Abdorrahman Boroumand Center

The recent firings and hirings at the judiciary, mixing justice with politics, judges’ dissatisfaction with the Judicial High Council and lack of understanding between the two, etc., are among the issues that afflict the Judiciary and the people of our country. We decided to have a conversation about these issues with Dr. Nasser Katuzian, law professor and attorney at law who, for years, was a judge himself. The following is the text of the interview.

 

The root causes of the conflicts and lack of coordination

Enghelab-e Eslami: Recently, there has been some conflict between judges and the Judiciary High Council, and judges are dissatisfied with the current state of affairs in the Judiciary. What do you see as the root causes of these conflicts and lack of coordination?

Dr. Katuzian: In the previous regime, the judiciary was the body that was most despised and the reason was that the government wanted to advance its own agenda and implement its own policies in the Judiciary. At times, they would be successful but they would also face resistance which they did not like. That was the most important reason why the Judiciary Branch was weak and its organization did not correspond to the volume of work it was dealing with.

"In the previous regime, the judiciary was the body that was most despised and the reason was that the government wanted to advance its own agenda and implement its own policies in the Judiciary"

The [regime] punished the institution by destroying its legitimacy in the eyes of the people and pretending that they were dealing with a weak judicial system, [to keep them quiet] when arbitrary decisions were made, so that the people would not ask why [in a particular case] the legal route was overlooked. After the victory of the Revolution, and when the initial draft of the Constitution was being considered, the thinking was that the one element that brought politics into the judiciary was the Minister of Justice [as a member of the government], and this was contrary to the judiciary’s independence: How can a judge whose promotion and salary is in the hands of the executive branch be independent? So the thought was to designate a council from among the judges themselves, that would be in the center of decision making: A sort of self-sufficiency and independence worthy of the Judiciary Branch, in order to prevent politics from entering and influencing the judicial system. It was first proposed that judges in each province choose a representative from among themselves and that these representatives would form the Judiciary High Council; I still believe that that is the best and most democratic way to ensure the judiciary’s independence: A real council in the true meaning of the word, not just one composed of the elite; a council where all the judges participate so that they may preserve the branch’s independence themselves. Later, in the final drafts of the Constitution, the Council was modified so that it would be composed of two just “Mojtaheds” (highly qualified religious law jurist, able to pronounce an opinion on and interpret the law), well-informed and well-versed in judicial matters selected by the Leader [of the Revolution], and three other Mojtaheds that judges would select from among themselves. As I wrote months ago in an article published in Enghelab-e Eslami newspaper entitled “the Fate of the Constitution in the Judiciary Branch”, in accordance with the Constitution, the two individuals that were to be chosen by the Leader, were to be selected after consulting with Supreme Court judges, which was not done; judges were naturally somewhat disheartened and felt that they were not trusted, that is, their opinion and advice was not important. As for the election of the other three, the Council of the Revolution made decisions that were contrary to the spirit and provisions of the Constitution (which I delved into in detail in that same newspaper article) and created a situation depriving judges of their right to choose. In other words, what happened was that ultimately, the scientific section selected a specific group from among whom the judges had to choose their representatives, and [that was how] the selection was made. It is this sort of thing, i.e., this type of elections, that has somewhat contributed to the wedge driven between judges and the High Council (which is supposed to be chosen from among judges themselves). This is still an issue to this day, and as you know, the passage of time does not legitimize that which is illegitimate. More importantly, however, is that the objective of establishing the Judicial High Council and separating the Judiciary Branch from the Executive, was to ensure the Judiciary’s independence, that is, [to ensure that] what would prevail in the judiciary was justice not politics; and to me, there is a huge gap between these two concepts. The Judiciary’s environment and the judges’ objectives must be oriented toward [the administration of] justice, and a judge, who, pursuant to the Constitution, is charged with the duty of carrying out justice, must not think about anything other than justice, the law, the spirit of the law, and the objective of the law. That requires that judges, regardless of the position they hold, be prohibited from participating in special groups or political parties; the Law on the Organization of the Judiciary which embodies this prohibition, is still in force and no authority has abolished it yet.

