To claim that the Islamic legal system is not capable of integrating these scientific achievements and cannot arm itself with new weapons, is a catastrophe that must be averted with utmost vigilance and awareness…Behind the veil of legal words, there is a spirit which must be discovered and recognized and strived to achieve. Content must never be sacrificed for the sake of form and the end must not be sacrificed for the means…
Statement of a Number of Iranian Judges and Jurists
Regarding the “Retribution (Qesas) Bill”
(19 April 1981)
On the 64th anniversary of the Universal Declaration of Human Rights, the Abdorrahman Boroumand Foundation would like to draw the international human rights community’s attention to the profound causes of the plight of Iranian lawyers who stand up for due process of law.
Over the years, scores of lawyers have been prosecuted and imprisoned for the sole crime of taking due process of law seriously and striving to defend their clients. Some lawyers, like Nasrin Sotudeh, Abdolfatah Soltani, Mohammad Seifzadeh, Mohammad Ali Dadkhah and Javid Houtan Kyan are currently serving heavy prison sentences; others have been issued shorter or suspended prison sentences; others still were required to pay heavy bails to be let out of prison; and many have been barred from practicing, while some of their colleagues were forced into exile (Shirin Ebadi, shadi Sadr, Mohammad Mostafai). Particularly disturbing is the case of Javid Houtan Kiyan who was arrested while giving an interview to two German journalists on the case of his client, Sakineh Ashtiani, a woman sentenced to death by stoning. While Sakineh’s stoning sentence may have been suspended, Houtan Kyan has paid the highest price for his efforts to save his client. Under severe torture, he was coerced into making public confessions based upon which, he was sentenced to six years imprisonment. According to Human Rights Activists News Agency, Mr. Kyan’s physical and mental health has alarmingly deteriorated as a result of sustained physical and psychological torture.
The pattern of lawyers’ persecution is a recurrent one in the Islamic Republic of Iran (IRI). At the root of the tension between lawyers and IRI’s judicial authorities lie the rights of the accused, which the IRI judicial system is structurally geared to ignore. At first glance, this tension seems to be resulting from the incompatibility of the Shari’a law upheld by the IRI judicial authorities with international human rights law which promotes defendants’ rights, among others and is advocated by lawyers. Yet a closer look reveals a more complex causality that may not be solely attributable to the tension between universal human rights and Shari’a law. The controversy is rather focused on the fact that the ruling minority has instrumentalized Islam and Shari’a law to justify its totalitarian rule. It is not surprising, therefore, that the charges brought against the convicted lawyers are not related to any religious offense, but are the typical, vaguely worded, charges used in all modern authoritarian regimes to muzzle dissent: “Acting against national security” and “propaganda against the regime”.
Human rights day is the appropriate occasion for ABF to remind the world in general, and the international human rights community in particular, of the plight of Iranian lawyers, such as Javid Houtan Kian, and plead for immediate action on their behalf.
On Human Rights Day, in tribute to the courageous and persistent struggle of Iranian lawyers, ABF is pleased to publish for the first time the English translation of Two Statements by Iranian Jurists Against The Proposed “Law of Retribution” issued in 1981 to protest against the “Retribution Bill” (Qesas/Lex Talionis), that the new rulers had presented before the Majles (Parliament). In their statements Iranian jurists warn against the literal interpretation of the Islamic jurisprudence and Retribution law, and the devastating consequences of the implementation, in a modern society, of a penal code that was used over 1300 years ago, when there were no modern state and when justice was a private matter.
Interestingly, the arguments used by Iranian jurists against the implementation of the Retribution law are all religious and pulverize the image of a monolithic, eternal and unchangeable Shari’a law imposed by the Islamic Republic’s authorities. The reading of these two statements is a must, for it reveals a centuries-old lively and pluralistic jurisprudence that is flexible and that promotes, above all, justice and fairness, as well as adaptation to the requirements of the day, which is nothing less than universal human rights.
