Commentary :: Whose Guardian: Sharīʿa or the Constitution? Judicial Review of Iran’s New Criminal Procedure Code

By Marzieh Tofighi Darian

This commentary analyzes the jurisprudence of the Guardian Council in reviewing Iran’s recently adopted Criminal Procedure Code 2014 (amended in 2015). It evaluates how the Council uses its authority in preserving and promoting sharīʿa and/or the Constitution and considers whether there are ways by which the Council can improve its work and enhance its institutional legitimacy.

Judicial review has become a cornerstone of constitutionalism globally. In Muslim countries, judicial review, despite being a rising trend, has not been robustly practiced across the region.[1] Iran is one of the countries that has had a poor record with judicial review. In the absence of a constitutional court in Iran,[2] constitutional review of legislation falls to the Guardian Council, a quasi-legislative body composed of six Islamic law specialists or Muslim jurists (fuqahāʾ) and six state legal scholars.[3] According to the Guardian Council’s unique composition, it is in charge of assessing the constitutionality of legislation and has the authority to review legislation for compliance with “Islamic principles” or “Islamic rules.”[4] This latter authority is reserved solely for the six Muslim jurists on the Council, rather than the other regularly trained legal scholars.[5]

In this note, I analyze the jurisprudence of the Guardian Council in reviewing Iran’s recently adopted Criminal Procedure Code,[6] with an eye to evaluating how the Council uses its authority to preserve and promote sharīʿa and/or the Constitution. I also seek to determine whether there are means by which the Council can improve its work to enhance its institutional legitimacy. No serious scholarly work has been done in this area, perhaps partly due to the Council’s lack of commitment to argumentation and reason-giving. This note is a step in this direction to hold the Guardian Council accountable to its constitutional aspirations.

The Guardian Council’s jurisdiction is limited to automatic ex ante review. In other words, every bill adopted by Parliament is subject to the Council’s review without need for government officials to trigger the inquiry.[7] It is only after the approval by the Council that the adopted legislation becomes law. A back and forth between Parliament and the Guardian Council on new legislation can proceed until the revisions of a draft bill satisfy the Council or until Parliament, by insisting on its position, triggers another layer of review in the Expediency Council.[8]

Reviewing the Criminal Procedure draft of 2014 and its subsequent amendments in 2015, the Guardian Council declared its objections to the bill in six substantive documents. Having analyzed the objections raised by the Council, the first notable issue is the Guardian Council’s failure to engage in any form of argumentation and debate, as if there was no need to convince its audience. After declaring its objections to certain articles, the Council pursues one of three strategies:

  1. The Council declares the article invalid. For example, its objection to Article 50 of the Criminal Procedure draft provision allowing defendants to inform their families of their detention was met with a Council’s demand for a broader set of exceptions to this right. The objection came without citing sources of Islamic law or sharīʿa, nor the Iranian Constitution as justification.
  2. The Council finds a provision in violation of the Constitution. In the majority of cases, this kind of objection includes reference to the constitutional provision violated, but still includes no reasoned justification for the decision. An example is the objection to Article 31, which the Council found to be in violation of Article 158 of the Constitution on separation of powers.
  3. The Council declares an article in violation of sharīʿa. Here too, the Council exhibits no tendency to justify its conclusion of religious invalidity. An example is the Council’s objection to Article 14, allowing for compensation of a victim’s loss in addition to the fixed amount of diya (blood money) for a bodily injury. On some occasions, the Council might refer to a religiously authoritative text as a basis for invalidating an article, but still does not explain the relevance of the text to strike down a law. An example is the objection to Article 523, in which the Council demanded the article be revised to accord with the late Ayatollah Khomeini’s opinion in his treatise, Taḥrīr al-Wasīla.

Another striking feature in the work of the Guardian Council is that the overwhelming majority of articles to which it objects are rejected not because they violate a constitutional provision but because they are understood to be against sharīʿa. To be exact, only 29 out of 105 objections (in the total of six documents) raised by the Council against the Criminal Procedure draft were found to violate the Constitution.

These numbers mean two things: First, more invalidation based on sharīʿa translates into a broader role for Muslim jurists (fuqahāʾ) on the Council vis-à-vis the regularly trained legal scholars, as only fuqahāʾ have the authority to interpret sharīʿa and weigh in on questions of sharīʿa compatibility. This arrangement basically excludes half of the Council from debating the constitutionality of the legislation. Second, this setup highlights the hierarchical status of sharīʿa as a source that trumps not only the ordinary legislation but also the Constitution itself.