"The Judiciary’s environment and the judges’ objectives must be oriented toward justice, and a judge, who, pursuant to the Constitution, is charged with the duty of carrying out justice, must not think about anything other than justice, the law, the spirit of the law, and the objective of the law"

Unfortunately, however, the principal administrators of the Judiciary High Council who supervise the functions of the Judiciary Branch, are members of a specific political party, and as you know, engaged in political tugs of war. Political parties face a multitude of issues and a multitude of conflicts, and a political person who thinks about political expediencies, objectives, and manoeuvers, cannot think exclusively about justice. That is, inevitably, whether they like it or not, their politics will influence the work of the judiciary and the function of justice. I have said this repeatedly and every time I have said it I have heard “a judge is also a human being and a Muslim, and no Muslim human being should be indifferent to the fate of his/her country, and must be involved in politics”. I do not mean to imply that a judge must be indifferent to the politics of his country and not get involved in politics; no responsible person can adopt such stance. A judge is also a human being, with even stronger sensibilities and conscience than others, and must make decisions regarding the legal makeup and structure of his country, and even fight for justice. Membership in a political party and leaning toward a specific group, however, prevents a judge from implementing justice one hundred percent, especially when it comes to a conflict between that specific group and another one. And you can clearly see the consequences of such state of affairs in our time and there’s really no need for me to put forth any arguments. If justice was all that mattered at the Judicial High Council, the banning of Mizan newspaper’s publication would not be propounded in this fashion, nor would its reinstatement provoke sensitivities.

The same holds true for the incident at the University: The judicial authorities’ reaction was a more political and party-affiliated one than a judicial one. I hope that these instances can serve as examples for the future and the leaders concentrate their efforts and activities in the judiciary and refrain from engaging in other work, if they wish to have a strong and impartial judiciary. In any event, division of labor is the basis of any Constitution: When a sensitive position is relegated to a particular person, there will naturally and inevitably be conflict if said person wants to hold that position and at the same time engage in other sensitive duties, and just have a hand in everything. Such conflicts will reach the judiciary and the judges as well, and will have the negative consequences we are now witnessing, weakening both the Judiciary High Council and the Judiciary Branch. If these issues get resolved, then the High Council judges (who have been elected by the judges from among themselves), would presumably not have any negative reaction whatsoever. Another issue I must point out is the Judicial High Council members’ lack of familiarity with, and knowledge of, the exigencies of the Judiciary. For instance, regarding the lifting of Mizan newspaper’s ban from publication, I heard that the Judicial High Council held the Head of the General Courts responsible and admonished him, whereas something of that nature had never taken place before, nor will it ever be the case in the future that the head of courts would have the authority to order a branch judge to make a particular decision or even insinuate such a thing. This concept [of a judge’s independence and non-interference in his affairs] comes very naturally to a judge who has been trained as a judge and has lived and functioned in that environment, and does not look at judicial matters from a political standpoint. From the perspective of someone unfamiliar with that environment, however, it seems unbelievable that a branch judge would make a certain ruling and the head of courts would not know what it is or not have influence over it.

Indifference toward the judges’ thoughts and viewpoints in selecting the Judicial High Council, interference of politics in judicial affairs, lack of job security for judges, and the Judicial High Council members’ impatience regarding the rulings that judges issue, are all factors that have contributed to the creation of this atmosphere of lack of understanding. Right now what judges are thinking in our country is that they have been kept at their jobs temporarily until [those in the new power structure] can train the judges they like, and that [existing, well-trained judges] will all be thrown out afterwards. In such a heated environment, one cannot expect much. In my opinion, first, a judge’s job security must be guaranteed and it must be made clear what role they will play in the future of the Islamic Republic of Iran, so that one can seriously ask them to perform the necessary duties; and this is what people are expecting and waiting for. When a judge sees that the Faculty of Law that was his training ground has been shut down, and that even now that there is talk of re-opening universities, there is absolutely no talk of re-opening the Faculty of Law, he thinks that there is no need for a law program. When he sees that his knowledge, training, thinking, and being are fundamentally questioned and criticized, and that he is being used temporarily until the desired ones come on the scene, one cannot expect much from him. You cannot expect a secondary driver to drive like the principal driver and drive the temporary car with caring and heart.

"Right now what judges are thinking in our country is that they have been kept at their jobs temporarily until [those in the new power structure] can train the judges they like, and that [existing, well-trained judges] will all be thrown out afterwards"

 

Politics and Judges: A Paradox

Enghelab-e Eslami: You made a point regarding mixing politics and judges in your response but the gentlemen who are currently in the Judicial High Council argue that there is no prohibition against mixing the two from a religious standpoint. I would like to know your views on that.

