Is Iranian institutional overlap preventing judicial independence?

Iran has made progress in its judicial process. There is a concerted effort by the government to reduce the number of executions that take place within the country and to try and conform to international standards of practice. Furthermore, Iran has made efforts to create an independent judiciary, with some success. However, there are institutional problems that are preventing further progress that should be addressed.

Iran’s constitution has, in its wording, an independent judiciary. Its criminal and civil courts, held within the ‘Courts of Peace’ and the ‘Public Courts’, can act with relative independence. The executive appears to remain separate from these court processes. Judges are separate from the executive and legislative branch, with judges being appointed by the Supreme Leader. There is further separation of powers under the constitution article 170 of which, for example, states that: “Judges of courts are obliged to refrain from executing statutes and regulations of the government that are in conflict with the laws or the norms of Islam, or lie outside the competence of the executive

The fact that the Supreme Leader chooses the judges is not an ideal way to separate the legislative and executive from the judiciary, but it does achieve a level of separation. After all even in the USA the President chooses the Supreme Court and in the UK the Prime Minister selects the Supreme Court neither of which is perfect.

However, there is certainly a problem regarding judges imposing pressure upon lawyers. There is concern regarding the former UN Special Rapporteur’s reports that lawyers have been disbarred for representing certain defendants. This is of great concern as a lawyer should not be punished for doing their job. Lawyers are to be independent of the criminal.

Much like their democratic institutions, the country suffers from varying independent institutions that work over each other. The Religious and Revolutionary courts are both separate from the regular criminal and civil courts. They also both have the power to overrule these courts and take over cases they deem to be within their remit. Whilst the standard courts have due process, the other courts work at the behest of a select few that can ignore due process and arrest arbitrarily under the guise of ‘national security’. Now, every country has national security concerns, and this is not to suggest that Iran does not have enemies that could be involved in attempts to subvert the state. However, the lack of transparency regarding these cases is highly problematic, as the hiding of evidence suggests foul play, rather than a legitimate concern. Additionally, cases held by the Revolutionary and Clerical courts are notoriously vague, often citing ‘un-Islamic’ behaviour as an element in their reasoning. There have been cases of forced confessions, suspects held without charge for extensive periods of time, and televised show trials. Defendants in these cases are forced to select from an official pool of lawyers chosen by the head of the judiciary. This unnecessary stipulation may mean that the defendant will not be properly defended and possibly even that the lawyer might be expected to ensure his client is found guilty. It would certainly be more conducive to creating a positive image in the eyes of the international community to streamline the courts into a less convoluted, more transparent and more accountable system.

Iran’s judiciary appears to mostly act free of executive pressures. However, there remains an issue regarding the practice of disbarring lawyers for their choice of defendants and a lack of merit-based promotions. This situation must improve if Iran is to have a fair and independent judiciary. The autonomy of the IRGC continues to create a negative image for Iran. What progress Iran does make, and with moderate figures such as Rouhani it is wrong to suggest progress is not desired by much of the population, is regularly critiqued with questions over whether the progress can have a genuine effect on the country if the IRGC and Clerical courts can continue to act with zero accountability.

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