Fundamental rights and freedoms constitute an integral part of most modern constitutions. To ensure these fundamental liberties are secured from government encroachments, most constitutions establish legal means to guarantee the protection of these rights. This paper argues that Iranian lawyers have weaponized Article 570 of the Islamic Penal Code 1996 to address the absence of any meaningful mechanism to protect and secure constitutional rights. Examining whether this legal strategy is an effective one going forward, the paper concludes that they have stretched the meaning of Article 570 beyond its capacity to act as a substitute for the judicial review.
Judicial review in Iran’s legal system is limited to an abstract ex-ante review by a constitutional body called the Guardian Council – part of the legislative branch composed of six Islamic law specialists or Muslim jurists (fuqahāʾ) and six lawyers.[1] The Council reviews every law adopted by Parliament and weighs in on its compatibility with the Constitution and sharīʿa meaning classical Shīʽī’ law.[2] The Constitution allows the process to be triggered automatically, displaying the Council’s enormous power over Parliament. Bound by the Council’s decisions, Parliament only in special cases can refer any disagreement with the Council to an outside referee, i.e., The Expediency Council.[3] This limited abstract review has deprived citizens of an opportunity to bring constitutional claims alleging violation of their constitutional rights in the courts. Thus, it has left the individual rights, guaranteed under Chapter Three of the Constitution, with no real enforcement mechanism.
It is against this backdrop that the decision of eight lawyers to react to a judicial order banning the Telegram application this summer drew public attention. On April 30th, 2018 after prolonged speculation over the fate of this widely popular instant-messaging application, which in the absence of Facebook and Twitter had attracted nearly 40 million Iranian users, a judicial investigative officer issued a judicial order banning the use of Telegram. He demanded all Internet Service Providers in Iran to take steps to block Telegram’s website and application.[4] The judicial investigative officer claimed that he was acting upon the requests and complaints of citizens and security organizations –though with no specification. He found the encrypted messaging feature of the application a security threat. Claiming that it played a role in last year’s terrorist attacks in Tehran and riots across Iran, he found the lack of cooperation on the part of Telegram to give users’ data and transferring its servers to Iran unacceptable.[5]
The judicial investigator listed a number of possible violations, without specifically linking the charge to the evidence. He argued that Telegram gives a platform for criminal activities such as: targeting national unity, deepening racial and ethnic cleavages, and inciting riots; giving foreign powers access to Iranian citizens’ data; publishing, distributing, and trading obscene contents promoting public indecency; insulting sacred Islamic values and promoting deviant un-Islamic sects; spreading false information; smuggling, currency, and drugs; acting against national security; fraud; violation of copyright, and other financial crimes; using propaganda against the Islamic Republic; and insulting others. In his order, he matched these crimes with the corresponding articles in the Islamic Penal Code 1996 and Press Law 2003. Nevertheless, he made no attempt to prove the connection between these crimes and the actual use of Telegram and did not attempt to justify the total ban as the best available legal measure to address these threats.
In response to this judicial order, a number of lawyers at Iran’s Central Bar Association made a rare move. Invoking Article 570 of the Islamic Penal Code 1996, they filed a criminal compliant against the judicial investigative officer ordering the ban. This Article states that: “Any official and agent associated with State agencies and institutions, who unlawfully strips members of the public of their personal freedom or deprives them from their rights provided in the Constitution, shall be sentenced to two months to three years imprisonment, in addition to dismissal from the service and prohibition of employment in state offices for one to five years”.[6] This article was amended in 2003 to replace the phrase “government officials” with “state officials”[7] suggesting that the scope of the article was no longer limited to the officials affiliated with the executive branch but anyone working in a state agency or institution.
These eight lawyers, claiming to be acting on behalf of the public, argued that the ban on Telegram was a violation of freedoms and rights enshrined in the Constitution.[8] They invoked Article 9 of the Constitution, which stipulates freedom, independence and territorial integrity are inseparable and no one can deprive people of freedoms in the name of independence and territorial integrity and vice versa.[9] They argued that Article 114 of the Criminal Procedure Code 2014 (amended in 2015), which was used as the basis of investigator’s authority to issue the ban, was only a provisional power during the investigation phase and could not be used as a permanent judicial measure. They claimed that the judicial investigator had unlawfully deprived 40 million users of their right to freely use this application. After holding a hearing, the prosecutor rejected the criminal compliant and decided not to proceed with charging the investigative officer.[10]
The Second Tier Criminal Court, acting as an appellate body in this case, affirmed the prosecutor’s decision. The court reasoned even though people are free, this freedom should not violate public interests and freedom of others.[11] It did not however address the lawyers’ claim that the blanket ban was a disproportionate measure for the potential risks of using Telegram and that there were more restrictive means such as smart filtering available for the judge.[12]
The Second Tier Criminal Court put this case to rest, but it sparked a more significant legal debate: Is it a legitimate legal tool to criminally charge officials who restrict individual rights and freedoms while exercising their discretion in the law-making or adjudication process? Is threatening judges and lawmakers with criminal prosecution a legitimate substitute for the judicial review?
