A Protest Silenced: the Iranian Show Trials and Due Process
Protests in Iran against government led to four executions after unfair trials, highlighting legal system’s shortcomings in due process.
In September of last year, the death in custody of the young Iranian woman Mahsa Amini sparked a wave of protests against the government of Iran.
As with many such events, Mahsa’s death was a flashpoint for malcontent and the outpouring of numerous grievances against the ruling government.
Protesting is not done lightly in Iran. In 2016, 44 people were executed as a result of their protest actions.
Nonetheless, countless ordinary Iranians took to the streets to protest against their government late last year, and thus far, four have been executed after hurried trials which have almost none of the features of what we would recognise as due process or a fair criminal proceeding.
On December 8, 2022, Mohsen Shekari, a 23 year-old man who had taken part in the protests, was hanged in a Tehran prison. Four days later, Majidreza Rahnavard met with the same fate, and in January Syed Mohammad Hosseini and Mohammad Mehdi Karimi were also hanged.
This is an evidently barbaric and oppressive process. We regard the notion of rushed, politised executions as alien to concepts of justice and due process; and doubtless such events could never arise under the legal regimes which exist in common law jurisdictions and certain other Western countries. How, then, could these political executions have arisen?
The answer lies in Iran’s legal history and illuminates many of the innovations which have been arrived at slowly and painstakingly to create the fair, just, and humane system which we enjoy in Australia and other jurisdictions.
The legal system of Iran was originally informed by sharia law, and its criminal law by the offences of Hadd set out in the Qu’ran. Whilst there are other, nominally sharia, jurisdictions, Iran remains substantively unique insofar as, from the sixteenth century onwards, it is the only Islamic country to be officially Shi’a. The majority of Muslim countries are Sunni, both in respect of the majority of the population’s religion, and the theocratic rules which inform government.
Sharia law in Iran operated in a mostly traditional way until 1925, wherein clerics acted as judges and implemented religious law as they interpreted it. There was no written code and no grounds of appeal.
It should be noted that a similar system existed in twelfth-century England, in which almost no written law existed, but where itinerant judges were sent out by the King to administer justice in a consistent way across his Kingdom. This is what makes English law ‘common’ – it is common to all, and its key goal is consistency. Thus arose the principle of precedent, or stare decisis, such that when one decision was made, future similar cases had to be decided in the same way. Hence, even without a written law, the problem of consistent and consequently fair decision-making was addressed. Sharia law’s approach to the same problem was to accept that only God will eventually resolve the inconsistency between two justices’ contradictory decisions, at Judgement Day.
Upon the accession of the secular Reza Shah in 1925, the judges were dismissed and new judges appointed, along with the aid and influence of the French judicial code and judicial officials.
The nature of the law in Iran has been coloured and shaped by this historical tension between a secular Code system, which is originally inspired by Roman law, and the traditional Sharia law. Today’s Iranian justice system retains the features and procedures of a Code system, with some Sharia law content.
Mohsen Shekari and the other protesters were tried and convicted under this law. Specifically, he was charged under Article 279 of the Penal Code, which sets forth the offence of Moharebeh
Moharebeh is defined as drawing a weapon on the life, property or chastity of people or to cause terror as it creates the atmosphere of insecurity. When a person draws a weapon on one or several specific persons because of personal enmities and his act is not against the public, and also a person who draws a weapon on people, but, due to inability does not cause insecurity, shall not be considered as a mohareb [i.e. a person who commits moharebeh].
Moharebeh is an offence in the Qu’ran and is loosely conceptualised as an offence against God. Along with the charge of causing ‘Corruption on Earth’ under Article 286 of the Penal Code, it has been frequently employed by the Iranian courts to sentence political prisoners to death. The evidence for the charge against Mohsen Shekari was primarily a confession extracted from him under torture, and was sufficient to have him condemned.
Whilst the judiciary is theoretically an independent body under Iranian law, with a head of the Judiciary and a Chief Justice of the High Court, it often enforces the wishes of the Executive, and it is empowered to do so by the Code.
At this point it is important to note the key innovations of the common law which would prohibit the possibility of such a trial occurring:
The Jury Trial
The death penalty and unfair criminal trials are no stranger to the common law. In Georgian times, the existence of the ‘Bloody Code’, from the late 17th to the early 19th century, prescribed a vast number of crimes, some very minor, as capital offences. At the same time, trials were unlike those to which we are accustomed in the present day: legal representation was not allowed, the accused could not call witnesses, and the belief was that an innocent person would always be able to bring their own defence. As a result, many juries simply did not convict persons who were most likely guilty, due to their umbrage at the trial process, and refusal to send an accused to the gallows for a minor offence. In many ways, this represented the ultimate check against abuses of criminal process. By 1670, with Bushel’s Case, in which a judge attempted to find a jury in contempt of court for failing to convict an accused rebel of unlawful assembly (not dissimilar to the Shekari case), the common law had arrived at a position whereby jury nullification acted as an important backstop to the use of the judiciary against political prisoners.
No equivalent to the jury trial exists in Civil Law systems such as the Iranian Penal Code.
The Writ of Habeas Corpus
The writ of Habeas Corpus, which originated with Henry II’s Assize of Clarendon, allows a person who is imprisoned to have his or her jailor explain the reasons for their imprisonment before a court. If the court is not satisfied that the imprisonment is lawful, it must order the prisoner to be freed. It is this mechanism (later reinforced in Magna Carta and in many jurisdictions by legislation and other means) which prevents the kind of prolonged imprisonment used to extract a confession from someone against whom there is otherwise not enough evidence to lawfully imprison.
Judge-Made Law
The details of the common law were developed primarily by courts, not by Kings. Whilst Royal law was enforced by common law courts, offences such as murder and theft were still defined by courts, and the courts created the necessary elements and requirements for these offences themselves. Under this system, offences which are as broad and poorly defined as Moharebeh or ‘causing corruption on earth’ did not arise, and neither could the courts create precedent to limit their scope.
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