In a previous post, I explored how a series of struggles by the judiciary and parliament to reinforce the status of the principle of legality in the Iran’s new Islamic Penal Code failed after the Guardian Council rejected all the related proposals as being against sharīʿa. In this post, I argue that these loopholes in the General Provisions section of the IPC, have paved the way for the total relinquishment of the principle of legality in ḥudūd laws in the most flagrant manner in Iran’s post-revolutionary criminal discourse.
The principle of legality, although protected under the Constitution, comes with a caveat. Article 167 of the Constitution, one of its most controversial articles, states that judges are bound to endeavor to adjudicate each case on the basis of the codified law. But in case of absence, deficiency, brevity or conflict in the laws, judges have to decide the case on the basis of authoritative Islamic sources and authentic fatāwā in order to prevent any case being left undecided.
From the very beginning when the Constitution was adopted, the relationship between Article 167 and criminal laws, and its impact on the principle of legality were contested. Scholars proposed several interpretations of the article to resolve the conflict. The most progressive reading restricted the application of Article 167 to civil cases and excluded it from criminal cases.
This view soon faded away when the legislator adopted the Law modifying some of the articles of the Criminal Procedure Code (1982) and replicated Article 167 of the Constitution in Article 289 of this Code. The lawyer-members of the Guardian Council unanimously rejected inclusion of Article 167 in the Code. However, because the article had the support of Council’s jurist-members (the fuqahā), it was ultimately adopted.
Its adoption triggered two interpretive responses from the academy. The first suggestion was to limit the application of the Constitution’s Article 167 and the new criminal procedure code Article 289 (which was incorporated verbatim into 1999 Criminal Procedure Code as well) to criminal procedure issues rather than substantive criminal law. The second suggestion was to admit the extension of the article to substantive criminal law, but restrict its application to determination of the subjects of criminal law rather than the criminalization (for example in determining which acts fall under the title of “indecent crimes”).
The last approach is the most far-ranging. It authorizes the full incorporation of Article 167 and its counterpart in the Criminal Procedure Code into substantive criminal law meaning that a judge can punish a person for an act criminalized under sharīʿa but not the criminal codes. This position is affirmed by Parliament arguing that the very inclusion of this article in the code precludes its inconsistency with the principle of legality.
Article 167 and Hudūd Crimes under Iran’s New Islamic Penal Code: 
In line with the changes in the principle of legality in general, the Judiciary’s 2008 draft of the Islamic Penal Code proposed an exclusive list of ḥudūd crimes for the first time. In addition to the crimes included in the 1991 Islamic Penal Code, the 2008 draft, for the first time, added apostasy, witchcraft and reprehensible innovation in the religion to the list of ḥudūd crimes. The draft also moved blasphemy from the section on discretionary penalties (taʿzīrāt) – where it had previously been briefly cited – to the section on mandatory penalties (ḥudūd) of the law. Despite international pressures, the 2008 draft code, also kept stoning as a punishment for adultery during marriage or zinā mūhsināh). The only limitation on the provision was the introduction of an alternative, in stipulating that “if there is any detriment in the implementation of stoning and it disdains the country,” stoning may be replaced with the death penalty or flogging. The draft code also added rebellion into the so-called ḥudūd’ security offences.
Iran’s Parliament, most likely under international pressures, did not accept the Judiciary’s formula. Parliament’s 2009 draft refused to recognize an exclusive list of ḥudūd crimes up front. Moreover, this draft bill deleted apostasy, witchcraft and reprehensible innovation in religion from the Judiciary’s draft of the year before. This draft also did not mention the punishment of stoning expressly. Instead, to put an end to all discussions, the 2009 draft bill for the first time explicitly authorized judges to resort to Article 167 of the Constitution and use its mechanism of reference to sharīʿa in “those ḥudūd crimes not mentioned in this code.” This step – while seemingly accompanying a forward-looking move of excluding certain crimes and punishments from the Code – was the last strike to the status of the principle of legality in Islamic Penal Code, let alone, the most serious type of crimes, i.e. ḥudūd, with punishments as harsh as death penalty. In other words, it seems that while international pressures were pushing for a more moderate Islamic Penal Code, these pressures, inadvertently, resulted in empowering the jurist-based sharīʿa vis a vis state laws.
