For the Rule of Law
THE REVIEW
INTERNATIONAL COMMISSION OF JURISTS
EDITORIAL
1
HUMAN RIGHTS IN THE WORLD
Bolivia 2 India
16
Chile 10 Iran
20
Haiti 14 Zimbabwe
23
COMMENTARIES
UN Sub-Commission
26
Copenhagen Conference on UN Decade for Women
34
Human Rights Committee
35
ARTICLES
Administrative Law: Civil and Common Law Systems
J.F. Garner
39
Code of Marketing for Breastmilk Substitutes
James E. Post and Edward Baer
52
JUDICIAL APPLICATION OF THE RULE OF LAW
Filartiga v. Pei a. Torture in International Law
62
BASIC TEXTS
Riobamba Charter of Conduct
64
No 25
December 1980
BP000143
All those concerned to uphold the prin-
ciples of the Rule of Law were deeply
shocked by the procedures of the Islamic
Revolutionary Tribunals set up after the
overthrow of the regime of the Shah.
This concern was voiced by the Interna-
tional Commission of Jurists in a press re-
lease dated 12 March 1979 in the following
terms:
“It appears that these are specially creat-
ed ecclesiastical tribunals having no basis in
law. The defendants are tried not according
to any pre-existing legal provisions, but ac-
cording to general principles of Islamic jus-
rice derived from the Koran. Consequently
they may be held guilty of offences for acts
which did not constitute penal offences un-
der national or international law at the
time when they were committed, contrary
to article 11 of the Universal Declaration
of Human Rights.
In violation of the same article the de-
fendant is denied “the guarantees necessary
for his defence'. There is no formal charge
or indictment, no time is allowed for the
preparation of the defence, and the defen-
dant is not entitled to the services or even
the advice of a lawyer.
There is no form of appeal from the de-
cision of the tribunal, and a sentence of
death is carried out within an hour or so
without any opportunity for an appeal for
clemency to be made or considered.
A summary trial and execution of this
kind is contrary to all recognised princi-
ples of justice. Even in time of internal
armed conflict, article 3 of the Geneva
Conventions, to which Iran is a party,
prohibits “the passing of sentences and the
carrying Out of executions without previ-
ous judgment pronounced by a regularly
constituted court, affording all the judicial
guarantees which are recognised as indis-
pensable by civiised peoples”. It may be
added that the procedures of these tribu-
nals also depart from the strict require-
ments of proof and safeguards for the
defence which are a marked feature of
Islamic systems of law.
It is deplorable that those who have
overthrown a regime which they rightly
criticised, as did the International Commis-
sion of Jurists, for denying a fair trial to
their prisoners, should now try their sus-
pects under such wholly arbitrary proce-
dures.”
Three months later, on 17 June 1979,
the Council of the Revolution approved
regulations governing these tribunals and
their prosecuting authorities (‘parquet').
These go some way to meet the world-wide
criticisms, but there are still features which
give rise to concern, and which appear to
conflict with Iran's obligations under the
International Covenant on Civil and Politi-
cal Rights, to which it is a party.
Jurisdictio'i of the Tribunals
Article 2 of the regulations states that
the Tribunals have competence to try cases
of:
(1) murder and massacre under orders or
aiding and abetting the same with the
purpose of consolidating the Pahlavi
regime and repressing the struggle of
the Iranian people;
(ii) torture and imprisonment under or-
ders or aiding and betting the same
against persons who had fought (the
Pahlavi regime);
(iii) gross economic crimes, that is to say
pillage of the public treasury or the
‘lapidation' of the national wealth
for the profit of foreigners;
(iv) conspiracy against the Islamic Re-
public of Iran by armed action, assas-
sination and destruction of institu-
tions for the profit of foreigners;
(v) armed attack, assault and battery,
and manufacture and distribution of
drugs.
Other crimes are to be tried by military
courts or the ordinary civilian courts. In
this connection it may be noted that the
new Iranian Constitution makes no men-
tion of the Islamic Revolutionary Tribu-
nals, and confers jurisdiction on the ordi-
nary courts to try cases of a political na-
ture (Principle 168). The Constitution also
contains the principle of non-retroactiVitY
of crimes (Principle 169).
conviction can be admitted without trial in Perhaps it is time, after three decade 5 of
strict legal form. If in the supreme interests experience, for the Law Comm , ssion or
of the community the liberty of individuals some other body of experts scview the
is taken away, an asylum must be provided entire legislation and its w e rng. Th/hen the
of a different order from jail. This is of 1950 Act was introdu , the Hr e Minis.
fundamental importance.” ter, Sardar Patel : “It requires to be
Detention laws generally empower the closely examin whether a better substj.
state to “regulate the place and conditions tute of a re or less permanent nature
of detention.” It is only by an executive based o pecific principles can be brought
order made under this provision that the in o ot.” Since then the Act has become
detenu is lodged in a jail. But imprisonment anent, with changes in nomenclature,
is one of the forms of “punishments” pre- but it has not been subjected to a careful
scribeci by S.53 of the Indian Penal C . review in the light of experience in India
Punishment without trial is patent] iola- and elsewhere. 2
tive of the Constitution (Art. 21 he Con- One safeguard which appears imperative
stitution permits “preventi detention”, is legal representation before the Advisory
but, surely, not imprison nt without trial. Board.
It would, it is su ted, be open to the Finally, Section 3(3) of the Ordinance
courts to strike n as invalid executive which enables a District Magistrate or a
orders which rescribe jails as places for Commissioner of Police to exercise the de-
lodging d nus, especially since the Su- taming power, under certain circumstances,
preme ourt has ruled consistently that de- should be deleted. The power of preventive
te on is not punishment and a detenu is detention should be exercised only by the
ot a convict. Minister concerned.
