For the RuLe of Law
THE REVIEW
INTERNAT QNAL COMMISSION OF JURISTS
HUMAN RIGHTS IN THE WORLD
South America 1 Syria 12
Iran 2 South Africa 17
Palestine 9 Un guay 23
COMMENTARIES
Commission on Human Rights
.
29
ARTICLES
Afghanistan and the Rule of Law
A G. Noorani
The Trial of the Turkiye Emerkci Partisi (Turkish Workers' Party)
Before the Constitutional Court of Turkey
I anfredSimon
37
53
BASIC TEXTS
UN Code of Conduct for Law Enforcement Officials
65
No 24
June 1980
Editor: Niall MacDermot
BP000142
In froductjo,,
The li-anjan revolution and its Islamic
constitution cannot be understood outside
the context of the teachings of Islam and
the background and development of what
is conveniently called “militant Islam”'
Islam, neglected for a long time in the
West, has recently become the concern of
politicians and scholars in all parts of the
world. The vigour of the Islamic revival has
surprised many who tended to look upon
islam as a static, feudal religion, out of
to ich with the progress of modern science
and knowledge. There are about 750 mu-
lion moslems in the world today, in over
70 countries. Islam (literally ‘‘submission'',
implied to God), is a religion concerned
not only with the private life of man, but,
in the words of a leading Islamic writer, “it
is a complete way of life, catering for all
fields of human existence .. individual arid
social, material and moral, economic and
political, legal and cultural, national and in-
ternational 2
Islamic law is an integral part of the Is-
lamic faith. The sources of Islamic law are,
in descending order of importance, the
Koran, which is the word of God revealed
to the Prophet and in itself divine, the Sun-
nah, which is the body of traditions based
on the acts and sayings of the Prophet,
ijma or consensus of the community (Eater
understood as that of the scholars) and
ijiihad or independent judgement. The
“traditions” of the “four right-guided ca-
liphs” (the first four rulers to succeed Mu-
hammad from 632 --661 AD.) form anoth-
er but less authoritative source of legal pre-
cedent. Early codifications of and cotn-
mnentaries on the sources split into four
great schools of law which coincide with
geographical areas. By the middle of the
tenth century all the components of that
total legal entity known as the Sharia law
were established and consolidated.
Islam being a religion of laws, the men
who are learned in religious doctrine are
usually those who are learned in legal doc-
trine. In the absence of a Church or an in-
stitutionalised priesthood in islam, these
religious lawyers or ulema often become
leaders of their community. They are the
closest equivalent to clergy in Islam.
Very early in its history Islam split into
two major sects: Shiah and Sunni. The fact
that the majority of Iranians are Shiah
moslems is essential to a proper under-
standing of the Iranian revolution and the
constitution, because as G.H. Jansen in
“Militant Islam'' explains:
“The core of the Shiah faith is that the
earthly community should be led by a char-
ismatic, semi-divine leader, the imarn, who
acts as the mediator between the human
and divine, while the Sunni belief is that
the individual believer stands directly face
to face with God, with no need for an inter-
cessor. Shiism became a separate politico-
religious entity when in 1502 it was decla,--
ed the official religion of the new Persian
state being established by Shah ismnail,
The doctrinal differences between Sunni
and Shiah Islam are these: the Shiah, of
course, do accept Muhammad and the Ko-
ran, but while the sources of Sunni law are
the Koran, the Hadith of the Prophet, the
consensus of the community and ‘analogy',
the four bases of Shiah law are the Koran,
the Hadith of the Prophet and the imanis,
the consensus of the imnams and ‘reason'
So the Shiahs have their own collection of
Hadith and their own school of law, the
Jaafari.”
The concept of an Islamic state is no-
thing new. Many countries with a Moslem
majority have proclaimed themselves in
various degrees to be Islamic states, some
by providing that the head of state must be
a moslem, some that Islam is the state reli-
gion, others that the Sharia is a source of
law, still others that the Sharie is the source
of law. While some modern writers reject
the whole concept of the Islamic state as
“an obsession for political power for which
Islam is being cynically exploited” (A.G.
