Between Law and Sharīʿa: The Principle of Legality under Iran’s New Islamic Penal Code (Part I)

Although entrenched in Iran’s Constitution, the principle of legality does not extend very far in Iran’s criminal justice system. I argue that, in Iran, the principle of legality — widely known as one of the pillars of every criminal justice system — is accepted only as long as the concept of law is interpreted to include jurist-defined sharīʿa (Islamic law) as well.[1] Furthermore, the purpose of codification of sharīʿa was to create a uniform and predictable set of rules. But, I further argue that the loopholes in the Constitution and new Islamic Penal Code (enacted in 2013) are, in fact, purposefully designed to ensure sharīʿa’s potential to override state law whenever needed.[2]

Here is how. To assure the ascendancy of classical Islamic law over state law, the Guardian Council resisted all legislative attempts during the process of adoption of the new code to close the loopholes and correct the flawed approach of the previous Islamic Penal Code (IPC). In a few instances, the Council undermined the already vulnerable status of the legality principle in Iran’s criminal law even further by allowing judges to punish acts criminalized under jurist-defined Islamic criminal law (referred to in Iran simply as sharīʿa) but not the legislature-defined criminal code. This move applied particularly to udūd and some parts of taʿzīr offenses those parts of the criminal code that had traditionally been defined by jurists, who in turn understood them to comprise fixed or quasi-fixed criminal laws designated by God.

Iran’s Constitution articulates the principle of legality in several articles.[3] However, none of these articles have been sufficient to safeguard the principle of legality against contrary provisions of jurist-defined sharīʿa. Islamic Penal Code, in many instances, violates the principle by letting “the sharīʿa” override its provisions. The most troubling examples of such an encroachment include the following: (1) rejecting legislative attempts to pronounce a full ban on retroactivity of crimes despite an unqualified constitutional guarantee, (2) excluding “taʿzīr [offenses] explicitly mentioned in sharīʿa (ta’zirāt mansūs sharʿī)” from the application of newly added legal instruments that provide lesser punishments and other devices in favor of defendants’ rights,[4] and (3) extending the application of article 167 (which provides residual power for judges to look to jurists to fill gaps in the law) [5] of the Constitution to udūd crimes. [6]

In this post, I trace the overall status of this principle in the definition of crimes and its collateral principle of non-retroactivity under the new Islamic Penal Code. The next posts will address the consequences of the loose foundation of the principle of legality in udūd and taʿzīr crimes.

Legislative History of Iran’s Principle of Legality

Article 2 of the 1991 Islamic Penal Code, providing a definition of a crime, stated that “Any act or omission, for which punishment is provided by law, constitutes a crime”.[7] The review of the legislative history of the new IPC reveals how this definition became a battleground for two groups concerning the status of the principle of legality in the criminal justice system. The victory was for those in favor of the supremacy of jurist-defined sharīʿa.

When revising the Islamic Penal Code in the early 2000s, the first IPC draft[8] was prepared by the Judiciary in 2008.[9] In that version, drafters took two significant steps to reinforce the position of the principle of legality in the Code. Article 111-2 of this draft stated “A crime is an act or omission which is prohibited and has a punishment under law…”[10] The repositioning of words in the sentence implied exclusivity in the definition of crime. This change was strengthened by incorporating a whole section on “the principle of legality of crime and punishment” for the first time in the 2008 draft code.[11] The first article of this pair of articles explains the principle of legality fully without leaving any room to circumvent it. Article 114-1 stipulates that “no act or omission is crime unless it is so provided in the law and there is a punishment determined for that.”[12]

Parliament, most likely predicting that the Judiciary’s attitude is too ambitious to pass the Guardian Council’s barrier, took a mixed approach to the principle of legality in its own first draft in 2009.[13] Although this version retains the heading of “legality of crimes and punishments” and even goes on to add the “legality of criminal procedure”,[14] the draft discards articles 114-1 (on definition of the principle of legality) and 114-2 (on interpretation in favor of defendants), which had been suggested by the Judiciary in 2008. Instead Parliament restricts itself to reproducing article 36 of the Constitution which states that “A sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law”. Parliament, in return, mixed the definition of the principle of legality and definition of crimes in article 2 by adding “… no act or omission shall constitute a crime unless for which punishment is provided by the law” at the end of the definition of crimes in article 2.[15]

For the Guardian Council, the deletion of article 114-1 (on definition of the principle of legality) was not sufficient to bring the article within the purview with which they were most comfortable: of juristic authority to residually define criminal law. Moreover, the Council did not condone the changes in the wording of article 2 (mixing the definition of crimes and the principle of legality). Instead, the Council explicitly objected to the wording article 2 arguing that the new definition of crime was against sharīʿa because it precluded the punishment of acts or omissions criminalized under jurist-defined sharīʿa but not state law.[16]

Responding to this objection, in its next draft in 2011 [17] Parliament changed the wording of article 2 back to original wording in the 1991 Code, and this change was to later become final under the new IPC meaning there was no considerable change between 1991 and 2013 on the legality principle.[18] That is, the new Code once again remains silent toward acts or omissions that are punishable under jurist-defined sharīʿa but not state laws.

