational works written so far on the institution of justice in Iran are of no scientific interest. The Persian works on this subject are only translations of French professors on the organisation of justice in France and when a Frenchman wants to write about justice in Iran in a purely organisational way, he must inevitably start with the almost total resemblance of Iranian justice to that of France.

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

An examination of the judiciary, its relationship with the state machinery as a whole and with society, and the evolution of this relationship over time increasingly reveals the inadmissibility 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 these codes were not the product of social development as they had been in France. The difference with the socio-historical situation from which they emanated gave them a very particular character in this foreign country. Without taking this particular character into account, any allusion to the French origin of the Iranian judicial system is not only insufficient but also illusory. The process of adaptation of these transposed codes and the crisis created by their implantation in a foreign body must be understood in any study of justice in Iran.

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

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

The total control of the judiciary by the clergy under feudalism directly influences the installation of a Westernised judiciary in the third decade of this century as much as its changes under the Islamic Republic.

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

But in feudal Iran, the king, despite his absolute and despotic power, is not the source of laws. He gives orders and his orders are immediately applicable, but these ‘orders’ govern 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, Tradition and the practice of the Saints. Any regulation must be confirmed by these sources; for this the only competent authority is the clergy. Even the king, when he wishes to give his orders the universality and force of law, must turn to the clergy for a fatva. The clergy, in turn, by accepting the king as “the shadow of God” and paying him homage in the introduction to their speeches²⁵ consolidated the relationship between political power and canon law.

Thus, the clergy appeared as producers and propagators of the dominant ideology, legislators and judges.

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

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

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

Now, after the breakdown of feudalism, when the feudal political power had to be replaced, there was a major problem with this judicial system. How to replace the clergy and the judicial system? The close connection between the clergy and the feudal power ruled out, at least temporarily, any compromise that would allow it to be integrated into a centralised state apparatus. If the clergy and the canonical judiciary were left out, there was no other country-wide system to fill the gap. Therefore, an almost ready-made judicial system was imported from the West. Initially this was supported by democrats and nationalists as well as local agents of the colonial forces.

The struggle against the imperial regime of the Pahlavi dynasty and its foreign support took on both a democratic and a national character. In its development, the anti-imperial struggle challenged all 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 judiciary, based its propaganda on the Western and consequently ‘imperialist’ origin of the judiciary, presenting Islamic justice as a ’national’ and therefore ‘anti-imperialist’ phenomenon. Hence the influence of the clergy’s historical relationship with the judiciary on the changes in the judiciary following the overthrow of the imperial regime²⁶.

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 retaining its hierarchy on the basis of it – lost its material base, we witnessed the formation of a new stratification within the religious that corresponds to the emergence of the urban petty bourgeoisie, the small landowners and the small peasantry in the villages. While a part of the religious still benefited from the privileges left to them from the feudal system and another part went further by maintaining good relations with the colonial policies dominating the regime, certain other layers of the religious came closer to the other affluent classes such as the national bourgeoisie, the petty bourgeoisie, the small landowners and even the small peasantry. This is why during the constitutionalist movement, the religious were present in all ranks: in the ranks of the collaborators of the foreign powers, in the ranks of the feudalists in power, in the ranks of the large urban bourgeoisie and finally, there were religious radicals expressing the demands of the lowest layers of the people.

Thus, this omnipresence of the clerics sets the stage for theoretically devoting an important place to the ‘sacred rules of Islam’, but when the discussion on the implementation of these rules begins, the divergence between the clerics becomes apparent and governments taking advantage of this divergence have been able to easily discard these ‘sacred rules of Islam’ in practice.

II - The 1907 Constitution and the Judiciary Scheme

The 1907 Constitution although declared, until the last day of the imperial regime – that is, for almost 72 years – as the official basis of the regime, prescribed a political system that in reality never came into being in Iran. In fact, this constitution was drafted in an atmosphere of class 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 provisional compromise between the popular movement, the clergy and a 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 an important part of it. This precarious balance made the political system prescribed by the Constitution impossible and its judicial system unworkable.

We will take a quick look first at the political system and then at 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 that primarily confirmed the rule of the Qadjar dynasty, which had been in power for 150 years²⁷. The Constitution gives the King command of the armed forces. (art. L of the Complement) The king’s rule was no longer purely divine. An equivocal expression apparently reconciled feudal legitimacy with the nationalism of the bourgeoisie: “Kingship is a deposit entrusted by Divine Grace on behalf of the Nation to the person of the Emperor” (art. XXXV of the Complement).

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

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

“The revered Madjless-e Shorāy-e Melli, [the national assembly], [...] cannot at any time contradict by its laws the Holy Islamic prescriptions and the laws enacted by the Prophet [...] whereas the recognition of whether or not there is a contradiction between the laws enacted by the Madjless and the Holy Rules of Islam is and will always remain in the hands of the most learned Ulema [pontiffs of the Islamic religion] [...] it is formally prescribed that at any time a committee consisting of at least five persons chosen from among the Ulema who are equally knowledgeable of the requirements of the time shall be formed.

“[These are recognised\ ] as members of the Madjless, to participate in the deliberations and to discuss thoroughly the rules of the proposed projects. The assembly should discard rules that contradict the sacred doctrines of Islam and ensure that they do not become law. The decisions of this Committee in this regard shall be peremptory and final²⁸.”

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

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

Despite all this, the 1907 Constitution prescribed principles of political rule whose long-term results were far more important than their immediate effects. For example, Article VIII of the Supplement, which states: ‘The citizens of Iran are equal before the laws of the Empire’, provided the ground for abolishing feudal privileges and inflicting the final blows on the 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 provisions for the judiciary, which can be divided essentially into two parts: the principles and legal bases, on the one hand, and the organs that make up this power, on the other.

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:

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 Supplement).

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

5. The principle of opening trials to the public (art. LXXVI of the Supplement).

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

b) The judicial bodies

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

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

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

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

4. The Supreme Court of the country, in the capital, which is the single highest 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 competent in public affairs, and the judgement of cases falling under the char’ is the responsibility of pontiffs who are qualified to perform 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 cases of Muslims fall within 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 competence of the canonical courts, but as we said above, the conditions under which the Constitution was drafted did not allow it to make a precise statement on these issues.

This same ambiguity about the limits of the jurisdiction of the canonical courts undermines 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 judged or convicted without relying on a law prior to the offence. How can these principles be reconciled with the existence of canonical jurisdictions? Are these courts also subject to these principles? Do Islamic rules have to be passed by the Madjless and signed by the king in order to become enforceable, or do these rules automatically have the force of law? If one adds to all this the differences of opinion among the pontiffs, one can see the theoretical and practical problems that this Constitution was likely to pose even if one wanted to apply it under democratic conditions.

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

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

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

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 apparently the constitutionalist movement had only just begun.

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

I - The emergence of a strong and centralised state apparatus

The constitutionalist movement, even if it had not been able to overthrow the semi-feudal and foreign-dependent power, had succeeded in demonstrating two things in relation to that power: first, that the feudalists in Iran were too weak to ensure their domination and that of their colonialist support; second, that the ruling dynasty was too 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. At that time the creation of strong central powers in the Soviet Union’s neighbouring countries had become a necessity²⁹ and the previous colonial policy of supporting power fragmentation and separatist movements in the dominated countries was to be abandoned.

Britain’s plan for direct control over Iran’s finances and direct intervention to create a modern Western-style army, after the First World War, following the disparate resistance of some nationalist forces and influential feudalists, finally found favourable ground for its realisation following Reza Khan’s 1921 coup. The new army that was gradually taking shape began to suppress the 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 land registration gave the government full control over land ownership.

The government’s monopoly on foreign trade was ensured by a law of 1932. In this way, two major areas of the country’s economy, one of which had previously been considered the exclusive business of the feudalists1 and the other more or less the domain of the national bourgeoisie, were brought under the control of the government.³⁰

The government took over much of the domestic investment by establishing the National Bank, disposing of the growing oil resources and participating in large industrial projects such as the construction of a railway from the North to the South, the Foundry Factory,³¹ etc. The monopoly of the cotton, grain and sugar trade increased, more and more, the power of the government in the economic field. The monopoly of the cotton, grain and sugar trade increased the government’s power in the economic field.

The political repercussions of the economic domination of the state were the suppression of the political power of the feudalists, the abolition of all democratic freedoms such as freedom of the press, freedom of speech and freedom of association.³²

Feudalism, without having disappeared economically, lost its political power. The central government, while suppressing the political power of the feudalists, kept the land for them and protected them against any threat of peasant insurrection. The gendarmerie, which replaced the armed bands of the landowners in the villages, had the most important task of helping the landowners to collect their rents. The majority of the deputies in the national assembly were the feudalists and their relatives, but the assembly had no right to vote on important matters and the government’s plans had to be passed without discussion and often remained unchanged. Although most of the important administrative posts were in the hands of the feudals,³³ the administrative apparatus was nevertheless subject to the central government and not to the feudals. Feudalism also more or less accepted this situation because it had seen during the revolutions of 1905-1922 its near death; now it saw in this government a “saviour.”³⁴

The democratic movement, which had initially been fooled by the anti-feudal rhetoric of the founders of the new regime, more or less contributed to the rise to power of its gravedigger. When Reza Shah began to suppress the democratic movement, many of the movement’s leaders were confronted with someone whose rise to power they had facilitated³⁵.

The new regime did not limit its interference in the life of the people to the economic and political fields. Very soon this regime, under the cover of “modernism”, began to interfere in the private lives of individuals. Laws aimed at standardising people’s clothing and removing women’s veils forced men to dress in European style and ordered gendarmes and police officers to forcibly remove women’s veils on public roads³⁶.