Noorani, The Indian Express, 1 Nov. 1979),
others, like Ayatollah Khomeini believe
that “since Islamic government is a govern-
rnent of law it is the religious expert
(faghih) and no one else who should occu-
py himself with the affairs of the govern-
ment”. It is clear that there is rio unanimi-
ty on what is art Islamic state. While most
Islamic scholars agree that in an Islamic
state government must be by popular par-
ticipation, that the judiciary must be inde-
pendent and that the legal system must be
based on the Sharia, on other points there
is much disagreement.
With this short and inadequate introduc-
tion, a description follows of the basic pro-
visions of the constitution of the Islamic
Republic of Iran and the procedures by
which it was agreed and brought into force.
Drafting and Acceptance
of the Consiitu io,,
A first draft of the constitution was
published on 21 February 1979 for discus-
location of its military indoctrination i Jotiate ‘ ‘ ‘ -
school; the whereabouts of my relatives; “A few days later, Zeballos returned to
and other matters related to the revolution- Chile taking with him Jorge Fuentes Alar-
,&ry activities of my brother Mario Roberto con, a Chilean who had been detained in
Santucho. the Investigations Division (Political Police).
“The Chilean military officers drugged His past and present whereabouts a,'e un-
inc during their turn at interrogation, which known and the Chilean Government denies
was carried out by Col. Zeballos, then head that it is holding him.”
of the Information Services of the Chilean These events are clear evidence of unlaw-
Air Force, and by an officer named Oteiza, ful collaboration between the Argentinian,
allegedly a psychiatrist. They probably cx- Chilean, Paraguayan and Uruguayan ic-
ceeded the doses of the drugs since I was times, a collaboration which has resulted in
unconscious from Wednesday night until countless killings of nationals of the four
Sunday morning. Oteiza carrie to my cell countries who have been clandestinely de-
the following Monday trying to persuade livered to security forces and then became
me to cooperate with them in order to ne- “disappeared” persons.
Iran
The New C'onstjt tjo,,
1) See,e.g,, arecentcornpreher,sjve study by Gil. Hansen, “Militant Islam”, Pan Books, London, 1979.
2) Khurshid Ahmnad, “Islani, Its Meaning and Message”, Islamic Council of Europe, London, 1976,
P. 37.
2
3
sion by the public. Shortly afterwards on
30—31 March 1979 a referendum was held
the replacement of the monarchy by an
Islamic republic. On the basis of the result
of the referendum, officially announced to
be 99% in favour, Ayatollah Khomeini pro-
claimed on 1 April the Islamic Republic of
Iran.
Elections for a constituent council of 73
members to discuss the draft constitution,
officially published on 18 June, were held
on 3 August 1979. Several parties, includ-
ing the National L)emocratic Front (NDF),
the National Front (HF), the Moslem
People's Republic Party (MPRP) and cer-
tain Arab and Kurdish political groups cal-
led for a boycott on the grounds that the
proposed council would be unrepresenta-
tive as there was no possibility of free cam-
paigning and fair elections in the current
atmosphere of disturbances and civil war.
Opposition groups alleged several irregulari-
ties. The results announced on 11 August,
showed that at least 60 of the 73 seats on
the council had gone to religious leaders
and other Islamic fundamentalists.
The council deliberated on the constitu-
tion from the end of August until Novem-
ber. On 2—3 L)ecember a referendum was
held on the constitution, which was adopt-
ed with 15,680,329 votes in favour and
78,516 against. Although there were no of-
ficial figures on the level of participation,
according to observers approximately 65%
of the electorate voted. In particular the
referendum was reported to have been
widely boycotted in the minority regions
of Kurdistan, Baluchistan and Azerbaijan -
where the majority of the moslem popula-
tion belong to the Sunni sect - because of
the lack of autonomy and the dominance
given to the Shiahs under the constitution.
