Lawyer: We have to change the traditional mindset of judges

By Mina Jafari

According to Article 8 of the UN Universal Declaration of Human Rights, “Everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

As part of our special series focusing on Iran and the Universal Declaration of Human Rights, attorney and legal analyst, Mina Jafari, discusses Article 8 of the UN Declaration.

In the Iranian Constitution, Chapter 3, and specifically Articles 19 to 42, address “The Rights of the People.” The Constitution contains the basic rights of citizens in any society. I like to call the Constitution “mother laws.”

But activists [and] experts [have a duty to pressure] legislators and jurists to devise statutes and legislation codifying into law those areas not directly dealt with in the Constitution, such as freedom of speech.

All laws drafted and approved must be in line with and not contradict the “mother laws,” such as our basic freedoms -- freedom of assembly, of expression, of the press; we also have the right to a free basic education and health care, as well as the right to a fair trial and the like.

According to Article 9 of Iran’s Civil Code, all international laws, treaties and charters shall have the force of law domestically.

In particular, I am referring to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both ratified by the United Nations General Assembly in 1966.

These two covenants make a connection between the rights stated in the Universal Declaration of Human Rights. Moreover, they oblige all signatory states -- including Iran -- to adhere to these provisions.

These covenants emphasize the political, social and other rights of citizens, including the right of each citizen to hold his or her views on different subjects, as well as other rights not provided for under Iranian law such as freedom of religion, gay rights, etc.

However, the rights entailed in the covenants cannot be enforced internationally and the only thing I can say is that the Iranian government does not respect Article 8.

This is despite the fact that Articles 19 and 20 of the Islamic Republic’s own Constitution state the following: Article 19, No Discrimination, No Privileges: “All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights; color, race, language, and the like, do not bestow any privilege.” Article 20, Equality Before the Law: “All citizens of the country, both men and women, equally enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic criteria.”

But day in and day out these rights are violated in our country. In fact, the violations have been codified into law over the past three decades through legislation and statutes ratified by the Judiciary.

Among the best-known sections addressing “The Rights of the People” are the following: Article 21, is a comprehensive account of “Women's Rights”; Article 22 discusses “Human Dignity and Rights”; Article 23 discusses “Freedom of Belief”; Article 24 discusses “Freedom of the Press”; Article 25 discusses “Secrecy of Communication and Privacy Rights”; Article 26 discusses “Freedom of Association”; Article 27 discusses “Freedom of Assembly”; Article 28 discusses the fact that everyone has the right to choose any occupation he or she wishes; Article 29 discuses “Welfare Rights”; Article 30 states that the government must provide all citizens with free education up to secondary school; Article 31 states that all citizens have the right “to possess housing commensurate with their needs”; Article 32 discuses due process: “No one may be arrested except by the order and in accordance with the procedure laid down by law”; Article 33 prohibits arbitrary exile: “No one can be banished from his place of residence, prevented from residing in the place of his choice, or compelled to reside in a given locality, except in cases provided by law”; Article 34 discusses “Recourse in the Courts”: “It is the indisputable right of every citizen to seek justice by recourse to competent courts”; Article 35 discusses “the Right to Counsel”; Article 36, which takes up “Sentencing,” states: “The passing and execution of a sentence must only be by a competent court and in accordance with law”; Article 37 is on the “Presumption of Innocence”; Article 38, on “Torture,” states “All forms of torture for the purpose of extracting a confession or acquiring information is forbidden”; Article 39 is on the “Dignity of the Arrested” and states: “All affronts to the dignity and repute of persons arrested, detained, imprisoned, or banished in accordance with the law, whatever form they may take, are forbidden and liable to punishment”; Article 40 states “No one is entitled to exercise his rights in a way injurious to others”; Article 41 states that “Iranian citizenship is the indisputable right of every Iranian, and the government cannot withdraw citizenship from any Iranian unless he himself requests it or acquires the citizenship of another country”; and Article 42 states “Foreign nationals may acquire Iranian citizenship within the framework of the laws.”

These are the fundamental civil rights of all Iranian citizens, which are clearly stated in the Constitution as well as in international treaties, and should not be violated. The important point that needs to be emphasized is that we have to compel judges and judicial officials in our country to respect these rights and to implement them in their rulings and decisions.

Of course, we know that some rights are not included in our laws, but even those basic rights that are included in our Constitution should be taught to people in order for them to be in a position to compel judges and the courts to comply with them.

Even though I know that many of the judges in the Islamic system have extremely traditional mindsets and it [seems] impossible to change their minds, chanting slogans and protesting is not the answer. The answer is to appear in court over and over again, and through persistence, get them to implement the basic civil rights granted in the Constitution.

We have to do our utmost to persuade the judges to gradually open their minds.