Dr. Katuzian: As I said, a judge is a human being, and if he adheres to and believes in a moral framework, he must strive to advance the objectives of that framework, which, in our country, is Islam. But I do not mean that a judge should not engage in politics; what I’m saying is that a judge must not officially mix administrative and political issues with his work; a judge should not become a member of a political party, [for instance]. When you look at the history of Islam, you notice that administrative rulers and judges were in two separate groups, i.e., judging and ruling were separate from each other. The people who were appointed as town governors, would engage either in governing or in administering justice. In other words, division of labor was observed in Islam as well, except in exceptional and limited cases (the point was also made by the late Mirza-ye Na’ini in his book “Manbat ol-Taleb, in the section he talks about the rule of the Religious Jurist). In support of this argument, I must point out that one of the points of pride of the Shiite religion is that in addition to the Qur'an, Sunnat (the Prophet and the Imams tradition), and unanimity, independent reason is a source of Islamic rules. Independent reason means reason apart from religious decrees, but as you know, no reason and intellect is completely separate from the social, economic, and political conditions and circumstances of its time. No one can say “I’m separate from my time and I think independently”. One’s intellect is inevitably a function of one’s environment. (Unfortunately, this source has not been used sufficiently in our religious decrees. The discussion has come up in the subject of “Ossul” (“the fundamentals”), but we don’t come across it much in “Forou”, which is why some have difficulty finding examples of decrees based on independent reason.) In any event, what independent reason teaches us is that, when something is in conflict with the general interests of Muslim society, it should be avoided. This is a form of divine decree that is communicated to us through reason, because God communicates His laws to His servants in two ways: One is through Shari’a or religious law, and the other is through reason. Reason can create religious laws on its own without having any religious background whatsoever; it is not necessary that an analogy be made with a Shari’a decree or that it be deduced from it. It is authentic on its own, and this is one of the honors of the Shiite religion. Now I ask you: Do you agree that in our society’s current conditions, overlaps between competences, judges’ interference in political parties, and lack of division of labor mentioned in the Constitution, is in conflict with the interests of Moslem society and creates havoc and chaos? If independent reason accepts such a position, it will be enough for it to become a religious decree. Therefore, a Muslim who values Islamic society and not himself/herself (because a Moslem’s ultimate goal is to forget himself/herself and think more about the collective than about oneself, to have attaining righteousness, justice, charity, and self-sacrifice as the objective, which are things that only a religion can dictate to people, not the law; not everything is supposed to be in the law) and sees that his/her actions have created corruption and chaos in the society, he/she must avoid such actions. One can of course have doubt about the fundamentals and there is nothing wrong with that because it is not a scientific thing but an empirical one. To figure out whether in our society these two duties are in conflict with each other or not is an empirical matter; whether engaging with a political party and engaging in administering justice are in conflict with each other or not, is a matter determined through observation and experience. But once it has been established that it is corrupting, reason dictates that we avoid it, and such independent reason-based decree is not contrary to a Shari’a-based decree.

 

Hiring and Firing of Judges

Enghelab-e Eslami: Recently, the Judicial High Council made a series of hirings and firings, citing Principle 164 of the Constitution, the interests of society, and the Islamization of the judiciary. What are your views on the legality of these actions?

Dr. Katuzian: In order to answer your question, I will recount an event, and I will base my response on that event. You must remember an American military captain by the name of Captain Calley, a Vietnam war criminal who murdered a village full of innocent people, that is, he committed genocide. The bully government of the United States started a tribunal in the United States, even though the crime had occurred in Vietnam, and sentenced Captain Calley to prison. In the period between the original trial and the appeal, Nixon, the American President, used his authority to have him released so that the morale of the American armed forces would not be hindered. The Captain who was the prosecutor at Calley’s trial wrote an article in Newsweek magazine addressing the American President and saying “Mr. President, you have resorted to your authority and have released such a murderous criminal and you say that it is within your powers to do so. I agree but what will you say to world public opinion?” I ask the same question of the Judiciary High Council: Let’s assume that these actions are within your authority, but what will you say to the judges and public opinion? If our society, a society we claim to be Islamic, gets to a point where anyone can do whatever they please [to persecute others], life will no longer be worth living. Such a society will be one based on coercion and duress, not one based on rights and justice. Therefore, in the first instance, an act must be assessed based on unwritten laws, that is, laws that are not passed through parliamentary decisions, but nevertheless constitute the backbone and the cornerstone of a country’s civilization. It must be assessed whether such action is a moral one that leads to the strengthening of the Judiciary Branch or to its weakening. Furthermore, do not think that the concept of morality to which I alluded has only ethical aspects; it also leaves its mark on the laws: We have a settled rule in public law whereby abuse of power not only leads to civil liability, it also takes away the characteristics based on which the members of the Judicial High Council have been elected, the most important of which is justice. In my opinion, therefore, the Judicial High Council has a moral and legal responsibility to explain what kind of expediency it is that forces it to wreak havoc on the judiciary in a chaotic society in the middle of a war. It must state clearly what higher interest there is than maintaining calm in the Judiciary.

I must add, of course, that the Judicial High Council has gone too far in newspapers and has been too unkind toward the judges because as far as I know, the new head of the general courts and the head of peace courts are honest and experienced judges. Even assuming that the new head of the general courts was not a fighter in the course of the Revolution, or has made a mistake, one must not disregard his entire judicial career because of that, and attack the person simply in order to protest a course of events one does not favor. If we consider ourselves Muslims, we must keep in mind this Qur'anic decree that says “Good deeds do away with misdeeds” and not frivolously attack each other. The issue is that previous judges of general and peace courts were among the most honest and best educated judges in the country; what is the expediency that causes these two groups to trade places with one another? Why is it that the Judicial High Council has suddenly thought of society’s expediency right after the Mizan newspaper affair and objections to the Qesas (law of retribution) bill? These criticisms should not be a barrier to see the truth properly, but it wasn’t right for these gentlemen to accept these positions under such circumstances.

