Guidelines for a Transparent and Merit-Based System for the Appointment of High-Level Judges
Promoting human rights and democratic culture is an important part of the Abdorrahman Boroumand Foundation's (ABF) mission statement. In this regard and since its foundation in 2001, ABF has translated and disseminated, among other democracy and human rights related texts, many human rights instruments, and related commentaries by international experts. The UN's Basic Principles on the Independence of the Judiciary is one of the human rights instruments translated into Persian and published by ABF. November 2015 is the 30th anniversary of the adoption by the UN General Assembly of this instrument. To celebrate this anniversary, ABF publishes the Persian translation of Guidelines for a Transparent and Merit-Based System for the Appointment of High-Level Judges, published by Due Process of Law Foundation. Dr. Shirin Ebadi, former Iranian judge, and Iranian human rights defender and Nobel peace prize laureate has forwarded the Persian version of these Guidelines. ABF has also provided a summary of the Islamic Republic's (IRI) current system for the appointement of judges, to enable law students and ordinary citizens to better grasp the current inadequacies of IRI's judicial system.
-------
Click hear to read the DLPF report (pdf).
------
Introduction by Shirin Ebadi
“One of the tangible outcomes of democracy is the independence of the judiciary, a branch that can distinguish right from wrong with the utmost honesty, free from political dealings, and unencumbered by governmental policies.
The independence of the judiciary is conditional upon the presence of judges who have been rightly and correctly selected for the profession, who possess sufficient specialized knowledge, and whose performance can be monitored by the judiciary branch officials to ensure that these judges actually have the possibility [and the means] to carry out justice.
The process of selecting judges and the manner of monitoring their performance must be based on specific standards. In other words, in addition to legal knowledge which is the requisite element for the job, other criteria such as knowledge of the profession of being a judge itself, judicial conduct, etc., must also be taken into consideration. Unfortunately, these criteria have been forgotten in certain countries and sufficient care and attention is not paid to the selection of judges and to the governing laws, which can create the conditions for the lack of independence and the corruption of the judiciary.
The report you are about to read sets out these standards, and subsequently analyses the laws in force in the Islamic Republic of Iran. It leaves it up to the reader’s own judgment to assess how considerably distant Iran’s laws are from [internationally] known standards. Considering that there have not been many such studies, I recommend to all jurists, and in general, to everyone interested in justice and a fair trial to read [the report].”
Shirin Ebadi, 2015
-------
ABF Analysis
Introduction
A sound, [ethical,] and efficient judicial system capable of satisfying society’s judicial needs, unequivocally requires [the implementation of] principles and tenets humanity has devised through experience and reflection in the course of history. These principles and tenets encompass a wide array of procedural and substantive measures, one of which is the mechanism for and manner of selecting judges in any given country. Given that adjudging is the most fundamentally important element of the legal system, it is therefore imperative that the mechanism devised for the selection of judges be based on scientific criteria, so that entry of non-specialized persons can be prevented and the independence of those selected can be ensured. The importance of the system for selecting judges is such that without a sound and efficient system, justice will be trampled upon and the rights of individuals violated. It is the significance of this process that caused the Boroumand Foundation to conduct a study of the standards and criteria for the selection of judges. For that purpose, a compilation of the standards for the creation of a transparent and merit-based system for the selection of high-ranking judges, prepared by the DPLF Foundation, was translated into Farsi. A comparative study of the system for the selection of judges in Iran, in which the relevant laws and regulations were studied, was also conducted by the Boroumand Foundation in order to ascertain Iran’s position. The Law for the Selection of Judges of 1982 (1) with subsequent amendments, as well as the Guidelines for the Recruitment, Selection, and Apprenticeship of Applicants for Judgeship and Employment of Judges of 2013 (2), are among regulations that form the basis of this analysis.
· Selection based on arbitrary criteria, not determined in advance
One of the most important standards for ensuring the sanctity of the process of selecting judges is to have predetermined conditions and criteria. A country’s laws and regulations must very clearly determine in advance all criteria for selecting judges and not leave anything ambiguous. A glance at Iranian laws and regulations shows that a considerable portion of the criteria for selecting judges is not pre-determined and is also ambiguous. In practice, this has caused an increase in selecting judges based on personal preference, where those in charge of selection do so based on political and ideological criteria. Pursuant to the Guidelines for the Recruitment, Selection, and Apprenticeship of Applicants for Judgeship and Employment of Judges of 2013, Article 14, field investigations and conducting ideological and political interviews are part of the selection process. There are no pre-determined rules in existing regulations regarding what issues are to be investigated in the field work in order to ascertain whether a candidate has the requisite competence or not. This increases the possibility of rejection of an applicant who has completed the academic requirements. Furthermore, with the lack of clear standards, those in charge of investigation and selection of judges will easily be able to incorporate certain issues in the preliminary investigations based on their own personal preferences. What we are witnessing in practice is that what the officials of the Administration for the Selection of Judges are looking for in the course of their field investigations has nothing to do with the candidate’s academic [and scholarly] qualifications. Field investigations are conducted by the investigators going to the candidate’s place of residence or work. Investigators gather information about the candidate from the latter’s neighbors and acquaintances. In many cases, they ask questions concerning the individual’s private life and family members; for instance, about his wife’s, sister’s, and mother’s clothing [and whether, and to what extent, they observe the Islamic Republic’s dress code(s) for women]. Generally speaking, not only are preliminary investigations unnecessary and contrary to human rights principles, but given the lack of clarity of their framework and extent, they render the process of selection of judges unfair.
