This article was written by Abbas Nikzad, an Iranian scholar, and published in Persian by the Mardom-Salari website (Tehran) on June 15, 2009. It was translated in English and published by BBC Monitoring Middle East on June 16, 2009. It was accessed through the Search Engine Factiva.
Original title (Mardom Salari): The rights of the people as per the constitution of the Islamic Republic of Iran
Original title (BBC Monitoring Middle East): Religious scholar defines human rights in Iranian constitution
Excerpt: Access My Library.com
Excerpt regarding verse 2:256:
Religious scholar defines human rights in Iranian constitution
16 June 2009
BBC Monitoring Middle East
Commentary by Abbas Nikzad headlined “The rights of the people as per the constitution of the Islamic Republic of Iran” published by Iranian newspaper Mardom Salari on 15 June (Footnote one)
One of the remarkable points in the constitution of the Islamic Republic of Iran is the attention that it pays to people’s rights and to public and social freedoms. To this end, one chapter of the constitution has been devoted to the rights of the nation. In this piece we will study the references that have been made to people’s rights in the constitution of the Islamic Republic of Iran.
In this article, at first we will enumerate different rights that people enjoy according to the constitution and then reference will be made to natural rights. Then we will deal with the issue of human rights from the viewpoint of Islam. After those introductions, we will deal with the main part of the article, namely investigating the bases and principles behind people’s rights that have been set out in the third chapter of the constitution based on the Book [the Koran], the traditions [the sayings of the Prophet and the Imams] and reason.
The third chapter of the constitution of the Islamic Republic of Iran deals with the rights of the nation. In this chapter, different types of the rights of the people and social freedoms and limitations on those freedoms have been defined. The most important rights and freedoms that have been set out in this chapter are as follows:
1- The equal rights of all people before the law
2- The entitlement of all the people to equal rights, without any distinction for colour, race, language and so on
3- Equal support of the law for men and women and their entitlement to all human, political, economic, and cultural rights, in keeping with Islamic principles
4- People’s right to security and all forms of immunity from any violations against their dignity, lives, assets, human rights, housing and employment
5- The right to be immune from religious investigation [tajassos or inquisition]
6- The right to security and legal immunity, the presumption of innocence [until proven guilty], the prohibition of torture, the prohibition of assaults on people or on their dignity
7- The right to freedom of expression, writing and press within the limits approved by Islam
8- The right to collective freedom, such as forming political parties, societies, political and professional associations, Islamic associations and organising marches
9- Enjoying intellectual and religious freedoms and banning investigation of ideas [inquisition]
10- The right of having work and employment freedom
11- The right to have access to social security [welfare]
12- Having free access to the means of education and training
13- The right to housing in keeping with needs
14- The right to choose one’s place of residence
15- The right to justice and access to qualified courts, and the right of access to such courts
16- The right to appoint a lawyer and the right for the provision of facilities for having a lawyer in case of the lack of ability to appoint a lawyer [the government’s duty to appoint a lawyer for those who cannot afford to have one]
17- The right of every Iranian to have Iranian nationality, and the right of foreign nationals to apply for Iranian nationality within the scope of the law, and natural and God-given rights
Every human being enjoys a number of rights as natural and God-given rights. Every human being by virtue of being a human being has the right to life, to freedom, the right to work, the right to housing, seeking justice, education, training and… [Ellipses as published]. God who is the creator of human beings has created people in such a way that they possess certain capabilities, wishes and demands. These capabilities and wishes give rise to some natural and God-given rights.
The illustrious martyr Mr [Morteza] Motahhari (may he rest in peace), commenting on the source of natural rights, writes: “In my view, natural and innate rights are based on the fact that the source of creation [God], with farsightedness and having a target in mind, moves all the creatures towards various forms of perfection in accordance with the capacities that they have been provided in them. Every ‘natural capacity’ is [necessitates] a ‘natural title deed’ for that creature. For instance, human children have the right to go to school and to be educated, but the offspring of sheep [as published] do not enjoy that right. Why? Because a human child has the capacity to study and to learn, while sheep lack that capacity. The source of creation has placed that title deed in the hands of human beings, but sheep are deprived of that right. The same is true about the right to think, to vote and to have a free will.” (Footnote two) [The footnotes will be given at the end of the text].