On some occasions, the Guardian Council tends to choose the easier way of striking down provisions on grounds of sharīʿa incompatibility even when it could plausibly deliver a rights-protective opinion that would otherwise require invalidating an article based on its infringement of a constitutionally guaranteed right. For example, the Council objected to Article 44 of the Criminal Procedure draft, which permits judicial officers to intervene and arrest defendants in crimes happening in public and to conduct any necessary investigation before sending the case to the prosecutor. The Council stated that the broad language of the article and its failure to restrict the permissible instances of detention to cases where there is probable cause (strong likelihood) renders the article incompatible with sharīʿa. This, despite the fact that constitutional rights articulated in Articles 22 and 32 of the Constitution could easily have been invoked in this instance.[9]

A close reading of those 29 instances in which the Guardian Council invoked the Constitution to challenge the articles reveals an even more disturbing trend. It tells us that the Council has almost exclusively resorted to the Constitution on questions of structure (separation of power) but not rights. For example, the Council invalidated Articles 30 (2), 31, 66 (2 & 3), 130 note, 147 note, 175-176 note, 202 note, 214 (1), 252, 261, 488549, 557, 650, and 656 because they conferred on the Ministry of Justice rather than the Judiciary the power to pass regulations necessary for the implementation of the said articles. Citing Articles 156,[10] 157,[11] and 158 of the Constitution,[12] but without making any effort to analyze and elaborate on them, the Guardian Council stated that passing regulations is the prerogative of the judiciary. On another occasion, the Council rejected the competence of the National Security Council to designate special judicial officers (objecting to Articles 29 (b), 485 and 528). With no explanation, we can only infer from the mention of Article 85 of the Constitution[13] that the Council understood the act of designation to be legislative in nature and therefore unavailable to other bodies.[14]

In only a very small number of cases—four times to be exact—has the Guardian Council invoked the Constitution for a substantive cause. Of those, only two actually furthered a constitutional right in terms of due process or the right to a fair trial:

First, in objecting to Article 477 of the Criminal Procedure draft[15] (in itself problematic and on which I will elaborate elsewhere), the Council suggested that the Head of the Judiciary could not directly order the reconsideration of a judgment that had become final but seemed to be in sheer violation of sharīʿa. Instead they held that the Judiciary Head would need to refer the matter to the Supreme Court to potentially reverse the judgment. The very act of transferring this power from an individual to a branch of the Supreme Court is a positive move by the Council designed to reduce arbitrariness in the Judiciary. However, the Council unfortunately did not mention which constitutional provision is subject to violation in this scenario.

Second was the Council’s objection to Article 48 as amended in 2015, permitting prosecutors to deny the right of defendants to be represented by an attorney in crimes against national security and organized crime in the investigation stage of the trial. The Guardian Council found this article in violation of Article 35 of the Constitution, which provides that “in all courts of law, the opposing parties to a dispute have the right to choose an attorney for themselves …” However, the Council does not engage in specification or debate about the scope of the right and its limitation. As a result, the final version of Article 48 limits the defendant’s choice of lawyer for the above crimes to a list of pre-approved attorneys prepared by the Judiciary. This limitation makes the right far from a fair trial standard, as I will review elsewhere.

On a third occasion, in objecting to Article 66 of the Criminal Procedure draft as amended in 2015, the Council asked for clarification as to whether the new Criminal Procedure provision that, for the first time, confers on NGOs the power to initiate public interest litigation is in conflict with Article 165 of the Constitution. That Article provides that “trials are held openly and the presence of the public is not banned, unless the court determines that their openness contradicts public chastity or public order; or if, in private disputes, the parties involved request that the court not be open.” To avoid further objections, Parliament limited the exercise of Article 66 in a manner that is not inconsistent with Article 165 of the Constitution.

Lastly, objecting to Article 150 of the Criminal Procedure draft as amended in 2015, to limit the scope of wiretapping, the Council cited Article 25 of the Constitution (among other objections related to separation of powers) to invalidate this provision. Article 25 of the Constitution provides that “… it is forbidden to wiretap conversations. All forms of inspection are forbidden except according to law.” The Council did not clarify in what respect the provision violated Article 25 of the Constitution. Nevertheless, as a result of the Council’s objection, Parliament restored the original version of the article that had expanded the list of crimes for which the wiretapping was permissible.

In conclusion, reviewing the “jurisprudence” of the Guardian Council on the ex ante review of Iran’s new Criminal Procedure drafts raises this question: In what way is the Council a guardian of the Constitution? Are there any steps that the Council can take to restore its role as the protector of the Constitution, to bolster the rule of law, to promote the culture of justification, and to recover its institutional legitimacy in the eyes of the public? Answers to these questions are of utmost importance, given the fact that criminal procedure laws deal with the most vital liberties of citizens, the violation of which can have dire and life-threatening consequences.