Conducting the ideological and political interview provided for in the aforementioned Article is a clear example of the lack of pre-determined conditions for selecting judges. Aside from the fact that such an interview has nothing to do with a judge’s profession, providing for such a condition without clarifying what issues are to be incorporated therein will bring about the exercise of political and ideological preferences in the selection of judges. In practice, what happens in Iran in the course of political interviews is that the candidate’s loyalty to the regime is evaluated. In other words, even if a candidate has fulfilled all the academic and practical requirements to become a judge, but is critical of some of the regime’s actions, he will undoubtedly not be able to occupy a judge’s seat. This completely destroys judicial independence, and puts the profession that must be free of all influences at the mercy of political leaders. The existence of such an interview in Iran has in effect driven many of the candidates who have the academic [and scholarly] qualifications away, and allowed individuals with strong political ties to the regime to enter the judicial system. In other words, instead of expert and worthy individuals being recruited, cronies and individuals committed [to the regime] are hired. It is worth noting that the General Administration for the Selection of Judges is in charge of carrying out matters related to the selection of judges. Once the work of the General Administration is done, a three-person panel chosen by the Head of the Judiciary Branch from among judges or officials of the Judiciary Branch’s headquarters will ascertain the candidates’ qualifications and competence.
· Existence of ambiguous and broad conditions
Establishing clear and unambiguous criteria is another requirement for ensuring the fairness of the process of selecting judges. In addition to being pre-determined, it is also necessary for the conditions set out in laws and regulations to determine the candidates’ qualifications, to be transparent and, to the extent possible, not open to interpretation. Usage of ambiguous conditions and of language open to interpretation undoubtedly paves the way for exercising influence and personal preferences in selecting judges. For instance, “being bound to faith” is a general requirement for candidates under Article 13 of the aforementioned Guidelines. The first question that comes to mind is: what is faith and what is its extent? The Guidelines has made this a condition for applicants [to fulfill], without defining faith and without providing examples. Faith is a general, ambiguous, and relative term, which every individual interprets in his/her own special way. It is not possible to presuppose specific examples of faith, as it is an internal and heart-felt matter. Given that, on what basis are the individuals and the authorities charged with assessing a candidate’s faith to do so?! Such cases undoubtedly create divergences [and discord] in selecting judges, thereby increasing the possibility of preventing the entry of individuals with high academic credentials for judgeship positions.
· Discrimination
A country’s citizens must be able to become judges without discrimination and based solely on academic, [scholarly, and experiential] criteria. In other words, the opportunity to be selected as a judge must be available to all citizens and there must be no room for discrimination. Not only is discrimination based on gender, religion, ethnicity, political belief, and the like, contrary to human dignity and human rights principles, it seriously hampers the sanctity of the process of selecting judges and limits the entry of efficient manpower. We are faced with considerable cases of discrimination in selecting judges under Iranian laws and regulations that prevent the entry of a majority of Iranian citizens in the field.
Gender-based discrimination: The most important of these discriminatory practices is gender-based discrimination. Under Iranian laws, judges must be selected from among men, and women are not allowed to become judges. After the 1979 Revolution and the entry of Shari’a into the social sphere, Iran’s legislators prohibited women from becoming judges by resorting to Shari’a laws and usage of sometimes flawed interpretations. The Law for the Selection of Judges of 1982, thus took away women’s right to become a judge. Half of the people who could have joined the workforce as judges were, therefore, prohibited from doing so. The legal prohibition of women to enter the judicial system as judges with decision-making authority is the worst type of discrimination and will undoubtedly have a negative impact on the judicial system’s aspiration for excellence. It must be noted that entry of women into judicial positions where they do not have the authority to render a decision is permitted. These include a limited number of positions as assistant prosecutors, as well as advisory judges in family courts. As stated earlier, however, judges who have the authority to render court decisions are selected solely from among men.
Religious discrimination: Discrimination based on religious belief is another practice that can be discerned in Iranian laws regarding selection of judges. Under Iranian laws, including Article 13 of the Guidelines for the Recruitment, Selection, and Apprenticeship of Applicants for Judgeship and Employment of Judges of 2013, only Moslems can become judges; non-Moslem citizens are not permitted to occupy judgeships. Given that there are millions of non-Moslem citizens living in Iran, this rule is unjust, discriminatory, and contrary to citizens’ rights.