In less than 15 years (1925-1940), Iran acquired a centralised government and a set of laws that had appeared and developed in European countries over two centuries. Most of the civil code, the commercial code, the penal code, the code of criminal procedure and the code of civil procedure were copied from European, especially French, laws and passed without discussion. Indeed, one could say that the bourgeoisie’s seizure of power was complete, without having first found its own place in the national economy, as in Western countries. The bourgeoisie comes to power in Iran, but it is not the national bourgeoisie, it is a bourgeoisie that has its roots abroad.

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

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 bureaucratic apparatus covering the whole country. To accomplish this, it was necessary first to abolish the canonical courts and generally remove all clerical influence in the judiciary, and then to create a judiciary on the Western model, but in such a way that it remained completely subservient to the Executive.

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

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

• “Disputes concerning the substance of marriage and divorce;

• Disputes which, according to a special law, can only be decided 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 foundations³⁷.

“The religious court has only one member. This member must be modjtahed, that is, a member of the clergy who has obtained from another modjtahed, permission “edjāzeh” to write his own Précis, and to make public his own opinions. The Tehran Religious Court, which is at the same time the Court of Appeal, may exceptionally have two other members, who are in fact the vice-presidents of the court. They too must be modjtahed. The Tehran Court has regulated its appeal court. For each case, one of the modjtahed in the capital whose name is on the official list of the Ministry of Justice will be chosen by lot. The decision of this modjtahed is final³⁸”.

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

It should be noted that this legislative move could not eliminate the influence of clerics on legal matters between individuals, especially among the rural population, which at the time made up almost 85% of the total population of the country. The clerics continued to record contracts between individuals in the traditional way and in case of dispute the courts were practically obliged to respect them. Especially since, despite the modernisation and professionalisation of the judiciary, most of the Shi’a feq on legal relations between individuals was integrated into the new civil code, clerics could well maintain their position in this area.

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

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

B - The creation of Western-style judicial bodies

As already mentioned, as far as judicial organisation and procedure are concerned, the laws of Western countries were copied identically. At the beginning, this judicial organisation was formed within the framework of the Ministry of Justice, which essentially consisted of the district courts sitting in the cities, the courts of appeal sitting in the provincial capitals and the Court of Cassation sitting in the capital. In the provincial capitals, next to the court of appeal sat the court of assize with the public prosecutor’s office at its side. Next to the Court of Cassation there was also a public prosecutor’s office headed by the public prosecutor.

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

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

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

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

2. According to the Constitution, the Court of Cassation was also to have jurisdiction over appeals against judgments handed down by the military courts, but Article 268 of the Military Courts Act 1939 made any appeal for cassation or revision subject to the King’s authorisation - an authorisation that was practically impossible to obtain, especially for political prisoners tried by these courts³⁹ ;

3. Finally, the right of pardon entrusted to the king gave him a fairly wide margin of manoeuvre. In particular, the shah, by benefiting from this right, showed himself to be all-powerful over the fate of the condemned during the last decade of his reign⁴⁰.

＊ ＊ ＊

In this way, by 1939, Iran had already established a judicial system that functioned, with some modifications, until the threshold of the 1979 revolution.

Chapter III - The particularity of the Iranian judiciary

In its operation, the judiciary enters into a series of relationships of interaction and independence with other organs of the state apparatus. Ultimately, these relationships determine the place and role of the judiciary in the state. The army and the police are the state organs closest to the judiciary and consequently exert considerable influence on it⁴¹.

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

The police, as well as being the most effective instrument in the hands of the judiciary for its proper functioning, are in the best position to influence it. To a certain extent, it is the police who determine the scope of action of the judiciary.

Apart from the army and the police, the growth of state intervention in socio-economic affairs through the expansion of the bureaucratic apparatus has led to the establishment of purely 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 intervention in judicial matters.

With regard to the place and functioning of the Iranian judiciary in relation to other state organs under the Pahlavi dynasty, the study of two particularities is particularly essential for our work: firstly, the effects of the intervention of the army and the bureaucracy in judicial matters and consequently 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 regarded as courts of exception. Some Iranians have also adopted the same terminology. But, in our opinion, if this terminology is correct in these countries, in Iran it does not correspond to reality. In these countries, the judiciary is presented as the tool of a more or less independent judiciary, and with such an approach to the judiciary, the military courts dominated by the executive can be seen as 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 government. The National Assembly, which in principle was supposed to be the body of the legislative branch controlling all affairs, was as much manipulated and dominated by the government as the judiciary, and the ordinary courts lacked independence from the government as much as the military courts. 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 military courts as part of the same judicial system

With regard to the military courts in terms of legislation, in addition to the aforementioned Military Courts Act of 1939, two other laws are particularly important: firstly, the State of Siege Act of 1911 and secondly, the SAVAK Constituent Act of 1957.

A - The Law of Siege

This law, which was used frequently, especially during the tumultuous years of 1941-1956 and also during the last years of the Shah’s rule, gave the government the authority to declare martial law. Under this law, when martial law was in force, all individual and collective freedoms were suspended and special military courts were given the task of dealing with offences against ‘public security’. In 1950, a supplementary law made the declaration of a state of siege subject to the ’existence of exceptional circumstances’ and ’the prior approval of Parliament’, but at the same time authorised the government to declare martial law when it considered that exceptional circumstances existed, subject to ’the approval of 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 opposing the constitutional regime and public security and 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 gatherings are absolutely forbidden during the period of 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 and extends the jurisdiction of the military courts in an unprecedented way. Article 2 of this law lists the numerous grounds of jurisdiction of this body and gives the military courts jurisdiction over the offences listed by this law. This article is worded as follows:

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

1. obtaining and collecting intelligence necessary for the maintenance of the country’s security;

2. prosecuting actions of all kinds of espionage and those of elements acting against the independence and integrity of the country or for foreign interests;

3. the prevention of the activity of organisations whose establishment and leadership have been declared illegal or have become illegal, as well as the prevention of the establishment of organisations whose ideology and practice are contrary to the Constitution;

4. the prevention of any plot and conspiracy against the safety of the country ;

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

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

2. the offences referred to in Chapter I of Part II of the Criminal Code of 13 January 1925;

3. the offences referred to in Articles 310, 311, 312, 313, 314, 316 and 317 of the Military Jurisdiction Act 1939⁴²”.

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

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

2. the law of November 1957 on “sabotage in the oil 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 goods⁴³”.

II - The limitation of the jurisdiction of the ordinary courts

It is clear that the extension of the jurisdiction of military courts meant in fact the limitation of the jurisdiction of ordinary courts. But this was not the only reason why the ordinary courts lost jurisdiction. Various laws enacted in the 1960s and 1970s in particular entrusted the hearing of disputes to bodies other than the courts. The Labour Act of 15 March 1959 entrusted the hearing of disputes between employers and workers to a labour tribunal within the Ministry of Labour, consisting of a representative of the Ministry of Labour, a representative of the employers and a representative of the workers.

The Agrarian Reform Act of January 1962 gives an administrative commission the power 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 nationalisation laws for water, forestry and grazing land entrusted specialised administrative commissions to settle disputes arising from these matters. And so the law on town halls, the law on the order of doctors and the law on corporate affairs went in this direction.

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

III - The support of the judiciary to the torturing police

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

A - The role and organisation of torture

The process of modernisation, professionalisation and westernisation of the Iranian state apparatus affects above all the army and police that it has organised. The ‘achievements of Western civilisation’ can easily be observed there. The shah’s army was the 5th largest in the world in terms of equipment and 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 modernisation of the state apparatus but also shows us the relationship of dependence of this apparatus on foreigners. The equipment and training of the Shah’s army were imported from abroad and the Shah’s secret police was organised by the CIA. The SAVAK torturers were trained by Americans and the methods and instruments of torture were imported from the US or Israel.

Indeed, contemporary torture is a phenomenon originating in industrialised 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, giving poor countries the benefit of their knowledge” and : “Indeed, most of the countries where torture is practised against opponents can be classified in the underdevelopment world⁴⁴”.

Indeed, the institutionalised and systematic torture in Iran begins with the start of the modernisation and professionalisation of the state machine⁴⁵. The task of this state machine is to prepare the ground for the domination of monopoly capital over the various 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 means of ensuring the equilibrium of a state which, due to the lack of a national class base, is still in crisis. As the dependence of the national economy on the imperialist economic system grows, the practice of torture and the organisation of the torture police is perfected. In the 1960s, when the process of dependence was completed and all sectors of the country’s economy were “organically” linked to the imperialist economic system, torture reached its peak. The real organiser of this torture, i.e. the CIA, no longer hides its initiative in this respect. The application of torture in all dependent countries is indicative of the fact that torture must be studied not as a dreaded evil, but as an institution indispensable to the maintenance of the dependency relationship.

B - Torture in the service of the judiciary

What needs to be said first is that torture and interrogation by the torturing police were by no means specific to political prisoners but were also carried out on common prisoners as a practice for the discovery of offences. Taghi Arani, who died under torture in the police prison in 1940, during the time of Reza Shah, said about torture in his statement before the Tehran Assize Court: “torture is practiced in the police on everyone and especially on political prisoners⁴⁶”.

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

On the subject of police control over court judgments, Arani quotes a junior police officer as saying: “The court will never dare to acquit or convict anyone without the permission of the police. If you want to be acquitted try to get the police’s favourable opinion⁴⁷ [...]”

However, it should be noted that in the case of disputes that are tried in the ordinary courts, the influence of the police on the judgement is less and the judges enjoy a certain independence in these matters. However, since the ordinary courts have no other body than the police and gendarmerie to carry out searches and investigations, the public prosecutors’ offices compile the files essentially on the basis of police statements and refer them to the courts, which render their judgements on the basis of these files. In Iranian courts, defendants often retract their confessions, attributing them to pressure during interrogation. Disregard for the statements of defendants and their lawyers in court and mere reference to initial confessions made to the police in court judgements 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 trial⁴⁸.

