Three Iranian courts made headlines over the summer. A trio of decisions advancing the cause of women’s rights promised new avenues for lawyers and activists and at the same time, highlighted the shortcomings of Iran’s legal and judicial system. The decisions were delivered by three courts with different jurisdictions and various levels of authority.
The highly formalist method of decision-making that is prevalent in Iran’s judiciary and the concentration of power of judicial review in the Guardian Council has undermined the efficacy of regular courts in protecting individual rights and meaningfully contributing to legal and social change. The Guardian Council is a quasi-judicial body in charge of reviewing legislation with regard to their compatibility with sharīʿa and the Constitution. The work of the Council is limited to ex ante abstract review and therefore does not feature any element of adversarial adjudication.[1] Nonetheless, the massive powers vested in the Council have made this institution—as opposed to the regular judiciary—the forefront of resistance to legislation that aims at ameliorating gender-discriminatory laws.
Against this backdrop, this commentary studies three recent judicial decisions handed down by the courts. It investigates the different ways by which these courts have exercised—or even overreached—their power to restrict or strike down gender-discriminatory laws. The fate of the two decisions is still uncertain. Nonetheless, I argue that the proliferation of these decisions will boost the institutional stature of the judiciary and eventually prompt legal change either directly or through ensuing legislative reforms.
First Decision: Challenging an unwritten but discriminatory law: on May 28, 2019, one of the branches of the Court of Administrative Justice issued a decision ordering the Traffic Police to grant a motorcycle license to a female applicant.[2] The issue of female motorcyclists has stirred a lot of controversy in recent years. Conservative Islamists infer from a prophetic hadīth that riding a motorcycle, unlike driving, violates the principle of modesty.[3]
In this case, a female motorcyclist brought a lawsuit against the Traffic Police, alleging that they refused to issue her a motorcycle license despite her being qualified. The Court of Administrative Justice is the only court with the explicit power of judicial review in concrete cases. Still, its power is limited to the review of the bylaws, regulations, or any decision coming out of the executive and administrative agencies.[4] In response to the lawsuit, the police department argued that according to the amended Article 22 of the Law of Transit of Foreign Goods through the Territory of Islamic Republic of Iran (2010), the authority to issue a driving license within the territory of Iran was conferred upon the Traffic Police. And Article 20 of the Traffic Violation Law 2011 specifically put the authority to issue the motorcycle license for men in the hands of the traffic police. Using the contraposition, the Traffic Police refused to accept that it had the authority to issue the motorcycle license for women.
The Administrative Court rejected the Traffic Police’s arguments and stated that the only competent authority to issue such a license within the territory of Iran was the Traffic Police. Moreover, the Court added, there was no law banning women from driving light or heavy vehicles or motorcycles. Therefore, based on the principle of permissibility (ibaahah), women must be allowed to ride motorcycles. The Court also rejected the contraposition argument saying that riding a motorcycle had nothing to do with gender. The Court then moved from a non-discrimination argument to a more utilitarian one in the end. The Court stated that given the circumstances of living in urban areas and the lack of financial resources for many women to obtain a car, it was even more imperative to grant them a motorcycle license. In particular, the Court emphasized the impact that this decision would have on women who needed to support themselves and their families financially.
Despite drawing a lot of attention from the public and media, the police department, since then, has challenged the decision before the appellate court. Also, the police spokesman went on to say that the decisions of the Administrative Court of Justice are issued on an individual basis[5] and cannot be extended to other instances.[6] Many, even from within the judiciary, have speculated that the decision will be overturned on appeal.[7] However, if upheld, the decision would become a final ruling that guides the police in other similar cases. Article 11 of the Court’s Law on Organizational and Regulatory Procedures requires the administrative agencies to comply with the final decisions of the Court in similar instances.[8]
The significance of the case, nonetheless, is not contingent on its fate in the appellate court. In the wake of this decision, members of the Women’s Caucus in Parliament have called on the police to cooperate with them in drafting a bill authorizing the police to issue the motorcycle license for women.[9] Given the fact that many of the discriminatory practices against women are not codified and are the results of subjective or administrative prohibitions, the use of litigation before the Court of Administrative Justice could potentially become an effective tool in mobilizing activists and political forces.
Second Decision: Claiming the Power of Judicial Review: in a fascinating—yet ill-founded—decision, Roudehen General Court of First Instance rejected a claim brought by a husband seeking authorization for his remarriage due to the disobedience of his wife. The Court, verifying the factual premises of the case, stated that Article 16 of the Family Protection Law 1974,[10] which enumerates the instances in which polygamy is permitted, was unconstitutional. In particular, the Court found the authorization of polygamy to violate Articles 10 and 21 of the Constitution. Article 10 states that “Family is the foundational unit of the Islamic society. Therefore, all the laws, regulations, and their corresponding politics must be in the direction of facilitating the establishment of the family, the protection of its sanctity, and the maintenance of its relations, based on Islamic law and ethics.” Also, it seems that the Court was interested in the part of Article 21 of the Constitution that requires the government to “create competent courts to protect the integrity and subsistence of the family.”