Therefore, some deep-seated desires such as the love of life, the desire to live long, food, water, rest, security, freedom, learning, beauty, access to work, housing, wife, children and… are inherent in human beings, and these desires give rise to some rights for people. Of course, recognising these rights and being aware of true and false [beneficial and harmful] desires and needs and the areas where some of those rights interfere with other rights are beyond the scope of the capabilities of man’s learning and understanding. As a result, we require divine legislation [revelation] in order to have access to the laws that govern our daily lives. In the same way, we are also in need of divine legislation in order to recognise the real rights of human beings and the limits that may be imposed on them. Consequently, people’s natural rights are also dependent on the system of divine creation and are based on the system of divine legislation.
Human rights in Islam [subhead]
Some modern thinkers have claimed that “the language of religion is the language of obligations, not of rights. In religion’s eye, man is a being that has certain responsibilities, not someone who has certain rights. Religion requires the people to believe, to pray, to pay alms and to act in certain ways regarding marriage, inheritance or other human contacts, and not to transgress those limits. Human beings are constantly reminded that they should not transgress divine boundaries, otherwise they would be questioned and punished [in the afterlife]. Of course, there has been some talk of human rights too. However, in comparison with the binding and extraordinary restrictions these rights are few and exceptional…” (Footnote three)
In response to such assertions we must say that, first of all, in our religious texts there are many references to human rights (the rights of people) [the words in the brackets are in Arabic and from the Koran]. Many rights have been recognised for human beings, such as the right to life, the right to freedom, the right to choose a profession, a wife, housing and… There are also other rights such as the right to study, the right to have judicial security, the right to benefit from one’s own efforts, the rights of parents vis-à-vis their children, the rights of children vis-à-vis their parents, the rights of spouses, the rights of the government vis-à-vis the nation, the rights of the nation vis-à-vis the government, the rights of people vis-à-vis their neighbours, the rights of teachers vis-à-vis their pupils, the rights of the pupils vis-à-vis their teachers, the rights of friends vis-à-vis their friends, the rights of Muslims vis-à-vis Muslims, the rights of non-Muslims vis-à-vis Muslims, the rights of Muslims vis-à-vis non-Muslims and… In general, the religion of Islam has attached a great deal of importance to justice, so much so that it declares that the purpose behind the sending of the prophets and books is to establish justice in the society.
The fact that the Muslims are required to fight against tyranny, discrimination and poverty shows the degree of importance that Islam attaches to human rights. In the texts that have been handed down to us, such as Nahaj al-Balagha [the Path of Salvation, a book attributed to Imam Ali], Usul-e Kafi [the Required Principles, a book of traditions compiled by Kulayni about the sayings attributed to the Prophet and the Imams] and Resala al-Huquq [an Epistle on Laws] by Imam Sajjad [the fourth Shi’i Imam] we have numerous references to such issues. (Footnote five)
The rights that have been set out in chapter three of the constitution of the Islamic Republic of Iran show the importance that the Islamic system attaches to human rights. Secondly, responsibility is indivisible from rights. In other words, everywhere that we have a right, we also have a responsibility because for anyone who enjoys a right, in return others have the responsibility to observe those rights. In return for the rights of parents vis-à-vis their children, the children have certain responsibilities towards observing those rights. On the other hand, in the case of the rights of the children the parents have to observe certain responsibilities. In view of the rights of the citizens, governments have certain responsibilities, and in view of the rights of the governments the citizens have some responsibilities, and…
For that reason, in many religious texts whenever we have a responsibility, it also denotes certain rights in connection with that responsibility. Consequently, many religious injunctions are also based on the existence of certain rights. For instance, when in religion reference is made to the renunciation of tyranny, coercion, robbery, assault, usurpation of other people’s rights, backbiting, accusations, injuring other people’s reputation, killing, cutting off of limbs and inflicting wounds, usury, bribery and… all these cases indicate that Islam has recognised some rights for others and no one is entitled to undermine those rights. Doing so is haram [religiously forbidden].