Political discrimination: Pursuant to numerous regulations in Iranian law, one of the conditions for entry into the judicial profession is belief in the regime’s political ideology. For instance, in accordance with the aforementioned Article, being bound by the principle of the Primacy of the Religious Leader (“Velayat-e Faqih”) is a necessary condition that applicants must adhere to. Belief in the Primacy of the Religious Leader, which is a completely political concept, is indicative of the judicial candidate being of the same ideological viewpoint as the political rulers; setting such a condition has absolutely nothing to do with judicial function and is solely a means of entry of the regime’s cronies into the judicial system.
· Selection from among candidates who have not studied law
One of the most fundamental criteria that must be taken into consideration in selecting judges is that the candidates be holders of a law degree. It goes without saying that the function of adjudging requires legal knowledge and it is therefore necessary that judges be selected from among people who have studied law and obtained a law degree from a university, otherwise non-specialized individuals will occupy judicial positions and consequently jeopardize the implementation of justice. Under Iranian laws, persons who are not law graduates can also become judges if they fulfill certain conditions. In certain cases, these individuals have, in practice, even a better chance and a higher priority to become judges. Pursuant to Paragraph 5 of the Law for the Selection of Judges, the rule is to select judges from among experts in religious jurisprudence [“Mojtahed”], and in the event that there is not a sufficient number of such experts, then selection can proceed from among other candidates. “Mojtahed” is an individual who has studied religious teachings at [Islamic] seminaries, and has reached the level of expert [“Ejtehad”] with the approval of [more prominent] religious experts. Hence, influenced by Islamic jurisprudence, Iranian law considers the position of judge to be the domain of religious experts, who may not have any legal knowledge; others can be selected as judges only if there are not enough Mojtaheds to fill the positions.
Furthermore, pursuant to the Law for the Selection of Judges and the Guidelines for the Recruitment, Selection, and Apprenticeship of Applicants for Judgeship and Employment of Judges, recruitment of graduates in the field of Islamic Culture, as well as seminary graduates, is permitted. Also, according to the Iranian Constitution, it is not necessary to have studied law to be selected as Head of the Judiciary Branch, Prosecutor, or Head of the Supreme Court. Many people who have only had a religious education have entered the judicial profession on that basis, and currently, the overwhelming majority (near totality) of high-ranking judges, have been selected from among these individuals, and none of them have had a legal education. An example is the Head of the Judiciary who not only does not have a legal education, but at the time he was appointed to the position, had never had any judicial experience.
· Lack of judicial independence
The mechanism for the selection of judges must be devised so as to prevent the selecting officials from influencing the selected judge in any shape or form. In other words the selection mechanism should not hamper the judge’s independence. Incorporating political and ideological matters into the selection process, selection by a government official, and allowing that person to meddle in the affairs of the selected individual once selection has taken place, are among factors that contribute to the destruction of judicial independence and security. In the Iranian legal system, the Head of the Judiciary, who is the highest judicial authority of the land, is appointed by the Supreme Leader, who himself is not popularly elected. According to Principle 157 of the Iranian Constitution, “In order to fulfill the responsibilities of the judiciary branch in all judicial, administrative, and executive matters, the Leader [of the Revolution] shall designate for a period of five years a scholar of jurisprudence (Mojtahed), who is just and knowledgeable of judicial matters and is a competent administrator, as head of the judiciary branch, the highest official in the judiciary branch.” Furthermore, pursuant to Principle 110, the Leader has the authority to dismiss the head of the judiciary. No other organ or institution is involved, [nor permitted to be involved] in the appointment and dismissal of the head of the judiciary branch. Judges and members of the parliament have no right or say in the selection, dismissal, or reprimand of the head of the judiciary. Therefore, the Leader can dismiss the head of the judiciary at any time and appoint another as he deems fit, without having to answer to any other authority. This manner of selecting the head of the judiciary undoubtedly impedes judicial independence and lays the groundwork for the exertion of influence on the judiciary by the Leader and his affiliated bodies and institutions. If we bear in mind that high-ranking judicial officials including the Head of the Supreme Court and the country’s Prosecutor General are appointed by the Leader-appointed Head of the Judiciary, then we can grasp the danger of the Iranian judiciary’s lack of independence. One can say that, from an independence perspective, the foundation of the Iranian legal system is unsound.
· Judges’ lack of a role in the administration of the judicial system
One of the other problems with the process of selecting judges in Iran is the lack of a role for judges to play in choosing judicial managers and, in general, in the administration of the judicial system. In the Iranian judicial system, high-ranking managers and judges who play an important role in judicial decision-making are selected by their superiors. Furthermore, the head of the judiciary branch is appointed by the Leader, whereas it would be logical for at least the process of selecting the head of the judiciary to be a democratic one wherein the parliament would play a role. It is also necessary for judges to participate in running the judicial system in one form or another. Iran’s current judicial system has, therefore, taken shape in an undemocratic fashion.
--------------------------------------
(1) For the text of this law refer to:
http://rc.majlis.ir/fa/law/show/90547
http://rc.majlis.ir/fa/law/show/91044
(2) For the text of the Guidelines refer to:
http://rooznamehrasmi.ir/Laws/ShowLaw.aspx?Code=927