Special Clerical Court

Special Clerical Court, or Special Court for Clerics (Persian: دادگاه ویژه روحانیت‎‎) is an Iranian court system for examining transgressions within the clerical establishment. It tries Shia Muslim clerics, although it has also taken on cases involving lay people. The court functions independently of the regular Iranian judicial framework, and is accountable only to the Supreme Leader.[1] It was established in the early 1980s on an ad hoc basis, subsequently outphased and re-established in 1987. It was fully institutionalized and endowed with a "code" in 1991 under Supreme Leader Khamenei. [2] This code was revised and expanded in 2005.

History

During the early years of the Iranian revolution, the Special Courts for the Clergy (SCC) were established to deal with "criminal" acts committed by members of the clergy. Here not just crimes were prosecuted, but also those acts aimed against the consolidation of power under Ayatollah Khomeini. As the new judicial structure of the Islamic Republic was devised, the SCC were not conceived as part of it. However, in 1987, the courts were revived by decree of Ayatollah Khomeini in order to try an outspoken critic of the Iran-Contra Affair, Mehdi Hashemi.[3] Faced with disapproval of the unconstitutionality of the SCC, Khomeini in a letter to the Majles of Iran recommended that the special courts start operating within constitutional perimeters after the end of the Iran-Iraq war.[4]

The court and the law

The legalization and integration of the SCC into the official justice system never materialized and thus the Courts for the Clergy continue to function under the direct jurisdiction of the Supreme Leader, and not, as all other courts in Iran, under the judiciary. Whereas the judges of other courts are appointed by the Head of the Judiciary, the judges and prosecutors of the SCC are directly appointed by the Supreme Leader. [5] The judiciary has no authority to monitor, oversee or interfere in the affairs of the SCC. The Supreme Court, being part of the judiciary, has no jurisdiction to review cases of the SCC. Instead, appeals are heard by another chamber of the clerical court. All court proceedings are closed to the public and whatever other laws may apply to legal proceedings and prison conditions in the country, they do not apply to the SCC. "It is not difficult to see how the SCC, given their legal status outside any accountable, transparent check by a governmental office other than the Office of the Supreme Leader, could transform into the Supreme Leaders’ primary instrument to discipline and prosecute dissident clerics." [6]

Since cases are referred to the SCC directly by the office of the Supreme Leader, in theory, the Supreme Leader is in a position to refer any case to the SCC which he deems as involving some sort of “crime”. Severe punishments, including the death penalty, may be issued. The defense counsel in a trial must be chosen from designated clergy, so that the accused cannot freely choose their defendants.

Very often, the accused are not promptly informed of the charges. Despite the fact that article 32 of the Constitution of Iran states the defendant must be properly arraigned and the charges against him must be conveyed clearly and in writing, the SCC frequently violates this principle.

The SCC also de facto take a different approach than the judiciary with regard to the sources of law recognized. Even though Art. 167 of the constitution ranks Islamic sources secondary to any codified law, the SCC considers penal codes as secondary in line to contemporary fatawa.[7]

Iranian Conservatives believe that Iran's Supreme Leader has the power to make new courts if he wishes - they say that according to Iran's Constitution, the Supreme Leader has absolute power, and the constitution represents the least of the powers he is allowed to exercise.[8]

Other functions

The SCC do not only sentence criminal and dissident clerics. They also censor and confiscate works that might challenge the Rahbar’s theological and jurisprudential authority, notably those works authored by senior ayatollahs who oppose the velayate faqih or particular policies of the regime.

On June 25, 2000, the SCC ordered the Tehran daily Bayan, run by Hojjatoleslam Ali Akbar Mohtashemi, to cease publishing. Mohtashemi was a former interior minister and aide to President Mohammad Khatami.

The parallel between the Special Clerical Court and the Star Chamber at the Palace of Westminster is too close to escape notice. The Chamber met in secret, without a jury, wielded arbitrary powers, and dealt severely with opponents of the King who were too powerful for ordinary laws. The message of the Clerical Court was especially chilling in the sense that Mohammad Mousavi Khoeiniha was a stalwart upholder of the régime and the principle of the clergy's right to rule. It would be hard to imagine a step the authorities could take which would cause greater unease and insecurity amongst its supporters.[9]

See also

References and notes

  1. ↑ Structure of power in Iran
  2. ↑ See Mirjam Künkler: "The Special Courts of the Clergy and the Repression of Dissident Clergy in Iran." http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505542
  3. ↑ The decree was printed in the newspaper Ettelaat of June 12, 1987.
  4. ↑ Khomeini wrote in a letter addressed to the Third Majlis in 1988, ‘Many of the rulings and decrees that I have issued in the past few years were because the Islamic Revolution and the Islamic Republic were not yet on a stable footing, and also because of the special emergency conditions created by the war. However, now that the war is over and we are approaching stability, we must return to the Constitution and everything must be defined within the framework of the Constitution.’
  5. ↑ According to Article 13 § (1) of the Decree of the SCC, “[t]he SCC and its office of the Prosecutor have a jurisdiction to adjudicate all cases entrusted to it by the Supreme Leader.”
  6. ↑ See Mirjam Künkler: "The Special Courts of the Clergy and the Repression of Dissident Clergy in Iran." http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505542
  7. ↑ The ICJ contends “in contravention of Article 168 of the Constitution that establishes the General Courts as being the only judicial authority that has jurisdiction to review press offenses, the SCC recently has dealt also with press offenses, on the grounds that “the defendant is a member of the clergy.” International Commission of Jurists, Iran Country Report 2002, page 198/199, available at http://www.icj.org/IMG/pdf/iran.pdf
  8. ↑ See Aftabe Yazd, August 18, 2002. Also Etemad January 5, 2005.
  9. ↑ Religion and the Dilemmas of Power in Iran CSIS April 1992. "Copyright/Permission to Reproduce" states "Information on this site has been posted with the intent that it be readily available for personal and public non-commercial use and may be reproduced"
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