In an effort to ease the tension Ayatollah
Khomeini announced some minor changes
giving more latitude to national religious
minorities.
With the help of the Iranian mission in
Geneva an unofficial English translation of
the constitution has been obtained.
Preamble of i/ic Constitution
The constitution begins with a long and
unusual introduction full of strident lan-
guage stressing the importance of the events
leading to the revolution and underscoring
the impact of fundamentalist Islamic theo-
ry on the constitution. The subtitles are in-
dicative: Vanguard of the Movement; Is-
lamic Government; Anger of the Nation;
Price Paid by the Nation; Method of Gov-
eminent in Islam; Supervision by the
Faqhih(s); Economics Is a lvleans to an End
Rather Than the End Itself; Status of Wo-
men; Army; Judiciary; Executive; Mass
Media; Representatives.
Significantly, the main body of the
Constitution consists of 175 principles, and
not articles.
General Principles
Principle 1 declares that Iran is an Islam-
ic republic “under the leadership of Ayatol-
lah [ mamn Khomeini”. The principles which
follow expand on the concept of an Islamic
state. Moral virtue is stressed and a duty is
placed on citizens and governments alike to
‘refrain from what is bad and to adhere to
what is wholesome'' (prin. 8). All laws must
be based on “Islamic principles” (prin. 4),
and the official religion is Shi'ite Islam (Ja-
fan Asna Ashari). Shiah influence is also
evident in the emphasis placed on the role
of the imamat or religious leadership (print.
2(5) and 5), which is perhaps the most sig-
nificant change to the original draft consti-
tution.
Go m'erninei: i
Principle 57 states that the three sover-
eign powers in the republic are the legisla-
ture, the executive and the judiciary, each
being independent (although later princi-
ples qualify the independence) and linked
by the office of the President, and all being
under the supervision of the imamas or
leader. In addition to the leader, the other
important organ which seeks to guide the
republic on Islamic principles is the Guard-
ian Council, in effect a second chamber of
the legislature.
Each of these bodies is discussed in
greater detail below.
The Leader or Council of Leaders/sip
(prins. 107—112,l
Principle 5, framed in terms of the
Shi'ite faith, firmly establishes that:
In the absence of Hazrat VaIi-e-Asr,
I,nan'i lVlehdi, the leadership of the corn-
muriity will fall upon the Faghig who is just,
pious, ,nlormed, brave, entei-prising and re-
spected by the majority of the people as
their undisputed leader. If no such person
can be found, the leadership of the com-
munity will be in the hands of a Council of
Leadership consisting of qualified Faghihs.
Principles 107—112 elaborate on this,
explaining that Ayatollah Khomeini has
been accepted by the people as the leader.
Where there is no such clear popular choice,
an assembly of experts shall be elected to
choose a leader or failing that a council of
leadership. The same assembly shall have
the power to dismiss a leader who lacks the
proper qualifications or is unable to carry
out his duties.
The powers and duties of the leader are
outlined in principle 110. The leader has
no direct authority over the National As-
sembly but indirectly controls legislation
through his appointment of six religious
lawyers on the Guardian Council, the sec-
ond chamber which vets all legislation pas-
sed by the National Assembly. As regards
the executive, the leader may dismiss the
President, after the decision has been ratifi-
ed by the supreme court, or upon disap-
proval by the National Assembly (although
the Executive is stated to be independent
from the legislature: prin. 57). The leader
also has important powers with regard to
the judiciary. He appoints the head of the
supreme court and the prosecutor general
in consultation with the judges of the su-
preme court. The leader is the supreme
commander of the am-med forces.
Tue Executive
(prins. 113—142)
The President is the chief executive and
the highest authority in the country next
to the leader (prin. 113). The President
must be a Shiite moslem and an Iranian.