Iran
Islamic Revolutionary Tribunals' Rules of Procedure
1) Sampat vs. State ofJammu & KashrnirA.I.R. 1969 SC 1153;Para 10.
‘ 2) Vide the Cardiner (1975) and Diplock (1972) Reports on Northern Ireland; Cmnd. 5847 and
Cmnd. 5185, respectively.
2 'O
•1
Prosecutors
A special body of prosecutors, known as
the prosecutors (‘parquet') of the Islamic
Revolution, have been created, with a pro-
secutor and investigating magistrates for
each province (Ostan), under the general
supervision of a prosecutor-general in Tehe-
ran. They are appointed by the Council of
the Revolution, subject to the approval of
the Imam, and are chosen from among the
‘jurists and judges of the Islamic Revolu-
tion'.
Preliminaty Proceedings
The investigating magistrate has the nor-
mal powers to summon and examine wit-
nesses, to grant bail in appropriate cases,
to order sequestration of the pros rty and
monies of the accused (‘taking into account
the needs of his family').
As a general rule no arrest can be made,
nor any entry into a home for purposes of
sequestration, without the prior written
authorisation of the prosecutor.
Where an arrest without warrant is au-
thorised (e.g. danger of absconding) the
prosecutor must be informed without
delay.
There are special provisions for accused
persons who are members of the armed
fbrces or law enforcement bodies, or per-
Sons holding important political or admin-
istrative positions.
In such cases, the summons and arrest
must be approved by a commission created
by the Revolutionary Council, and the
accused's superior officer must be inform-
ed in advance.
At the end of his investigations, the
magistrate gives his opinion on the guilt or
innocence of the accused to the prosecu-
tor. Any difference of opinion between
them on this issue is resolved by the tribu-
nal. The prosecutor draws up the ir,- ict.
ment.
The Tribunals
There is a Revolutionary Tribunal in
each province, which may sit in several
‘chambers'. Each tribunal is composed of
three judges, a President, who is a judge of
Islamic Law (qadi shara'), a judge with ad-
ministrative responsibilities appointed by
the President, and a judge ‘who has the
confidence of the people and who knows
the needs of the Islamic Revolution', cho-
sen by the Revolutionary Council or its
delegate.
Procedure
The indictment must be communicated
in writing to the accused or his lawyer at
least three days before the trial. The accus-
ed can appoint his lawyer. The trial is not
to last more than a week, and at least 15
hours must be allowed to the accused and
his lawyer to present his defence.
Witnesses and experts and the accused
can be summoned by the tribunal and com-
pelled to attend. Where the accused fails to
appear, he can be tried in his absence. After
the reading of the indictment and the hear-
ing of the defence, the tribunal proceeds to
‘any inquiry it considers necessary to estab-
lish the legal guilt of the accused'. Any gap
in the evidence will be referred back to the
prosecutor. When the evidence is complete
the tribunal, ‘after deliberation in confor-
mity with the principles of Islam', gives its
verdict. This may be a majority verdict if
the President forms part of the majority.
Otherwise, two Islamic judges must be ad-
ded to the tribunal, and then the judgment
of the tribunal is final.
It is expressly stated that the verdicts
are not subject to appeal or review.
penalties
The penalties are those fixed by Islamic
Law (‘shara') and comprise execution, im-
prisonment, banishment and confiscation
of illegally obtained property, after liquida-
tion of the accused's debts. If the offender
has no lawful property., the state must
maintain those persons who are recognised
by the tribunal as being his dependents.
Sentences of execution must be report-
ed to the prosecutor ten days before they
are carried out, and during this period the
condemned person must be allowed to
meet his family. Where possible the execu-
tion is to be carried out at the place of the
crime.
The ‘special places of detention' of the
prosecuting authorities are to be under the
supervision of the local prosecutor of the
revolution.
Comment
As will be seen these rules cover a num-
ber of important safeguards. There are,
however, several glaring omissions. There
is no provision for the accused to be repre-
sented by a lawyer during the preliminary
investigations, nor for his right to see and
confer with his lawyer in private before
the trial (though it may be that this is ac-
corded in practice). The minimum time
allowed for the preparation of the defence
appears inadequate, and it is not clear
whether there are any procedures for ap-
plying for an extension of time. The limita-
tion of the maximum period of the trials
to one week must be inadequate in some
cases. Perhaps the most grave omission is
the denial of any right of appeal or revi-
sion. This assumes that the tribunals are
incapable of error, which experience in all
countries shows to be an unwarranted as-
sumption. Moreover, courts which are not
subject to appeal or review tend to become
lax in the strict application of the law. This
provision is a clear violation of Iran's obli-
gation under Article 14(5) of the Inter-
national Covenant on Civil and Political
Rights.
It is to be hoped that the work of the
Revolutionary Tribunals will soon be ter-
minated and all cases referred to the ordi-
nary courts, which already have the neces-
sary jurisdiction to try them under the new
Iranian Constitution.
“... It was been said that the only thing
all the parties represented at the Lancaster
House Conference were agreed upon from
the outset was the name of the state —
23
Zimbabwe
On 28 July 1980 the Minister of Jus- mitment
tice of independent Zimbabwe, Mr Simbi
Mubako, a former lecturer in constitutio -
law, spoke to a group of yo bwe
ans at a semina oshawa Training
Cen following excerpts from his
peech demonstrate his government's corn-
