This post argues that there is an excessive focus on sharīʿa -compatibility for legislation and judicial decisions in Iran. Even when a law enters into force or a judicial decision becomes final there are still tools for the Guardian Council to legally invalidate the law or reverse the judicial decision. Assessing the problem of nonfinality of judicial decisions, this post argues that the excessive focus on sharīʿa-compliance has undermined the principle of res judicata (finality) in Iran’s judicial system.
There is a real obsession in Iran’s legal system with ensuring that every law or judicial ruling is consistent with sharīʿa. This stretches to the point that even when every internal judicial or legislative procedure designed to ensure sharīʿa compliance is met, a law can still be invalidated for inconsistency with sharīʿa.
Article 4 of Iran’s Constitution provides that “All civic, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle governs all the articles of the constitution, and other laws and regulations…” The generous language of Article 4 has been repeatedly invoked to remind critics that sharīʿa-compatibility is not only one of many constitutional norms, but it is primary among other constitutional provisions.
The Guardian Council’s power to invalidate laws or overturn judicial decisions, once otherwise finalized, undermines the stability of Iran’s legal system. It renders it indefinitely vulnerable to the further determinations of sharīʿa inconsistency. The Guardian Council, as the guardian of sharīʿa itself, can at any point—at least in theory—simply declare a legally adopted law invalid.
This vulnerability emerges from the Guardian Council’s unique interpretation of an ordinary time bar on legislative review. The Guardian Council has interpreted the Constitution’s time limit for reviewing legislation as not applicable to questions of sharīʿa-compatibility. To justify its position, the Guardian Council mainly relied on the language of Article 4 of the Constitution.
The same obsession with sharīʿa-compatibility found its way into the judicial system and has adversely affected the sense of certainty and finality in it. In this post, I analyze the problem of nonfinality of judicial decisions based on sharīʿa-compliance jurisprudence, and argue that this obsession has undermined the principle of res judicata in the Iranian judicial system. Through examining the back-and-forth between the Parliament and the Guardian Council in the process of adopting the new Criminal Procedure Code 2014 (as amended in 2015), I show how Parliament’s attempts to restrict the power of judicial decision making have resulted in a compromise with the Guardian Council.
Under the old criminal procedure rules embodied in Article 18 of the Law for the Establishment of General and Revolutionary Courts of 1994 (with subsequent amendments in 2006), final decisions of General or Revolutionary courts, the Military Court, and final decisions of the Supreme Court could be challenged if anyone raised a claim that a decision was in “sheer violation of sharīʿa.” This article authorized the Head of the Judiciary to verify the violation of sharīʿa and to remand the case to a competent court. Note 1 to Article 18 defined the “sheer violation of sharīʿa” as a contravening the doctrines of fiqh (Islamic law) that are clear on their face. It also provided that in cases of disagreement among fiqh opinions, the decision should be measured against the religious opinion of the Supreme Leader or the one that is widespread among fuqahāʾ. Note 5 to the article required that such a claim be brought before the Head of the Judiciary within a month from the time the decision became final.
Replacing the abovementioned law, the new Criminal Procedure Bill embraced a similar rule in Article 477. The new article provided that if the Head of the Judiciary finds a final decision issued by any judicial forum—civil or criminal—to be in “sheer violation of sharīʿa,” he is to consider the decision ripe for “remand for retrial of a final decision” and is to send it back to a competent court. Note 1 to this Article broadened the number of authorities able to bring such claims to the attention of the Judiciary Head by including the Chief Justice of the Supreme Court among others. In a more drastic move, it also removed the time limit for bringing such claims. Instead of one month, it specified that no one could use this procedure more than once per decision. Doing so was the equivalent of adding another layer of appeal but with no time limit.
In its first consideration of the draft Code in 2012, the Guardian Council weighed in and objected to the proposed article. The Council raised three objections. First and most importantly for our purposes, it determined Parliament placing a restriction on the invocation of this article to one time per decision would itself be against sharīʿa. In other words, the Guardian Council implied that, as long as there is suspicion that a decision is not consistent with sharīʿa, that decision cannot be valid or legitimate no matter how many stages of appeal have already been exhausted. Second, the Council required that the Head of the Judiciary, either himself or via two trusted mujtahids (the highest rank legal scholars), make the decision as to whether the “sheer violation of sharīʿa” clause were triggered, lest it be another “ violation of sharīʿa.” Third, the Council required Parliament to remove the part of the article stating that, in cases of disagreement, the opinion of the Supreme Leader or the more popular opinion among fuqahāʾ should be followed.