Parliament proceeded with the same formula in its 2011 and 2012 draft codes, the latter of which was approved as final by the Guardian Council. At this point the Code had exhausted all steps and was final, when in an illegal and unprecedented move, the Guardian Council, after the legal period, revoked its approval and raised new objections to the Code. From the list of ḥudūd crimes deleted from the code, it was only the removal of adultery during marriage and stoning that troubled Guardian Council. Objecting to article 225, the Council urged Parliament to include the stoning punishment in the text of the code adding that “obviously if the interests of Islam necessitates, the Leader may replace stoning with other punishments in each specific case.” Parliament modified the article once again in 2013. This time, without naming “stoning”, the draft code provided that if the primary sharīʿa punishment is not feasible, then it shall be replaced with death penalty or flogging. Still not satisfied with the revision, the Guardian Council insisted that Parliament incorporate its position. This time, Parliament adopted the Council’s opinion and expressly added stoning to the code. This was a great blow to the factions that wished to remove stoning from the Code.
The struggle over stoning provisions leaves the following question unanswered: what in particular made the Council insist on the inclusion of stoning in the Code – compared to apostasy for example – despite the available mechanism of Article 167 at such a cost?
Discussion over Article 167 will not be complete without pointing to one of the most serious problems of its implementation: the lack of hierarchy and consistency among the sources of Islamic law and credible fatāwā. In other words, any jurist who reaches the degree of ijtihād, has the authority to issue a fatwā. Religiously speaking, all fatāwā are equally valid and none of them is more authoritative than the other. In fact, this has been considered as one of the manifestations of the dynamism of ijtihād in Shīʽī’s legal thought.
The practical deficiency of this argument, however, is clear. Two judges can reach two distinct opinions invoking two different fatāwā with one exonerating the defendant, and the other executing him. For example, while under the former IPC judges occasionally convicted defendants accused of apostasy to death penalty, there is a fatwā issued by one of the prominent Iranian mujtahids that rejects death penalty for apostasy. This is in particular perilous in criminal law where the most precious rights are at stake, i.e., life and liberty.
To reduce the unpredictability of the reference to Article 167 and to prevent the possibility of having contradictory opinions, Parliament, in its 2009 draft, proposed an unusual article right after authorizing the reference to Article 167 requiring judges to ask for the Supreme Leader’s fatwā when referring to Article 167. It proposed that Supreme Leader have the ability to confer this power to anyone else.
Although this was intended to be a step toward preventing inconsistency, it simultaneously attenuated the rule of law. Not only was the idea welcomed, but the Guardian Council asked the article to be removed to the General Provisions section so that it would apply to all types of crimes rather than ḥudūd crimes alone. (This opinion corroborates a belief that, for the Guardian Council the application of Article 167 itself is not limited to ḥudūd crimes).
In 2013, Parliament complied with Guardian Council’s demand and removed the article to the General Provisions section. Partially retreating from its opinion, the Council found that obliging judges to ask for Supreme Leader’s fatwā, in cases where the Leader does not have one, is against Article 167 of the Constitution. Parliament’s last draft, without any explanation, discarded the article all together.
In sum, Iran’s new Islamic Penal Code took a large step backward when it explicitly allowed judges to convict defendants on the basis of acts criminalized under jurist-defined sharīʿa in addition to state law by incorporating Article 167’s mechanism. Although the Guardian Council regarded this incorporation as a move to circumvent the principle of legality, they have yet to answer the question of how such a general reference to sharīʿa can be reconcilable with the doubt principle that ironically for the first time is also incorporated in the IPC?
 See QĀnŪn-i assĀSI jumhŪri IslĀmĪ IRĀN [The constitution of the islamic republic of iran] of 1358 /1979 [hereinafter Iranian Const.], Art. 36 (“A sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law”), Art. 166 (“The verdicts of courts must be well reasoned out and documented with reference to the articles and principles of the law in accordance with which they are delivered”), Art. 169 (“No act or omission may be regarded as a crime with retrospective effect on the basis of a law framed subsequently”).