 

The Truth

Enghelab-e Eslami: In part of your answer to my previous question regarding the illegality of the hirings and firings in the judiciary, you said that the new appointees have been treated badly. But it is true that the new head of the general courts had been the head of district courts, circuit courts and arbitration councils in the previous regime and there is generally some concerns when it comes to these gentlemen. But even if we disregard that, isn’t accepting the new positions by these new appointees in a way legitimizing and confirming an illegal act? Isn’t that turning your back on the judges’ community?

Dr. Katuzian: I told you that accepting these positions was wrong because it shows, in my opinion, that there are individuals among judges who weaken the others’ powers of resistance. But none of these issues should make us forget the main point, and instead of attacking an entire movement, suddenly attack one person who has made mistakes in his life but has also served at the same time, whose honesty and integrity is unquestionable. My intention is not to support a particular person, but what I want to say is that these types of attacks on these individuals weaken the system. This culture of insults and profanity that has prevailed in our society and has become a habit for everyone [is very destructive]; people think that when they criticize someone, they have to destroy his entire character, and this is something that everyone is doing. I wrote in one of my articles that the prevailing culture in our society has become one of shouting “long live the dead” and “death to the living”: It is only the dead who are immune from attack; the living are quite busy destroying each other’s character and staining each other’s reputations. I must admit, unfortunately, that our culture has reached a point where even the dead, buried under tons of dirt, are not safe from the poisoned arrows we all keep throwing at each other.

I suffer from this way of being and I do not think it worthy of a revolutionary and Islamic society.

 

How to remedy this abuse of rights

Enghelab-e Eslami: Regarding what has happened in the Judiciary: Because of the hirings and the firings that were apparently not right, a number of people’s rights have been violated. As a legal scholar, a Muslim, a university professor, an expert, and a person who has also been a judge, what would you suggest to remedy the violation of these rights?

"There are about 170 judges in Tehran and a large number in other cities, all of whom object to the Qesas bill, and if they were all to be sanctioned by the Judicial High Council, there would not be a single honest judge left in the entire Judiciary, and the entire structure of our judicial system would be turned upside down"

Dr. Katuzian: My first suggestion is for the Head of the Supreme Court, who promised there would be more of these orders – and I consider that a threat to the judges who object to the entire thing – to take back that promise, to stop this business and not fan the flame. There are about 170 judges in Tehran and a large number in other cities, all of whom object to the Qesas bill, and if they were all to be sanctioned by the Judicial High Council, there would not be a single honest judge left in the entire Judiciary, and the entire structure of our judicial system would be turned upside down. Therefore, as a person who is not entirely right but completely means well, I suggest that they do not fan the flames any further, and appease the honest judges they have demoted and put them in the positions they deserve, and undo what they have done the first chance they get. This is a revolutionary decision and it is this kind of action that proves their sense of justice. If they decide that they have made a mistake, then they should undo it and plant the seeds of hope in the disappointed hearts of the judges. It is therefore my advice that they look for common ground instead of intensifying the conflict. Governing is worthwhile when you have the heart and mind of the people with you, otherwise, what’s the use if you keep eliminating everybody? Eliminating people is very easy; I wrote in one of my articles that whenever a new person comes into the judiciary with the intention of implementing reforms, all they do is fire a bunch of people and demote some others. You know what, it’s very simple: They should close down the Judiciary tomorrow and delegate everything to the Revolutionary Courts. That’s easy, right? What’s not easy is to build something. If I see someday that the Judicial High Council’s decisions are such that they encourage judges, I will be happy; not just me, all those who believe in a strong judiciary will be happy. This ideal will come true when the judges’ true representatives are in the Judicial High Council. Even now, though, the gentlemen who are there can treat judges kindly and think of values higher than laws, instead of resorting to threats and relying on their legal authority. That is the only way out of this, otherwise we’re not going to get anywhere with threats and coercion, especially in the Judiciary which is a scientific and spiritual environment. Furthermore, what is desirable for our revolutionary society is a strong, resistant, and impartial judiciary, not a weak and pitiful one where judges will give in to any demands for fear of removal and being passed for promotion. The Judicial High Council’s objective should therefore be to guide the judicial system toward reaching the status of a strong entity, not to dominate it.

"What is desirable for our revolutionary society is a strong, resistant, and impartial judiciary, not a weak and pitiful one where judges will give in to any demands for fear of removal and being passed for promotion"