Judicial System in the Achaemenid era
In the Avesta and old Achaemenid calendar, the word “Daat” means law. That word has changed into “Daad” in Farsi which translates into justice in English. In the Achaemenid era, administration of justice was under the direct supervision of the king. The magi and religious leaders would enforce the law and issue verdicts.
Ancient Iranians revered the magi as the sages, and nobody could ascend the throne before learning the teachings of the magi. All powers, including judgment, rested with those who acted under the supervision of the king. The monarch would delegate his authority to an elderly scholar to handle judicial processes and select judges. Courts were divided into two categories: supreme and local. Seven judges had seats on supreme courts, and the priests were in charge of making laws. Trials would follow special trends such as compromise through arbitration. With a rise in the number of judicial cases, spokesmen of the law (modern-day lawyers) emerged to offer counseling and guidance to people in judicial matters. Other judicial trends included efforts to enforce the verdicts and require individuals to take an oath.
Judicial System in the Parthian era
In the Parthian era, the judicial system was not overhauled; rather, slight changes were made to the judicial procedures. The king served as the Judiciary chief. The king was above criticism and his verdicts could not be overturned. If people were unable to secure their rights in local courts, they would take their complaints to the king. Twice a year – namely during Nowruz and Mehregan Festival [the Persian Festival of Autumn] – the king would grant public audiences allowing people to air their complaints about the king and others. In case there were plaintiffs, the case against the king and people would be prosecuted by Mobeds [Zoroastrian clerics] who were clerical and judicial officials of the time.
Prior to the advent of Islam in Iran, in the Sassanid era to be more exact, Zoroastrian Mobeds were in charge of the judicial organization and procedures, and the Avesta and Ijma (the fatwas issued by religious scholars put together) provided the legal and judicial principles based on which Mobeds would judge.
After the fall of the Sassanid Empire, Muslims took over in Iran and judicial verdicts were based on Sunni Fiqh. With the rise to power of the Safavid kings, who promoted Shiism in the country, the judicial system was based on Ja’fari Fiqh in which Sharia and non-Sharia affairs became two separate parts. Sharia-based courts were run by jurists, and non-Sharia courts were operated by the government.
In the Zandiyeh and Afsharid eras, the judicial procedures remained unchanged. In the Qajar period, Adliyeh [equivalent to the modern-day justice department] was formed when Naser al-Din Shah was in power and Divan-Khaneh [court or tribunal] was the place in which complaints and differences would be dealt with. Clerics and Mujtaheds would attend to legal complaints and claims, and state officials would be in charge of handling non-civil cases. In other cities, clerics would settle civil cases, and [local] governments would handle criminal and disciplinary cases. The head of Divan-Khaneh would be appointed by the king. In the Qajar era, Iran’s judicial system was reviewed in three periods:
1. When Mirza Taghi Khan Amir Kabir was in power
2. When Mirza Hossein Khan Moshir od-Dowleh was in power
3. During the developments which led to the Constitutional Revolution: the House of Justice was established at this stage.
When Mozaffar ad-Din Shah Qajar was on the throne, under Article 27 of an Amendment to the Constitution, the judiciary was independent. Under Article 71, the competence of non-Sharia and Sharia-based courts, a tradition which had survived since the Safavid period, was recognized, and under Article 72 of the Constitution, hearing cases involving political crimes was within the purview of public courts.
When Farman Farma was the minister of justice, he helped launch four distinct courts: magistrate, criminal, appeals and cassation courts. In the following years when Hassan Pirnia, known as Moshir al Dowleh, was justice minister, cassation tribunals and public prosecutors were introduced to the justice system. The parliament’s Justice Committee adopted some changes to the judicial system based on which official courts fell into three categories: peace, appeals and cassation courts. Laws were divided into criminal and commercial parts and were adopted later in the same period.
Prior to the rise to power of the Pahlavi dynasty, order and concentration were absent from the judicial process. In the Pahlavi era, non-Sharia laws were adopted regardless of Sharia-related standards and principles. During the first Pahlavi period, the civil code (containing 955 articles on ownership) and contract laws were adopted in 1928. The law of civil procedure was adapted from the French law in 1911 and was renamed the Proceedings Law. It was amended in 1939. The second and third volumes of the civil code (on personal status and residence) were pieced together and adopted based on the civil laws of France, Belgium and Switzerland. The judicial system in the Pahlavi period moved toward non-Sharia laws and secularization of society.
After the ouster of Reza Shah and during the 37-year reign of the second Pahlavi monarch, Iran’s political, economic, social and cultural landscapes were full of ups and downs. Superficial changes – which brought changes to the form of the judicial system and not to its fundamentals – were among salient features of the transformation of the judicial system in that period.