In later years, and especially in the last fifteen years of the Shah’s reign, the list of these tortures grew longer⁴⁹.

Torture has a variety of uses for the police: from creating a climate of terror in society to pressuring individuals to collaborate with the regime⁵⁰, but the focus here is on the use of torture to extract confessions, which is directly related to the functioning of the judiciary⁵¹.

This torture cannot be seen as a sordid practice used by the regime, but in our view, when the regime lacks such a social and national base it inevitably needs it for its safeguard. While any opposition, no matter how simple, is harshly repressed, inevitably opponents try to organise themselves away from the eyes of the police; the discovery of these clandestine organisations, in a context of mistrust of the people, is only possible through torture. Therefore, cases of discovery of opposition political organisations directly by the police and without resorting to torture were rare in Iran. Any political prisoner can easily tell by whom and under what conditions he or she was denounced and these conditions are usually conditions of torture.

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

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

The same applies to the discovery of organised common crimes: because of the rift between the people and the police, the use of torture becomes unavoidable and the judiciary is forced to rely on the information thus obtained.

Conclusion

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

The lack of a national class base is the cause of a chronic crisis whose only remedy is the use of the most naked forms of violence against any opposition. If 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 to the intentions or the “exceptionally cruel” nature of any particular leader.

The state excludes all social classes, including the economically dominant classes, from political power. It prohibits any political or trade union activity for anyone; it tries to control the cultural and ideological organs of society. 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 ruling classes by creating and developing purely governmental political formations and an official ideology imposed by force. The imposition of governmental political formations and official ideology constitutes a considerable part of the repressive actions of the state apparatus. The completion of the agrarian reform in the early 1970s marked a new phase in the development and imposition of the official ideology in order to better frame the population. The ‘2500^thyear of imperial rule’ is celebrated in the presence of leaders and high dignitaries from most of the world: membership of the governmental one-party and commitment to the official ideology becomes compulsory for everyone; and finally the national calendar is changed to an imperial one.

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

Part Two: The Islamisation of the Judiciary

Introduction

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

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

2. The new regime came to power in conditions where for several months the forces of order and the army had been openly shooting at demonstrators in the streets. Many knew the killers of their relatives among these forces by name, arrested them themselves during the insurrection of 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, considering keeping these forces for itself, was nevertheless forced, in many cases, to take these demands into consideration.

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

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

5. Generally speaking, the popular masses and especially the national and ethnic minorities saw the new regime, above all, as the negation of the previous regime and considered their situation under this 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 machine. This was the situation of some tribal leaders and locally influential figures. As a result, the regime was confronted with workers’ strikes, peasant insurrections and autonomist movements of national minorities, and finally with the disobedience and rebellion of tribal leaders and local notables.

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

7. The main cause of all this, i.e., the economic crisis – arising from inflation resulting from unproductive investments, from the increasing destructuring of the rural economy, and then from the depletion of oil resources etc. – which had started in 1975 causing a few million unemployed, spread and accentuated under the new regime. – The economic crisis, which had started in 1975, causing several million unemployed, was spreading and deepening under the new regime. The rising cost and scarcity of goods, and consequently their hoarding and the emergence of black markets, were all problems resulting from this crisis.

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

One can appreciate the importance of the task that the judiciary had to assume in such a situation in order to maintain order, stabilise the regime and finally to repress the opponents.

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

It is true that the ordinary courts remained more or less untouched by the attacks of the revolution, but these courts were hardly useful for the basic needs of the new regime.

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

Secondly, the ordinary courts relied on the police and gendarmerie to carry out their task, and these, more than any other body, were the targets of the revolution’s attacks. In many towns the police stations were occupied by the people and the gendarmerie, even before the fall of the Shah, had closed its stations in many villages and many police and gendarmerie officers who because of their mission had directly and daily confronted the demonstrators, were now captured or had run away. 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, nothing more.

The part of the judiciary that was in charge of security issues was the main target of the attacks of the popular movement, and it had been dismantled before the establishment of the new regime. The military courts, SAVAK and the army’s intelligence service were to be presented, at least officially, as the main enemies and the source of all the shortcomings of the old regime. Under such conditions, it was unimaginable to foresee any role for them. Their structures could possibly be used in other ways, but for that to happen, 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 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. The bureaucracy it used operated on the basis of laws that were more or less suitable for its tasks. Also, since the legal relationships between people remained intact, there was no need to repeal the laws that governed them.

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

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

In any case, after the entry into force of the new Constitution and the creation of the Superior Judicial Council with a very broad competence, placed at the head of the judicial apparatus, the ground has become favourable to harmonise and organise this apparatus better than before.

In the first chapter of this part, we will examine the general scheme of the governmental system and the judiciary as provided for in the Constitution of the Islamic Republic; in the second chapter, we will follow the transformations of the old judiciary in the new situation. In the third chapter, we will examine the “Islamic Revolutionary Courts” and the bodies related to them, 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 came into force only ten months after the establishment of the new regime, but the problems relating to this Constitution had, from the very first days, occupied a very special place among others. In many areas, the Constitution formalised what had already been achieved in practice, while at the same time defining the lines of future development. Therefore, the examination of the problems related to this Constitution, on the one hand, helps us to get a more precise and concrete idea of the events and political conflicts of the last three years, and, on the other hand, it allows us to know the general framework of the state apparatus of the Islamic regime and the official place of the judiciary within this apparatus.

We will look at the issues surrounding the Constitution in the following three sections: the preparation, drafting and adoption of the Constitution; the analysis of the text of the Constitution; and some further 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 mentioned the formation of the constituent assembly as one of the duties of this government. Before that date, too, he had promised the election of the Constituent Assembly in a free and democratic atmosphere in his speech delivered on the day of his arrival from Paris in the Tehran cemetery at 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 determining its form or content. In response to Mr. Bazargan who proposed the name “Islamic Democratic Republic” for the regime, Khomeini literally said: “Islamic Republic, not a word more, not a word less”.

After giving the regime this name, Khomeini and his entourage made another proposal that an ‘assembly of experts’ 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 would be submitted to a referendum.

The Constitution of the Islamic Republic was drafted and approved by the “Assembly of Experts” which met for the first time on 19 August 1979. Khomeini in his inaugural message frankly determines 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 nation. 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, the representatives elected on this basis will 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 are beyond the limits of their mandate.”

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

He even orders the religious members of this assembly that :

“The scholars of Islam present in this assembly, if they see an article of the draft constitution⁵² or proposals submitted that are contrary to Islam, it is imperative that they denounce it in the most explicit manner and without fear of controversy from Westernised newspapers and writers, because 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 while different groups criticised it from different points of view. Above all, the proclamation of Shi’ism as the official religion of the Islamic Republic provoked not only opposition from those who were in principle in favour of the separation of religion and politics, but also from non-Shi’ite Muslims, with some Sunni leaders even protesting openly.

The institution of the Velāyat-e faqih was increasingly controversial even among the faqih Shi’is who supported Khomeini. Some of them considered the insertion of this institution in the Constitution as a kind of ‘innovation’ in Islamic principles, whereas by definition any innovation in Islamic principles is ‘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 Republic that they usually use the expressions “Islamic Republic” and “government of Velāyat-e faqih⁵³” interchangeably.

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 bodies and institutions, which constitute the foundations of the organisation of the community, and in accordance with the ideological bases, worthy personalities will be entrusted with the government and administration of the country, and legislative activities, which are the expression of the criteria of social management, will be pursued in accordance with the Qur’an and Qur’anic Tradition.”

The notion of the government of “worthy personalities”, i.e. “elites”, and that of the absolute validity of Koranic laws dominate all the articles of this Constitution. Institutions such as the National Assembly and the Presidency of the Republic elected by universal suffrage are successively subject to the control of the faqih members of the Supervisory Council⁵⁴ and the Vali faqih, so that the principle of the government of the elites and the Islamic law are ensured. We will first examine the general scheme of this Constitution and then the place of the judiciary in this Constitution.

A - The Velāyat-e faqih

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

“On the basis of the velāyat-e-amr and the continuous emāmat, the Constitution prepares the ground for the realisation of the leadership of a fully qualified faqih, who is recognised by the people as a guide, and thus it is the guarantee against any deviation of the different organs from their essential 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 possess the necessary conditions for religious authority and leadership. If they find an authority possessing the particular superiority for the exercise of the functions of leadership, they will present him as a leader to the people. Otherwise, three or five religious authorities fulfilling the conditions of leadership shall be appointed as members of the Governing Council and presented to the people⁵⁵”.

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

The duration of the 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 carry out his legal duties or no longer fulfils one of the conditions mentioned in the one hundred and ninth article, he will be deprived of his office. The experts mentioned in the one hundred and eighth article⁵⁶ will pronounce 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 leader of the community” (Velāyat-e motlagh-e amr va Emāmat-e Ommat)⁵⁷.

According to Article 110, “the duties and powers of the Directorate are as follows

1. appointment of the theologians (faqih) of the Supervisory Council;

2. appointment of the highest judicial authority of the country;

3. supreme command of the armed forces⁵⁸[...];

4. signing of the mandate of the President of the Republic after his election by the people. The conditions for candidacy for the Presidency of the Republic shall be those mentioned in this Constitution and shall, before the election, be confirmed by the Supervisory Council, and in the first round by the Executive⁵⁹;

5. Removal of the President of the Republic from office, taking into consideration the interests of the country, after a ruling of the Supreme Court confirming his violation of his legal duties or after a vote of the National Assembly on his political incapacity;

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

B - The Presidency of the Republic

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

The candidate for President of the Republic, not only according to Article 115, must be “Iranian by origin, Iranian by nationality, experienced administrator, with good background, trustworthy, virtuous, pious and committed to the foundations of the Islamic Republic of Iran and the country’s religion”, but also, as we have seen above, 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 be re-elected consecutively only once”.