In addition to holding the status of the principle of legality back in the definition of crimes, the Guardian Council targeted another legislative attempt to provide a full ban on the retroactivity of criminal liability. Article 11 of the 1991 IPC had proscribed the retroactivity only in “governmental regulations and arrangements”. This phrase was used to imply that the application of non-retroactivity was limited to ta’zirāt and deterrent punishments[19] rather than udūd, qiā and diyāt because the latter group has already prescribed under jurist-defined sharīʿa. [20]

By contrast, the Judiciary had sought to expand the scope of non-retroactivity to cover all “punishments and security measures” in its proposed 2008 draft. It had suggested the rule against retroactivity applied even to cases of udūd, qiā and diyāt crimes[21]– offenses generally thought to be in the purview of jurist-defined sharīʿa . For its part, Parliament replicated the same concept in its 2009 draft,[22] which was consistent with the changes it had suggested in article 2 (on the definition of crimes) which had incorporated the definition of the principle of legality. But the Guardian Council rejected this proposal. Objecting to Parliament’s version of the expanded rule against retroactivity, the Guardian Council declared that a full ban on retroactivity is against the principles of sharīʿa when it comes to udūd, qiā and diyāt crimes. In fact, the Guardian Council went further by adding “taʿzīr [offenses] explicitly mentioned in sharīʿa (ta’zirāt mansūs sharʿī)” to the list.[23] Retreating from its position, Parliament ultimately succumbed to the preferences of the Guardian Council by reinstating the 1991 limited version of non-retroactivity for taʿzīr offenses.[24]

The implications of this failure has not been limited to theoretical grounds, rather, as I will explain in a further post, it has brought about serious problems in the application of udūd and taʿzīrāt crimes.


[1] Notably, the principle of legality of crime has solid foundations in the Islamic jurisprudence that is the Islamic principle qubḥ ʿiqāb bilā bayān (that punishment is wrong without notice of the crime) is usually cited as support the principle. Silvia Tellenbach, The Principle of Legality in the Iranian Constitutional and Criminal Law, in The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran, 103 (Said Amir Arjomand &Nathan J. Brown ed., 2013). The principle of legality in Islamic law is so wide as to include mistake of law. For more information see: Intisar Rabb, Doubt in Islamic Law, A history of Legal Maxims, Interpretation, and Islamic Criminal Law, 237-8, 283-5 (2015).

[2] All this is despite the fact that the Islamic Penal Code was particularly seen as a masterpiece of new Islamic government in making its codes in accordance with sharīʿa. One of the scholars points out that, although Guardian Council was vested with the power to strike down un-Islamic laws after revolution, they only used this power in limited instances. Instead they thought that they “could only fulfil their ideological commitment by enacting the penal code of the sharīʿa that had historically been in abeyance in Iran as in most of the Islamic worlds”. Said Amir Arjomand, Islamic Constitutionalism, 3 Annu. Rev. Soc. Sci. 115, 125 (2007). In these circumstances and given Council’s full power, one might wonder why Guardian Council feels the need to leave loopholes for the supremacy of sharīʿa.

[3] 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”).

[4] QĀnŪn-i MujĀzāt-I IslĀmĪ [Islamic Penal Code] of 1392/2013 [hereinafter IPC], Art. 115 note 2. This articles bans some institutions such as exemption of punishment, suspension of sentence prior to imposition etc. in ta’zirāt mansūs sharʿī.

[5] 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 fatwa. 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”).

[6] IPC, Art. 220.

[7] IPC, Art. 2.

[8] Parliamentary Documents, Term 8, Year 1st, 06.30.2008.

[9] 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. Iranian Const., Arts. 74 and 158.

[10] Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Art. 112-1.

[11] Parliamentary Documents, Term 8, Year 1st, 06.30.2008, Chapter 1, Section 4. Arts. 114-1 to 114-5.

[12] Other articles of this section lay out the other aspect of the principle of legality. Article 114-2 requires the interpretation of criminal laws to be in favor of the defendant and prohibits any broad interpretation against the defendant. Article 114-3 reiterates article 36 of the Constitution. Parliamentary Documents, Term 8, Year 1st, 06.30.2008

[13] Parliamentary Documents, No. 127/50787, 12.30.2009.

[14] Parliamentary Documents, No. 127/50787, 12.30.2009, Part I, Chapter 4.

[15] Parliamentary Documents, No. 127/50787, 12.30.2009, Art. 2.

[16] Guardian Council Documents, No. 88/30/37135 ¶ 1, 01.19.2010.

[17] Parliamentary Documents, No. 127/48931, 10.29.2011.

[18] IPC, Art. 2.

[19] Qanun-i Mujazt-I Islami [Islamic Penal Code] of 1370/1991 [hereinafter 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”).

[20] IPC 1991, Art. 11.

[21] Parliamentary Documents, Term 8, Year 1st, 06/30/2008, Art. 113-1.

[22] Parliamentary Documents, No. 127/50787, 12.30.2009, Art. 10

[23] Guardian Council Documents, No. 88/30/37135 ¶ 4, 01.19.2010.

[24] IPC, Art. 10.

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