Constitutional Obstacles to the Realization of Human Rights and Democracy in Iran - Part 1


Mehrangiz Kar

Preface

Meaningful political participation in any country is realized when certain conditions are met, making the free expression of a plurality of political views and activities possible. These conditions allow for the toleration of a diverse range of ideas, forcing no political players into silence and allowing for a defined degree of freedom of expression in public life. Such conditions for political participation and debate are met when laws in support of the ideals of political participation are made in unequivocal terms, making it impossible for state functionaries and institutions to offer their own individual interpretations of the laws for driving their opponents out of the public sphere or preventing them from running for public office, or even physically removing them from public domain by imprisoning them.

For more than a century, various layers of Iranian society have anticipated the creation of such unequivocal laws with the hope that one day such laws would make political participation in public life routine, as well as integral, to the functioning of the Iranian political system. However, from 1997 these “expectations of the people” were considered amid the slogans and demands of certain political elites, hereinafter referred to as “the reform movement” or simply the “reformists.” In fact, with the unexpected election of Mohammad Khatami as Iranian President in 1997, political participation became a prerequisite to political development. In other words, political participation was understood as a necessary condition for tapping into available human resources and moving forward with the business of building a more efficient and tension-free – that is, politically developed – political system.

As in countless other contexts, Iranian political development has historically been defined in different ways. Nonetheless, the common factor among them has and continues to be a respect for fundamental principles of freedom and participation. Even more importantly, the political elites who have stressed on the slogan of political development (tose’e-ye siasi) as their mantra, have rightly emphasized the rule of law and judicial reform as a cornerstone of both freedom and participation. There are good historical reasons for this. In Iran, governments have often been inclined to despotism and, as a result, successive people have turned to the law as a means of demarcating the boundaries of state power and protecting people from the excesses of the state. Such efforts have also entailed the call for an independent judiciary. Given the fact that in Iran, there has never been a clear definition of either the rights of the individual or their liberties and that such a definition had to come from a judge or functionary of the state, the aspiration to have an independent judiciary should not come as a surprise nor should it be a surprise that in the struggle for political development, political participation and individual security, the Iranian judiciary has become a major battleground during the reform period. Reformists pushed for judicial change while opponents of reform used the judicial apparatus to insist on leaving the historical prerogative of defining the scope of individual freedom and obligation to the discretion of judges who have been conveniently selected because of their support for the prevailing status quo.

Using judicial discretion, or more accurately indiscretion, the Iranian judiciary has openly become the strong arm of despotism. For instance, instead of supporting the popular policies of former President Khatami, which encouraged open discourse through the expansion of a free press, the judiciary became the mechanism through which those very policies have been stunted. The Iranian judiciary remained oblivious to the fact that the founders of many of the new publications promoting free discourse were themselves members of the ruling establishment, “insiders” if you will, with strong and deep links to the Islamic revolution of 1979. The closure of publications was complemented by attacks on other popular institutions such as the parliament, also not run by opponents of the Iranian political system but by “insiders,” whose allegiance was tried and true.

Given the political opposition that was generated by this insider-led momentum for reform, hereinafter referred to as the “reform movement,” some very basic questions arose in the minds of the Iranian people. Perhaps most prominent among them is the question: is it at all possible to initiate a gradual process of political development and reform from within the Islamic system? This is a particularly important question for the Iranian youth born after the revolution who constitute the largest portion of the Iranian population and have no memory of the previous monarchical regime.

Clearly, to answer these questions, many factors have to be taken into account. These factors include: the historical experience that has created a mentality of confrontation between the citizen and the state in the minds of the Iranians, the existing legal and judicial apparatus, the legal and legislative contexts (which include the Shari'a or religious laws), the legal and judicial protection afforded citizens, the legislative processes, and the operation and role of executive branches of the state.

Straight or unambiguous answers to these questions will be neither easy nor simple. But this is precisely the task of this short monograph in interpreting the developments of the so-called reform years of 1997-2005, or in other terms, the “Khatami era.” I have no intention of writing a long historical essay about how the Iranian Islamic System came to be. Nor am I interested in engaging in a discourse against the Islamic system. Long-lasting reform of the Iranian political system must come gradually and internally through the interaction of various forces that exist within the Iranian society. Change will not arrive at our doorsteps overnight and certainly will not emerge through external impositions or through commands from the top layers of the Iranian political system. There are many forces in society that long for reform, but there are also forces that resist it with vengeance.

My intent here is far more modest. What I propose to do in the following pages is to lay out the operation of the Iranian political system as it stands today, at what seems to be the end of the reform era (2005), the obstacles that it continues to pose for political participation in theory as well as practice, and the principles that need to be taken into account in order to overcome these obstacles. As a practicing lawyer, I have repeatedly come face to face with the implementation of the Iranian legal system in defense of my clients. As a political writer, I have also engaged in many conversations about the inadequacies of existing laws, as well as political institutions. And, finally, as a political prisoner, I have had direct and personal encounters with the repressive arms of the state. Although what follows is not a political biography, the interpretations offered are very much influenced by years of struggle in hoping to improve the Iranian political system and years of reflections about needed changes. My reflections are offered not as an accusation or complaint, but as part of a national conversation about the direction Iran should take in the years ahead.