In my last two posts, I identified the loopholes in the new Islamic Penal Code (IPC) that occasionally permit uncodified jurist-defined sharīʿa to override state legislation. In this post, I explore a new concept added to the IPC that has caused a great deal of confusion in the application of the Code: Ta’zirāt mansūs sharʿī which literally means discretionary offenses explicitly mentioned in classical Islamic legal texts. The new IPC uses this phrase, but does not define it. In evaluating its meaning and use, I argue that the category ends up being another instance of jurist-defined sharīʿa taking precedence over legislator-defined state law in discretionary punishments.
The new Islamic Penal Code uses ta’zirāt mansūs sharʿī to allow judges both to convict a defendant to acts criminalized under jurist-defined sharīʿa not state laws, and to deprive defendants of using some favorable legal measures such as probation as explained below. In this post, I discuss this phenomenon as well as the various interpretations by different bodies to confront the deleterious consequences of incorporation of ta’zirāt mansūs sharʿī in the new IPC.
What Is the Problem?
Undoubtedly, one of the most progressive sections of the new Islamic Penal Code — in terms of providing pro-defendant legal measures — is its first Book on General Provisions. This section of the Code considerably expands legal protections in favor of the defendants by providing multiple opportunities to remove, reduce or suspend punishment. Due to the fixed nature of ḥudūd, qiṣāṣ, and diyāt punishments under jurist-defined sharīʿa which come with their own specific rules, the application of almost all of the legal regimes mentioned in General Provision section has been limited to the fourth category of crimes under the Code, namely “taʿzīr punishments” (discretionary punishments).
Having articulated these new instruments, the Islamic Penal Code in a marginal note to Article 115, on repentance, excludes the application of many of these new legal regimes to ta’zirāt mansūs sharʿī (taʿzīr [offenses] explicitly mentioned in sharīʿa). Among these banned articles are suspension and exemption of punishment, postponement of sentencing, statute of limitation, special mitigation in juvenile’s punishment, and specific postponement of sentencing in juvenile offenses. 
The Islamic Penal Code marks the first time that ta’zirāt mansūs sharʿī has been used in Iran’s criminal codes or even in the literature about it. It thus has generated considerable confusion as to how to define the phrase and how to identify crimes falling under its rubric. Article 115 note 2, if taken literally, would restrict the application of the several mitigating provisions to majority of offenses called taʿzīr under the new Code.
The problem is exacerbated if we read the article in conjunction with the distinction between taʿzīr penalties  and deterrent punishments under the former Islamic Penal Code. The old Code provided for 5 categories of crime: ḥudūd, qiṣāṣ, diyāt, taʿzīrāt and deterrent punishments. While the first three categories of offenses were defined and the punishments fixed by the jurist-defined sharīʿa, taʿzīrāt and deterrent punishments were criminalized by the state. The distinction between these two latter categories lies in the fact that taʿzīrāt were those crimes that had precedent in sharīʿa historically and deterrent punishments were those deemed to be necessary to criminalize in modern times such as traffic regulation crimes. Unsurprisingly, the number of crimes with some background in jurist-defined sharīʿa, including for example theft and insulting, exceeds the number of crimes that are completely new in modern times.
However, the new Code now treats both types of crimes technically under the rubric of taʿzīrāt, by deleting the category of deterrent punishments. In fact, the new Code in defining taʿzīr offenses (discretionary crimes) states that “taʿzīr is a punishment which does not fall under the categories of ḥudūd, qiṣāṣ or diyāt and is determined by law for commission of prohibited acts under sharīʿa or violation of state rules…” Therefore the first interpretation of ta’zirāt mansūs sharʿī that comes to mind is that it is, in fact, referring to the category of taʿzīr crimes under the old Code as opposed to the deterrent punishments that now under the new Code are also called taʿzīr punishments. Consequently, exclusions of Article 115 note 2 will be considerably dragged into the heart of the criminal court’s everyday activities.
How to Interpret Ta’zirāt Mansūs Sharʿī?
Ever since the new Code entered into force in 2013, the Legal Division of the Judiciary on several occasions has issued advisory opinions in response to judges who were baffled as to the meaning of ta’zirāt mansūs sharʿī. In defining the phrase, the Legal Division, stated that ta’zirāt mansūs sharʿī are limited to those acts with precise punishment outlined in sharīʿa, as opposed to those acts that are generally forbidden in sharīʿa.  Without mentioning how and on what basis they reached such a conclusion, the Legal Division asked judges to look into jurist-defined sharīʿa in order to identify such crimes.
