Testing the Limits of Collaboration – painting by Nicky Nodjoumi
Text by Jason Reza Jorjani
On August 15, 2009, in Tehran, Mir Hossein Mousavi announced the formation of The Green Path of Hope, which includes Mehdi Karroubi and Mohammad Khatami among its leadership council.
Mousavi described the aim of the organization as follows: “The Green Path of Hope is formed for the sake of people’s rightful demands and for claiming their rights … the color green is the symbol of this movement; its slogan is demanding the impeccable implementation of the constitution, and innumerable self-motivated independent societies form the body of this movement.” Mousavi has also said: “You can’t follow some parts of the constitution and throw the rest into a [trash] bin.” These statements frame the uprising underway in Iran as some kind of ‘civil rights movement’, namely a movement to restore recognition of extant constitutionally enshrined civil rights. The aim of the United States Civil Rights Movement was recognition of the constitutional rights of African Americans. It would not have been a ‘civil rights movement’ without the Bill of Rights already in place. But what ‘civil rights’, if any, feature in the theocratic Constitution of the Islamic Republic?
The first thing to note is that Article 4 of the IRI Constitution, entitled “Islamic Principle”, states in no uncertain terms that: “All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the wise persons of the Guardian Council are judges in this matter.” As the last sentence of this all-important article indicates, interpretation of the legal content of the Koran and the Sunnah with a view to application is not left at the discretion of a majority of average citizens qua lay Muslims. [Preamble] There are explicit and extensive references to Islamic legal scholars as the individuals vested with judicial authority. A “Council of Guardians” made up of such men is authorized to review and strike down any legislation passed by parliament that it may deem “un-Islamic”. [Articles 91, 94, 96, 98] In the absence of a Guardian Council exercising its supervisory role, the parliament has no legal authority whatsoever – even if it reflects the will of the people. [Article 93] This underscores the fact that the Islamic character of the laws is not at all intended to be merely an indirect reflection of the private Muslim faith of citizens legislating through their representatives in the Assembly. [Article 72]
Almost every substantial ‘civil right’ granted by the Constitution is qualified by the criterion of its meaning being defined strictly within an Islamic context, so that those rights cannot be interpreted or applied in any way that challenges Islam (and, at that, the Guardian Council’s interpretation of Islam). There is “equality before the law” only “in conformity with Islamic criteria”. [Article 20] There are “women’s rights” only “in conformity with Islamic criteria”. [Article 21] “Freedom of the press” is secured “except when it is detrimental to the fundamental principles of Islam.…” [Article 24] The related “freedom of expression and dissemination of thoughts in the Radio and Television” are only guaranteed “in keeping with Islamic criteria”. [Preamble; Article 175] This underscores the purely negative ‘freedom’ of belief, wherein: “The investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.” [Article 23] In light of the preceding, this is nothing more than a “don’t ask, don’t tell” policy, and certainly nothing like a civil right to freedom of conscience, which requires an attendant unqualified freedom of expression and exchange of ideas in the public forum. “Freedom of association”, which includes workers’ unions, political parties and religious associations (‘churches’), “whether Islamic or pertaining to one of the recognized religious minorities”, is permitted only “provided they do not violate … the criteria of Islam….” [Article 26] This also holds of the right to “freedom of assembly”, including peaceful non-armed marches (demonstrations); outspoken Green Movement advocates of this right gloss over the qualification “provided … they are not detrimental to the fundamental principles of Islam.” [Article 27] Not only must the President be officially of Muslim descent (as noted above in the discussion of restrictions on the rights of religious minorities), he also “must be confirmed” as a legal candidate by the Guardian Council on grounds of his “piety; and convinced belief in the fundamental principles of the Islamic … official madhhab (sect) of the country.” [Articles 110, 115]
The most important section of the Constitution of the Islamic Republic of Iran, containing only a single article, is Chapter 14 on “The Revision of the Constitution”, under which heading falls Article 177 concerning “Revision by Council and Referendum”. Here it is stated that Article 59 on “Mandatory Referendum” shall not apply to any referendum for the “Revision of the Constitution”. Article 59 states that: “In extremely important economic, political, social, and cultural matters” the Assembly could hold a referendum by popular vote, and that holding such a referendum would have to be approved by a two-thirds majority of the Assembly. Thus, according to Article 177, this rather simple (and democratic) procedure cannot be followed for any revision of the Constitution itself. Whatever Article 59 might mean by “extremely important … political … matters” it cannot be referring to elements of the constitutional order. Any revision of these must be initiated at the request of the Supreme Leader, in consultation with the Exigency Council, and by means of forming a “Council for the Revision of the Constitution”. The latter would include – among others – members of three powerful unelected theocratic councils: the Guardian Council, the Exigency Council and the Assembly of Experts. Finally, procedural matters aside, Article 177:5 clearly states: “The contents of the articles of the Constitution related to the Islamic character of the political system; the basis of all the rules and regulations according to Islamic criteria; the religious footing; the objectives of the Islamic Republic of Iran … the holy principle; the Imamate of Ummah; and the … official religion of Iran and the religious school are unalterable.” This means that the leadership of The Green Path of Hope, would like Iran to remain an Islamic theocracy – albeit one whose friendlier face is plastered with a Khatami smile. Harbor no delusions on this point.