A closer look at the strategy used by the lawyers shows how untenable it can be. Tehran’s Prosecutor General criticized the criminal complaint filed by the lawyers and argued that this would allow convicted smugglers to go after judges who issue their convictions.[13] One might argue that Article 570 does not cover instances where a judge applies existing laws to an individual when that law is inherently a violation of some basic right as long as he is exercising his judicial power and is doing that according to the law. The key point in this article – and what is prohibited by it- is depriving citizens of their rights and freedoms against the law. Now the question is whether this article can be used in situations where a right-restrictive law is adopted by Parliament or the Guardian Council or a right-restrictive judicial order – of a kind we saw in this case- is issued by a judicial officer? After all, rarely is there an absolute right in the constitutions. What we have is a series of protected rights that on different occasions needs to be balanced against each other and other public interests. So who should decide what law/judicial order is a legitimate and justified exercise of legislative/judicial authority and what laws/orders are ultra vires? Who should decide about the validity of the balancing mechanism? Is the criminal court, hearing such a criminal compliant about a state official, best suited to decide on these matters?
It seems that reading the power of protecting constitutional rights into Article 570 of the Islamic Penal Code is an attempt to read both procedural and substantive due process doctrine into this article. But the criminal nature of this suit makes it a difficult and impractical tool for the lawyers to pursue state’s legal accountability on this ground. Nevertheless, it is noteworthy that the particular circumstances of this case, i.e., a ban affecting a wide range of ordinary people of all political stripes, drew public attention to this question where do Iranian citizens turn when their constitutional rights are infringed? This is best illustrated in the remarks of one of the lawyers at the hearing that asked the prosecutor to take his historic mission seriously and by accepting this complaint leave avenues of judicial recourse open for citizens.[14] Would these pressures and naming and shaming tactics result in a real change in the protection of rights?
Notes:
[1] QĀNŪN-I ASĀSI-YI JUMHŪRI-YI ISlĀMĪ-YI IRĀN [The constitution of the Islamic Republic of Iran] of 1358 /1979 as amended in 1989 [hereinafter Iranian Const.], Art. 91. Also see: https://beta.shariasource.com/documents/3134
[2] Iranian Const., Art. 94.
[3] Iranian Const., Art. 112.
[4] Judicial Order to Ban Telegram Is Issued (Apr. 21, 2018), http://www.rasanews.ir/detail/News/563154/2044
[5] Id.
[6] QĀNŪn-i MUJĀZT-I ISlĀMĪ [Islamic Penal Code] Tehran 1375/1996, Book Five, Art. 570.
[7] Id.
[8] Criminal Complaint No. 9709982132700038- 05/06/2018.
[9] Iranian Const., Art.9: “In the Islamic Republic of Iran, freedom, independence, unity, and territorial integrity of the nation are inseparable from one another; the safeguarding of these is the responsibility of the government and each and every one in the nation. No individual, group, or authority has the right to damage, in the slightest way, the political, cultural, economic, and military independence of Iran and its territorial integrity, in the name of exercising freedom. And no authority is allowed to take away the legitimate freedoms, even through the establishment of laws and regulations, under the pretext of safeguarding the independence and sovereignty of the nation”.
[10] The Criminal Prosecution of the Investigator Who Banned the Telegram Is Terminated (May. 7, 2018) https://www.isna.ir/news/97041709618/صدور-قرار-منع-تعقیب-بازپرس-پرونده-مسدودسازی-تلگرام
[11] Second Tier Criminal Court No. 1057, Decision No. 9709970230900489, 09/10/2018.
[12] The Court Rejected the Appeal from the Telegram Decision, (Sept. 12, 2018) http://www.ghatreh.com/news/nn44284293/اعتراض-قرار-منع-تعقیب-بازپرس-پرونده-تلگرام
[13] The Criminal Prosecution of the Investigator Who Banned the Telegram Is Terminated (May. 7, 2018) https://www.isna.ir/news/97041709618/صدور-قرار-منع-تعقیب-بازپرس-پرونده-مسدودسازی-تلگرام
[14] A Group of Lawyers File a Compliant against the Telegram Ban (Jun. 12, 2018) http://www.ecosystem.ir/2018/06/12/attorneys-suing-telegram-ban-order/