He is directly elected but cart be dismissed
by the leader, as noted above. The Presi
dent has the responsibility for implement-
ing the constitution, for defence and other
matters “which do not relate directly to
the leader” (prin. 1.13). From the reading
of principles 115—-142 it would appear that
most of the presidential functions are cere-
monial, with the important exception of
the nomination of a prime minister which
must be endorsed by the National Assem-
bly. However, the activities of the first Pre-
sident, Dr. Bani Sadr, and his special rela-
tionship with the leader may have set a
constitutional precedent for a stronger role.
Ministers, who are chosen by the prime
minister, must enjoy the confidence of the
National Assembly. They bear individual
and collective responsibility to the Na-
S
tional Assembly for the actions of the gov-
ernrnent.
The Naijoisal Assembly
(prins. 7l—90)
The National Assembly COfiSIStS of 270
membei-s who are directly elected and sit
for four years. The primary function of the
National Assembly is to make laws within
the limits of the Constitution and the offi-
cial religion (pt-in. 72), these limitations be-
ing determined by the Guardian Council.
The National Assembly is prohibited from
setting up a military government, from
making laws which would substantially
alter the boundaries, or would grant con-
cessior s to foreigners in agriculture, mining
or industry.
In addition to law-making, ‘the inter-
pretation of ordinary laws is within the
competence and jurisdiction of the Na-
tional Assembly” (pt-in. 73). The same
principle adds that this does not invalidate
the interpretation of laws by the judiciary,
a somewhat vague provision which leaves
unresolved the question of whose views
prevail in case of conflict.
Another important function of the Na-
tional Assembly is the investigation and
scrutiny of ‘all affairs of state” (pt-in. 76).
The government may not enter into trea-
ties, employ foreign nationals or transfer
ownership of government property without
the approval of the National Assembly.
Although the executive is stated to be in-
dependent from the legislature (pt-in. 57),
the Assembly can pass a vote of no confi-
dence on a minister who must then be re-
moved.
‘I'he National Assembly has the power
to investigate all complaints from the gen-
eral public about the Assembly itself, the
executive or the judiciary (pt-in. 90). It is
not stated what measures, if any, the As-
sembly can take against the organs if a
complaint is well-founded.
The Guardia,, Council
(piins. 91 —-99)
The Guardian Council consists of twelve
membet-s, six of whom are religious lawyers
appomted by the leader, the other six being
secular “Islamic” lawyers appointed by the
National Assembly on the i-ecommendation
of the High Judicial Council.
The primary function of the Guardian
Council is to examine all legislation passed
by the National Assembly in order to en-
sure that it is in conformity with Islamic
precepts and the l)rinciples of the constitu-
tion. The interpretation of the Islamic pre-
cepts is the responsibility of the religious
lawyers but constitutional review is the
task of the council as a whole.
‘rho Guardian Council is also responsible
for supervising elections and i-eferendurns
(pt-in. 99) and drawing up the law for the as-
serubly of experts who choose the leadei-(s).
The Judiciary
(priiis. 156—i 74)
Principle 157 sets up a High Judicial
Council, consisting of the head of the su-
prenie court, the prosecutor general and
three judges elected by their peers, which
has the power to set up the legal structure,
prepare legal regulations according to Is-
lamic principles and recruit other judges.
Judges are only dismissable after their
“guilt” has been established by means of a
fair trial.
‘Fhe minister of justice is the link be-
tween the executive, legislature and the ju-
diciary. He is appointed by the prime mm-
iste,- from among individuals recommended
by the High Judicial Council.
Principle 170 places an obligation on
judges to refrain from implementing and
upholding laws which contravene Islamic
principles, thus adding to the conflict of
authority between the National Assembly,
the judiciary and the Guardian Council in
the area of interpretation of laws.
Other principles in this section on the
judiciary state that trials must be open un-
less against the public interest or requested
by the parties to a dispute (pt-in. 65), retro-
active criminal laws are prohibited (pt-in.
169), press and political offences are tri-
able before a jury (prin. 168), military
courts are an integral part of the legal sys-
tem but civil offences by military personnel
shall be tried before the ordinary courts.