My preliminary answers proceed as follows. To begin, the Council could—and should—add more order to the task of constitutional review by deciding whether an article is in violation of the Constitution or sharīʿa. If the two overlap, it is in the interest of the rule of law to prioritize the constitutional provision as a cause of invalidation. In both cases, it is imperative for the Council to deliberate and engage in conversation, to systematically argue for its position, and to explain why and how exactly an article violates a constitutional provision. If an article is against sharīʿa, it is necessary for the Council to answer what principle of sharīʿa has been infringed in this case and to what degree to provide guidance on its rulings. If it cites a fiqh book (legal treatise) as a basis for its decision, it should contemplate reasons for selecting one text over others as the basis of review. Ultimately, it remains to the Council to decide whether to take on such quests.

[1] See Chibli Mallat, Introduction to Middle Eastern Law (New York: Oxford University Press, 2007), ch. 5.

[2] The task of reviewing executive orders is vested in the Court of Administrative Justice: “In order to investigate the complaints, grievances, and objections of the people against governmental officials, units, and protocols, and in order for the people to restore their rights, a court, named the Court of Administrative Justice, will be established under the supervision of the head of the Judiciary. The law shall determine the responsibility and the mode of operation of this court.” Qānūn-e asāsī-ye jumhūrī-ye islāmī-ye Irān [Constitution of the Islamic Republic of Iran] of 1358 /1979 as amended in 1989 [hereinafter Iranian Const.], Art. 173.

[3] Iranian Const., Art. 91 and 94.

[4] Iranian Const., Art. 91 and 94.

[5] Iranian Const., Art. 96.

[6] Adopted on 02/23/2014 and further amended on 06/14/2015.

[7] Iranian Const., Art. 94.

[8] Iranian Const., Art. 112.

[9] Iranian Const., Art. 22: “The dignity, life, property, rights, domicile, and occupations of people may not be violated, unless sanctioned by law.” Art. 32: “No one can be arrested except in accordance with the rule and the procedures that are set by the law. In the case of arrest, the charge and the reason for the arrest must be immediately conveyed and communicated to the defendant in writing. The preliminary file must be submitted to qualified judicial authorities within twenty-four hours and the preliminaries for the trial must be set as quickly as possible. Anyone who deviates from this principle will be penalized in accordance with law.”

[10] Iranian Const., Art. 156: “The judiciary is an independent power that protects individual and social rights and is responsible for actualizing justice. It is responsible for the following duties: 1. Investigating and issuing judgment on grievances, infringements of the law, complaints, settling litigations and resolving hostilities, making decisions and taking the necessary actions in probate matters as determined by the law; … 3. Overseeing the quality of the execution of the laws. …”

[11] Iranian Const., Art. 157: “In order to fulfill the responsibilities of the judiciary power in all of the judicial, administrative, and executive matters, the leadership designates for a period of five years a just scholar of jurisprudence (mujtahid), who is knowledgeable of judicial matters and is a competent administrator as the head of the judiciary power: the supreme position in the judiciary power.”

[12] Iranian Const., Art. 158: “The duties of the judiciary power are as follows: 1. creating the necessary institutions in the Ministry of Justice in accordance with the responsibilities of Article 156; 2. preparing judicial bills appropriate for the Islamic Republic. …”

[13] Iranian Const., Art. 85: “Membership in the Assembly is vested in an individual and cannot be delegated to another person. The Assembly cannot allocate the power of legislation to a person or a commission. However, in urgent cases it can assign to its own internal commissions the power to legislate certain laws, in accordance with Article 72. In this case, the laws will be implemented experimentally and for a period of time that is specified by the Assembly. Their final approval will be determined by the Assembly. …”

[14] The Council also found Article 523 of the Criminal Procedure draft in conflict with Article 110 of the Constitution because it does not specify that the right to recommend a convict for pardon is within the sole power of the head of the Judiciary. Also, the Council challenged articles that conditioned the authority of the head of the Judiciary upon the prior recommendation of changes by other judicial authorities as in Article 297 and 299 in violation of Article 158 of the Constitution.

[15] Iranian Const., Art. 477: “If the head of the Judiciary determines that a final verdict is in sheer violation of sharīʿa, he will permit the reconsideration of the judgment by referring it to a specific branch of the Supreme Court designated by himself to review and issue a final decision if in fact the Supreme Court endorses the sheer violation of the sharīʿa.”

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