Review of the limited literature that is available so far shows that the prevalent definition of ta’zirāt mansūs sharʿī, according to credible secondary sources, has become a list of taʿzīr offenses collected by a Shīʽī’ jurist Muḥammad Bāqir Majlisī (d. 1110/1698 AD). The list encompasses fifty taʿzīr offenses ranging from sexual offenses to some ḥudūd crimes committed either by or against an insane or minor person. More alarming instances, in terms of deviating from acts ordinarily criminalized in Iran’s criminal codes, in the list include taʿzīr punishments for refusing to do wājib acts (acts religiously mandated) or insisting on committing a This technically may include devotional commands or forbiddances such as refusing to do prayers.
The uncommon set of acts mentioned in the list that has been pointed out for the first time in the history of Iran’s criminal jurisprudence is sufficient to realize that linking the meaning of the ta’zirāt mansūs sharʿī to Majlisī’s list of taʿzīr offenses is completely out of the place.
Analysis of the legislative history of Article 115 note 2 reveals that the phrase goes back to the Guardian Council’s objections to the first draft of the new Islamic Penal Code in 2009, which was prepared by Parliament. At that time, the Guardian Council rejected the applicability of the mitigating provisions detailed above to the category of ta’zirāt mansūs sharʿī. In response, Parliament, more likely only to remove the Council’s objections, put all articles together in a simple note to Article 115 and excluded them from the ambit of favorable legal regimes in the General Provision section described earlier without attempting to either define the term or give its examples to the public.
Beside the fact that there is no evidence in the Guardian Council’s documents corroborating that the Council intended such a reference to ʿAllāma Majlisī’s list of taʿzīr offenses, a close reading of the objections may confirm that interpretation. In section 13 of the objections on postponement of the sentence, the Council in a more explicit and specific way articulates that “the general applicability of article 39 on taʿzīr crimes other than deterrent taʿzīr offenses is against sharīʿa.” Therefore, the Guardian Council implicitly referred to the dichotomy of deterrent punishments versus traditional taʿzīr crimes. This reasoning confirms that by ta’zirāt mansūs sharʿī, the Guardian Council most likely intended the crimes previously categorized as taʿzīr as opposed to deterrent punishments not to create a new category of taʿzīr offenses.
To be sure, this interpretation also has its downside. In another reference to ta’zirāt mansūs sharʿī, the Council gives an example of eating in public during the day during the month of Ramadan (the ninth month of the Islamic lunar calendar which calls for Muslims to fast from dawn until dusk).  Notably, this example does not appear in Majlisī’s list of taʿzīr offenses.
Moreover, this interpretation, although plausible, is to the detriment of the new Code. As mentioned above, according to this interpretation a significant number of taʿzīr offenses shall be deprived of General Provision’s favorable approaches even those that were applicable to taʿzīr offenses under the former code, such as probation.
In sum, we have yet to see how article 115 note 2 will be implemented in practice. Searching for the real intention of the body who proposed the phrase, i.e., Guardian Council, widens the scope of the phrase and therefore may endanger the integrity of the General Provisions section. Therefore, it is not surprising that there is more tendency to find a narrower interpretation which, even though deviates from what Guardian Council really intended, at least reduces the disastrous effects of the incorporation of the phrase in the Code.
 Such as exemption of punishment (Article 39), postponement of sentencing (article 40), alternatives to incarceration (articles 64-87), open prison (article 56).
 QĀnŪn-i MujĀzāt-I IslĀmĪ [Islamic Penal Code] of 1392/2013 [hereinafter IPC], Art, 15 (“ḥadd is a punishment for which the grounds for, type, amount and conditions of execution are specified in holy sharīʿa.”), Art. 16 (qiṣāṣ is the main punishment for intentional bodily crimes against life, limbs, and abilities which shall be applied in accordance with Book One of this law.”), Art.17 (diyāh whether fixed or unfixed, is monetary amount under holy sharīʿa which is determined by law and shall be paid for unintentional bodily crimes against life, limbs and abilities or for intentional crimes when for whatever reason qiṣāṣ is not applicable.”)
 IPC, Art. 115 (“In the case of taʿzīr offenses of the sixth, seventh, or eighth degree, if the offender repents and his/her regret and correction is certain in the eyes of the judge, the punishment shall not be given. In other taʿzīr offenses, [if the offender repents], the court can apply the provisions relating to mitigation of the punishment”.)
