3. JUDICIARY REFORM FOLLOWING THE CONSTITUTIONAL REVOLUTION OF 1905
The tyranny, corruption, inefficiency and a virtually total bankruptcy which had underlain the 1892 uprising, ultimately led to a full-fledged revolution in 1905 and to the declaration of 4 August 1906 by Mozaffar od-Din Shah (1896–1906) which ended, at least in theory, the age-old absolute monarchy in Iran.
Within a few months of that historical event, the first national elections were held, and on 5 September the first Majlis-e Shura-ye Melli or Majlis convened.Within two weeks, the Majlis got organized, adapted its Nizam Nameh-ye Dakheli (rules of order) and started work. The first problem, naturally, was the adoption of a constitution. Earlier, a joint committee of the Majlis and the government representatives had drafted a code of Fundamental Law and submitted it to the government for the Shah's approval. But given the animosity which existed between the new Majlis and the government, its return to the Majlis was delayed. After a period of bargaining, threats and behind-the-scenes manoeuvres, however, the document was finally returned; after three days of heated debate in the Majlis and then in another joint committee, an agreement was reached and on 8 January 1907, it was finally signed by the Shah.63
Fearing the death of the ailing Shah, the Majlis prepared the Fundamental Law very hastily. It dealt more with the working of the Majlis itself,64 and left untouched important areas such as the rights of citizens, the relationship between the government and the Majlis, and more importantly, the place of the judiciary. But as a first step it was an immense psychological and tactical victory for the revolutionaries; after that, the Majlis turned to the “real” issues. In mid-February, 1907, it appointed a seven-member committee of its most prominent members to prepare a supplement to the Fundamental Law.
Using – as we shall discuss – the Belgian constitution and the relatively rich source materials which a previously established group of Saad od-Dowleh had prepared as a base, the committee drafted the Supplement and after two months of hard work submitted it to the Majlis. As expected, it met a strong resistance, but this time the opposition came not from the government but mainly from the ulama (cf. Taqizadeh, 1959: 54; Adamiyat, 1976: 409–432). After seven months of struggle in the Majlis backed by mounting public support, the Supplement was finalized and was signed by the new Shah on 7 October 1907.To these important documents and their content we shall of course return. But before that let us follow our historical sketch to the end.
The successful passage of the Fundamental Law and its Supplement, however, had also its negative consequences. As it reflected a measurable success for the revolutionaries, it widened the gap between the Majlis and the newly enthroned Mohammad AH Shah (1906–1909), but at the same time brought him additional strength. This came through the conservative wing of the ulama, especially an influential Ayatollah, Sheyk Fazlollah Nuri who then openly broke away from his colleagues in the Majlis and joined the counter revolutionaries headed by the Shah. On 23 June 1908, the Majlis was shelled and the second and most bloody phase of the revolution, known as Short Tyranny (Istebdad-e Saghir) began. After nearly seventeen months of struggle the revolutionaries, who had been marching toward the capital from the provinces, triumphantly entered Tehran; on the same day, 16 July 1909, the Shah, who had taken refuge in the embassy of Russia – a strong supporter of his (Browne, 1910: 321) – was deposed. Thus, the Short Tyranny came to an end and constitutional life was resumed.
By this time the condition of the judiciary not only had not improved in comparison to the early nineteenth century, it in many respects had even worsened.
On the eve of the revolution, the atrocious “consulate tribunals” (kar-gozariha) which were discussed before, had mushroomed throughout the country; of all attempts at judiciary reform in the nineteenth century only the three specialized courts of crime, real estate and commerce which were established by Sepahsalar in 1871 had a nominal existence in the capital city; and even these, along with the entire Ministry of Justice, had become such a vivid manifestation of injustice and inefficiency that they served as the best targets of attack and criticism during the revolution, and thus on the order of the government, the forces of Ephraim Khan, the Chief of the Police, moved in, closed the Ministry and the courts completely and took many of the judges to prison (Bastani-Parizi, 1968: 512).
After the success of the revolution, the question of the judiciary was, of course, among the top priorities; to many, including some leading revolutionaries, it was even the sole objective of the struggle (cf. Kasravi, 1940: 101–103).
The cabinet of Mirza Nasrollah Khan Moshir od-Dowleh, whose establishment in 1 August 190665 paved the way for the Constitutional Declaration of 4 August, marked a turning point in the revolutionary struggle. In this cabinet Mirza Ahmad Khan Moshir os-Saltaneh served as Minister of Justice, and the Ministry which had been closed before was reopened with signs of a new beginning. In addition to the three courts which had existed before, two types of courts of appeal – a lower one called istinaf and a higher one, the Divan-e Tamiz – were established, and a number of new judges appointed (Bastani-Parizi, 1968: 17, 512; Matin-Daftari, 1948, I: 7–8)
With the establishment of the first Majlis, although the new deputies were faced with innumerable problems, they did not lose sight of the gravity of the problems of the judiciary. Thus, after putting itself in order by adopting its Rules of Order, and while waiting for the return of the Fundamental Law from the government, the Majlis set up a committee for “translation and compilation of (European) law.”66 The committee was equipped with all necessary means, including a collection of foreign codes and legal texts and fifteen translators, and was headed by a leading deputy, Mirza Javad Khan Saad od-Dowleh who had formerly served as the charge d'affaires in Brussels and was well acquainted with Europe.67 Within two months, the committee prepared a code for the Ministry of Justice and a new law on publications and the press which was translated from the French.