Removal of the President of the Republic from office is possible by both the Supreme Court and the Assembly subject to 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 distinguished groups with different competences: the first is composed of “six faqih who are just and aware of the requirements of the time and the problems of the day. Their choice will be made by the Guide or the Governing Council.” 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 Council⁶⁰…” These two groups are not equally competent. In most cases the faqih members of the Council enjoy special 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, first, with ’the principles of Islam’ and, second, with the Constitution. If the Supervisory Board finds these laws to be contrary to the principles of Islam, “it shall refer them to the Assembly for revision.” (art. 94) The determination of the conformity of laws with the commandments of Islam is to be made by a majority of the faqih members of the Supervisory Council, while the determination of the conformity of laws with the Constitution is to be made by a majority of all the members of the Supervisory Council (art.96).

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

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

D - The National Assembly

The Constitution provides for two kinds of legislation, one by the National Assembly composed of 270 members, elected by universal suffrage, who vote the laws, under the control of the S.C., and the other by the referendum prescribed by Article 59, according to which “when it is a question of very important matters: economic, political, social and cultural, the functioning of the legislative power can adopt the referendum and the direct recourse to popular consultation”. But in this case, the request for a referendum must also be 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 (Articles 62 and 63).

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

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

Article 61 states that “the functioning of the judiciary is carried out by the courts of justice to be established in accordance with Islamic norms and which are devoted to the settlement of disputes, the safeguarding of citizens’ rights, the extension and enforcement of justice and the execution of divine penalties”.

According to Article 157, at the head of the judiciary is a strong body called the “Conseil Supérieur Judiciaire”. This council is composed of “five members :

1. the President of the Supreme Court;

2. the Attorney General;

3. three modjtahed (theologians) and just judges chosen by the judges of the country⁶¹” (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;

• the recruitment of fair and worthy judges⁶², their removal and appointment, the relocation of their place of employment, the determination of their duties, their promotion and other similar decisions in administrative matters, in accordance with the law⁶³”.

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

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

“The President of the Supreme Court and the Attorney General must be modjtahed (theologians) who are fair and knowledgeable in judicial matters and the Country’s leadership (velâyat-e faqih) appoints them for five years after consultation with the advisors to the Supreme Court” (art. 162).

Finally, Articles 173 and 174 respectively provide for the establishment of the Court of Administrative Justice and the General Inspection Organisation, both under the control of the Superior Judicial Council; the former being responsible for “the examination of complaints, grievances and protests of individuals against government officials, agencies or regulations or concerning the recognition of their rights”; and the latter having the task of ensuring “the control of the judiciary over the proper conduct of business and the sound application of laws by 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), the prohibition of judges refusing to render judgement (art. 167), the necessity of the presence of a jury in trials concerning “political and press offences” (art. 168) and “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 Constitution of the Islamic Republic provides for new institutions and procedures whose influence on the reorganisation of the state apparatus must be examined here.

A - The institution of the Velāyat-e faqih

The absolute power of a person is nothing new in itself. To a certain extent it guarantees the smooth functioning of the administrative and repressive bodies. Moreover, this authoritarian power was exercised by the Pahlavi dynasty for almost fifty years, despite the 1907 Constitution. In this respect, the Constitution of the Islamic Republic only legalises and institutionalises this power.

What is most important about the institution of the Velāyat-e faqih as provided for in the Constitution of the Islamic Republic is the role it gives to clerics especially in the decision-making mechanism. In this regard, a question arises: given the important role given to clerics, is the state apparatus as a whole subject to the control of the clerical hierarchy? If so, this would undoubtedly have a decentralising effect on the state apparatus, let alone the judiciary. If not, what would be the mechanism for integrating clerics 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 appointment of the head of the clerical hierarchy. According to the Constitution of the Islamic Republic, there are two different procedures for the selection of the Vali faqih: the first is the “recognition” and almost spontaneous acceptance of the people – which has more political than religious significance. The second is the appointment of the Vali faqih or Governing Council by an assembly of experts, in turn elected by universal suffrage.

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

The procedure provided by the Constitution for the choice of the Vali faqih has above all a political aspect. And the reservation of popular ‘recognition’ or election of the assembly of experts ensures the control and influence of the state apparatus over it.

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

Despite the formal attachment of the Constitution to the Qur’an or Tradition, in the final analysis, the laws in force are those passed 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 were immediately, and only through the fatva of the faqih, given the force of law. In particular, the Islamic judges in their verdicts referred directly to the Qur’an and Tradition. But according to the Constitution of the Islamic Republic, it is the Assembly and the Supervisory Council that are responsible for adapting the laws to the rules of Islamic law and the judges only apply these laws. This ensures the possibility of creating a coherent system of laws necessary for a centralised state.

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

C - The establishment of the High Judicial Council

This Council ensures the control of a governmental body over the recruitment of judges. The Constitution of the Islamic Republic has completely discarded the practice of the Islamic judiciary in the era of feudalism whereby the faqih and modjtahed gave a certificate of competence in the judiciary to their students after they were found to be competent, both legally and morally.

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

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

The attachment of the Constitution to Islamic rules and sources of Islamic law has a purely ideological aspect and the administrative dimension of these rules has been abandoned. In the field of the organisation of power, even the terminology used by 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 under the Ministry of 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. Some of the Shah’s reformist opponents demanded the application of the jurisdiction of the Ordinary Courts under the Constitution. The latter had somehow managed to put themselves at the forefront of the revolution during the last months of the imperial regime, and in particular seized the posts of Prime Minister and Minister of Justice in the ‘provisional government’.

Another factor which increasingly shielded the ordinary courts from the attacks of the revolution was the gradual participation of magistrates and judicial officials in the anti-imperial movement; and when, during the last months of the imperial regime, certain political opponents and demonstrators arrested by the police were referred to the ordinary courts, they were, more often than not, received with benevolence by their judges.

But while the ordinary court adapted easily to the revolutionary movement, it was not able to harmonise so easily with the successor regime to the imperial regime. The new regime had adopted a traditional interpretation of Islam as an ideological cover for its sovereignty, and thus saw itself as the heir to a relatively complex judicial system in which every cleric considered himself an expert. If this ideology was to be propagated globally, the judiciary as an integral part of this ideology should be considered as the foundation of the judiciary. It is obvious that some changes had to be introduced in this system to adapt it 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 origin of the rather irreconcilable contradiction of the new regime with the judicial system inherited from the imperial regime. The regime, which used other parts of the state apparatus almost as they were, sought from the outset to change the judiciary profoundly. As it overcame its internal contradictions, it became more determined in this respect, because the Iranian judiciary was, in any case, based on a system other than Islam. It is true that the Iranian judiciary, even within its limited confines, was suffering from a crisis of bureaucratic formalism, corruption and disorder, and that there was a backlog of cases that had been circulating from one office to another for a long time without being dealt with.

However, this crisis cannot in itself explain the changes introduced under the new regime in the judiciary. The main cause of these changes is the change in the ideological coverage of the state. Obviously, the Islamic regime was trying to secure popular support for these changes by alluding to these inefficiencies. But it can be said even now with certainty that these changes are not in the direction of eliminating these inefficiencies. It cannot be said that the Western-style judicial system was at a dead end in Iran because it was alien to that society and that the Islamic judicial system, being better suited to the mores of that society, was therefore spared this crisis. The Iranian judicial system at the time of the Pahlavi dynasty was not a Western judicial system as such, and the Islamic judicial system as described by 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 ideological coverage of the state. The slowness of these changes is mainly due to the differences of opinion on the interpretation of Islamic ideology and its judicial system. However, the change in the legal principles and organisational structure of the judiciary does not change the functioning of the judiciary 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 Executive to ensure its political and social goals.

As alluded to above, the Ordinary Courts and, in general, the Ministry of Justice were slow to adapt to the demands of the new situation. One of the essential elements that enabled them to adapt [gradually]{.ul} was the existence of Islamic Revolutionary Courts throughout the country and their availability to meet the immediate needs of the regime. Had these not existed and had the task of maintaining order and suppressing opponents been left solely to the Ordinary Courts and the Ministry of Justice, it is certain that the latter would have been obliged to adapt suddenly and without delay to the circumstances.

In an effort to replace the Islamic Revolutionary Courts with the Ordinary Courts within the Ministry of Justice, part of the leadership pushed through an ordinance by the Revolutionary Council on the establishment of the Emergency Courts within the Ministry of Justice Although this law was never implemented, its examination is useful in understanding the impact of political conflict among the leadership on the judiciary

The establishment of the Islamic revolutionary courts and the gradual increase in the power of their supporters in the state apparatus, as well as the slowness of the ordinary courts and the Ministry of Justice to adapt to the new situation, created a kind of contradiction that manifested itself in various forms, ranging from disputes between the prosecutors of the judiciary and those of the revolution, to attacks by organised gangs on the headquarters of the courts of justice, etc.

In this chapter we will follow this slow movement of the Ordinary Courts and the Ministry of Justice in the direction of adapting 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 applicable provisions, we will briefly follow the process of evolution of the Ordinary Courts and the purification of magistrates and judicial officials. We will then examine the formation of the canonical courts under the name of “Special Civil Courts” and also the reorganisation of the Ordinary Courts through the creation of the “General Courts”. Similarly, the ordinance of the Council of the Revolution on the creation of the “Tribunaux d’Exception de la Justice”, although never put into effect, will be examined at the end of this section because of its own political importance.

