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The Asian side of the world - II

Jean-François Sabouret

Part Three. Constructing theories

The Role of the Judiciary in implementing Western Law in Iran under the Pahlavi Dynasty

François Ameli

Texte intégral

1March 2012

2The Islamic Republic of Iran has over 25 centuries of history. The sources of law and the judicial system of this country have undergone many evolutions and numerous influences, which have been ethnic, religious and legal. They were sometimes imposed on the Persian government and at other times were accepted voluntarily; some were the result of wars. Since the 7th century, many things have changed in Iran, except for one: the concept that Shi’ah Islamic law is the foundation of the Iranian legal system.

3Shia and Sunni are the two main branches of Islam. The schism occurred after the Prophet’s death in 655. The Sunnis considered that the followers of the Prophet should elect his successor after his death, whereas the Shias considered that the Prophet’s successor was Ali, his nephew and son-in-law. Shias believe that the Prophet designated Ali as his successor before his death, during his last pilgrimage to Mecca. Ali and his 11 descendants are therefore known as imams (guides), and the Shias Muslims consider them the most important figures in the Islamic religion after the Prophet, their sayings having almost the same value as those of the Koran and the jurisprudence of the Prophet. The Sunnis designated “Caliphs” as the Prophet’s successors. Caliphs usually governed Islamic territory and exercised tyrannical power over the population. Eventually, all the Prophet’s descendants were killed directly or indirectly by the caliphs, mainly because of their popularity.

4Philosophical, legal and political consequences arise from these differences. The Shia philosophy is based on the existence of free will to determine man’s destiny in this world, whereas the Sunni believe in the principle of predetermination (the concept of mektoub or “pre-written” destiny). This essential difference resulted in greater freedom of speech and spirituality among the Shias during the Arab invasion. A consensus of historical communities, not the decisions of political authorities, led to the establishment of four legal schools of thought: Malikis, Hanafis, Shafi’is and Hanbalis. In theory, a Sunni Muslim could choose whichever school of Islamic thought he or she wished to follow and could change this choice at will. The Shia Muslims have only one legal school. The main difference between the Shia and Sunni schools is in the source of laws: whereas the Sunni and Shia Muslims agree on the existence of the four main sources of Islamic law, i. e. the Koran, the Prophet’s tradition and jurisprudence (referred to as the Sunna), the “consensus” consisting of the universal and infallible agreement of the Muslim community, especially of scholars on any Islamic principle, at any time (Ijma’), and reasoning (Aql), Shia Muslims add the traditions and jurisprudence of the Imams (the Prophet’s descendants). Therefore, interpretation of the same documents or concepts results in conflicts between Sunni and Shia law. Throughout their history, Iranians have used Shia to resist the Arab invaders, by proclaiming the right to a new. different way of interpreting Islamic concepts. Less than 10% of the over 1 billion Muslims in the world are Shia. Therefore, as the population of Iran is approximately 69 million according to the most recent statistics and more than 88% are Shia, more than 65% of the Shia population of the world lives in Iran. Other Shia Muslims live in Afghanistan, Iraq, Turkey, the Russian Federation, India and many other countries.

5Only small changes were made to the judicial system up to the end of the 19th century. Judicial power has always been concentrated in the hands of the clergy, who were considered the legitimate sources for rendering justice. The law is considered to be based on Islamic sources and the clergy are deemed to be the legitimate authority for interpreting the sources. Although in the early uncertain days of his career, Reza Khan showed that he knew how to play on the religious emotions of the people, he was basically disinterested in religion and was antagonistic towards the clergy. The impact of western civilization on the institutions of Muslim Iran is therefore more apparent than the reforms of the judicial system.

6Reza Khan started reforms as soon as he became Prime Minister to counter the adverse consequences of the First World War on Persia’s economic situation as well as the extreme weakness of the central Government, which favoured a return of the local landlords who had destroyed the infrastructure of the political system and the Government at the end of the Qadjar Dynasty. The Shah proceeded as quickly as possible with his plans for reform. He founded a new corps of civil servants based on the western model and the foundations of a new judicial system. His principal objective was to abolish the system of capitulations, a concept that went back to 1910, when the Russian Government signed a treaty with Persia according to which Russian citizens received immunity from the Persian courts if they committed crimes on Persian territory. This provision was imposed on the Persian Government by the Russian Government because of the lack of an impartial judicial system that could guarantee the fundamental rights of the accused individuals. Thus, Russian citizens could commit any crime in Persia without being prosecuted, and they were also protected by their own courts, as long as their crimes did not interest their own country. This problem became progressively generalized as the Persian Government was forced to confer similar immunity to citizens of other countries on the basis of treaties they had signed, which usually contained a clause refering to “most favoured nation”. In 1925, the citizens of more than 30 countries had such privileges through their respective treaties!

7Reza Shah was, however, extremely sensitive to foreign criticism, and he realized that as long as Iran did not have a judicial system along western lines, abolition of capitulations might attract adverse publicity in Europe. He knew also that, in order to be credible when abolishing the capitulations, he should provide a really efficient Persian judicial system, especially for the criminal courts.

8The man who carried the weight of this responsibility was Ali Akbar Davar, the Minister of Justice, who was one of the young chief lieutenants appointed by Reza Shah in his efforts to westernize the country. This man was of middle-class origin, who graduated in law at the University of Geneva and was the chief member of the so-called “brain trust” of the Reza Shah regime. On the basis of his Swiss legal education, Davar decided that the first step towards the desired efficiency was codification. This decision was a very important one, which affected the evolution of the Persian legal system. Davar chose to give the Persian system a continental European structure, thus distinguishing it from the Anglo-Saxon system. Persian law, which up until then had consisted of small pieces of legislation, became more and more complex.

