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Mehrangiz Kar
The mechanism by which legislation is passed in Iran has a particular characteristic: laws cannot be incongruent with religious doctrine. Therefore in Iran the legislative entities do not have the freedom to easily change or remove laws that are in harmony with religious principles. The Gaurdian Council in Iran acts to prevent the passage of laws that it finds incompatible with Islamic law.
After the Islamic revolution of 1979, cruel and unusual punishment such as stoning made its way into the Iranian legal system. Since that time, there has been an on and off discussion about whether it is possible to find a solution to the problematic and politically sensitive position this punishment creates for Iran on the world stage. In other words, can the legislative branch find a solution that would facilitate the removal of laws that permit stoning as a form of punishment?
For a very long time the legal discussion surrounding stoning would only occur in the private sphere. It was not possible to have an open discussion because of the politically taboo nature of the topic. Many had paid an exorbitant personal price for voicing their opinions and over time very few voices in opposition to this form of punishment could be heard. However, even during this repressive period, there were a few individuals that used the space for dialogue that had developed as a result of the ending of the Iran-Iraq war to condemn this form of punishment. These individual used the multiple international treaties on political, civil, economic, social and cultural rights that Iran had become a signatory to and its open agreement with over thirty articles of the Declaration of Human Rights as leverage to criticize this form of punishment. In this period, Shirin Ebadi and I started using international treaties as a basis to write many articles and books on the subject.
During this period, many religious scholars also began to write opinions on the basis of “Ejtehad” (a practice of religious jurisprudence) to attempt to convince the power centers against reform, that it is possible to reform Islamic law without inflicting any harm to religious doctrine. These religious scholars did not have (and still do not have) the needed authority and power to implement their opinions and reform the law. It is hard to say that their numbers have increased over time. These scholars have issued opinions on a wide variety of topics. They have stated, for example, that “Dieh” (compensation that is paid to a victim’s family) should be equal for men and women or that the age that one could stand trial can be raised without compromising religious doctrine. These scholars attempted to use their scholarship to influence and reform laws; however I do not recall their participation in discussions around stoning. They did enter discussions surrounding legal age and puberty, the right for women to testify in legal proceedings, child custody and the right of divorce. One scholar (Sanei) went as far as to suggest that women can become “Valieh Faghih” (a supreme religious leader). In the mean time, stoning remained a taboo subject and no religious scholar entered this discussion willingly.
In our activism, we would initiate the discussion on stoning by using the many international treaties that Iran had signed as leverage to point out how incongruent these practices were with these treaties. We would use specific articles to argue that these punishments were cruel, inhumane, indefensible and incompatible with international human rights law and should be erased from domestic law. As Iran was a signatory to many international human rights treaties, we were able to enter the discussion and to an extent we were successful in advancing the cause against these forms of punishment.
This situation continued until stoning became a powerful weapon in the hands of the international opposition to the Iranian regime. Films were made that claimed to document actual stoning that took place in Iran. These films were shown in Europe and especially Scandinavian countries. This footage had a powerful effect on public opinion. The strong competition amongst political parties in Europe led to pressure being placed on the ruling coalition for its economic ties to the Iranian regime. The public began to seriously question the leadership on its dealings with Iran. The political opposition in many European countries used this powerful footage as a tool to weaken the party in power. The ruling party’s political and economic relationship with Iran came under strong question and criticism.
In my opinion, inflamed public opinion compelled the EU (for its own political and economic benefit) to pursue a human rights dialogue with Iran. In response, Iran developed an international committee on human rights within the judicial branch which was run (and still is run) by Mr. Javad Larijani. At that time, the “nuclear issue” had not yet emerged and both the government of Iran and the EU attempted to dissipate the human rights issues to maintain their mutually beneficial economic relationship. The Europeans were very interested in developing relationships with Iranian non-governmental organizations (NGOs), but the Iranian regime created very few opportunities for such relationships to develop and in some cases actively prevented some NGOs from participating in talks.