A - The purge and recruitment of magistrates

The Constitution of the Islamic Republic gives quasi-absolute power to the Supreme Judicial Council in “the recruitment of just and worthy judges, their dismissal and appointment, the relocation of their place of employment, 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 been examining the files of all serving magistrates in order to decide on their retention or dismissal. However, the purging of the judiciary had begun well before that date. Indeed, the first order of the Revolutionary Council relating to the “reorganisation of the Ministry of Justice, the purging of existing magistrates and the recruitment or recall of former magistrates and resigning magistrates” 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 in charge of the purification of “the administrative and judicial organisation of Justice” (art.1). The members of the commission are chosen on the proposal of the Minister of Justice and with the approval of the cabinet of ministers.

In order to accomplish its tasks, the commission will have the right to “dissolve any court and any judicial body, if necessary, and to re-establish them after purging them if necessary” (art. 2).

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

This ordinance gives the executive considerable power in matters concerning the judiciary. While it is true that the commission is composed of magistrates, they are chosen by the ministers, who have the right to dismiss and replace members of the commission. In addition to the fact that the magistrates who are members of this commission are not subject to any particular conditions, the cabinet of ministers is completely free in its choice⁶⁴.

The magistrates of the Supreme Court are exempted from the application of this order. 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 Magistrates’ Disciplinary Court and its appeal body will be dissolved and the new organisation will be established and declared within 30 days. [...] 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 according to the 30 September 1979 order of the Revolutionary Council. “The special civil court is composed of a fully qualified modjtahed or a suitable person appointed by a modjtahed and one or two judicial advisers; but the judgment is given by this modjtahed, or his representative, depending on the president of the court” (art. 1).

Under Article 2, the appellate 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)⁶⁵.

Family and personal matters such as marriage, divorce, filiation, etc. are within the jurisdiction of the Special Civil Courts. In addition, other disputes on condition of consent of both parties can be examined by these courts (art.3).

Ayatollah Rabbani Amlachi, member of the Supreme Judicial Council and 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”.

C - The General Courts

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

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

In general, a large part of the provisions prescribed by the civil and criminal procedure codes concerning the execution of judgments, the hearing of witnesses, expert opinions and notification, are 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 Ordinance of 25 June 1979 provided for the establishment of a kind of emergency court within the framework of the Ministry of Justice which, as the last article of this ordinance explicitly announced, was to replace the Islamic Revolutionary Courts (IRC).

This ordinance, which could not be implemented because of the competition with the ITRs, is interesting in some respects:

Firstly, the competences that had been removed from the military courts and other special courts are again entrusted by this ordinance to the special courts. Although these courts are organisationally part of the Ministry of Justice, neither their composition nor their procedure is subject to the general regulations governing the other courts.

These courts were to be composed of three members chosen by the Minister of Justice from among serving or retired judges, or from among other jurists familiar with the jurisdictional 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. 13).

Secondly, after a long period of speaking generally and ambiguously about ‘counter-revolutionary offences’, this ordinance provided a list, if not a definition, of this type of offence. Virtually all the offences we dealt with in the section on the jurisdiction of military courts under the imperial regime are described by this ordinance, with reference to the same laws, as counter-revolutionary offences.

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

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

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

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

Another feature of these changes is that they bring the clerics and modjtahed into the Ordinary Courts and in general into the Ministry of Justice in order to pave the way for the implementation of so-called Islamic laws.

In parallel with these organisational changes in the judiciary, the Supreme Judicial Council drafted four bills consisting of 2,400 articles which were submitted to the Assembly on 6 June 1982. These are the Code of Civil Procedure, the amendment of certain articles of the Civil 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 Assembly’s Justice Committee. But apparently the slowness of this committee in carrying out this task prompted Khomeini, before any decision by the Assembly, to declare on 22 August 1982 that “laws contrary to char’ (Islamic principles) must be renounced. No one has the right to act contrary to Islam. The excuse of enforcing laws, he added, is not valid. Which law? The law contrary to Islam? The law contrary to char’⁶⁶?”

Immediately after Khomeini’s speech, the Supreme Judicial Council abrogated all laws it called “un-Islamic” and asked the Parliamentary Judicial Commission and the Supervisory Council to “submit draft laws as soon as possible and within ten days at the latest”. In the same statement, the Supreme Judicial Council warned magistrates that “the disciplinary court will judge and sentence according to the rules of the char’ any magistrate who renders the law according to un-Islamic laws⁶⁷.”

The distinction between “Islamic” and “non-Islamic” laws has apparently created disorder in the functioning of the courts and the administration. To solve this problem, the assembly quickly adopted a law according to which the Supervisory Board is designated as the competent authority to determine the conformity or non-conformity of existing laws with Islamic principles. However, the Supervisory Board apparently did not want this difficult task and described the 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 limit oneself to the study of the laws and regulations that have been promulgated, since, on the one hand, in 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 conditions, the elaboration of laws and regulations is only a subjective and preliminary effort to solve the problems of the country, On the other hand, under revolutionary conditions, the elaboration of laws and regulations is only a subjective and preliminary effort to solve problems, and their implementation often requires open conflicts and demonstrations of force in the political arena. We will therefore try to take a look, albeit briefly, at the situation of the Ministry of Justice under the Islamic regime and its attitude towards other judicial bodies and authorities, based on concrete cases.

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

   Moreover, in the course of the showdown between the leaders of the new regime, while the clerics and the forces known as “in the line of the Imâm” had, as it were, established their own judicial apparatus – i.e., the IRC and their auxiliaries, the committees and the pasdaran – using it boldly and effectively in political disputes, their opponents attempted to rely on the courts and the bodies under the Ministry of Justice. This position of the so-called “liberal” leaders in the Ministry of Justice gave the latter an important role to play in political conflicts within the leadership.

   These contradictions manifested themselves in various forms such as harsh criticism of the Ministry of Justice, regular courts and magistrates by religious leaders; the use of force against magistrates and Ministry of Justice officials by some religiously manipulated groups; and conflicts between Ministry of Justice officials and IRC officials over the limits of their respective jurisdictions.

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

   “Previously, we had a problem of status, that is, the legal member of the revolutionary courts had to be a magistrate of the Ministry of Justice, but because unfortunately our brother magistrates of the Ministry of Justice were not ready to collaborate with the revolutionary courts, we were not able to increase the number of courts; but with the approval of the Council of the Revolution this law was modified so that the legal member of the court does not have to be a magistrate⁶⁸.”

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

   “The decision was taken to choose some ten or twenty magistrates who would consider their mission in the spirit of crusade and martyrdom, but I was told that not even one magistrate was ready to go to Sanandadj⁶⁹.”

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

   One of the most interesting cases of the conflict between the two fractions of the ruling team to recover and control the Ministry of Justice is their confrontation to occupy the key positions in the Supreme Judicial Council: At the time of the “provisional government”, this council was under the influence of the non-religious, or as it was then called “liberal”, fraction. On 15 January 1980 some 40 rank and file officials of the Ministry of Justice under the aegis of the Islamic Association of the Ministry of Justice occupied the headquarters of the Supreme Judicial Council and the offices of the senior officials of the Ministry of Justice and expelled the members of the Council. In a statement, which was even broadcast by Radio Iran, the occupiers denounced the members of the Supreme Judicial Council as “collaborators of the imperial regime” and demanded the purging of the Council and the Ministry of Justice. While F. Banisadr, then Prosecutor General of Tehran, denounced “a plot manipulated by the agents of the former regime”, the prosecutor of the Islamic Court of Qom admired “the revolutionary action of the members of the Islamic Council of Officials of the Ministry of Justice”, asking the Revolutionary Council, both in its own name and in the name of the judicial and administrative members of the Revolutionary Court of Qom, to “give the necessary orders in order to establish the Islamic judicial unity”.

   Ayatollah Behechti, later appointed President of the Supreme Judicial Council by Khomeini, says in this regard: “some forty officials occupied the headquarters of the council having some criticism of the members of the Supreme Judicial Council…”. He reveals, finally, the purpose of this occupation: “the occupants of the Palace of Justice demanded that in accordance with the principles laid down by the Constitution, the Attorney General and the President of the Supreme Court⁷⁰ be elected by Imam Khomeini from among the modjtahed”.

   The daily newspaper Kayhan published a list of the measures taken by the clergy against the magistrates and the Ordinary Courts on 2 September 1980:

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

   In March 1980, the prosecutor of Malayer, a city in western Iran, was arrested. Following this event, civil servants and judges in 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 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 irresponsible individuals in the affairs of justice”.

   Generally speaking, similar news items can be read frequently in Iranian newspapers after the 1979 revolution. For example, after a complaint was filed by the magistrates of the courts in Arāk, the capital of the central province, a crowd agitated by the city’s prayer Imam walled the doors of the courthouse⁷¹.

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

   The purpose of these attacks on the magistrates and the bodies dependent on the Ministry of Justice was, on the one hand, to intimidate the magistrates of this Ministry and, on the other, to diminish their prestige and authority in the eyes of the people. In this way, the groundwork could be better laid for the implementation of the provisions and regulations already approved.

3. In order to show the limitation of the competences of the Ordinary Courts by the IRC and its repercussions we will choose, among a large number of available documents, an interview of 14 October 1979 with the Tehran prosecutor. This interview not only gives a more or less precise picture of the situation and the functioning of the IRCs, but also reflects the form and content of the criticisms of the so-called secular fraction of the ruling team with regard to the intervention of the clergy in judicial matters:

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

   He adds:

   “While we produce only 7% of the goods needed for internal consumption, relations with foreign countries are indispensable and we need to have courts established by legal authorities and obeying well defined procedures. To deliver justice within our borders, offences and penalties must be defined and declared in advance. It is not a question of the legal system from which these courts, laws and statutes are derived, but of their very existence…; but if anyone with a few people at hand can set up a court under any title, punishing people according to his taste and pleasure in the name of char’, the end result will be judicial anarchy and the insecurity of the country.”