Unlike the early years after the Constitutional Movement, this period neither marked the foundation of the judicial system, nor did it see the modernization of the justice procedures like what Reza Shah did during his reign. Rather, in this period, the judicial achievements of the past two periods were tapped. Except for some limited changes in the judicial system, the form and content of the system remained unchanged, and the framework of procedural laws, including the law of civil procedure and the law of criminal procedure, was kept intact.
The changes the judicial system underwent in the second Pahlavi period – against the backdrop of political developments – came in three periods:
First Period: Developments following September 1941 up to the rise to power of Dr. Mosaddegh (ended by the 1953 coup)
Second Period: Developments of Mosaddegh’s short term in office
Third Period: Up to the downfall of the Pahlavi dynasty in 1979
First Period (September 1941 – August 18, 1953)
- Thanks to political uncertainty, developments associated with the judicial procedures remained far from stable.
- Under a law adopted on October 7, 1941, Reza Shah was ousted as leader of the three government branches, which had been assigned to him under a law adopted on February 9, 1825.
- The justice system stirred an uproar following the September 1941 trial of the agents of the Reza Khan’s royal court, especially his police officers.
- Restitution of properties seized during the reign of Reza Khan was another issue which saw the justice system intervene and calm the people through its own formula: the deed of gift. Finally a bill that determined the ownership of the properties in question was adopted by parliament on June 2, 1942.
- Adoption of a single-article law in 1943 restricted the authority of the military tribunals.
- Under the law adopted by the Cabinet of ministers on January 3, 1942, the Judiciary Branch was totally separated from the Executive Branch.
- Absence of fundamental changes in the government structure stopped all branches of the government from welcoming the reform of the judicial system.
- Extension of the authority of military courts, especially from 1948 onwards, amounted to violation of the general jurisdiction of the justice system.
- Involvement of politics in the judiciary added up to intervention in judicial affairs by the government branches.
Second Period (May 1951 – August 1953)
It is one of the most controversial periods of Iranian history. Prime Minister Mohammad Mosaddegh’s term in office can be divided into two periods as far as judicial developments are concerned:
1. In the first year of Mosaddegh’s term, the judicial system underwent no remarkable change. Implementation of the law on the nationalization of the oil industry was the centerpiece of the government’s agenda and, as a result, little attention was paid to internal reforms.
2. The Tir 30 (July 21, 1952) uprising ushered in a new era for the country during which Mosaddegh’s government focused its attention on domestic reforms. A government-proposed plan highlighted reforms on economic, political, social and judicial fronts.
Judicial changes in this period did not amount to the transformation of the judicial system. The bill on judicial reforms included a set of superficial changes which conformed to the political conditions of the time and were designed to democratize the judicial system. By introducing those changes, the prime minister intended to rid the judicial system of the autocratic legacy of Reza Shah. Those changes are as follows:
- Justice organization, which included judicial and administrative departments, underwent more changes when compared with other parts of the judicial system.
- Measures to boost the judicial system and render it independent, help the Judiciary Branch claim its rightful place within the government and in relation to the Legislative and Executive Branches, and raise the efficiency of the judicial system by reviewing judicial laws were among positive reforms Mosaddegh introduced to the judicial system.
Third Period (1949-1979)
In the 25-year period following the coup, the developments on the political, social and judicial fronts were totally different from those of the previous periods. In this period, little was done to lay the foundation of new political, social and judicial systems; rather, the unfinished plans remaining from the previous periods were pursued, undergoing slight changes. Soon after the coup, the reforms Mosaddegh made were reversed or reviewed, and the laws which were adopted thanks to Dr. Mosaddegh’s measures were repealed. The key changes in this period are as follows:
- Formation of circuit courts, under the bill adopted on February 18, 1957 (by a joint parliamentary committee), was ratified.
- The post-coup judicial organization maintained its structure until the 1979 Islamic Revolution. In other words, in the 25-year period the country’s judicial system was the same organization which survived the early years of the Constitutional Movement and the reign of Reza Shah. It underwent limited change.
- The victory of the Islamic Revolution can be indicative of the weakness of the judicial system in the pre-revolution era.
The Judicial System of the Islamic Republic of Iran
In the early months after the revolution, the judicial system did not undergo much change due to the fact that the country lacked a constitution. After a while, a revolutionary committee was formed in the Justice Ministry to hear public complaints against the officials of the previous regime. On March 8, 1979, the Council of the Islamic Revolution adopted a law on reforming the justice organization and another on hiring judges, which offered extensive powers to the ministry, among them: dissolution of courts, judicial centers, redundant justice departments, and their reformation after purging them. Other developments of this period included:
- Under a law adopted on March 16, 1979, the Supreme Court of Iran and its prosecutorial office as well as disciplinary and appeals courts were dissolved.
- On April 4, 1979, the Supreme Court of Iran was formed with a new lineup.
- Under Article 174 of the Constitution, the National General Inspectorate replaced the Royal Directorate General of the Justice Ministry – under the supervision of the Judiciary chief – to supervise the proper implementation of laws by the administrative organs of the government.