During the reform movement in Iran, and as part of the official visits between Iran and the EU, two important developments took place. The power centers in the judicial branch in Iran agreed to no longer implement stoning as a form of punishment. The Iranian officials also agreed to no longer execute minors. The attempts made by the EU to actually change Iranian law were unsuccessful. It appears the EU accepted the tacit agreement made by Iranian officials to no longer allow stoning. Using mass media, EU officials were able to appease public opinion and emphasize the progress made in negotiating on human rights with the Iranian regime. To some extent, public anger in the EU about human rights abuses in Iran dissipated.
However from then on, whenever a European country had a disagreement with Iran, the footage on stoning would reappear on TV and a public outcry would ensue. I would guess that the presentation of these movies always coincided with a difference of opinion or a diplomatic scuffle between Iran and a particular EU country. At any rate, it had become politically expedient for both the EU and Iran to compromise over the issue of human rights abuses. Neither Iran nor Europe wanted to lose the economic benefits related to trade that came with good relations. Therefore the EU and Iran reached a compromise that the laws would not change but Iran would not engage in the practice of stoning. In my opinion, this unwritten compromise was in play until the “nuclear issue” became the focal point of discussions between Iran and the EU and the EU followed the US lead on this issue.
After this period, where the EU and Iran had seemingly reached a compromise, the implementation of stoning as a form of punishment was always accompanied by opposition from Iranian women’s rights group. The taboo surrounding an open discussion of stoning was obliterated due to the discussions between the EU and Iran on the subject. These discussions became the basis for Iranian women’s rights activist to enter the debate over stoning.
After this new space for dialogue was created, Iranian women’s rights activists could speak proactively against a scheduled stoning or stoning that had already occurred in women’s magazines and reformist publications. As a result of this active debate, the movement “Campaign Against Stoning” was launched with the hard work of activists in Iran (Shadi Sadr, Asieh Amini, Mahboubeh Abbasgholizadeh) and your own work as an international coordinator. The campaign has developed a structure in which activists work with local attorneys to identify cases of stoning and through an information campaign are able to create a public debate over the issue. In my opinion the most important achievement of this campaign is that it created solidarity and information exchange between activists inside and outside Iran to use both the language of human rights law and the language of shariah law to combat stoning as a form of punishment.
The language of sharieh law has come to be used in the form of legal case studies. The use of case studies in stoning is very important. I believed that if we could document a particular case and publicize it, we can capitalize on both educating the public and creating public sensitivity to the subject. Unfortunately, during the time I was active in Iran, such an activity was impossible and these cases were filed away from view. At the present time, the current climate ensures that these cases see the light of day and are investigated by both lawyers and the judiciary. In addition, these case studies create a certain kind of relationship between lawyers and the judiciary where those in charge gain an understanding of how this law is executed and the lawyers understand the sequence of events that lead to this punishment.
Legislative changes that come about due to societal needs are only effective when the political and legislative bodies are based on common or secular law. In theocratic societies where legislation is restricted by religious doctrine, it is difficult to change and reform laws in accordance with the social and cultural evolution of society. Presently, human rights activists in Iran face seemingly insurmountable obstacles because religious restrictions prevent legislative changes. In many instances, these activists are forced to speak and argue on religious grounds to reform laws. Using religious arguments can prevent the political consequences of arguing in secular terms. However, in the past 28 years religious scholars have been unable to advance changes in the Iranian legal system using religious arguments on the issues of divorce, “dieh” or the age of puberty.
Due to the steadfast work of the campaign, a few clerics within the government have also reiterated the work of religious scholars that have found that eliminating stoning as a form of punishment is not incompatible with shariah law. Even though this movement on the part of establishment clerics is reactionary in nature, and seeks to diminish the influence of the campaign, it must be seen as a positive development that speaks to the effectiveness of the campaign’s work. It is probably true that the government is trying to use this new tactic to diminish the campaign’s influence; however if religious figures in the government actually reform the law, then we can conclude that the movement has been successful.
The case by case study of stoning has had another positive feature: in many cases the law of stoning is not properly implemented by the authorities. The publicization of cases serves as a signal to the judiciary that the stoning is implemented in a manner that is incompatible with current law. The publicity causes even religious scholars to object to the manner in which stoning is carried out because it is frequently incompatible with shariah law.