Ifumat , Rig/its
The rights of individuals are mainly
dealt in the section entitled “Rights of the
Nation” although several rights are also
mentioned in other sections, e.g. under the
general principles or in the section dealing
with the judiciary.
Principle 19 states that “all the people
of Iran enjoy equal rights and there is no
distinction on grounds of race, colour, lan-
guage and the like”. Religion, sex and po-
litical conviction are not mentioned.
Principle 12 declares that while Shi'ite
Islam is the official i-eligion other denorni-
nations enjoy full i-espect and freedom in
the pi-actice of their religious duties and
functions, such as in matters of marriage,
divorce and inheritance. Zoroastrian, Jew-
ish and Christian Iranians are recognised as
official religious minorities who “are coin-
pletely free to practice their religious du-
ties within the framework of the law”
(prin. 13). Principle 14 states that non-
moslems are to be dealt with “on the basis
of justice and goodwill”, provided they are
not “anti-Islamic and have not conspired
against Iran”. One is left wondering who
is an ‘ariti-lslamic'' nonmoslem and
what difference in treatment there is for
official and unofficial religious minorities,
especially in the light of serious allega-
tions of persecution of mernbet-s of the
Bahai sect, who number over 100,000 in
Iran.
The family, as the fundamental unit of
the Islamic community, is to be upheld and
protected by the law (prin. 10). In “up-
holding the rights of women in every re-
spect” the government has an obligation to
create conditions for the development of a
woman's character and personality and to
protect mothers, widows, elderly women
and homeless children (pun. 21). No indi-
cation is given, however, of any specific
measures to improve the legal status of wo-
men particularly in marriage and divorde
law.
Freedom of thought is absolute (prin.
23) but not so with feedomn of expression
(pt-in. 24). The latter, together with the
freedom to life and property (pt-in. 22),
freedom of association (pt-in. 26), freedom
of assembly (prin. 27) and occupation
(prin. 28) are qualified by such vague
phrases as “unless deemed otherwise by
law”, “provided Islamic principles at-c not
contravened”, “provided the independence,
freedom, unity and Islamic principles of
the Republic are not flouted”. En view of
the conflicting authority of the Guardian
Council, the National Assembly and the
judiciary over the interpretation of laws
and the vagueness of the “Islamic princi-
ples”, the constitution does not confer
upon these fundamental rights the protec-
tion they deserve.
Principle 25 prohibits wire-tapping and
interception of communications “unless
carried out at the express request of the
legal authorities”. It is not clear who are
“legal authorities” for the purposes of this
principle.
7
Somewhat quaintly the unofficial en-
glish translation of principle 32 states:
“Unless otherwise prescribed by law, no
one can be arrested arbitrarily.” There then
follow detailed and clear provisions for the
legal protection of arrested persons. Punish-
ment can be prescribed only by the courts
on the basis of the law (prin. 36). Prtnciples
38 and 39 make physical torture and ill
treatment for the purpose of extracting in-
formation or confessions illegal and pun-
ishable.
In accordance with Islamic notions of
social justice, rights to social security and
health (prin. 29), free education up to sec-
ondary level (prin. 30), housing (prin. 31)
and free legal aid for the poor (prin. 35)
are cleai-ly and concisely stated. Principles
43 to 50 lay down the principal directives
for an economic policy which aims at the
fulfilment of basic needs and the providing
of equal opportunity. Ownership in the
public private and cooperative sectors of
the economy is to enjoy the full protection
of the law, “in so far as it does not contra-
vene Islamic law”.
Linergency
During an emergency situation the gov-
ernment may limit rights for up to 30 days
with the approval of the National Assem-
bly. However, the emergency may then be
prolonged indefinitely with the permission
of the Assembly (prin. 79). Principle 69
petmits the Assembly in times of emergen-
cy to deliberate in closed session, but its
decisions at such sessions will be valid and
binding only if reached in the presence of
the Guardian Council and approved by
three-quarters of the Assembly. A full
report of the secret sessions must be pub-
lished at the end of the emergency situa-
tion.