- Under the single-article law adopted on May 1, 1979, the guilds courts were abolished and misdemeanor courts were put in charge of hearing guild-related offenses.
- Adoption of the law on formation of public courts set the stage for the creation of civil courts and the prosecutorial office of revolutionary courts in addition to the public justice department.
- Under Article 156 of the Constitution, the Judiciary was recognized as an independent branch separated from the Justice Ministry; under the charter of the Constitutional Movement, however, the Justice Ministry was the highest ranking department and the justice minister was the highest ranking manager of the judicial system responsible for steering and managing the Judiciary Branch. That remained in effect up to the 1979 revolution, and the Judiciary Organization was not within the government.
- Under Article 157 of the Constitution, the macro-management of the Judiciary Branch was delegated to the High Council of the Judiciary.
- Under the new arrangements, the powers of the Justice Ministry were reduced with its main responsibilities transferred to the High Council of the Judiciary. The justice minister had no control over judicial affairs and departments of the Judiciary Branch; rather, he served as the representative of the Judiciary Branch in the Cabinet and parliament sessions so that he could defend judicial plans and bills.
- Military courts came under the supervision of the Judiciary Branch and the Judicial Organization of the Armed Forces was established as an affiliate of the Judiciary under Article 172 of the Constitution.
- Under Article 173 of the Constitution, a new court, the Court of Administrative Justice, was established.
- The National General Inspectorate was another effective organization which was established after the revolution.
- Three years after the revolution, the Judiciary experienced a period of chaos due to duality in judicial thinking, the urgency of judicial developments and the lack of experience on the part of revolutionary forces.
- The Eight-Article Order of the late Imam Khomeini on December 13, 1982 was a turning point in the transformation of the post-revolution judicial system. Clause 1 of the Order highlighted the enforcement of Sharia laws, especially in judicial affairs and Clause 2 focused on the competence of judicial agents [judges, prosecutors and courts] and on weeding out corrupt people. Other clauses dealt with immunity from prosecution and judicial security of individuals [and protecting people’s privacy].
- In August 1985, a bylaw which included 39 articles and four notes was adopted to help the High Council of the Judiciary undertake its responsibilities, improve its decision-making process and run its affairs.
- The shortcomings and problems associated with the Judiciary System’s management council along with other defects prompted the late Imam Khomeini to send a letter to the then president on February 12, 1989 and ask him to hold a meeting with the heads of the three government branches and members of the High Council of the Judiciary to discuss how to divide the responsibilities of the council and then put forth their plans and proposals. Participants in the meeting decided that the justice minister be responsible for all executive affairs of the Justice department and coroner’s office. The justice minister was also given the responsibility to propose his nominees for the jurist seats on the Guardian Council and the representative of the Judiciary Branch in IRIB’s Supervisory Council. The High Council of the Judiciary was given the task of solving the housing problems of judges, holding conferences, and establishing ties with the Executive and parliament. The plan secured the blessing of the late Imam on February 15. Afterwards, a plan on reviewing the Constitution saw the question of concentrated management in the Judiciary Branch reviewed, and the final approval of the constitutional reforms marked the start of a new era for the management of the judicial system.
- In a letter to the then president on April 23, 1989, the late Imam tasked a 20-member team with reforming the Constitution and asked the Islamic Consultative Assembly to introduce another five members to the team. Clause 3 of the letter was about “Concentration of management in the Judiciary Branch”, one of the questions which was to be reviewed. During the debates over reforms, the position, duties and powers of the justice minister were discussed too. Prime Minister Mir-Hossein Mousavi and Justice Minister Hassan Habibi, building on their 10-year experiences, proposed that the Justice Ministry be dissolved, saying instead the Judiciary chief could have executive and parliamentary deputies to take part in Cabinet sessions. They cited the fact that the [justice] minister had to answer to parliament whereas had little authority.
- Opponents of the plan to dissolve the Justice Ministry said that the minister had a high status because he was elected by the president and parliament, and the removal of the minister’s position would harm the credibility of the judicial system. Under Article 160 of the Constitution, the Minister of Justice owes responsibility in all matters concerning the relationship between the judiciary, on the one hand, and the executive and legislative branches, on the other. As a member of the Cabinet, the justice minister should answer to people and legal authorities; and in international relations, he is responsible for contracts and is accepted as party to contracts depending on the cases.
The justice minister attends the Cabinet cessions, has the right to vote, and should defend judicial plans and bills as well as measures associated with the Ministry of Justice. Thus, given his responsibilities, the justice minister does not have enough powers and lacks special status within the government.
Currently, under Article 4 of the Constitution, all [civil, penal financial, economic, administrative, cultural, military, political, and other] laws and regulations must be based on Islamic criteria. Therefore, all judicial rules and regulations, laws of civil and criminal procedures, substantive laws, and finally all regulations that are being enforced should be in full compliance with the principles of the Islamic Fiqh.