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

   “In my opinion, if they do not accept 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 entrusting its tasks to those who they consider competent; but it should not be allowed that anywhere in the country, courts are established at the desire and will of individuals outside the principles and legal provisions.”

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

＊ ＊ ＊

It should be borne in mind that the Iranian judiciary is still 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 and the bodies under the Ministry of Justice within this judiciary, notwithstanding the considerable changes they have already undergone.

Chapter III - Islamic Revolutionary Courts

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

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

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

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

Alongside these courts, and sometimes with them, there were revolutionary committees which had been organised by the people in a certain spontaneity during the revolutionary movement but which remained under the control of the clerics. Among the Pasdaran of these committees one could observe communist militants, revolutionary Muslims, conservative believers and even “lumpen” and fugitive criminals who had set out everywhere in search of, in their own words, the “faithful of the old regime” in order to punish them personally at once or to take them to the houses of clerics for this purpose, to whom they had given the name of “revolutionary tribunal”. These committees roughly filled the vacuum created by the absence of the police and gendarmerie, which were then relatively paralysed.

Although these committees, especially during the first months after the establishment of the regime, were the most effective instrument for controlling the outbursts of the popular revolution, their local and regional nature and the heterogeneity of the composition of their pasdaran showed that the regime could rely on them in the long term only for the local security of the towns and villages, and this after they had been thoroughly purified. It therefore seemed necessary to create a well-organised shock force composed of carefully selected elements completely faithful to the regime’s religious ideology. This is how the Islamic Revolutionary Guard Corps came into being, according to a practically predetermined plan and from the start in connection with the IRC

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

In this chapter, we will first briefly study the laws relating to the IRCs. We will then try to deal with 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 forced to pay more attention to the actions and words of the people involved and the officials of these bodies than to the laws and principles that should govern their behaviour.

I - Provisions concerning the Islamic Revolutionary Courts

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

In this section we will briefly examine these provisions in order to show the legislative efforts made to put these courts in order, stressing once again that these provisions can in no way trace even a general outline of their organisation and functioning.

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

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

1. “A religious judge proposed by the Revolutionary Council and 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 Islamic revolution, appointed by the Revolutionary Council or by an authority having a mandate from the Council for this purpose.” The two alternate members belong to this third 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 religious judges shall be added to the original judges. The decision of the majority of this tribunal shall be final.”

The penalties applicable by the IRC listed in Article 12 are: “execution, imprisonment, banishment and confiscation of illegally acquired property, after payment of 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. looting the public treasury or squandering 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 on behalf of foreigners.

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

What is most interesting to mention here is that this article listing the titles of the offences does not specify the applicable penalties for each of them. It is left to the care of the religious judge to determine the applicable punishment 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 choose “an Iranian lawyer”, specifying that “the accused and his lawyer” must be given “not less than 15 hours” to defend themselves before the court.

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

Articles 14 to 33 of the ordinance are devoted to the provisions concerning the establishment of public prosecutor’s offices alongside these courts in the provincial capitals, headed by the public prosecutor, as well as the rules relating to the various stages of the proceedings such as: “arrest, investigation, notification and execution of decisions”. “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 where the escape of the accused is likely and his personal situation is such that no delay or leniency in his arrest is admissible.

The enforcement of the death penalty is subject to a particular formality: ’the death penalty must be communicated ten days before its enforcement to the public prosecutor of the revolution and within this period the condemned person must enjoy the visit of his family’ (art.32).

B - The Army Revolutionary Court

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

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

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

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

II - Islamic Revolutionary Courts in practice

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

"In principle, the courts are independent and the judge is free in his decision. Of course, it is possible that some verdicts are sent to Tehran or another city for enforcement or to get permission to be executed. But, in general, the courts are independent⁷² [...]”.

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

In practice, the IRC have not implemented the 17 June 1979 order of the Revolutionary Council. The adoption of the Constitution of the Islamic Republic – which emphasised principles such as 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 change their attitude. So we found ourselves obliged to reflect the functioning of these courts by examining concrete cases.

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

The basic task of the IRC is to examine the offences to which the leaders of this regime apply the title of “counter-revolutionary offences”. However, as time goes by and depending on the political situation and the evolution of social events, these “counter-revolutionary offences” acquire new meanings. Moreover, each religious body or judge may have its own conception of the “counter-revolutionary offence”. If during the first two months ‘counter-revolutionary offence’ was generally directed against the ‘followers of the old regime’, today the expression ‘counter-revolutionary’ brings to mind above all the communists and the Modjāhedin of the People. Here we shall present a number of these offences and the mode of their disposition and promulgation in chronological order:

The Revolutionary Council in a statement of 17 November 1979 announced:

“From now on, any attempt at occupation, hostage-taking and ‘bogus’ strikes will be considered as counter-revolutionary acts and will be subject to its intervention.”

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

In another case, the daily Kayhan published on 6 July 1981 an interview with Ayatollah Mohammadi Guilani, president of the IRC in Tehran, in which, in response to the Swedish Radio correspondent’s question about the arrests in the factories, he said

“Yes, in some factories, after the 81⁷³ bombing, a number of counter-revolutionary elements were expressing their joy and dancing while spreading poisonous ideas against the Revolution [Islamic]. They were arrested and their cases 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 offence:

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

It should be noted that this reply by H. Ladjévardi followed a question from the correspondent of the organ of the Socialist Workers’ Party, which had Trotskyist tendencies and which supported the Islamic regime. The question concerned the fate of two imprisoned members 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 rise up against the people of God and want to indulge in corruption on earth, of those who aim to fight against God, his prophet, the Imam and the Imam’s substitute (i.e. Khomeini) will be the death penalty…”

He adds:

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

What is most important in these remarks is the willingness to merge any crime into two Qur’anic crimes, i.e. fighting against God and corruption on earth.

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

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

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

3. Those who attack and storm places or people with weapons;

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 24 August 1981, the Attorney General gives a warning to “capitalists and those who support the groups by making their residences available to them”. According to this statement “their houses will be confiscated in favour of the disinherited, and they will be tried and executed as moharebe [fighter against God] and baqi [disobedient]”.

In the Kayhan of 23 July 1981, the Hodjatoleslām Moussavi Tabrizi, ex-religious judge of Tabriz and Prosecutor General of the revolution, declared: “If someone makes disorder on the day of the [presidential] election, he will be considered the equal of the Modjāhedin and the militants of the moharebe groups”.

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 Islam. And the blood [of its author] is worthless and [its killing] is not only permitted but necessary. This is Islam, this is the Qur’an, and this is the fatva of the faqih Shi’ites.”

Then he adds:

“If we accept the emāmat as an ideology, the uprising and insurrection against an ideology is not considered as a political insurrection, but as an insurrection against the ideology and thus as a fight against Islam and the Qur’an. Moreover, those who do not firmly rise up against these will be guilty; 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:

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

In the Tehran IRC verdict on the execution of Mrs Massoumeh Chadmani, a member of the People’s Modjāhedin, among the “crimes” listed are: “[...] 2. candidate of the American organisation of monāfeqin [hypocrites]⁷⁴ [...] 9. attempted suicide at the prosecutor’s office of the IRC of Tehran⁷⁵ [...]”.

Following the publication of a notice to clean the walls of Tehran, the city’s municipality warns private companies and institutions that if they fail to clean the walls, “according to the ruling of the IRC judge and in accordance with the permission of the Islamic prosecutor of Tehran, the necessary measures will be taken for the disconnection of the violators’ telephone⁷⁶.”

As can be observed, the political interests of the regime play a major role in the definition of crimes without any hindrance from the judges and prosecutors of the IRC It frequently happened that acts deemed legal during one period were later reclassified as “counter-revolutionary” crimes and the perpetrators were punished. The definition of crimes depends directly on the judges and prosecutors of the IRC They decide whether what is done is a crime or not.

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

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

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

B - The Diversity of Islamic Revolutionary Courts

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

1. The Special Court for Combating Drug Trafficking: This court has been one of the busiest courts since the establishment of the Islamic regime; especially after the appointment of Ayatollah Khalkhāli as the president of this court by President Banisadr on 10 May 1980 it has been very active in arresting, convicting and especially executing drug traffickers in groups. From August 1979 until September 1980, 382 people were executed⁷⁷ by this court and in the Iranian month of Tir of 1361 alone (22 June to 22 July 1982) 1557 people were tried before this court where 18 people were executed⁷⁸.

2. The Special Islamic Court of Corporations: It deals with offences concerning illegal price increases and hoarding. It often imposes fines, whippings and confiscations.

3. The Islamic Revolutionary Court sitting in the Tehran City Hall: It examines the particular case of land and buildings confiscated by private persons during the revolution whose ownership status is not clear. The president of this court in an interview on the activities of this court says: “Since I took over my responsibilities in this court, it has dealt with nearly a thousand cases for which char’ judgments have been issued [...] from the very beginning of my work,” he adds, “the Islamic Revolutionary Prosecutor’s Office sitting in the City Hall has started its function. The inspection, investigation and compilation of files are the responsibility of this prosecutor’s office⁷⁹.”