Conclusions
The Iranian constitution, which makes
several references to pan-Islam, should be
seen as part of the Islamic revival, some-
times militant, sweeping across the Islamic
world. For example last year the Pakistan
government made some changes in its legal
system to bring it closer to the Islamic sys-
tem (see ICJ Review No. 23). Recently the
Egyptian electorate have approved in a re-
ferendum constitutional refoi-ms which
would made the sharia the principal source
of law in Egypt. Of course, the distinctive
feature of the Iranian constitution is that it
has gone much farther than any other Is-
lamic state or constitution in proclaiming
a “Velayat-e-Faghih” (government by
theologians or “hierocracy”). The concen-
tration of so much authority in the hands
of one man (or a small group of men) in
the hope that he will be a just despot may
seem unrealistic to those who do not be-
lieve in the imamate, but for the shiah ma-
jot-ity of iran it is an integral part of their
faith. Whether or not this will work in the
world of twentieth century politics, it is
still too early to say.
The first draft for a new Islamic consti-
tution, which was published on June 18,
1979, pi 'ovided for a clearer government
structure than the final text which inserted
the preponderant role of the iinam. Clearly
the final draft, both in substance and in
foi-mn, is the product of a more political
body.
‘The Constitution has several positive
features, in particular in the formulation of
economic and social rights which are, in
the words of the Preamble, “the provisions
of equal educational and employment op-
portunities, as well as the satisfaction of
human wants”.
Other provisions try to regulate details
which are usually not dealt with at consti-
tutional level but this is understandable in
a post-revolutionary phase in which people
zealously guard against a return to previous
practices (e.g. employing foreigners in the
public service).
On the other hand some weaknesses, in
particular in the human rights sector, have
been pointed out. Confusion about who is
to interpret the vague and broad clauses,
which permit restrictions on fundamental
rights, does not augur well for religious mi-
norities and secular dissent. Much will de-
pend on further developments within the
power structure of the Iranian government
and on the stand taken by a truly indepen-
dent judiciary.
The constitution skirts the issue of auto-
norny with rather summary principles on
local councils (prin. 100—106), and a prin-
ciple on the freedom of moslem denomina-
To attempt to write or say anything im-
partial, objective or balanced about the si-
tuation in the occupied territories of Pales-
tine is a thankless task. Either side in the
argument will quote and snake use of those
passages which support its own case so as
to give a distorted impression of what has
been said.
At the 1980 session of the UN Commis-
sion on Human Rights the Secretary-Gen-
eral of the International Commission of
Jurists made an oral intervention describing
a recent brief visit to the occupied territo-
ries and an interview he had had with the
Israeli Prime Minister, Mr Begin, who invit-
ed him to raise any matters concerning hu-
tions in family law matters (prin. 12). The
test for human rights in Islam n 'iay well be-
come its capacity to deal fairly with ethnic,
religious and secular minorities.
Iran is a party to the International Cove-
nant on Civil and Political Rights. The Hu-
man Rights Committee under this covenant
did not complete its examination of the
report submitted by the Shah's government
first because the Committee requested ad-
ditional information, and then because of
the overthrow of the Shah's regime. The
new government has yet to submit a report.
The Committee's examination of the con-
stitution and laws of Iran will provide an
opportunity for an interesting discussion
on human rights in this new Islamic repub-
lic ruled by men of religion.
man rights. Those extracts of his speech
which seemed favourable to the Israelis
were reported in the Israeli english lan-
guage and Hebrew press with no mention
of the criticisms he had made. There is a
group of Palestinian lawyers in the West
Bank and Gaza strip affiliated to the ICJ
who work to promote the legal protection
of persons in the occupied territories. Seek-
ing to redress the balance, they prepared a
translation of the full text of the speech
with a view to its publication in the arabic
press in Jerusalem. When it was submitted
to the Israeli censors, the entire speech was
deleted, including even the passages which
had already been quoted in the Israeli press.
Palestine
Torture in the Occupied Territories
9
