The independence of the judiciary relies on the separation of powers but, in the Islamic Republic, all three branches of government work under the supervision of the Supreme Leader.
Iranian Foreign Minister Mohammad Javad Zarif has claimed Iran’s “judiciary and judges are independent,” an assertion that will sit uncomfortably with anyone who has had even briefly glanced at any international headlines about the country in recent weeks.
Zarif made his statements during a lengthy online interview with well-known American journalist Fareed Zakaria on Monday, September 21. Zakaria also sits on the Board of Directors of the Council on Foreign Relations, which hosted and facilitated the event.
When asked about Navid Afkari, a wrestler hanged on September 12 for murder after being forced to admit his guilt under duress, Zarif responded with four arguments:
- “We have an independent judiciary and the government is not involved in the decision-making of the judiciary. In fact, judges in the judiciary have their own independence from the center of authority of the judiciary.”
- “Capital punishment is a live issue. It’s a lively debate in the United States, in Iran, elsewhere, whether capital punishment is good or bad, whether it serves the purpose of deterring crime or whether it does not...Capital punishment is in the Iranian criminal court, as it is in many of the United States’ states. And recently people have been executed in the United States. A gentleman was executed in Texas who was 18 years old when he committed a crime. I don’t think anybody would ask Secretary Pompeo to explain that.”
- “I am not in a position to judge the decision of a court. A court is a court. It makes its own decision. Obviously, there are people who like the decision of the court, who like the ruling of the court, and there are people who do not like the ruling of the court.”
- This “gentleman—and I feel sorry for his family, as I feel sorry for the family of his victim—was executed not because of participating in demonstrations but because of a murder. He was accused of a murder. He went through a court proceeding on a murder charge. There were private claims against him by the family of the deceased who was killed...Many people participate in demonstrations [in Iran], and none of them are executed.”
Navid Afkari, a champion wrestler from Fars province, was arrested for allegedly attending a protest in August 2018, was charged with murdering a member of the Shiraz local Basij, the volunteer wing of the Revolutionary Guards, and who was also an employee at the city's water organization. The court’s verdict was based on confessions that Afkari said had been extracted from him under torture. The haste with which the Iranian judiciary carried out the execution has led many to question whether the verdict had been just.
In his four arguments, Zarif makes many claims. Each claim merits a fact check.
In this report, IranWire fact checks the claim that the Islamic Republic’s “judiciary and judges are independent.”
Are Iranian Judges Independent?
This question has been asked many times. The independence of judges has been a controversial issue in Iran for years, and even the Supreme Leader, who appoints or dismisses the country’s judiciary chiefs, is not quite sure about it. “We must stand against what undermines the independence of the judiciary, including threats, bribery and the pressure of public opinion. We must put the emphasis on correct judicial behavior and approach,” announced Ayatollah Khamenei in a speech in 2015.
So what is the meaning of “judicial independence”?
“Judicial independence must be studied in two domains: the independence of the judiciary and the independence of judges,” wrote Hasan Mohseni, an associate professor at Tehran University’s Law School. “The independence of the judiciary originates from the separation of powers, while the independence of the judge means independence from the plaintiff, the defendant and their lawyers, and also independence within the judiciary, which ensures the judge’s job security and prevents the transfer of the judge to other benches.”
Baquer Shamlou, associate professor at Shahid Beheshti University’s Law School, wrote in an article that he coauthored with Shahram Mohammadi, a PhD in criminal law, “Judicial independence is of three kinds: independence as the relative separation of powers, the personal independence of the judge and independence from the government and from the power. The first two kinds are relative but the third kind is absolute. The stronger and the more institutionalized the third kind of independence is the better it can protect the nation’s and the society’s legitimate rights. Judicial independence can be realized not only by the independence of the judicial branch but also by the independence of the person of the judge.”
With such a characterization, are the Iranian judiciary and Iranian judges independent? To answer this question we should consider the following points:
A. The Independence of the Judiciary
The independence of the judiciary means the full implementation of the “separation of powers.” Separation of powers is established in democratic systems to prevent the concentration of power in a single entity because the concentration of power in the hands of a single individual or a single institution leads to corruption and despotism. Now the question is this: does Iran comply with the principle of the “separation of powers”?
In its first and second articles, the constitution of the Islamic Republic defines the ideological basis of the regime. It makes no mention of the separation of powers. And in Article 5, the constitution emphasizes that “During the Occultation of the Wali al-Asr [the hidden Imam]... the leadership of the Muslim community devolves upon the just...and pious Faqih [Islamic jurist], who is fully aware of the circumstances of his age, is courageous, resourceful, and possessed of administrative ability, and will assume the responsibilities of this office in accordance with Article 107.”