In fact, observing this method in defending human rights is very effective and powerful, because God on the basis of divine injunctions has made people duty-bound to observe the rights of others. In case people do not observe the rights of others God has warned them that they would face divine punishment in the afterlife. This provides a very powerful backing for safeguarding and guaranteeing human rights. Would it have been better if God had only informed those who are entitled to some rights of their own rights, without making them duty-bound to observe the rights of others? Or would it be better for God to place responsibilities at the centre of the rights, so that when someone who enjoys some rights opens his eyes he will see that other people around him are also entitled to the same rights, which he is responsible to respect and abide by; otherwise, he would face punishment both in this world and in the life to come?
If God had only stressed the rights of the individuals while ignoring the responsibilities that go with those rights, powerful people who are not satisfied with their own rights would be left to themselves. They would try to trample upon the rights of others through deceit and trickery or through force and intimidation, and would not allow others to enjoy their rights. Under those circumstances, simply stating the rights is not very constructive. On the other hand, stressing the responsibilities and threatening divine punishment [if people do not observe those responsibilities] would be most effective.
Not only does Islam encourage everyone to observe the rights of others, but it has also encouraged and urged the person who enjoys some rights to defend those rights. The Holy Koran allows oppressed individuals to engage in reprimanding and using harsh language against the oppressors. (Footnote six). Furthermore, it has called on the Muslims to fight for the sake of saving the oppressed and wronged people, to kill and to be killed [in their defence] until the evil tree of arrogance is uprooted and the rights of the oppressed have been vouchsafed. “Why do you not fight in the path of God and for the sake of the oppressed men and women who say O God, we have been expelled from our town by the oppressors?” (Footnote seven) [After quoting the verses in Arabic in all cases the Persian translation of the verse is given]
To sum up, in order to safeguard human rights it is not enough to simply point out those rights. On the contrary, it is essential to also make people duty-bound to defend their own rights and also to observe the rights of others, by means of an injunction that is backed by both divine reward and divine punishment.
Now, we will enumerate and interpret some of the principles of chapter three (the rights of the nation):
Principle 19: People’s entitlement to equal rights [subhead]
In this principle we read: “The Iranian people, regardless of to which ethnic group or tribe they belong enjoy equal rights, and no colour, race, language and such like would be regarded as any distinction. According to this principle, any ethnic, racial or tribal distinction has been eliminated. The Holy Koran and the traditions provide the main source for that principle. In the Holy Koran we read: “O ye people! We have created you men and women and we have formed you in different groups and tribes so that you might mix with one another. Truly, the most exalted of you in the sight of God is the one who is the most pious.” In a famous tradition, quoting the Prophet of God (God’s salutations and blessings be upon him), we read: “Jabir bin Hayyan says that the Prophet of God (God’s salutations and blessings be upon him) in his farewell sermon [during his last pilgrimage to Mecca] said: ‘O people! Know that God is the lord of all of you, and all of you have the same father [Adam]. Beware that there is no distinction for an Arab over an Ajam [a non-Arab] or for an Ajam over an Arab, or for a black man over a red man [as published] or for a red man over a black man, except through piety. The most favoured of you in the sight of God is the most pious among you.’ He asked: ‘Have I conveyed the message to you?’ They responded: ‘Yes, O Prophet of God’. The Prophet then said: ‘Whoever is present here should take this message to those who are absent.'” (Footnote nine)
In the Holy Koran, differences of colours and tongues have been regarded as the signs and blessings of God, not as the means for priding oneself over others. The Koran says: “And one of his signs is the creation of the heaven and the earth and differences in your tongues and colours. Truly, in these there are signs for those who understand.” (Footnote ten)
Regarding this issue, martyr Motahhari says: “It is certain that in Islam there is no distinction in nationality or ethnic affiliation, but rather this religion regards all the different nations and ethnic groups in the world with the same eye. From the start, the Islamic call has not been restricted to any particular ideology or group. On the contrary, by different means this religion has always tried to eradicate the roots of the worship of one’s country or attachment to one’s ethnic pride… In the Koran there is no verse that addresses ‘O ye Arabs’ or ‘O ye Quraysh’ [the tribe to which Muhammad belonged]… When Islam arose, the issue of worship of the members of one’s clan or taking pride in one’s tribe or race was very strong among the Arabs… Not only Islam did not pay any attention to such sentimental prejudices, on the contrary, it fought fiercely against them… The Holy Prophet (God’s salutations and blessings be upon him) openly embraced the Iranian Salman and the Ethiopian Balal in the same way that he embraced for instance Abuzar Ghifari, Miqdad bin-Aswad or Ammar Yasir… [all of them were among Muhammad’s early believers] (Footnote 11)
In connection with this principle (19th principle) one may ask why there is no mention of religion [mazhab, which means sect but is often used to refer to religion as a whole]. Martyr Dr [Mohammad] Beheshti who chaired the meetings of the Assembly of Experts was asked exactly this question by one of the members of the Assembly of Experts. He replied: “Earlier on, we have said all that has to be said about religion. Here, we have only intended to reject any form of distinction. If we also mention religion, then we must also enumerate many other issues and we must express our views about them. What we have tried to clarify in this principle is that race, colour and ethnicity would have no relevance to rights. This principle does not deal with religion at all. You are aware that each principle deals with a certain topic. In this principle we have discussed natural issues that have some geographical basis. Religion is not based on any geographical issue.” (Footnote 12)
By saying this, Dr Beheshti meant to say that principles 12, 13 and 14 have dealt in a transparent manner with different Islamic sects and with religious minorities, and this principle is different from those.