 Iranian Const., Art. 167 (“The judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwā. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment”).
 2, Muḥammad Hāshimī, Ḥuqūq-i asāsī-i Jumhūrī-i Islāmī-i Īrān 404 (7th ed. 1382 ).
 Iranian Const., Art. 91 (“With a view to safeguard the Islamic ordinances and the Constitution, in order to examine the compatibility of the legislations passed by the Islamic Consultative Assembly with Islam, a council to be known as the Guardian Council is to be constituted with the following composition: 1. six ‘adil fuqaha’ [pious jurists], conscious of the present needs and the issues of the day, to be selected by the Leader, and 2. six jurists, specializing in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by the Head of the Judicial Power”).
 Hāshimī, Ḥuqūq-i asāsī-i Jumhūrī-i Islāmī-i Īrān, at 405.
 The new Criminal Procedure Code (1392/2014) does not contain a similar article. http://rooznamehrasmi.ir/Laws/ShowLaw.aspx?Code=1817
 QĀnŪn-i MujĀzt-I IslĀmĪ [Islamic Penal Code] of 1375/1996, Art. 637 (“When a man and a woman who are not married to each other, commit indecent acts other than zina [adultery], such as kissing or sleeping next to one another, they shall be sentenced to up to ninety-nine lashes; and if the act is committed by force only the one who has used force shall be punished as ta’zir.”).
 Iranian Criminal Procedure Code, Art. 214 (1999).
 The issue is not theoretical, under the authority of the former Islamic Penal Code, there have been cases of apostasy resulting in death sentences in the trial level, although apostasy was not mentioned in the 1991 IPC. See Apostasy in the Islamic Republic of Iran (Jul. 30, 2014), http://www.iranhrdc.org/english/publications/reports/1000000512-apostasy-in-the-Islamic-Republic-of-Iran.html#3.1.1
 Before the adoption of the new code, and in practice as Arjomand describes there is a Research Center in Jurisprudence that “answers enquiries from the courts and provincial branches of the ministry of justice. The center draws on the rulings (fatāwā) of the seven designated “sources of imitation,” including the Leader, Ayatollah Khamaneʾi…This Research Center…follows Article 167 of the Constitution, consistently upholding the priority of ordinary laws over Shiʿite jurisprudence. The resort to the latter is thus residual.” Said Amir Arjomand , Shīʽīte jurists and the Iranian Law and Constitutional Order in the Twentieth, in The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran 46 (Said Amir Arjomand &Nathan J. Brown ed., 2013).
 There are two ways to adopt bills in the parliament. In addition to parliament’s own initiative, the executive and judiciary can also propose bills to the parliament to consider. In the latter case, the judiciary’s draft code shall be sent to the parliament through the medium of executive. This method was used in the case of new IPC. QĀnŪn-i assĀSI jumhŪri IslĀmĪ IRĀN [The constitution of the islamic republic of iran] 1358 , Arts. 74 and 158.
 Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 211-3
 Adultery, homosexuality, qazf [false accusations of adultery or homosexuality], pimping, consumption of intoxicant, waging war against God, corruption on earth, and theft.
 Apostasy for the first time is defined under this draft code “as Any Muslim who explicitly announces that he has converted from Islam is an apostate”. Its provisions are laid down in articles 225-1 to 225-10. See Parliamentary Documents, Term 8, Year 1st, 06.30.2008.
 Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 225-12: “Any Muslim who engages in witchcraft and its propagation shall be sentenced to death penalty”. Parliamentary Documents, Term 8, Year 1st, 06.30.2008.
 Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 225-11: “false claimants to prophecy shall be executed. Any Muslim who makes a reprehensible innovation in religion and forms a new sect on that basis shall be regarded as an apostate if his act is against the essence of Islam”.
Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 224-1.
 Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 221-5
 QĀnŪn-i MujĀzt-I IslĀmĪ [Islamic Penal Code] of 1392/2013, [hereinafter IPC], Art. 226 (“Ihsan shall be established for both men and women according to the following:
(a) Ihsan of a man is defined as a status that a man is married to a permanent and pubescent wife and has had vaginal intercourse with her whilst he has been sane and pubescent and can have vaginal intercourse with her whenever he so wishes.