In other words, contrary to the principle of the separation of powers, the Iranian constitution centralizes power in institution: that of the Supreme Leader. Article 57 does make reference to the separation of powers, but then gives the Supreme Leader power over them: “The powers of government in the Islamic Republic are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the absolute [Supreme Leader]... in accordance with the forthcoming articles of this Constitution. These powers are independent of each other.” So this stipulates that these powers are independent of each other, but all three are accountable to one person, the Supreme Leader.
Furthermore, the subordination of military, security and intelligence agencies to the Supreme Leader — even the intelligence minister must be approved by the Supreme Leader before he can take the helm of a ministry that is part of the executive power — and their dominance over the courts and especially the Revolutionary Court, disables the principle of the separation of powers because these courts have no authority of their own. They must all work under the supervision of the Supreme Court Leader and his associated entities, including military, security and intelligence agencies.
According to clause 4 of Article 110 of the constitution, the “appointment, dismissal, and acceptance of resignation” of the “supreme judicial authority of the country” is one of the “duties and powers” of the Leadership. For all practical purposes, this article makes the independence of the judiciary meaningless because the head of the judiciary cannot be independent when he is forced to obey and follow the wishes of the Supreme Leader who can dismisses him anytime he wishes to do so without being accountable to any other authority besides himself.
B. The Independence of the Judges
In a system where the judiciary is not independent and is under the control of the leader of the country, it is highly questionable whether the principle of the “independence of the judge” can exist or thrive.
“The independence of the judge means that, in judging a certain case, the judge examines and makes a decision with total freedom and based on the law and without any interference, pressure or undue influence from any part of the government or other sources,” write Baquer Shamlou and Shahram Mohammadi. They emphasize that the other necessary condition for justice, besides independence, is neutrality. “Neutrality means having no bias toward a person, a belief, a ruling or a verdict,” they write. “In a court of law, neutrality means a process of inquiry without bias and without prejudice.”
In the Islamic Republic, the independence of the judge is questionable both as a matter of form and from the point of view of its substance.
Job security is essential to guarantee a judge’s independence. “A judge cannot be removed, whether temporarily or permanently, from the post he occupies except by trial and proof of his guilt, or in consequence of a violation entailing his dismissal. A judge cannot be transferred or re-designated without his consent,” states Article 164 of the constitution, followed by: “except in cases when the interest of society necessitates it.” And who decides what the interest of society is? The Chief of the Judiciary, the head of the Supreme Court and the Prosecutor General, the article declares. In other words, if the judge refuses to obey these officials, he can simply be “re-designated” to another bench without his consent.
A judge must have total freedom in issuing his verdict and must be free from any pressure and interference from or influence by the government. In the Islamic Republic, especially in political and national security cases, this is absolutely not possible because:
- The judiciary functions under the supervision of the Supreme Leader and all government, military and judiciary officials, without exception, must act in line with his views since he is the deputy of the “hidden Imam.” When the Supreme Leader expresses a view, privately or publicly, no judge or prosecutor can act contrary to this view. In his speeches, Ayatollah Khamenei repeatedly makes statements that require judges to issue verdicts without first conducting a process to discover facts or carrying out investigations. A perfect example comes from 2000, when the Administrative Court ordered mass suspension of newspapers and magazines after Khamenei accused the press of being “an enemy base.”
- In some cases, directives issued by the judiciary chief and his public comments leave no room for the judge to be independent. When the Chief Justice orders judges what to do it means they have no freedom of action.
- The independence of the judge and the neutrality of bailiffs and prosecutors are directly related to one other. When the bailiffs and the prosecutors are not independent and neutral, they are able to damage the independence of the judge as well because they play a major role in the discovery of the truth. Designating the Revolutionary Guards as bailiffs and their status vis-à-vis the Supreme Leader leaves no room for the independence of the judge.
- The presence of a jury in political and press cases is another factor that guarantees the independence of the judge. Article 168 of the constitution recognizes this: “Political and press offenses will be tried openly and in the presence of a jury in courts of justice.” This means when the case of a political dissident or one involving the press is tried publicly before a jury, the chances that the judge will violate the law or be influenced by the government is reduced. In the past, these cases have often been sent to Revolutionary Courts, and often because they have been classified as “national security” crimes. Revolutionary Courts do not tend to use juries. But now, for the first time in the Islamic Republic system after more than 40 years, courts plan to try political crimes using a jury. However, members of these juries will not be made up of people chosen at random from the population. Instead, they are going to be “appointed” by government officials and its representatives. Under such conditions, it makes no difference whether there is a jury at political or press trials or not.
- The right to choose one’s lawyer freely and have the lawyer present at all stages of the proceedings is another necessary component of judicial independence. Yet when a group of lawyers including Nasrin Sotoudeh, Mohammad Najafi, Amirsalar Davoudi, Farhad Mohammadi and Mostafa Daneshjou have been incarcerated for defending human rights and the rights of defendants, it must be concluded that judicial independence does not exist in Iran. And when lawyers are not free to defend the accused, one can only have doubts about the independence of judges.