Resorting to the conventional style of writing short decisions, and without going into the details to justify its decision, the Court invoked the changes in social values and order as the reason behind its decision. The Court called the permission to take two wives simultaneously “unconscionable.” Reminding the plaintiff of other measures he can opt for in situations like this, the Court rejected that polygamy is permissible even in case of necessity. The Court also dismissed the possibility of “being just” toward both wives, which is a prerequisite for polygamy under Islamic law.[11] Most interestingly, the Court stated that since the Constitution was the “higher law” and Article 16 of the Law on Protection of Family violated the Constitution, the Court cannot apply the law and therefore must reject the plaintiff’s request.
Most likely, the decision will be challenged before the Tehran Court of Appeal and get overturned eventually. For one thing, it is highly unlikely that either the judiciary or the legislature seeks to outlaw polygamy at this point. But more importantly, the Court clearly overreached its authority by refusing to apply the law and declaring it unconstitutional. Judicial review of legislation in concrete cases has not been accepted in Iran’s legal system. To be more accurate, the theory of judicial review has not even been properly introduced in Iran’s legal system. Therefore, suggesting that there is a decentralized power of judicial review seems too farfetched.[12] Even the Supreme Court sitting as the highest court of the land does not have this power. Still, in such an environment, the very act of holding the Constitution as the supreme law of the land, which trumps all other laws, was a bold move by the Court. It highlighted the need for establishing a mechanism that enables the courts to trigger some form of constitutional review. In the end, the Court did not specify the impact of its decision on the law in question. In particular, it did not explain whether it was just refusing to apply the law in the case at hand or was invalidating the law in general.
Third Decision: The Supreme Court’s Interpretive and Unifying Power: the third case is the most authoritative of all three, and was delivered by the General Body of the Supreme Court on June 26, 2019. In this case, the Supreme Court was sitting as an arbiter between lower courts issuing contradictory decisions. In such instances, the decision of the General Body of the Supreme Court enjoys the same level of authority as “law” and is binding on all courts.[13] Decision No. 777, at least partially, put to rest the controversies over the diyah (blood money) of women. The inequality of diyahbetween men and women in sharīʿa, also reflected in Iran’s Penal Code, has been the subject of much controversy for a long time. In 2013, the new Islamic Penal Code, in its Article 551, attempted to ameliorate the situation by ordering the state to pay for the difference between a man and woman’s diyah through the Fund for Bodily Injuries.[14] Despite such authorization, the courts disagreed in their interpretation of the law. Some courts, siding with the Fund for Bodily Injuries, refused to extend the application of the law to injuries short of death.
After several contradictory decisions, the General Body of the Supreme Court, in its unifying decision, ruled in favor of the broader interpretation of Article 551 and required the Fund to pay the difference of diyah both in cases of death and other bodily injuries. The decision was praised by the public and media as a historic decision that finally equalized diyah.[15] But its impact was far more modest than suggested. Although under the new decision, the female victims will eventually get compensated for the same amount of diyah as men, the responsibility to pay the difference has shifted from the perpetrator to the government. In fact, despite the new law, the Women’s Caucus in Parliament and the Office of Vice Presidency for Women and Family Affairs initiated their own bill to move toward a real equalization of diyah.[16]
Except for the last decision, which now is as authoritative as law and binding on all courts, the appellate courts may very well overturn the other two verdicts. Nonetheless, the public and political reception of these cases already attests to the importance of these decisions. The more trial courts engage in producing decisions that target discriminatory laws, the more likely it is for them to end up before sympathetic higher court judges. Even if the appellate courts succeed in blocking these decisions and preventing them from taking effect, they can be essential in creating momentum for other branches of government and NGOs to campaign for anti-discriminatory legislation. The recent victory over the citizenship law is an example of this social and political mobilization. After repeatedly striking down the law that authorized mothers to pass their nationality on to their children, the Guardian Council bowed to the public pressure and eventually approved of the law.[17] As we saw in both the case of diyah and the motorcycle license, the Women’s Caucus in Parliament, along with the Office of Vice Presidency for Women and Family Affairs, has already welcomed the decisions and used them to back up their own legislative initiatives. In the end, it remains to be seen to what extent the judiciary is willing to take part in the reform process.
Notes:
[1] Qanuni Assassi Jumhurii Islamai Iran [The Constitution of the Islamic Republic of Iran] 1358 [1979] arts. 91, 94, and 96.
[2] To read the Court’s verdict see The Case of the Motorcycle License for Women and the Court of Administrative Justice, Fararu.com, https://fararu.com/fa/news/407953/ماجرای-گواهینامه-موتور-برای-زنان-و-رای-دیوان-عدالت-اداری (last visited Nov. 1, 2019).
