Evin prison, Tehran, May 11, 2009. Abolfazl Nesaii/Document Iran/Corbis
July 21, 2013
A wretched judiciary is tyranny’s strength,
and a strong judiciary makes for wretched tyrants. Today in Iran, the weakest
and most wretched branch of power is the judiciary.
In democratic states,
the most unprotected of people find some protection in the law and the
judiciary. We’ve heard it said that democracy is history’s destination, and the
last stop for the convoy of civilization; we can at least agree that the right
to self-determination is the highest demand and right of the modern human
being.
Muslims and Arabs are
currently welcoming the enchanting peacock of freedom and burying the cruel
dragon of tyranny. These are auspicious days, when dictators go to hell and the
gates of heaven open to the victims of their cruelty. Iranians led the way in
2009, but they were thwarted and the ugly monster of tyranny beat them down
again. Now, it is the turn of Tunisia, Egypt, Libya, Yemen, and then Syria to
spread the wares of justice and to bring down the walls of enslavement.
It
is a pleasant dream: the ogres of oppression in chains, and the angels of
justice on the wing. But if this sweet dream of rule by the people and freedom
ends with—and is reduced to—elections alone, it will have been a dream
unfulfilled. We Easterners have been so stung by the arbitrariness of despots
that we see freedom as the end of the dark night of capricious rule and the
dawn of rule by the people, the collective will, general elections, and
referendums. We consider free elections and the sending of the people’s
representatives to the legislature and the executive as the pinnacle of
democracy. As soon as a nation opts for free elections, we feel confident that
the people have been victorious in their struggle, that repression has been
defeated, and that the return of tyranny has been made impossible. But we
overlook a mighty truth: the judiciary plays an enormous role in strengthening
rule by the people, in wresting people’s rights from the power-holders, in
bolstering the law, in underpinning civic life, and in consolidating justice
and liberty. This truth is so mighty that we can go so far as to say that the
judiciary is the core of rule by the people, and the parliament is its form and
crust. And it goes without saying that turning the crust into the core and the
core into the crust will leave us with an inverted system.
Take Iran today.
Officials hold elections with a hundred ruses and tricks, and send fraudulent
deputies into parliament to legislate. We cry to the skies at all this
cheating, express our hatred of these bogus deputies, and at this betrayal of
our votes. Peaceful protesters march in the streets and are shot for asking,
“Where is my vote?” We suffer a thousand indignities. Our sons and daughters
end up in torture chambers. They are beaten and raped. Shattered and desolate,
they crawl into a corner of a hospital or a psychiatric ward. We pay this high
a price in order to have an honorable parliament, representative deputies, and
useful and just laws. Should we not ask ourselves whether we would need to pay
this grievous price if we had an effective judiciary, and strong, independent
judges? And whether such deadly weeds would grow in our garden, whether we
would have so many political problems, and whether our people would have to
suffer such horrors if we had judicial officials who put the fear of God into
the nation’s traitors, who shamed offenders before the public and punished
their wrongdoings, and who sided with the wronged and upheld justice?
Iran’s
leader once said: “The people should fear the state.” I say, yes, they should
fear, but not the police, not the leader, not torturers, not interrogators, not
marauders, not informants, not lawbreakers; they should fear courts and the
judiciary. Torturers, MPs, and the leader, too, should feel that the judiciary
will stand up to them. It is impossible for rule by the people to be robust and
effective whilst the judiciary is feeble and ineffectual.
Our tyrannical rulers
boast of possessing the same dominion and justice as Ali. They repeat, night
and day, in mosques and from pulpits, that an infidel took Ali, the caliph, to
a judge and emerged victorious. Never mind the leader; not even the lowly,
sanctimonious clerics on the peripheries of the leader’s retinue ever risk
being taken to court. Their immunity is unassailable. And—numerous though their
sins may be—their holiness never falters.
The
situation has reached a point where we must take the lamp of courage, as we did
in the early days of Iran’s Constitutional Revolution, and start looking for a
house of justice again. We have sought justice and interpreted it as freedom,
whereas we should seek freedom and interpret it as justice. We never rejected
justice, but we failed to revere it as we should have done. We took the crust
and neglected the core, and now neither our core nor our crust is functioning.