In those principles, the rights of the followers of other sects and religions have been recognised. For instance, in principle 12 we read: “… Other Islamic sects (apart from the Twelver Ja’fari Shi’i sect) [the dominant sect in Iran], including the Hanafis, the Shafi’is, the Malikis, the Hanbalis and the Zeydis also enjoy complete respect. The followers of those sects are free to observe their religious rites, in keeping with their own jurisprudence. Their rights are also recognised in their religious education and personal laws (marriage, divorce, inheritance, and will and testament), and their claims are recognised in courts. In every region where the followers of one of those sects are in the majority local regulations would be in the hands of the local councils that would be in keeping with their sects, while maintaining the rights of the followers of other sects.”
In principle 13 we read: “Iranian Zoroastrians, Jews and Christians will be regarded as the only recognised religious minorities and they are free to perform their own religious rites in keeping with the law. In their own personal lives and religious instructions they will also act in keeping with their religion.”
In principle 14 it has been set out: “The government of the Islamic Republic of Iran and all the [Iranian] Muslims are duty-bound to treat the non-Muslims with goodly behaviour and on the basis of Islamic justice and fairness, and must observe their human rights.”
In principle 64 we read: “The Zoroastrians and the Jews will have one representative each and the Assyrian and Chaldeian Christians will have one representative jointly, and the Armenian Christians in the north and the south [of the country] will each elect one representative [to the Majlis].”
In Nahaj al-Balagha and numerous traditions, Muslims have been required to observe the rights of the followers of other religions and sects and to show respect to them. Speaking about the rights of religious minorities in the system of the Islamic Republic Imam Khomeyni (God’s blessings be upon him) said: “All religious minorities under the Islamic government can perform all their religious rites, and the Islamic government is duty-bound to safeguard their rights in the best possible way. The Islamic government is a democratic government in the true meaning of the term. There is complete freedom for all religious minorities, and everyone will be able to express his views. All religious minorities in Iran are free to live in accordance with their own religious and social regulations… Like other Muslim people in Iran, they too are Iranians and are respected. Every Iranian is entitled to enjoy social rights in the same way as all other individuals. There is no difference between a Muslim or a Christian or a Jew or any other sect. Islam has given freedom to religious minorities more than any other religion has done. They should also enjoy their own natural rights that God has bestowed upon all human beings.” (Footnote 13)
Principle 23: The freedom of belief and forbidding any investigation of religion [inquisition] [subhead]
In this principle we read: “Inquisition is forbidden, and one is not entitled to object to or to reprimand anyone due to his belief.” In this principle, two points have been explicitly mentioned and stressed. The first one is that inquisition is forbidden, and the second point is that one cannot object to anyone due to his belief. The first point does not need any elaboration because any investigation and scrutiny into the private and personal affairs of individuals (especially in their spiritual and innate affairs) is forbidden. The Holy Koran openly declares: “O you who have believed! Avoid every form of imagining [suspicions], because some imaginings are sinful; and never intrude into the affairs of others.” (Footnote 14)
In fact, having bad thoughts about others would be a basis for investigation (intrusion), and investigation is a means for revealing the secrets and the hidden affairs of the people, and Islam never allows private secrets of people to be revealed. In other words, Islam wishes people to enjoy complete security in their private lives from every point of view. It is clear that if anyone were allowed to investigate the affairs of others, their reputation and honour would be undermined.