[3] What do the Marājiʿ-e Taqlīd think about women riding motorcycles?, Eghtesadnews.com (Aug. 7, 2019), https://www.eghtesadnews.com/بخش-سایر-رسانه-ها-61/297747-نظر-مراجع-تقلید-درباره-موتورسواری-زنان-چیست (last visited Nov. 1, 2019).
[4] Qanun-i Tashkilat va Ayin-i Dadrasi-i Divan-i Adalat-i Idari [The Law on Organizational and Regulatory Procedures of the Court of Administrative Justice] Tehran 1392 [2013], art. 10.
[5] Id., at art. 60
[6] The Traffic Police’s Announcement about Motorcycle License for Women, Iribnews.ir (Aug. 6, 2019), http://www.iribnews.ir/fa/news/2493812/اطلاعیه-پلیس-راهور-درباره-گواهینامه-موتورسیکلت-بانوان (last visited Nov. 1, 2019).
[7] Judiciary’s Deputy: Issuing motorcycle Licenses for Women Is not Permitted, Mashregnews.ir (Aug. 6, 2019), https://www.mashreghnews.ir/news/981906/معاون-فرهنگی-قوه-قضائیه-صدور-گواهینامه-موتور-برای-غیرمردان-جایز (last visited Nov. 1, 2019).
[8] The Law on Organizational and Regulatory Procedures of the Court of Administrative Justice, supra note 5, at art. 11.
[9] The Women’s Caucus Invites the Police to Discuss the Motorcycle License for Women, Icana.ir (Aug. 6, 2019), https://www.icana.ir/Fa/News/432278/دعوت-فراکسیون-زنان-از-نیروی-انتظامی-برای-بررسی-موضوع-موتورسواری-زنان (last visited Nov. 1, 2019).
[10] The application of this law itself is contested. The new Law on Protection of Family was passed in 2013 and in its last article expressly abolished a number of previous laws inconsistent with the new one. The Law on Protection of Family (1974) was not among them. However, some scholars have argued that enacting a new law with the same title implicitly abolishes the previous law. On the other hand, the 2013 Family Law—unlike the 1974 law—does not include any provision on polygamy. See Ali Saberi, Is the 1974 Law on Protection of Family still valid or abolished? Raay Journal, http://www.raayjournal.ir/article_23957_aae839e49f3405b47ff88ef4767b164b.pdf (last visited Nov. 1, 2019).
[11] The two Quranic verses on polygamy are as follows: “And if you have reason to fear that you might not act equitably towards orphans, then marry from among [other] women such as are lawful to you – [even] two, or three, or four: but if you have reason to fear that you might not be able to treat them with equal fairness, then [only] one – or [from among] those whom you rightfully possess. This will make it more likely that you will not deviate from the right course.” Qur’ān 4:3 (Sūrah al-Nisā’); “And it will not be within your power to treat your wives with equal fairness, however much you may desire it; and so, do not allow yourselves to incline towards one to the exclusion of the other, leaving her in a state, as it were, of having and not having a husband. But if you put things to rights and are conscious of Him-behold, God is indeed much-forgiving, a dispenser of grace.” Qur’ān 4:129 (Sūrah al-Nisā’)
[12] The only exception is Qanuni Assassi Jumhurii Islamai Iran [The Constitution of the Islamic Republic of Iran] 1358 [1979] art 170: “Judges of courts have the duty to refrain from enacting governmental statues and protocols that are opposed to Islamic laws and regulations or are outside the domain of the authority of the executive power. Anyone can request the annulment of these kinds of regulations from the Court of Administrative Justice.”
[13] Id. at art. 161: “The Supreme Court is formed on the basis of the criteria that are set forth by the head of the judiciary in order to supervise the correct enforcement of the laws in the courts, create uniformity in the judicial procedure, and fulfill the responsibilities that are allocated to it according to the law.”
[14] Qanun Jaza-i Islami [Islamic Penal Code] Tehran 1392 [2013] art. 551.
[15] Reza Khaasteh, Iran Equalizes Blood Money for Men, Women in Historic Decision, Ifpnews.com (Jul. 2, 2019), https://ifpnews.com/iran-equalizes-blood-money-for-men-women-in-historic-decision.
[16] Equality of Diyah based on Shar’i Evidence, Negaheroshan.ir (Feb. 24, 2019), http://negaheroshan.ir/fa/news/2804/برابری-دیه-مرد-و-زن-بر-اساس-مستندات-شرعی (last visited Nov. 1, 2019).
[17]To see all decisions of the Guardian Council on citizenship see: http://nazarat.shora-rc.ir/Forms/frmShenasname.aspx?id=Go9NsDjIevI=&TN=l7tLyhyOobj0SooAFUE3m68PnpG7MruN&MN=TTIGIOOwLcg4eUfrhu/QuA==