The most important achievement of the campaign has been that individuals committed to human rights in Iran and in the world have become familiar with this cruel and inhumane form of punishment. Through their work with lawyers and activists, they can react to stoning in their respective countries. The campaign, in effect, is a chalice that collects these worldwide reactions and brings the discussion out of the shadows and into the light. Over time the campaign has gained momentum. In addition, activists from other Islamic countries who hear about an upcoming stoning in Iran contact the campaign and donate their resources to prevent the stoning from taking place. Stopping any and all stoning in Iran is one benefit of the campaign, but it is not the final goal. The primary aim of the campaign which is clear from its name is to eliminate stoning from the laws of Iran. It is this primary aim that makes the campaign, in my view, an important historical movement, not only for women’s rights but also for human rights. As we recently heard, stoning continues in Iran and a man in Ghazvin recently lost his life underneath a cascade of stones.
As I described before, the legislative process in Iran is full of obstacles and difficulties. Reform of the law in a manner in which stoning is eliminated as a form of punishment will undoubtedly face resistance from hardliners. These hardliners believe that it is unlikely for stoning to be eliminated from the pages of Iranian law.
On the other hand, there is a particular view among religious scholars that any activity that may jeopardize the welfare of the regime can be reformed. If the campaign can demonstrate that maintaining the punishment of stoning within the law harms the image of Iran in the international arena, then the “Expediency Discernment Council “ can determine that maintaining this form of punishment is not in the best interest of the regime. In effect, this Council can eliminate this form of punishment from Iranian law.
For the Council to be able to take action, first a law regarding the legality of stoning must be introduced into parliament and passed into law. Then the Council of Guardians may strike down the law because it does not conform to Islam. The parliament must pass the law again by passing it with 2/3 of the votes of its members. After a second vote, the matter will be referred to the Expediency Council at which time the Council has the authority to find stoning incompatible with the best interest of the regime and effectively eliminate the law. Therefore, the cooperation of the judiciary with parliament in developing legislation and the work of parliament in approving the legislation is necessary before stoning can be removed from Iranian criminal law.
While the work of the campaign is beneficial in the information and publicity it provides domestically and internationally and because of the stoning it prevents, it is not a final solution. The work of the campaign creates the foundation and political climate that is necessary for a legislative and legal movement to ban stoning as a form of punishment in Iran. At the present time a few religious scholars are also publicizing their own opinions and providing the campaign with an intellectual foundation.
However, in my opinion the sentinel event that we are waiting for to change the law has not yet occurred. It requires that the judicial branch and the legislative branch work together in the same direction. On women’s day many spoke about the importance of reassessing the laws—unfortunately there is a distance between speeches and action.
In my view, Iran is undergoing a period of political transition. Even though the campaign is continuing its work in this politically sensitive time, we cannot pick a date and suggest for example, that the campaign will succeed in changing the law within a certain period. Particularly, because the judicial branch is using its own tactics to influence public opinion. For example, as soon as a case of stoning is brought up for consideration, the judiciary insists that there is no plans to implement stoning. At any rate there is a “game” in progress and both sides have their own strategy and tools.
Occasionally it seems that officials in Tehran have no authority over the actions taking place in the provinces. It seems that in particularly sensitive times, when the world is watching, someone is stoned. It is unclear if Ayatollah Shahroudi (the head of the judiciary) is aware of a case of stoning and falsely denies knowledge or the fissures in the judiciary have reached a point that he has lost control. In either case, current events are a cause for concern.
Without a doubt, the present state of affairs are not permanent and things will change. Perhaps even the hardliners who currently wield all the power may decide to take action on the basis of the campaign’s work to eliminate this form of punishment. At any rate, we must remember that the “nuclear issue” has captured the attention of the world and delays progress on human rights. The people who benefit from the current nuclear standoff are the same people who reject human rights and who also ignore the national interests of the Iranian people.
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Source:
This article was originally published in Persian in Iran Emrooz
It has been translated into English by A. Roya and was originally published in Stop Stoning Forever Campaign Website
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