A Judge Talks
Siamak Modir Khorasani was the presiding judge of Branch 76 of Tehran Criminal Court for close to 12 years. He was the judge in a number of high-profile cases, including the case of Kahrizak Detention Center where, in the aftermath of the disputed 2009 presidential election, numerous detained protesters were tortured, and at least three of them were killed. The main defendant was Saeed Mortazavi, Tehran’s prosecutor at the time, who was disbarred but escaped any serious punishment for his role.
In an interview in 2017 published by Mashregh news agency, Khorasani defended the Iranian judiciary. At the same time, he revealed proof of the lack of judicial independence in Iran. “I had no relations with Mr. Mortazavi,” said Khorasani. “Considering his relations with the judges at the prosecutor’s office I decided to have no friendly relations with him because I believed it would be better both for me and for the case.” What were Mortazavi’s relations with the judges? he was asked. “He had views about cases that he passed on to judges so I preferred to stay away from him,” he answered. In plain terms, Mortazavi told judges under him how to rule and they did it.
Khorasani’s interview also casts doubts on the independence of prosecutors and reveals the interference of bailiffs in the judicial process. In the Kahrizak case, where he was the presiding judge, parents of a victim by the name of Javadifar withdrew their complaint against Mortazavi, who had been on trial. “My own feeling was that this letter of withdrawal had been obtained beforehand and was then introduced during the trial,” says Khorasani. “This was my personal impression. Many times during the trial Javadifar fainted and we had to call in the emergency service. By the way it was written I gathered that the family of the victim had written it under coercion.”
In other words, Khorasani had concluded that the letter of withdrawal had been obtained from the victim’s family by force and, as a result, the charge of accessory to murder against Mortazavi was dropped. “I believed he was an accessory to murder and wrote this in my opinion but three members of five-member panel of judges voted against it,” he said. “I along with another colleague voted for a sentence of 15 years in prison for being accessory to murder but the other three colleagues did not believe so and, as a result, the court acquitted him on the charge of accessory to murder.”
According to Judge Khorasani, “the situation is now [so bad] that if the judiciary announces that in the next six months any judge who wants to leave the judiciary system — through retirement, by being paid for the years served or by some other arrangement — I promise you that not one person who meets the requirements will stay. If anybody does not agree with me, I am willing to bet on it.”
Khorasani made this statement when asked about the financial situation for judges. His response reveals that judges in Iran are not financially secure and this, of course, undermines their judicial independence.
Judgment of UN’s Special Rapporteurs
In their reports, Ahmed Shaheed and Asma Jahangir, the UN’s Special Rapporteurs on human rights situation in the Islamic Republic, had always emphasized two key points: “lack of independence of the Iranian judicial system” and the “dominance of security forces on the Revolutionary Court.” “The absence of an independent judicial system in Iran, especially in the case of the Revolutionary Court, has created a critical situation in Iran,” reported Asma Jahangir. “Reforming the human rights situation in Iran is not possible without reforming the judicial system,” she said.
IranWire fact-checked Foreign Minister Zarif’s claim that in Iran “the judiciary and the judges are independent,” and has arrived at the following conclusions:
- The independence of the judiciary is based on the separation of powers. The constitution of the Islamic Republic states that the three branches of the government are independent of each other but then it places all three under the control of the Supreme Leader. In this way, the constitution undermines the principle of the separation of powers, which is meant to prevent the concentration of power in the hands of one person or one institution.
- The judiciary chief is appointed by the Supreme Leader and he is required to function under the control of the Supreme Leader.
- The subordination of military, security and intelligence agencies to the Supreme Leader forces the judiciary to cooperate with these institutions.
- Public and private opinions expressed by the Supreme Leader and the Chief Justice and the directives issued by them force judges to issue their verdicts without investigation and without relying on evidence. An example is the mass suspension of newspapers and magazines after Ayatollah Khamenei called them “bases of the enemy."
- The role of the Revolutionary Guards as bailiff and their subordination to the Supreme Leader allows the government to interfere in legal cases and violates the independence of the judges.
- The absence of a jury of citizens in political and press trials further erodes the independence of judges in such cases.
- Lack of judicial independence of judges has been confirmed by UN’s Special Rapporteurs on the human rights situation in Iran.
IranWire’s conclusions agree with the conclusion of Baquer Shamlou, associate professor at Shahid Beheshti University’s Law School, and Shahram Mohammadi, a PhD in criminal law, who wrote “The judicial system of our country suffers from weaknesses and defects both in structural terms and in terms of procedures and this makes the independence and neutrality of the judges highly questionable.”
Therefore, IranWire awards Foreign Minister Zarif a “Pinocchio Lie” badge for claiming that in Iran “the judiciary and the judges are independent.”