An important point that one should bear in mind in this connection is that the injunction against investigation and scrutiny into the affairs of others is only valid when it is not balanced by a more important issue and a greater social preference. Otherwise, it will certainly be allowed. The safeguarding of the secrets of people is necessary only when a more important issue does not require those secrets to be revealed. In that case, not only revealing the secrets is not forbidden, in some cases it is even necessary. This is why in Islamic jurisprudence it is made permissible in some cases to keep the secrets of others as a private matter and at other times to reveal them.
In view of the above-mentioned points, one can see that the objections of some people about investigation of the faith and commitment to Islam and the bases of the Islamic Republic and… of those who would be deemed qualified to serve as presidential candidates are not valid; because this does not to inquisition that has been forbidden. Preventing the unqualified people from achieving social and political positions in the system of the Islamic Republic is so important that it is permissible and even necessary to investigate their beliefs in order to make sure about their suitability or unsuitability for taking charge of the destiny of the society.
In Tafsir Nemuneh [Model Commentary, a book written by Ayatollah Naser Makarem-Shirazi], commenting on the above-mentioned verse, we read: “We see that the Holy Koran has emphatically rejected inquisition in the above-mentioned verse… However, in view of some signals inside and outside that verse we see that although the above-mentioned verse is about private and personal affairs of the people, nevertheless, it also applies to the social lives of the individuals so long as it does not impact the fate of the society. But it is clear that when it impacts upon the fate of others and the wellbeing of the society the issue takes a different form.
Consequently, the Prophet (God’s blessings be upon him) had appointed some officials to collect information [intelligence] and they were referred to as ‘uyun’ [eyes] so that they could gather information about what had a bearing upon the fate of the Islamic society from inside and outside. On that basis, the Islamic government can also have intelligence officials. It can also form an extensive organisation in charge of gathering information so that they can look into the areas where there is a fear of conspiracy against the society or endangering security or the Islamic government. They can even investigate the private lives of different individuals.” (Footnote 15)
Regarding the second point (one cannot object to anyone purely for the sake of having a belief), we can say that in the matter of faith there is no room for coercion. The Holy Koran says: “There is no compulsion in religion…” (Footnote 16).
Commenting on that verse, Allameh Tabataba’i writes: “In that sentence, any form of religious belief based on coercion has been rejected, because religion consists of a series of intellectual [abstract] concepts that have practical consequences. All those intellectual and practical concepts can be summed up in one word, ‘beliefs’. Faith and belief are matters of heart where coercion has no place, because coercion can force someone to do something and its application is only on superficial levels. However, heart-felt belief has its own sources and its own requirements and belongs to a different realm of faith and understanding. It is impossible for ignorance to result in science or for non-scientific means to produce scientific conviction.” (Footnote 17)
The Holy Koran has explained the ways of calling people to God in the following words: “Call the people to your Lord with wisdom and goodly advice. Debate and discuss with them in the way that is best. Your Lord knows best who has been misled and who has received guidance.” (Footnote 18)
In view of the fact that this verse has provided different means of calling people towards God, we see that it has not mentioned coercion and force as one of the ways of leading them to religion. From this we can deduct that, according to the Koran, force may not be considered as one of the means of calling people to religion. It is interesting that that holy verse has added the word ‘goodly’ to the word ‘advice’, and it has limited the issue of debate to being carried out with wisdom and goodly advice. This shows that not only one cannot make use of force and coercion when one calls the people to God, but that Muslims have even been warned against debating with them in the way that is not best and in a goodly manner.
Here, we must avoid a misunderstanding. The above-mentioned verse means that the Islamic government will not force people to accept a form of religious belief. Nevertheless, we must know that the Islamic government is duty-bound to observe religious injunctions and to safeguard religious rites in the society. It is clear that the Islamic government will not allow anyone to undermine the respect and sanctity of divine teachings and injunctions in the society. There is a difference between forcing people to accept a religion and preventing overt violation of religious laws in public places and gatherings. For instance, if the Islamic government prevents someone from drinking or breaking the fast in public or usury this does not mean that it has forced people to accept faith and religion. Most definitely, the value and sanctity of divine teachings and injunctions are not less than those of man-made laws and regulations. In no country in the world are people allowed to violate the laws and regulations on the excuse of enjoying freedom.