However, most of the followers of The Green Path, those in the streets still chanting pro-Mousavi and pro-Karroubi slogans (rather than the newer secular slogans), probably have something else in mind when they talk about “reform” or “referendum”. Imagine amendments that reify and emphasize the few theologically unqualified civil rights that there are in the Constitution. All of these are negative rights; they have to do with norms governing arrest, prosecution, and the means of evidence-collecting related to these. In other words, they presuppose already having violated the Islamic legal order or being in danger of so doing. The secrecy of private communications is protected against various types of state surveillance and censorship, except with specific judicial authorization. [Article 25] This means all evidence used to prosecute a person must be culled from statements or actions of that person in the public sphere. No one may be arrested without charges and the reasons for accusation being immediately conveyed to the accused, and at that, in writing. [Article 32] Due process also includes rights to timely sentencing [Article 36] and presumption of innocence [Article 37]. All forms of torture are prohibited, forced confessions or compelled testimony are inadmissible in a court of law, and oaths obtained under duress are not to be believed and are without any value. [Article 38] This article explicitly states that violations of it are punishable in accordance with the law. Article 39 goes far beyond forbidding of torture, demanding that: “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.” Prison rapes were clearly in mind in the formulation of this article, but it is broad enough to demand extremely sensitive treatment of prisoners. Articles 84 and 86 taken together seem to grant a special right, and even a duty, of parliamentary representatives to freely express their views in the Assembly, either verbally or by means of voting, without being prosecuted or arrested for so doing. One of the most important unqualified civil rights is the prohibition of anything resembling martial law in response to a state of emergency, including but not limited to war, for a period longer than thirty days, at least not without express authorization by the Assembly. [Article 79]
If amendments to the Constitution were to protect these negative rights from conflicts with any other articles that might mistakenly be interpreted as rightfully overriding them, then this would increase the possibilities for private conspiracy and public dissent – including on the floor of Parliament by “protected” representatives. Furthermore, the Basij (a militant Muslim mercenary militia answerable to the IRGC) has no constitutional grounds and could be legally disbanded. The idea is that many more people would be willing to violate the law by opposing the theocratic Islamic Republic as a form of government, and eventually the sheer mass of those arrested and imprisoned – but under very respectful and dignified conditions – would become untenable. It would require turning the whole country into a prison, and in view of the absurdity of this, the system would collapse. In my view, this subversive tactic is the only remotely reasonable motivation for accepting Mousavi’s insistence on impeccable adherence to the Islamic Constitution. In holding this position, followers of The Green Path of Hope presume that defenders of the establishment are stupid enough not to see the upshot of this, the long-term civil disobedience campaign that would be facilitated by following extant legal paths to a constitutional revision emphasizing the rights to private communications and dignified arrest and humane conditions of imprisonment.
In fact, the hardliners do see this threat of subversion, and have seen it from the moment that they declared, a few days before the June 12 election, that they would nip in the bud any attempt at a “velvet revolution” by the Greens. Even if Mousavi and Karroubi did not intend such a “velvet revolution”, most of us who voted for one or the other of them certainly meant to use them in this manner. If they were naïve for allowing this, those who believe that a velvet revolution remains possible are still more naïve. The brutally repressive response of the establishment to the peaceful mass demonstrations of the summer of 2009 has precluded a “velvety” soft and slow revolution – just as the Pasdaran promised it would. The violent reaction of many demonstrators to the regime’s second lethal crackdown, on December 27th, 2009, shows that, at least in this respect, the regime has attained its objective. The Revolution will not be a velvety one that does away with the Islamic Republic without anyone realizing it until it is too late. A demand for the removal of this fundamentally irreformable Constitution, in its entirety, is – by definition – a revolutionary demand. Revolutions are precisely those happenings between the demise of one constitutional order and before the establishment of another. After the watershed events of the Bloody Sunday of December 27th, 2009, the limits of collaboration with anyone who denies that this is a Revolution will become increasingly apparent.
The original, unabridged version of this essay can be read at: www.alamutalways.net