We’re glad neither in our hearts nor our bodies.
We forgot that, in a
tyrannical system, the first organ that stops functioning is the judicial
heart, and that when our heart is so feeble, having a strong and robust body is
little more than a naïve and ridiculous dream.
What’s more amazing is
the deviousness of our peddlers of religion who disregard all the experiences
of other countries and seek the answer to everything in Islam; but, despite the
emphasis placed by Islam on this issue, they’ve stripped the judiciary of all
its independence.
Not long after the 1979
revolution, we saw and we realized that clerics believe in neither freedom nor
choice/elections. They view both freedom and choice as products of liberalism,
permissiveness, and immorality. We realized that they are better acquainted
with duties than with rights. We realized that all the books on fiqh barely contain half a
chapter, nay, half a page, on the people’s rights. The graduates of the
religious schools in Qom and Najaf are uninterested in modern philosophy and
law. They seek their ideal and their utopia in pre-modern, duty-oriented
communities, which are the breeding ground of tyrants. And it is only perforce
and as political ornamentation that they have submitted to the corrupt
offspring of Western culture; i.e. a parliament.
Their conception of the
Prophet, too, is much the same. One man, who had been disqualified in an
election, took his grievance to one of the clerical members of the Guardian
Council and said: “If you don’t uphold my right, after Judgment Day I’ll
complain about you to the Seal of the Prophets.” The cleric smiled and said:
“Let me set you straight; the Seal of the Prophets believes in neither freedom
nor elections.”
We slowly discovered
and digested these facts, and stopped working with the clerics. But we found
what they did to the judiciary in the Islamic Republic indigestible. If the
books on fiqh do not speak about freedom, elections, and parliaments, and if
clerics have not made any effort to square these concepts with fiqh, there most certainly
is a very mighty tome in fiqh on the subject of grievances and adjudication. Experts in fiqh are proud to have
studied it at length and in detail, and have produced some innovative and
subtle ideas on this subject. And the independence of judges is the keystone
and the keynote of all their views. And it has to be said that, every now and
then, there were some very good judges during the Islamic caliphate. But what
is there to be said on this subject when it comes to the Islamic Republic’s
absolute rule of a cleric—which has left little to behold when it comes to the
law and adjudication? If our legislature and executive are slumbering, our
judiciary is thoroughly dead; if the former two are weak, the latter one is
wretched.
The judiciary, which is
supposed to be the people’s refuge, is now such a reprobate that the people
must seek refuge in God. The charms and the bribes of power holders have
rendered judges totally ineffectual. Those who rob the people of their security
can live in full security. Murderers can slay writers and intellectuals in
broad daylight and then enjoy a night of restful sleep. Members of the Basij militia viciously
break students’ arms and legs, and receive a pat on their backs for their
efforts. Torturers rape detainees and are rewarded with bonuses. The heroes of
the nation are locked up in jail or in their houses, and the judiciary is as
silent as death.
And the ruling cleric’s
mercenaries travel the world to explain to non-Muslims that the people’s rights
are fully respected in the Islamic Republic; that there is no cause for alarm,
and that the judges who are appointed by the leader do not issue verdicts on
the orders of the leader’s lackeys and secret agents. And the amazing thing is
that benevolent individuals in Iran keep demanding free elections instead of
asking why the judiciary has so parted ways with justice.
In the newly liberated
Muslim countries, too, all the talk is of parliament and elections. It is as if
all that’s required is for a few deputies to be freely sent to parliament;
then, the gates of democracy will swing open before the people and the air will
fill with the heady scent of justice. The victory of Islamic parties in the
recent elections in several countries has further fanned the flames of this
conception.
Scarcely anyone is
speaking of the strength and soundness of the judiciary, and hardly anyone is
mentioning judicial independence, which is the fount and the central pillar of
rule by the people.
My message and my
advice to you dear people who have recently embraced freedom and rid yourselves
of the ogre of tyranny is this: Do not focus all your political efforts on your
future parliament. Devote a share of your time to ensuring that your judiciary
is honorable and independent. Remember that a wretched judiciary is tyranny’s
strength and a strong judiciary makes for wretched tyrants. It is this noble
organ that will drive away that ignoble ogre. Rule by the people will not be
strengthened and will not endure other than with the support and backing of a
popular, strong, and independent judiciary that upholds the law.