4. The Islamic Court for Combating Evils: This court was mainly responsible for monitoring the conduct of the population and imposing the so-called Islamic conduct. According to the deputy Islamic public prosecutor of this court: “The public prosecutor of the revolution has devoted one of the chambers of the IRC to the fight against evils. From a procedural point of view, this court is subject to the same regulations as the other IRCs.” On the definition of “evils”, he said: “Evils are the sins mentioned in the books of Islamic law”.

On the activities of this court he says: “For more than a year since the establishment of this court more than 5000 cases [...] have been examined and appropriate judgments have been passed. Most of the charges were related to the organisation of prostitution and large casinos throughout Tehran, illegitimate sexual relations, homosexuality, prostitution, vagrancy, etc.”

This court was dissolved in December 1982, and its cases were transferred 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 area have these courts observed definite and uniform regulations.

a) On the competences of the ITRs

In terms of jurisdiction, the available documentation shows that crimes and disputes of all kinds have been tried by these tribunals. In addition to the cases listed above, there have been several cases considered by these tribunals which, according to the Statute of the IRC, were outside their jurisdiction⁸⁰.

The vagueness of the limits of the jurisdiction of the IRC has always been a concern of its officials. In the resolution of the seminar of 200 prosecutors and judges of the IRCs from all over the country, dated 13 October 1979, the participants demanded that “the heads of the competences of the IRCs must be determined and devoted to the cases required by the revolutionary state of the country”. They added: “civil disputes and minor problems and litigations” occupying the time of the courts must be refused. Finally, they demand, in this respect, “the development and improvement of the Statute of the IRC 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, oppose the intervention of lawyers in trials, and although the statute of these courts and the Constitution of the Islamic Republic have provided for the defence by the lawyer, in practice, to date, lawyers have not been able to take part in the trials of the IRC In the case where the defendants have presented their lawyers to the IRC, the latter, under various pretexts, have refused them.

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

“Since the defence is a legitimate matter from the point of view of Islam and the Constitution of the Islamic Republic, the accused and the civil party can benefit from a lawyer before the court; of course a lawyer who is the defender of Islam and the Constitution of the Islamic Republic, and not a lawyer who wants, for a large sum of money, to transform reason into wrong and, by using seductive phraseology, to make the unjust sit in the place of the just.”

In response to this news agency’s correspondent asking him about “the defence by lawyers of prisoners from the mohareb [fighters] and elhadi [non-fighters] groups”, he said

Their lawyers can defend the prisoners, provided that they at least admit the elhadi and mohareb character of these groups and that they defend the degree of the offences by asking for the mitigation of their sentences; not that they want to declare innocent these terrorists, these agents of the foreigner, these mohareb and these mofsed [corrupters] by demanding their return to society to repeat their former crimes.

In any case, until now, under no conditions has the intervention of lawyers in the trials of the IRC been allowed.

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

In this respect, too, there is no uniform procedure, e.g. the execution of death sentences is usually carried out by shooting the convicts in prison yards. But there have also been cases of hanging or public shooting of convicts and even some cases of stoning of convicts for sexual crimes. There have been several reports of convicts being hanged in the presence of other prisoners and also of “repentant” convicts being shot.

In one case, two unknown men 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 arrest⁸¹’.

In one case, following the ‘discovery of the drug traffickers’ village by the shock group, five drug traffickers were shot at the scene of their arrest⁸². 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; she was ‘shot again by court order⁸³’.

Similarly, there are no general rules or uniform procedures for the execution of other sentences. For example, in one case ’through the mediation of the inhabitants of a neighbourhood and the forgiveness of the civil party, the trader, who had practised illicit increases, was saved from the whip⁸⁴’.

In another case five hundred drug addicts in four corners of Tehran after being whipped were released “in desert areas near Tehran”⁸⁵.

d) On the conduct of trials

The procedure for conducting trials before the ITR is also unregulated. Most trials are held in camera, but sometimes a trial is declared to some extent public without any specific reasons being given. The film of a trial that has been held in camera may be broadcast on television.

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

What is certain is that the IRCs are strongly influenced by political circumstances and executive interests and, in this case, act in perfect harmony and relatively without leniency. Islamic judges are chosen directly under the supervision of Khomeini and his relatives; his orders are absolutely followed by the courts⁸⁶.

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

While in principle the decisions of the IRC’s are considered final and immediately enforceable⁸⁷, in practice some cases of revision of the decisions of these courts have been observed. In the aforementioned statements of H. Ladjevardi, Prosecutor of the Islamic Republic of Tehran, the possibility of revision is not excluded, but no authority is presented in this regard. Ayatollah Mohammadi Guilani, the president of the IRC of Tehran, in order to underline the accuracy of the judgments rendered by these courts, says: “Even for some people there were two hearings⁸⁸”. But he too does not specify any regulation or authority in this regard.

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

The latest information on the review of IRC decisions shows that at present only death sentences and confiscations 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 the gendarmerie, which were the main auxiliaries of the judiciary during the revolutionary movement, were too disorganised and demoralised to be usable by 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

Before the victory of the Revolution, the police force numbered nearly 60,000 people. After the victory of the Revolution, it went down to 40,000 [...]. 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. At present, he continued, from the ideological point of view we have certain plans for the police. We have to work on them. Real change is not being achieved in the police.

Therefore, the new regime had to create appropriate bodies.

The revolutionary committees that had spontaneously arisen during the movement against the imperial regime, and which multiplied rapidly after the establishment of the new regime, initially provided the latter with the most effective and available means. Later on, according to a precise plan, the Islamic Revolutionary Guard Corps (sepāh-e pāsdārān-e enghelāb-e eslāmi) was created which, in turn, functioned as an auxiliary of the IRC After the occupation of the US Embassy and following Khomeini’s order to “create the army of 20 million”, a paramilitary force, under the title of [basidj-e mostazafin]{.ul} (mobilisation of the disinherited) was organised which also serves the IRC

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

And finally, after 11 August 1981 and particularly after the promulgation of Khomeini’s fatva describing the provision of intelligence reports to the IRC as a religious duty, the Islamic Associations began to function as a source of intelligence for the IRC⁸⁹.

In this section we will examine these bodies in turn, the majority of which, apart from their own functions, perform an auxiliary role to the judicial system. It should be noted that, in the absence of precise written laws and regulations, we will be obliged to rely almost exclusively on the words of those responsible 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 by virtue of a recently approved law they are administratively dependent, like the police and gendarmerie, on the Ministry of the Interior. They originate from the committees which were created almost spontaneously during the popular movement against the 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 weapons during the occupation 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. In practice, they exercised unlimited power. Especially with regard to the arrest of those they called “agents of the old regime” they accepted no restrictions. On their own initiative they carried out searches, arrests and even administered punishments. After the consolidation of the position of the fundamentalists in these committees, they began to intervene in even the most private matters under the pretext of controlling “Islamic conduct”.

These committees were initially the most effective and immediate means in the hands of the new regime to maintain order – for the clerics and the Khomeinist bazaris had, from the beginning, hegemony in these committees. However, as the unanimous popular support for the new regime disappeared, the loyalty of the pasdaran of these committees to the regime became more and more doubtful. Therefore, the regime decided to purge the committees by creating a central committee. The process of purifying these committees was accompanied by their centralisation. Henceforth the heads of the committees, very often clerics, were appointed directly by Khomeini and in order to keep non-Khomeinist clerics out of the leadership of the committees, for a time these committees were called “the committees of the Imam” in order to emphasise the control of the Khomeinists⁹⁰.

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

“In the early days of the revolution, there were nearly 1,500 committees in Tehran, which we divided [...] into 14 main committees that are responsible for controlling the subcommittees. Unfortunately, for the past two months we have been facing enormous difficulties, as many of the able pasdaran have been absorbed into the Revolutionary Guard Corps. There is only a small fraction of suitable people left, and the rest are incompetent [...]”.

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

“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 also a handful of escaped prisoners 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, adjacent to the police stations of the district.

The stated tasks of the committees were:

1. “Fighting against counter-revolution⁹¹;

2. Fighting against smuggling and drug dealers;

3. Fighting against evils (the so-called un-Islamic conduct);

4. Fighting against hoarding and illicit rise so that this hoarding and rise causes the weakness of the economic system of the Islamic republic and results in popular discontent⁹²”.

Mr. Kani considers the committees to be “the auxiliary of the Islamic Revolution’s Public Prosecutor’s Office,” stating that “no committee acts arbitrarily [...] It is only according to the orders of the Public Ministry of the Islamic Revolution that we arrest the accused; and it happens that the accused remains 24 hours in our arrest house or with the permission or agreement of the Public Ministry [...] the duration of this arrest is prolonged [...] “.

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

In August 1982 the Statute⁹³ of the Committees was approved by the Islamic Assembly and the Committees were formally integrated into the framework of the Ministry of 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.

B - The Islamic Revolutionary Guard Corps (IRGC)

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

The IRGC was founded immediately after the establishment of the new regime under the leadership of a deputy prime minister and the direct supervision of a representative of Khomeini, according to the statute approved by the Islamic Revolutionary Council. The pasdaran of this corps were carefully recruited according to their loyalty to the regime and their devotion to its ideology. The pasdaran of this corps were, from the outset, subject to constant purges as political conflicts within the leadership occurred⁹⁴.

In the beginning, the IRGC, apart from security matters, intervened in almost all matters of social life. These interventions were very often the cause of conflicts between the CGRI and other governmental bodies in which it was generally supported by the Khomeinist clerics, but after 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 competences and attributions.

The Constitution of the Islamic Republic, in its 150^th article has formalised the I.G.R.C. — which was established before the adoption of the Constitution — as one of the main organs of the Islamic Republic⁹⁵. It prescribes:

“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. The limits of the tasks, scope and responsibility of this corps are determined by the law in its relations with the tasks, scope and responsibility of the other armed forces with emphasis on fraternal collaboration and harmonization among them.”