(b) Ihsan of a woman is defined as a status that a woman who is married to her permanent and pubescent husband and the husband has had vaginal intercourse with her whilst she was sane and pubescent and she is able to have vaginal intercourse with her husband.”)
 Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 221-5, note 4 (“execution shall replace stoning if its implementation causes corruption or disdains the ruling system upon the request of the prosecutor and approval of head of the judiciary when the crime in question is proved by witness, otherwise (if it is proves by confession) the punishment shall be 100 lashes.”) Parliamentary Documents, Term 8, Year 1st, 06.30.2008.
 Parliament Documents, No. 127/50787, 12.30.2009.
 Only punishment for non- mūhsin zinā is determined in this draft, article 228 Parliament Documents, No. 127/50787,12.30.2009. However, the silence should not be interpreted as total removal of stoning as a punishment for zinā mūhsināh. The implication of article 228 on the punishment of non-mūhsin zinā is that, drafters only did not want to name zinā mūhsināhand stoning. Otherwise it is not logical to have a punishment for a less serious crime and leave the more important crime (zinā mūhsināh) unregulated. Otherwise article 228 should have included the punishment of zinā in general including both mūhsin and non-mūhsin. Apparently drafters only wanted others to believe that there is no stoning in the code. Note that article 220 easily let judges to convict accused to zinā mūhsināh and stoning on the basis of article 167 of the Constitution.
 Parliamentary Documents, No. 127/50787, 12.30.2009, Art. 220.
 Parliamentary Documents, No. 127/48931, 10.29.2011, Art. 220.
 Parliamentary Documents, No. 127/63777, 01.02.2012, Art. 220.
 Guardian Council Documents, No. 90/30/45325, 01.18.2012.
 Guardian Council Documents, No. 91/30/48063, 09.16.2012.
 Guardian Council Documents, No. 91/30/48063, ¶ 15, 09.16.2012.
 Parliamentary Documents, No. 127/61828, 01.07.2013.
 Guardian Council Documents, No. 91/3649299, ¶ 2, 01.28.2013.
 Parliament Documents, No. 216/18, 04.06.2013, Art. 225.
 Human Rights Watch, Codifying Oppression: An Assessment of Iran’s New Penal Code, 32-33 (2012).
 “ijtihād means “the utmost effort an individual can put forth in an activity.” In a legal sense, it refers to independent reasoning, a scholar’s careful and complete use of mental abilities to find a solution to a legal problem.” ijtihād, http://www.oxfordislamicstudies.com.ezp-prod1.hul.harvard.edu/article/opr/t243/e150?_hi=5&_pos=1.
 2 Sayyed Mostafa Mohaghegh Damad, The Principles of Islamic Jurisprudence (Osul-e-Fegh) 12 (2011).
 Supra note 11.
 For example, Ayatollah Yusuf Saane’i rejects death penalty as a punishment for apostasy. http://saanei.org/?view=01,00,00,00,0#01,05,13,23,0.
 Intisar Rabb, Doubt in Islamic Law, A history of Legal Maxims, Interpretation, and Islamic Criminal Law, 217 (2015).
 Parliamentary Documents, No. 127/50787, 12.30.2009, Art. 221.
 Guardian Council Documents, No. 91/30/48063, ¶ 15, 09.16.2012.
 Parliamentary Documents, No. 127/61828, 01.07.2013, Art 12 bis.
 Guardian Council Documents, No. 91/3649299, ¶ 1, 01.28.2013.
 Notably they don’t find the whole idea of restricting judges to prioritize leader’s fatāwā to be against article 167.
 Parliamentary Documents, No. 216/18, 04.06.2013.
 For an overview of doubt principle in Islamic law and in particular Shīʽī law see Intisar Rabb, Doubt in Islamic Law, A history of Legal Maxims, Interpretation, and Islamic Criminal Law, 260-317 (2015).
 IPC, arts. 120-121.