9Experimental commercial and criminal codes were introduced in 1924 and 1926. Early in 1927, the old Ministry of Justice was dissolved, and, in the spring of the same year, new personnel, many of whom had received a European education, took over administration of the new Ministry of Justice from the former clerical officials. This new Ministry was charged with the preparation of codes of law. Early in 1928, a commission within the newly formed Ministry of Justice, headed by Davar, presented to the Majlis the first volume of the civil code and a judicial reorganization bill establishing a hierarchy of courts. On 8 May 1928, the Code was approved. As the Government was anxious to abrogate the capitulations under Reza Shah’s instruction, members of Parliament had little opportunity for debate. The parts dealing with general subjects were verbatim translations of the French Civil Code. As this code was a secularization of the Shari’ah, Davar feared that members of the clergy would oppose its implementation. Therefore, little was said about the Code, and the first volume was voted before any opposition was heard. This was followed by approval of the second volume of the Civil Code in 1935.

10Davar told those who opposed the Codes after they were approved that they were experimental and temporary. Once the Codes had been prepared and enacted, Davar ensured that qualified personnel were trained as quickly as possible in order to apply the new legislation. The most important personnel were the judges. He also hoped that formation of a new civil corps of judges would help the Government to combat corruption. A special effort was therefore made to train the new judges at the University of Tehran. The Faculty of Law trained new students, whereas evening courses were organized for judges to become acquainted with the new legislation. Few judges were trained in this way at first, and it was several years before the Persian courts became efficient. Judges were sent to the capital cities of different provinces when their training was complete.

11With regard to the organization of the courts, the burden of reform was entrusted to a few honest, qualified judges who knew the old and the new systems and could successfully ensure the transition between the two. These people included Mohammad Shafie Jahanshahi, Mohammad Reza Vejdani, Mehdi Gholi Hedayat, Nur Ali Elahi, Seyed Mohammad Fatemi Ghomi, Assadollah Mamaghani, Habibollah Shobeyr and Javad Ameri. It is obvious that the new legislation and court system required time before it became efficient. Without these judges and their efforts to implement the new laws in Iranian provinces far from the capital, the modernization could never have resisted the obstacles created by the clergy and the feudal organization of Iranian society.

12Reza Shah concentrated on two ideas: abolishing the capitulations as quickly as possible and continuing the reforms. Therefore, based on the reforms made to the Persian judicial system by Davar, the Government denounced all capitulation treaties in 1928. Th vital blow to the position of the clergy in the judiciary system was dealt on 17 March 1932, when the Majlis enacted a law concerning the registration of documents and property, requiring that the registration of legal documents, of ownership and of other transactions concerning immovable property be done in fron tof secular state authorities only. This function had previously been the monopoly of the Shari’ah authorities and, together with the registration of marriages and divorces, had been the most important function of those authorities. Furthermore, it was by far the largest source of revenue for the mujtahids and lower clergy. As a consequence of this law, many members of the clergy were forced to abandon the robe and seek secular employment.

13Legislation completing the permanent secularization and westernization of the judiciary system was enacted on 27 December 1936, when a law concerning the reorganization of the judiciary system and the employment of judges was passed by the entire body of the Majlis. In setting employment qualifications for judges, it eliminated many members of the clergy from the judiciary. It was clear from the beginning of the Reza Shah’s reforms that the clergy would have to be removed from the judiciary system. There is reason to believe, however, that the final step, taken in 1936, was motivated primarily by a desire to hasten that separation and not by consideration of the needs of the new system and the effects that such legislation would have. Yet, it was inevitable that the expansion of the judiciary system with sudden exclusion of a large proportion of former practitioners would have adverse results. A real crisis arose in the judiciary system, as there were not enough educated, qualified personnel to fill the vast new organization. Frequently, a judge would go from one mission to another or one province to another within 1 or 2 years. One judge might also be entrusted with a mission for several provinces in what were called travelling courts.

14The final version of the new Civil Code passed in 1939 gave greater jurisdiction to the lower courts and increased powers to State attorneys and prosecutors. It also provided, for the first time, a special procedure for trying foreign nationals. Both the Civil Code and the Penal Code reflected the influence of western judiciary models. Like the Civil and Penal Codes, the organization of the courts in Iran followed the French pattern. The strong influence of the French and European legal and judicial systems on the Persian system was mostly due to employment by the Iranian Government of various European professors of law and legal advisors to the Ministry of Justice during the regime of Reza Shah. From 1922 until 1939, eight French and two Italian professors were engaged to teach at the Faculty of Tehran for a total of 16 academic years.

15Therefore, for nearly 10 years after the rise of Reza Shah, the power of the clergy was diminished by a process of attrition, which led finally to a general law enacted by the Majlis on 30 November 1931, which totally redefined the status and jurisdiction of the shari’ah courts. They were forbidden from pronouncing sentence, and their verdicts had to be sent to the State court that had referred the case to them, to be pronounced by that court. In case of appeal by the defendant, the verdict of the shari’ah court could be reviewed by the State court.

16Reforms were continued under the reign of Mohammad Reza Shah (1941-1979) but not with the same force. The greatest efforts were made in the fields of women’s rights and family law. In any event, the process of attrition of the power of the clergy under Reza Shah can be directly linked to the political events some 40 years later, in 1979.

© CNRS Éditions, 2015

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