In this connection, we must say that Islam and the Islamic government will not allow anyone to openly insult religious sanctities, to violate religious sanctities or to curse and undermine them. It is on this basis that Islam is sensitive towards the issue of curing the Prophet (God’s blessings be upon him) or the Immaculate Imams (peace be upon them). Cursing and insulting the immaculate religious leaders have nothing to do with the freedom of belief, in the same way that the freedom of expression and writing also does not mean freedom to engage in insults, accusations and spreading of lies.
The way that Islam deals with the apostates is not based on the issue of them changing their faith, because if someone does not believe in God or the Prophet or … but does not engage in making his beliefs public or propagating them and by so doing does not try to weaken the faith of the believers and creating doubt in their minds and instilling blasphemous ideas in their minds, the sentence of apostasy would not apply to him. The simple rejection of religious beliefs, provided that it is not accompanied by open expression and propagation of that rejection does not constitute apostasy.
It is interesting that the above-mentioned principle (principle 23) was passed without any opposition (with two abstentions) in the Assembly of Experts that drew up the constitution, which contained a large number of expert faqihs. (Footnote 19)
Legal security [subhead]
In this chapter [of the constitution] there are many principles that confirm people’s right to legal security. Legal security means that the people of the country can feel that they will not face legal prosecution and punishment without reason and contrary to the law, and that orders for their arrest, summoning and detention would not be issued on fictitious grounds. So long as there is no evidence of their guilt they will not be deemed guilty. Also the members of the society should know that in cases when they are charged or arrested, the way that they are dealt with, their interrogation, their trial and the sentence passed on them would be completely humane and would be based on law.
Everybody is entitled to have a lawyer to defend him, and even if he cannot afford to hire a lawyer the state will provide the means of access to a lawyer. Furthermore, even when a person has committed a crime and his guilt has been proven, interrogation, trial and punishment must be within the limits of the law. There should be no resort to torture in order to get confession or to receive information, or to force the people to give evidence, or to confess or to swear an oath.
There will also be no room for destroying the reputation and dignity of the individuals.
Another aspect of enjoying legal security is that the people in the country would have the right to go to qualified courts to raise their complaints and make legal charges against others and such like. Different principles in chapter three of the constitution that is devoted to the rights of the nation, such as principles 32 to 39 are also concerned with legal security.
Principle 32 says: “No one may be arrested except on the basis of an order and according to the procedures that the law has set out. If someone is arrested, he must be immediately informed of the charges that have been levelled against him in writing, which must be served on him…”
Principle 33 says: “No one may be exiled from his place of residence or deprived of living in the place that he wishes, or be forced to live in a certain place, except in cases that the law sets out.”
Principle 34 says: “Turning to the courts for justice is the definite right of every individual, and everyone is entitled to refer to qualified courts in order to lodge a complaint. All members of the society are entitled to have access to such courts….”
Principle 35 says: “In all the courts, all sides to a dispute are entitled to appoint lawyers for themselves, and if they cannot afford to appoint their own lawyer, they should be provided the means for appointing a lawyer.”
Principle 36 says: “Sentences of punishment and the implementation of those punishments must be passed by a qualified court and must be in keeping with the law.”
Principle 37 says: “The main principle is the presumption of innocence, and no one will be regarded guilty in the eyes of the law unless his guilt has been proven in a qualified court.”
Principle 38 says: “Resort to any form of torture for obtaining confession or gaining information is forbidden. Forcing people to testify, to confess or to swear an oath is not permitted, and such evidence or testimony or oath will have no validity or value…”
Principle 39 says: “Insulting the respect and reputation of a person who has been arrested, detained, imprisoned or exiled in accordance with the law in any form or shape is forbidden and is liable to punishment.”