On 4 May 1982, the Islamic Assembly approved the Statute of the IRGC in 50 articles, according to which the IRGC is commanded by a Supreme Command Council within the Ministry of the 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 its size and population is divided into a few resistance regions, each resistance region into a few resistance districts and each resistance district into a few resistance bases, each resistance base of which will include organised groups.”

As an auxiliary to the judiciary, the ICG is responsible for the discovery and prosecution of offences under the Islamic Revolution’s Public Prosecutor’s Office. In fulfilling this task, it has established its own prisons and a centralized intelligence service. The enforcement of sentences pronounced by the IRCs is often carried out by the ICG.

The IRGC, through the Basij Mostazafin Organisation (Mobilisation of the Disinherited), armed a large force. Following the hostage-taking at the US Embassy in Tehran, the nuclei of this organisation were created with the declared aim of protecting towns and villages from possible foreign invasion, on the initiative of some government bodies. Later, the leadership of this organisation was entrusted to the ICRC.

In practice, the Basij 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 sympathisers of clandestine organisations and in supervising the population. It also sent a large number of volunteers, mainly teenagers, to the front line of the war with Iraq.

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

Finally, Article 39 of the statute states: “the expansion of local units must be carried out in such a way that resistance cells are created in all neighbourhoods as soon as possible”.

According to the latest official statistics, the Basij Organization has so far organized “six thousand resistance bases and nine thousand resistance groups”. More volunteers have been dispatched to the fronts of the war with Iraq and almost people have received military training through the Basij organisation⁹⁶.

C - The judicial police

The judicial police is, by definition, an armed force that functions only as an auxiliary to the judiciary and does not deal with security. The original project of the judicial police had already been elaborated during the last years of the imperial regime, but the revolutionary movement prevented the realisation of this project.

At the beginning of 1981 it was resumed and the preparatory measures for the establishment of a judicial police force were taken and finally the bill providing for the establishment of this police force was approved by the Islamic Assembly on 7 January 1982 setting 21 March 1982 (the first day of the Iranian year 1361) as the date for the 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 arrest of the accused, the preliminary interrogation, the notification and execution of civil and criminal sentences. It is responsible for a large part of the functions currently performed by the police, the gendarmerie, the committees and the C.G.R.I. as auxiliaries of the judiciary⁹⁷.

In practice, it does not appear that this police force has yet been able to organise itself to a significant degree so that it is able to replace the above-mentioned bodies.

D - Islamic associations

These associations were gradually organised in all administrations, schools, universities and factories immediately after the establishment of the new regime by taking over the control of their management. At the same time, they ensured the ideological and political representation of the Islamic Republic Party in the face of the active presence of other political formations. Gradually, the scope of activity of these associations expanded and they controlled the observance of Islamic conduct and the management of these institutions. In particular, they played a major role in the purification of the bureaucracy as advisors to the purification commissions. They also played a very active role in the fall of the “provisional government” and the removal of Banisadr from the presidency of the Republic. But after 20 June 1981 and especially after Khomeini’s famous speech to the members of some of these associations on 11 August of the same year, they were officially charged with cooperating with the judiciary to identify and arrest opponents of the regime. In his speech Khomeini said: “you yourself must be the intelligence association and the intelligence grouping⁹⁸…”

Since then, the activities of Islamic associations are officially controlled and centralised by the government. Indeed, the “Statute of Islamic Associations” describing the qualification of their activities is drafted by this government. Thus, the Deputy Prime 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 propaganda⁹⁹”.

The General Prosecutor of the Revolution asks the student members of the “Islamic Association of High Schools” to “inform the prosecutor of the slightest suspicious movements of certain students in connection with the groupings and certain released prisoners”.

In practice, the Islamic Associations played a big role in identifying and arresting opponents of the regime in administrations, schools, universities and factories.

Conclusion

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

The Ministry of Justice, under the Islamic Republic, is still sidelined from important justice-related matters. But the occupation of key positions in this ministry by the ruling clerics and the adoption of the 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 is endowed with absolute power and composed solely of high religious authorities, directly chosen by Khomeini, may contribute to the creation of a kind of organic unity within this judicial apparatus. The integration of the Islamic Revolutionary Courts into the Ministry of Justice is currently supported by many judicial authorities. Thus, the organisational development of the Ministry of Justice especially during the past year has prepared the ground for the realisation of this idea.

It is therefore clear that the Iranian judiciary is currently in a state of transition. The leaders of the new regime, upon coming to power, claimed that “Islamic laws should be applied by the courts”. But in practice, the ordinary courts have so far based their judgments mainly on the laws adopted during the old regime; and the Islamic Revolutionary Courts have been left without a legal reference. 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 cohesion of the regime in the short term, would be fatal to it in the long term. Thus, over the past year, the regime has stepped up its efforts to create a system of laws that it calls Islamic, but whose effects are unknown until now.

Bibliography

General works

• L. Althusser, Position, éditions sociales, 1976

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

• R. Charvin, Justice et politique, Librairie Général du Droit et de Jurisprudence, 1968

• F. Engels, L’origine de la famille, de la propriété privée et de l’État,Œuvres choisies, éd. du Progrès, Tome III, Moscou, 1976

• R. Fossaert, La société, Tome III, Les appareils, éd. Seuil, 1978

• V. Lénine, L’État et la révolution, Œuvres choisies, Tome 2, éd. du Progrès, Moscou, 1976

• K. Marx, Le 18 Brumaire de Louis Bonaparte, Œuvres choisies, Tome I, éd. du Progrès, Moscou, 1976

• H. Portelli, Gramsci et la question religieuse, Anthropos, 1974

• N. Poulantzas, La crise de l’État, sous la direction de Nicos Poulantzas, PUF POLITIQUES, 1976

• La justice, Œuvre collective, C.E.S.S. Centre de Nice, PUF, 1961

• D. Bacry, M. Ternison, La Torture: la nouvelle inquisition, Fayard, 1981

• Sur le Dogme Musulman et les Droits de l’Homme en Islam, Ministère de la Justice (Ryad) et Dar Alkitab Allubnani (Beyrouth)

Books on Iran

• G. Anquetil, La Terre a bougé en Iran, Hachette, 1979

• Behrang, Iran : le maillon faible, Maspero, 1979

• A. Banisadr, Quelle Révolution pour l’Iran ?, Fayolle, 1980

• C. Brière, P. Blanchet, Iran: La Révolution au Nom de Dieu, Seuil, 1979

• A. Faroughy, J.L. Reverier, L’Iran contre le Chah, éd. Jean Claude Simoën, 1979

• CH. Haghighat, L’Iran: la révolution inachevée et l’ordre américain, Anthropos, 1980

• J. Boissel, L’Iran Moderne, PUF, Que sais-je?, 1975

• F. Holliday, Iran: dictatorship and development, Penguin books, 1979

• M. Mozafari, L’Iran « Comment ils sont gouvernés », collection sous la direction de Georges Burdeau, Paris, Librairie Générale, 1978

• J. Vernoux, L’Iran des mollah: la révolution introuvable, Anthropos, 1981

• P. Vieille, A. Banisadr, Pétrole et Violence, Anthropos, 1974

• R. Komeini, Pour un Gouvernement Islamique, Fayolle, 1979

• Iran: arrestations et jugements en République Islamique d’Iran, Amnesty International, EFAI, Londres 1980, trad. fr. juin 1981

• Rapport sur la Peine de Mort, Amnesty International, éd. Mazarin, 1979

• Report on the Death Penalty*, Amnesty International, published by Mazarin, 1979

Persian works

• A. Grantovski, Tārikh-e-Irān, az zamān-é-bāstān ta emrouz (The History of Iran since Antiquity), Persian translation, ed.Pouyech, Tehran, 1359 (1980)

• A. Matine-Daftary, Ain-e dādressi-e madani (The Civil Procedure), 3 volumes, Tehran, Volume I 1334 Volume II 1342, Volume III 1348

• Gozacht-e chérāgh-e rāh-e āyandeh ast (The past throws light on the way to the future), by the Djami group, 1^st ed. Paris 1977, 2nd ^{ed. Tehran 1979 (1357)}

• Djonbech-e kārgari-e social-democrāsi va komounisti-e Irān (Documentations on the Iranian Social Democratic and Communist Workers’ Movement); 1^st ed. Munich 1970 2nd^{ed. Tehran, ed. Mazdak, 1358 (1979)}

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

• R. Komeini, Ressāleh novine: massāel-e-eqtessādi (New Handbook: Economic Problems), ed.

• Mokātebāt-e Radjāï bā Banisadr (Letters of Radjai to Banisadr), published by the Prime Minister’s Public Relations Office, 2^ndedition 1360 (1981)

• R. Khomeini, Kachf el asrār, Tehran, ed. Mohamd

Journals, articles and newspapers

• Iran: histoire et révolution, series of articles on Iran edited by Behrouz Montazami, Le Sycomore-Zamân, 1980

• La revue des deux mondes, October-December 1976, series of articles on Iran

• B. Hourcade, “Géographie de la révolution iranienne”, Iran between imperialism and internal splintering, Herodotus, 2nd quarter 1980 pp. 16-45

• P. Vieille, “Le drame iranien et ses acteurs”, politique aujourd’hui, January-February 1980, pp. 18-40

• “Khomeinisme, islamisme, tiers monde”, Special issue of Esprit, January 1980, pp. 35-89

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

• The magazine Peuples Méditerranéens, N°s 2, 5, 6, 7, 8, 9,10, 12, 14, 16; since 1977

• 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)

• Penal Laws, written by A. Kamangar, Djavidan ed., Tehran, 1354 (1975)

• Le Monde

• Kayhan