In Iran, having a lawyer is a privilege

Iran has a new procedural law in effect that not only violates basic human rights, but also contradicts Iran's Constitution.

According to Article 48 of this law (ratified by Iran's Islamic Consultative Assembly in 2013):

"the accused can ask for his/her lawyer to be present in his/her prosecution process". The lawyer should meet with the defendant. The defendant can submit her/his written statement regarding the case after meeting with his/her client for less than an hour."

Article 190 of this law clearly confirms the right of the defendant to have his/her lawyer present in preliminary investigation and examination: "the prosecutor should mention this right to the accused before any investigation".

A right denied: amending Article 48

An abrupt amendment to Article 48 of this law (approved by Iran's Assembly and ratified by the Guardian Council in 2015) makes an exception:

"In crimes against domestic and foreign security of the country and organised crimes whose punishments are under Article 302 of this law, both sides of the case in preliminary investigation should choose their lawyers from a list that is confirmed by the Head of Judiciary. The name of the confirmed lawyers will be declared by the Head of Judiciary."

The official website of Iran’s Bar Association reacted to this amendment in a negative posture: "When everything was ready for the new procedural law to be enforced in June 2015, an amendment was added to Article 48 in the last minutes. This was shocking for everyone."

The members of the board said that this amendment contradicts the right to defence.

Contradictions and incoherence

There are four legal questions and comments regarding this amendment and how it was passed.

Firstly, the new amendment contradicts Article 35 of the consitution which states that "both parties to a case have the right in all courts of law to select an attorney, and if they are unable to do so, arrangements must be made to provide them with legal counsel".

The members of Iran's Bar Association Board said that this amendment contradicts the right to defence.

According to Article 72 of the consitution, "the Islamic Consultative Assembly cannot enact laws that contradicts the official religion of the country or the consitution".

Secondly, this amendment was passed by the Judiciary Committee of Iran's Assembly (Majles) and sent to the Guardian Council to be confirmed. But it is illegal for this committee to pass a law without sending it to the rest of the legislative body. 

Article 85 of the constitution declares that "the Assembly cannot delegate the power of legislation to an individual or committee. But whenever necessary, it can delegate the power of legislating certain laws to its own committees, in accordance with Article 72". And in this case this delegation did not happen.

Thirdly, the new amendment is against due process as a basic human right mentioned in the Universal Declaration of Human Rights (section 1 of Article 11 of the Declaration).

Iran is a member of the United Nations and has ratified these declarations and charters.

Last but not least, the new amendement violates the professional rights of lawyers who are licensed to work in any climate and with any client.

Precedents

This amendment has a precedent in the Islamic Republic's Military Court, where the defendant accused of security crimes should choose her/his lawyer from a list confirmed by the court (Article 625 of the military court’s procedural law).

If this amendment is enforced, the accused in regular non-military courts for political and press offenses are going to be treated as members of the military in this regard.

This amendment does not go as far as the Special Court for Clergy does. If a cleric is accused by Special Court for Clergy, he cannot have his own lawyer. The SCC’s procedural code makes no mention of the participation of lawyers in the judicial process of this court.

The new amendement violates the professional rights of lawyers who are licensed to work in any climate and with any client.

Those accused by this court don't have the right to choose an attorney, and the cases where defendants appeared in court with an attorney have been instances of rare benevolence rather than based on a legal mandate.

Is there any political crime?

Almost all journalists, political and human rights activists and members of minority groups who were arrested, tried and imprisoned after the 2009 uprising were accused of "working against the national security of the country".

The Islamic Republic does not recognise the term and reality of "political offense" and "political prisoner". If it does, it should try them in a regular court in the presence of a jury based on Article 168 of the Constitution that says, "political and press offenses will be tried openly and in the presence of a jury, in courts of justice".

Just by changing the accusations from political offences to security crimes, the government has wiped this Article out of the legal map.

Before 2009, some of the reformist journalists were tried in press court in front of a jury that its members were handpicked by the government, not randomly from a pool of regular citizens.

After 2009 only members of the political establishment have been tried in front of a handpicked jury, if accused of press offenses.

Access to lawyer: right or privilege?

The history of conflict between the judiciary and lawyers in Iran has two turning points. The first turning point was right after the Revolution in 1979, when the Revolutionary Courts decided to deprive defendants of counseling.

The Sharia' judges of these courts believed that the lawyers should not defend "counter-revolutionaries". The second turning point was the approval of Amendment 187 of the Third Development Plan that gave this mission to the judiciary to issue licenses to lawyers.

On top of that, the judiciary has always tried to limit defendants’ access to their lawyers if they are political activists, journalists, human right activists or members of religious and ethnic minorities. Based on 37 years of Iran’s judiciary actions, having access to lawyers is a privilege not a right.



Majid Mohammadi is an Iranian-born academic, and the author of more than 20 books in Persian and English about politics, arts and religion in Iran.


Opinions expressed in this article remain those of the author and do not necessarily represent those of al-Araby al-Jadeed, its editorial board or staff.