 IPC, Art. 115 Note 2 (“ This article along with article 7 (b) [nationality principle jurisdiction and deduction of executed punishment in foreign country], article 8 (a) (b) [passive personality principle], 27 [deduction of detention period from sentence], 39 [exemption of punishment], 40, 45 [postponement of sentencing], 46 [suspension of punishment], 93 [reducing juveniles’ punishment up to a half], 94 [postponement of sentencing in juvenile offenses] and 105 [statute of limitation] do not apply to those taʿzīr offenses that are explicitly mentioned in Shari’a.”)
 QĀnŪn-i MujĀzt-I IslĀmĪ [Islamic Penal Code] Tehran 1370/1991 [hereinafter IPC 1991], Art. 16 (“taʿzīr is the chastisement or punishment which its type and amount is not determined by Shari’a but left to discretion of the judge, such as imprisonment, fine and lashes; the number of lashes must be less than the number stipulated for ḥadd punishment.”)
 IPC 1991, Art. 17 (“Deterrent punishment is the chastisement or punishment provided by the State for violations of governmental regulations and arrangements in order to safeguard public order and interests of the society; such as imprisonment, fine, closure of the business premises, cancellation of license, deprivation from social rights, banishment to certain places, inhibition of residence in certain areas and the like.”)
 IPC 1991, Art. 12.
 Hamed Rahmanian & Muhammad Habibzadeh, Meʿyare Tafkike “ḥudūd –I qey-I mazkūr az taʿzīrāt mansūs” dar qānūn-i Mujāzt-I IslāmĪ 1392 , 84 Majalleh Hūqūqi Dādgostari, 103, 118.
 Muḥammad Baqir Majlisi, ḥudūd, qiṣāṣ va diyāt, 62.
 IPC, Art. 18 (“taʿzīr is a punishment other than ḥudūd, qiṣāṣ or diyāt and shall be sentenced in case of committing Prohibited acts under sharīʿa’ or breaching the governmental regulations…”)
 Guardian Council rejected the blanket ban on the principle of non-retroactivity and in line with the 1991 Islamic Penal Code excluded ḥudūd, qiṣāṣ, and diyāt from the ambit of this principle. However, the Council also for the first time expressly extended the ban on retroactivity and rejected the application of this principle to “taʿzīr [offenses] explicitly mentioned in sharīʿa (ta’zirāt mansūs sharʿī), Guardian Council Documents, No. 88/30/37135 ¶ 4, 01.19.2010.
 Legal Division of the Judiciary (Iran), Advisory Opinion 7/93/251, 1393/02/10 [Apr. 30, 2014], http://edarehoquqy.ir/Default.aspx?tabid=4988&articleType=ArticleView&articleId=87663,
Legal Division of the Judiciary (Iran), Advisory Opinion 7/93/61, 1393/01/23 [Apr. 12, 2014]. http://edarehoquqy.ir/Default.aspx?tabid=4988&articleType=ArticleView&articleId=87639
Legal Division of the Judiciary (Iran), Advisory Opinion 7/92/2149, 1392/11/9 [Jan. 29, 2014], http://edarehoquqy.ir/Default.aspx?tabid=4988&articleType=ArticleView&articleId=8733.
 Muḥammad Baqir Majlisi, ḥudūd, qiṣāṣ va diyāt, 60-66
 Intercourse while fasting, two naked men/ man and woman/ two women lying in a shared bed, kissing a boy, confession to zinā or livāt less than 4 times, zinā with a dead wife etc.
 Such as qazf, consumption of intoxicant, zinā.
 Muḥammad Baqir Majlisi, ḥudūd, qiṣāṣ va diyāt, 62.
 Mocking a blind person, and eating meat of a dead animal are also on the list.
 Guardian Council Documents, No. 88/30/37135, 01.19.2010.
 Parliamentary Documents, No. 127/48931, 10.29.2011, Art. 114.
 One of the scholars states that this interpretation is rejected by the Legal Division because according to the legal division the punishment has to be determined under sharīʿa. According to another interpretation ta’zirāt mansūs sharʿī are those ḥudūd offenses deleted from the Parliament’s first draft. Hamed Rahmanian & Muhammad Habibzadeh, Meʿyare Tafkike “ḥudūd –I qey-I mazkūr az taʿzīrāt mansūs” dar qānūn-i Mujāzt-I IslāmĪ at 115-120.
 Guardian Council Documents, No. 88/30/37135 ¶ 13, 01.19.2010.
 Guardian Council Documents, No. 88/30/37135 ¶ 12, 01.19.2010.