Here, we wish to refer briefly to the rational and religious foundations of those principles. In the case of principles 32 and 33, we should say that exiling an individual or forcing him to live in a particular place or arresting and detaining a person is contrary to the principle of the freedom of the individuals. Depriving people of their natural and God-given rights is a form of oppression and a violation of their rights, which is not allowed without gaining their agreement to such decisions. This can only be done in view of the greater social goods and with the permission of the Shari’a judge, in which case it would be permitted. This is why in both cases [principles] an exception has been included based on law.
Regarding principle 34, namely having access to courts, it should be said that the Islamic government is duty-bound to provide the necessary means for the establishment of justice and the implementation of justice in the society. The Holy Koran has pointed out that the reason behind the sending of prophets and revealing books has been to establish justice and equity in the society. (Footnote 20). Therefore, a religious government cannot be indifferent towards people’s rights. One of the major means of implementing justice and safeguarding people’s rights is to establish qualified courts for the oppressed people to turn to.
Regarding principle 35, namely the right to have access to a lawyer, it should be said that this right is one of the requirements of getting justice and defending one’s rights. If the right to go to the courts is one of the basic rights of the people, in view of the fact that many plaintiffs and many wronged people do not have sufficient knowledge of the relevant laws and regulations, or even if they have the necessary knowledge they are not capable of speaking out and defending their rights, they have been given the right to have access to a lawyer who is familiar with the relevant laws, as well as being able to speak on their behalf in order to achieve their rights. Furthermore, on the basis of the laws of jurisprudence, everybody can have an attorney in all personal issues – except in some special cases – and can delegate his decisions to him.
On the basis of the above-mentioned arguments, if anyone for whatever reason is not able to defend himself, and if he cannot afford to appoint a lawyer for himself, the government is duty-bound to provide necessary means for him to have access to a lawyer. This is because one of the basic duties of the government is to provide the means for the implementation of justice and safeguarding the rights of individuals and removing any form of discrimination and oppression.
Regarding the issue of having representation (having a lawyer) for the sake of defending one’s rights, it is clear that it applies to all the Shari’a rules regarding contracting agreements, the possibility of dismissing the lawyer by the client, the dismissal of the lawyer in case of death or the dismissal of the lawyer after a certain time [after a limited period] and…
According to principle 36, people are entitled to refuse to accept or implement the sentences that are not issued by a qualified court on the basis of the law. This principle gives the people the right to complain against the attorney or the judge who might have transgressed his powers or who has passed a sentence more than it has been laid down in the law, and such complaints must be investigated.
Principle 37 stresses that as long as the guilt of a person has not been established by a qualified court he is regarded innocent in the eye of the law. A person cannot be deemed guilty on the basis of suspicion, of imagination, guesswork, or ill thoughts. The basis of this principle is the presumption of innocence, and one cannot overlook this principle only on the basis of suspicion. In view of the fact that the presumption of innocence is valid about the past behaviour of all individuals, in case there are grounds to believe that someone has committed a crime, this should be proved to the point of certainty, and the sentence can then be issued when guilt has been proven.
Furthermore, ‘the principle of health’, which is a recognised principle of jurisprudence, means that the words or deeds of individuals must be interpreted on the basis of health [innocence] and must be regarded as being good and satisfactory until there is clear evidence for rejecting that assumption. The Holy Koran has also forbidden us from having ill thoughts or suspicions about other people. (Footnote 21)
Apart from that, arresting, detention or punishment of individuals would be regarded as a form of intrusion into the confines of their freedom and would impose limitations on them and would force them to do something contrary to their will and choice. This would also be regarded as a form of violation and assault against their person, which has been completely forbidden.
Another point that has been set out in this principle is the banning of torture for the sake of gaining information. Gathering information is different from obtaining confession. There is no doubt that inflicting torture, injury and assault for the sake of obtaining confession is forbidden. The important point here is to see whether this ban is in absolute form or whether it can be lifted on certain occasions. This is a separate issue and we do not have the time to deal with it here.
Principle 39 refers to another human right. This points out that people have to be respected and their reputation and dignity are to be respected in the same way that their lives will be respected. No one has the right to violate the dignity and reputation of anybody, and this will be regarded as an offence that is open to prosecution and punishment. This issue is so important that even in the course of the investigation of the charges made against an individual by prosecutors and in courts, at no stage is anyone allowed to insult someone or to undermine his respect. A person who is arrested and detained on the basis of the law, or even sentenced to jail or exile, should be dealt with only to the extent that law has prescribed. During the period of arrest and detention when the outcome of the case is not yet certain, those who are dealing with the accused are under no circumstances allowed to violate his respect and dignity. Even at the time when a person has been sentenced to jail or exile and is serving his sentence he should not be insulted.
