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Constitutional Obstacles to the Realization of Human Rights and Democracy in Iran - Part 13

The list may go on and on, but I think my point is clear enough about the fact that the notion of equal citizenship is seriously violated throughout the body of Iranian civil and criminal law. A comparable unequal treatment can be seen in discriminatory laws targeting non-Muslims. In fact, existing laws leave these minorities in a highly vulnerable position. To be sure, certain articles of the Constitution recognize equal rights for all citizens. Specifically, Article 19 of the Constitution states, “the people of Iran from any ethnic or tribal background enjoy equal rights and color, race, language and such likes do not entail any advantages.” However, there are many instances in the Islamic Penal Code that contradict this very explicit constitutional provision. Among instances of discrimination against non-Muslim minorities, the following can be cited:

• According to Article 207 of the Islamic Penal Code “if a Muslim is killed, the killer is subjected to qissas (retaliation of the same kind).” This article inevitably leads to the conclusion that if a non-Muslim is killed, the murderer is not subjected to the same treatment.

• Article 210 of the same code states, “if a kafir dhimmi (a follower of recognized religious minorities, literally meaning a burden on the shoulder of the Islamic community) kills another dhimmi, the murderer is subjected to qissas even if the murderer and the victim belong to two different religions and if the victim is female, the custodian of her blood (next of kin as specified in the law) has to pay the murderer half of the specified blood money for men before the murderer is punished.” The dhimmi in the Constitution is a follower of Christianity, Judaism or Zoroastrianism whose blood money is not, after all, considerable. The followers of other religions are not covered by the above provisions and are either deprived of blood money or the sum is so small that any murderer can kill them without the fear of a heavy punishment. Thus, the Islamic Penal Code does not safeguard the physical security of non-Muslims. Besides, according to some interpretations, non-Muslims are of two kinds, either kafir harbi (violent non-believer) or kafir dhimmi (literally a burden on the shoulder of the Islamic community). The latter term applies to the followers of Christianity, Judaism or Zoroastrianism and they can live within the territories of the Islamic state and enjoy state protection for their lives, property and honor. Apart from these minorities, those who belong to other religions or have no religion at all are called mahdur ul-dam (one who has forfeited his/her blood) and the Islamic state has no religious obligation to protect their lives, property or honor.

• According to section C of Article 82 of the Islamic Penal Code, if a non-Muslim man has sexual relations with a Muslim woman, he is punished by death, while according to the same article, if an unmarried Muslim man enters into adulterous relations with a woman, he is punished by one hundred lashes provided that the man is a Muslim, or if he is not and the woman with whom he has had intercourse is non-Muslim as well. It must perhaps be explained here that in the Islamic interpretation, adultery does not merely apply to extra-marital sexual relations between married persons. Any sexual contact outside of marriage is called adultery while that between married persons is qualified with the muhseneh epithet, which carries a severe punishment (i.e. stoning).

• A Muslim can inherit property from a non-Muslim, but a non-Muslim cannot inherit from a Muslim. According to article 881 of the Civil Code, “a non-Muslim does not inherit from a Muslim but if among the heirs of a deceased non-Muslim, there is a Muslim, the non-Muslim heirs do not receive any inheritance even if they are closer in line to the deceased person than the Muslim.”

• The followers of all religions have the right to be converted to Islam and benefit from the rights accorded to Muslims, but no Muslim has the right to choose another religion and if this happens, he or she is open to severe punishment foreseen for apostasy. This is despite that fact that in the Iranian criminal laws, there is no offense under the title of apostasy and the Islamic Penal Code does not define a change of religion as an offense. The term apostasy is referred to only once in the corpus of the Iranian laws. In Article 26 of the Press Act of 1985, change of religion, which is an instance of apostasy, is mentioned in the following terms: “Whoever uses the press to insult the sublime religion of Islam or its sacred tenets, if this action leads to apostasy, the ruling on apostasy is issued and carried out against him/her and if it does not lead to apostasy, according to the view of the religious judge, the punishment will be ta’zirat (punishment decided by judge).” Since there is no specific law to define apostasy or the punishment for it, and since according to Article 36 of the Constitution “sentencing and carrying out punishments must be done by the competent courts and according to law,” punishment of an apostate seems to be lacking in legal basis. It also seems that article 26 of the Press Law of 1985 which refers to change of religion has created the necessary means for the opponents of freedom to carry out their own will without the existence of a legal basis.

• A Muslim man can marry a non-Muslim woman and the children of such marriages are considered Muslims, but a non-Muslim man does not have the right to marry a Muslim woman unless he is converted to Islam before his marriage (Article 1059 of the Civil Code).

• Articles 12, 13 and 14 of the Constitution give the followers of the recognized religious minorities – Christianity, Judaism and Zoroastrianism- the right to practice their religions and also apply their religious rules to their personal lives. Consequently, other religions do not have similar rights. Article 12 states, “The official religion of Iran is Twelve Imamate Shi’ism and this principle cannot ever be altered and other Islamic sects, including Hanafi, Shafe'i, Maleki, Hanbali and Zeidi enjoy full respect and their followers are free to practice their religions and act according to their religious laws and in their religious education and personal matters (marriage, divorce, inheritance, making wills) and related claims are recognized in the courts of law and in any area in which the followers of these religions are in majority, local regulations on the basis of the discretion of the councils, will follow their rules while safeguarding the rights of the followers of other religions.” Article 13 states, “Zoroastrian, Jewish and Christian Iranians are the only recognized religious minorities who are, within the law, free to practice their religious rites and follow their own religion in their personal matters.” According to Article 14, “the government of the Islamic republic of Iran and all Muslims are obliged to treat non-Muslim individuals with kindness and Islamic justice and equality and uphold their rights, this article applies to those who do not conspire or act against Islam or the Islamic republic.”

• Article 23 of the Constitution specifies that the followers of other religions and religious sects enjoy freedom of opinion. It also prohibits inquisition and says that no one can be prosecuted or persecuted merely for holding an opinion. At the same time, the Constitution fails to foresee for religious minorities the right of advocating their faiths or holding religious rituals in public.