Parliament responded to these objections by revising the text of Article 477. It removed the “one-time-only” limitation and practically opened the door for indefinite and multiple challenges to judicial decisions for “sheer violation of sharīʿa.” It also replaced the appeal to the opinion of the Supreme Leader or the more popular fiqh opinion with the decision of the Head of the Judiciary or two trusted mujtahids.
There were some anomalies in the proceedings. It is interesting to note that the old Article 18—as discussed above—contained the same provision about the opinion of the Supreme Leader or a more popular fiqh opinion and was in force for eight years but was never challenged by the Guardian Council for being against sharīʿa. It is not clear from the text of the article or the Guardian Council’s opinion whether the lower court can dismiss the claim of violation of sharīʿa against the finding of the Head of the Judiciary or the two just and trusted mujtahids. Additionally, the Council, with no further changes in the revised article, again reopened consideration of Article 477 in a third round of objections.
The unexpected round of objections—after the initial compliance of Parliament with the Guardian Council’s requests—begs the question: why did the Council not make this comment in the first round when it initially reviewed this article? The Guardian Council this time argued that giving the right to overturn and remand the final decision to the head of the judiciary is in violation of the Constitution. This statement reflects a rare case in which the Guardian Council resorted to the Constitution to invalidate an article, as I have discussed in another post. The Council further “suggest[ed]” that the Head of the Judiciary, after finding a decision to be in violation of sharīʿa, is to designate specific chambers of the Supreme Court comprised of trusted mujtahid judges to hear these cases, authorize the retrial, and issue the final verdict. The Guardian Council does not invoke any constitutional provision for this decision and does not explain in what way the revised Article 477 violates the Constitution.
In response, Parliament revised the proposed article again to reflect the newest institutional change in hearing these cases. In addition, Parliament introduced a new condition in a move to restrict the application of this article. The condition states that a final decision cannot be challenged twice based on the same claim of a violation of sharīʿa unless for the second time, parties invoke another instance of a sharīʿa violation. The final wording of the article seems like a compromise with the position of the Guardian Council, which had removed any kind of limitation on this power. Although the same decision could be challenged further for inconsistency with sharīʿa, the same instance of an alleged sharīʿa violation could not.
The Guardian Council did not comment on this condition in subsequent deliberations, and as a result it became the final law on this issue. How effective this condition will be in practice remains to be seen.
In sum, the obsession of the Guardian Council with determining the compatibility of judicial decisions with sharīʿa poses the risk of serious damage to the principle of res judicata in Iran’s judicial system. It has also opened the door for indefinitely questioning the legitimacy of otherwise final judicial decisions. The broad scope of sharīʿa rules, equally authoritative but drastically different from fiqh rules, and the indefinite nature of Article 477 could—in practice—turn this prerogative into a source of abuse and destabilization in the judicial system.
 Guardian Council Bylaws (2000), Art. 19.
 QĀnūn-i assāsī-yi jumhūrī-yi Islāmī-yi Īrān [The constitution of the islamic republic of iran] of 1358 /1979, as amended in 1989 [hereinafter Iranian Const.].
 The Guardian Council is a quasi-legislative body composed of six Islamic jurists (fuqahāʾ) and six legal scholars. The main task of the Guardian Council is the review of legislation in their compatibility with the Constitution and sharīʿa. Iranian Const., Arts. 91, 94.
 Iranian Const., Article 94: “All legislation of the Islamic Consultative Assembly must be sent to the Guardian Council, which must evaluate it within ten days to assure its compatibility with the constitution and the Islamic criteria. The Council must return the legislation to the Assembly for reconsideration if it is incompatible; otherwise, the legislation can be executed.”
 Guardian Council Bylaws (2000), Art. 19.
 “Res judicata is the principle that a cause of action may not be re-litigated once it has been judged on the merits”. https://www.law.cornell.edu/wex/res_judicata.
 Under Article 18 of the Law for the Establishment of General and Revolutionary Courts of 1994 (with subsequent amendments in 2006) the Prosecutor General, the Head of the Judiciary Organization of the Armed Forces, and heads of the Provincial Judiciaries could bring this issue to the attention of the head of the judiciary.