In other principles of the constitution we also come across other cases that deal with judicial security. For instance, in principle 165 we read: “Trials will be open and the presence of other individuals during the trials is allowed, unless the court decides that having an open trial would be contrary to public decency or to safeguarding order in the court, or when in the cases of private prosecutions the two sides to the dispute request that the trial should not be open.”
Having open trials provides a guarantee of the health of judicial procedures and prevents the violation of the law. Furthermore, it will increase public trust in the judiciary’s ability to safeguard the rights of the people. It is also a warning to everybody that others will become informed of their offences and their punishments, which would ultimately increase judicial health and security in the society.
In principle 166 we read: “The sentences passed by the courts must be based on evidence and on legal principles and on the principles on whose basis the sentence is passed.” Or, in principle 168 we read: “The trial of political and press offences would be open and in the presence of a jury, and such cases would be carried out in the courts of the Ministry of Justice [as opposed to revolutionary courts].” Or, in principle 169 it has been stated: “No action or the lack of action can be regarded as an offence if it has taken place prior to the time when a relevant law has been issued on the subject.” Or, in principle 171 it has been stated: “If as the result of a mistake by the judge in a case, or in sentencing or in the application of the sentence to a particular case a person suffers moral or material loss, the judge would be regarded guilty on the basis of Islamic principles. Otherwise, the loss would be compensated by the government, and in any case reparations should be made to restore the reputation of the accused.”
All these principles can guarantee legal security of the individuals, and if they are implemented properly the society can enjoy a good level of legal security. We stop here and will refrain from elaborating and interpreting the principles regarding other rights of the nation. In order to prevent this article from becoming even longer we will not deal with other principles.
1- “Seminary instructor and a member of the teaching staff of the University of Medical Science in Babol, writer and researcher.”
2- Morteza Motahhari, The System of Women’s Rights in Islam, Sadra Publications, Qom, 31st edition, 1380, p 144.
3- Abdol-Karim Soroush, Kiyan Magazine, issue 26
4- Sura Hadid, verse 25
5- See Nahaj al Balagha, Sermons No 34 and No 216, and letters Nos 19, 50 and 53, and Philosophical sayings No 399. Also see Resala al-Huquq by Muhammad bin Ya’qub Kulaini, and “Usul Kafi, volume 3, the book on al-Iman val Kufr, the chapter on Ekhvat al-Mu’minin Ba’zohom le Ba’z
6- Sura Nisa’, verse 147: “God dopes not like a voice being raised in ill words, unless by a person who has been oppressed”
7- Sura Nisa’, verse 78
8- Sura Hujarat, verse 13
9- Muttaqi Hindi, Kanz al-A’mal, vol 2, p 85, tradition No 5652
10- Sura Rum, verse 22
11- Morteza Motahhari, The Mutual Services of Islam and Iran, Sadra Publications, 27th edition, 1378, pp 62-68
12- The full text of the debates of the sessions of the Majlis [Assembly of Experts] investigating the final draft of the constitution of the Islamic Republic of Iran, p 690
13- Imam Khomeyni’s interview with a German newspaper, Sahife-ye Nur, 16/8/57 [6 December 1978]14- Sura Hujarat, verse 12
15- Naser Makarem-Shirazi and others, Tafsir-e Nemuneh, fifth edition, vol 22, pp 187-188
16- Sura Baqara, verse 256
17- Seyyed Mohammad Hoseyn Tabataba’i, al-Mizan, translated by Seyyed Mohammad Baqer Musavi-Hamedani, Dar al-Elm Publications, third edition, 1362, vol 4, p 244
18- Sura Nahal, verse 125
19- For further studies regarding the freedom of religions and sects and seeing the answers to the objections made to it see: Abbas Nikzad, Ravaq Andisheh Magazine, issues 18 and 19
20- Sura Hadid, verse 25
21- Sura Hujarat, verse 12
Source: Mardom-Salari website, Tehran, in Persian 15 Jun 09