In this panel we will review Article 168 of the Constitution of the Islamic Republic of Iran, both in theory and in practice. Pursuant to this article: “Trial of political and press crimes are public and heard in courts of law in the presence of a jury. The procedure of jury selection, conditions and powers of the jury and the definition of political crimes will be provided in the law based on Islamic criteria”.
I will review provisions of this Article regarding rights of political and press defendants, which have been somewhat recognized formally, such as the right to be heard in public and the need for the presence of a jury, and compare it with international principles regarding fair trials. This section of our discussion is theoretical and brings us closer to the intent of those who wrote the constitution. I will discuss the positive and negative aspects of the Article regarding the rights of the political and press defendants and the possibility of enforcing the positive aspects as provided in the constitution of the Islamic Republic.
In the second Section I will discuss what has happened in practice in the last thirty three years and review the political trials that have taken place and resulted in conviction of defendants, in total violation of this Article. In reality, Article 168 has been totally abandoned. However, in spite of the insistence of legal scholars on such violation, the authorities in the Judiciary have not been responsive. To the extent that it can be announced that the political and press convictions, which have taken effect after the Constitution was passed in total disregard of this Article, are all illegal and the responsible authorities should be held accountable by an independent judiciary in an appropriate political situation.
Finally, in conclusion, I will argue that mere legislation, without observance of human rights principles, cannot meet the expectations of today’s Iranian Society. More importantly, when laws are not enforced properly, even if the law itself is proper, people’s rights are not guaranteed. In my conclusion, I will state that in the future constitution of Iran, inclusion of a Supreme Court with jurisdiction to hear complaints of violations of the constitution is necessary. Using the 1996 Constitution of South Africa as a role model, I suggest that such constitution and the discourse around it be studied.
Mehrangiz Kar is a prominent Iranian lawyer, celebrated human right activist and author of the book Crossing the Red Line. She was a Radcliffe Fellow at Harvard University and in the 2005/06 academic year was based at the Carr Center for Human Rights Policy at Harvard’s John F. Kennedy School of Government. Mehrangiz has also been recognized as a Scholar at Risk through an international network of universities and colleges working to promote academic freedom and to defend the human rights of scholars worldwide. In 2002, First Lady of the United States, Laura Bush, gave her the National Endowment for Democracy’s Democracy award.