And the people who are
thinking about Islamizing the state and implementing the sharia—those who view
liberalism and secularism as a monster—should know for their part that judicial
independence is one of the firm, self-evident principles of the precepts of fiqh; it has nothing to do
with liberalism and secularism. And working to this end is pleasing both to God
and to man; it will bring you blessings both in this world and the next.
I have another piece of
advice: If you are determined to have a state that is based on a rejection of
arbitrary rule and on respect for the people’s votes (which is a laudable
notion), why not also insist on the election of the judiciary’s top officials,
and include an article to this effect in your constitution? In this way you
will ensure that you have knowledgeable, just, and honest judicial officials,
who are not appointed by and are not subservient to the state, and who, with
the backing of the people, will stand up to any state officials who break the
law.
Watching the free
elections and the comings and goings of chancellors and prime ministers from
the West, being dazzled by the media frenzy, and imagining that this is what
democracy and freedom mean, whilst overlooking the judiciary—which is the
guarantor of this sturdy system—is not a sign of wise statesmanship.
I am aware that my
words will raise two grave questions in my readers’ minds. The first is, this
strong judiciary will only guarantee judicial justice, whereas we also need
distributive justice, which hinges on a strong parliament.
My answer is: Certainly,
this is true. Rule by the people needs both fair laws and the courageous
implementation of the law, and the judiciary is only responsible for dealing
with disputes and punishing offenders. Be that as it may, without a strong and
just judiciary, the fairest of distributive laws will not produce any benefits
and will only be subverted by the nation’s traitors.
The world of Islam,
which has been living with the dragon of tyranny for quite some time, should
throw open all its windows to elections in order to rid itself fully from this
blight. It must allow the rule of the people into every sector and think of
ways of tackling any concomitant ills. This will prevent the return of the
dragon and the disappointment of those who have longed for and struggled for justice.
The
second question is this: What kind of laws will this strong judiciary side with
and, in an Islamic society, will it, for example, rule in favor of stoning
adulterers and killing apostates?
When the judiciary
becomes the sole arbiter, no other religious or non-religious arbiter will take
it upon itself to sanction the shedding of human blood on this or that pretext.
For example, the kind of sanctioning that we saw in the fatwa issued by
Ayatollah Fazel Lankarani in Iran, which backed the killing of an Azeri writer,
and which was followed by opportunistic, publicity-seeking cheering by the
cleric’s son.
It
is time for Muslims and their religious and ideological leaders to submit to
the religious and extra-religious principle that states: “Do unto others as you
would be done by.” It is time, in other words, to coordinate lawmaking and
judicial affairs with the Universal Declaration of Human Rights, which is the
product of collective human thought and consensus; to abandon discrimination
and view all human beings as equals; to seek religiosity less in fiqh and more in virtue and religious knowledge and
experience; and to stop clutching the husk of the sharia and clutch the precious kernel of spirituality instead.
Let
clerics, for their part, be the smiling face of Islam. Let them value their
soft power and not crave hard power. Let them allow the mighty notion of right
into their old, duty-oriented fiqh. Let them stop trying to find the answer to every question in
religion. Let them throw the gates open to answers that are produced by
independent, rational thought. And let them rest assured that rationality will
not force the sun of truth to set.
Abdulkarim Soroush is the author of more than twenty books in
Persian on religion and philosophy. Since 1983, he has served as a researcher
at the Institute for Cultural Research and Studies in Iran. After the 1979
revolution in Iran, he was appointed by Ayatollah Ruhollah Khomeini to serve on
the Cultural Revolution Institute, a body tasked with restructuring the
country’s universities. A prominent critic of clerical rule in Iran, he is a
co-founder of Kiyan, a leading intellectual journal. He has
been a visiting professor at Harvard, Princeton, and Yale universities as well
as at the Wissenschaftskolleg in Berlin. His essays have been translated into
English in the volumes Reason, Freedom, and Democracy in Islam
and Islam and Dissent in Postrevolutionary Iran.