After that it split into two sub-committees, one continuing the translation and codification and the other made up of legal scholars and theoreticians, devoted to editing and systematization.But the lamentable situation of the administration of justice which had further deteriorated under the chaotic revolutionary conditions was far from remedied by these actions. For their salary, for example, the judges still depended on the meagre 15% of the settled value they received in each case (10% from the winning party and 5% from the losing party); and fearing the wrath of the ulama, whose hypersensitivity vis-à-vis the Majlis was becoming more and more apparent, they even used to call their court decisions “report to the office of the minister” instead of hokm (legal verdict) (cf. Forughi, 1936: 729 ff.; Saleh, 1964, II: 972).
With the end of the “Short Tyranny” which had destroyed even the meagre achievements of the first Majlis, reform activities were resumed. Before following up these developments, however, a brief mention must be made of Mirza Hasan Khan Moshir od-Dowleh Pir-niya (1873–1935), who was destined to play a crucial role in the subsequent judiciary history of Iran. He started his career as a diplomatic envoy to Russia where he had been studying law since 1884. “From that beginning, [he] was aware of the deficiencies of the legal system in Iran, and everywhere, he continued his search for its improvement” (Bastani-Parizi, 1968: 511, also 25–28; Safaei, 1965: 101). In 1899 when his father, the previously mentioned Nasrollah Khan Moshir od-Dowleh, was appointed Minister of Foreign Affairs, he was summoned to Iran. With the help of his father and younger brother, Mirza Hoseyn Khan Pir-niya (Moatamanol Molk), who later played an equally important role in the parliamentary history of the country,68 he established the first school of political science (19 December 1899). In the subsequent years, he served as the chairman and professor of law in the school69 and played a key role in the writing of the Fundamental Law and its Supplement.
In the first cabinet which was formed after the dethronement of Mohammad Ali Shah, Mirza Hasan Khan Pir-niya who, after the death of his father on September 13, 1907, had received the title of Moshir od-Dowleh, was named Minister of Justice.70 He kept this job in several of the following cabinets,71 and in this rather long period, laid the foundations of the modern judiciary of Iran which lasted up to the revolution of 1978 (Bastani-Parizi, 1968: 517).
When he took office, he dismissed a number of judges for reasons of corruption or counter-revolutionary tendencies;72 then he turned to his most difficult task, the completion and official enactment of modern secular laws which had been in the process of preparation in various committees by himself and his like-minded colleagues. For this, knowing the general atmosphere of the second Majlis (convened on 15 November 1909) which was still dominated by the ulama,73 he resorted to an astute and, at the same time, logical tactic: with considerable difficulty, he got permission from the Majlis – and the government – to prepare laws and to put them into practice after the approval of the Judiciary Committee of the Majlis and to submit them to the entire body of the Majlis for final enactment after a period of experimental trial and possible revisions (Bastani-Parizi, 1968: 513; Forughi, 1936: 972). This not only avoided major obstacles, but also set a precedent which, as we shall see, continued throughout the following Majlises up to the revolution of 1978.
With this permission in hand, Moshir od-Dowleh charged his deputy with the daily affairs of the Ministry of Justice and retired to his library. After six months of hard work and many private meetings and consultations with the prominent ulama and influential deputies, he came up (mid 1910) with two sets of law: the Law of Civil Procedures (Osule-e Mohakamat-e Hoquqi)74 and the Organization Code of the Ministry of Justice (Osul-e Tashkilat-e Adliyyeh).
But as it turned out, the difficulties in the Judiciary Committee were nearly as great as was expected from the entire Majlis. For there was the Sayyed Hasan Modarris, a highly influential and respected member of the ulama who at the same time acted as the representative of the top mojtahids of the country.The Organization Code was accepted without much difficulty, but the Code of Civil Procedures met strong opposition from Modarris. After long debates and the addition of eight articles which the ulama had suggested, it also was accepted by the Committee on 13 November 1911 (Shayegan, 1943: 34). After two years of experimental trial, both codes were passed by the entire Majlis, thanks to the efforts of Mohammad Ali Forughi, another important figure in legal reform who was then the Minister of Justice.75
By the new code, district courts (mahakim-e solh), lower and higher courts of appeal (istinaf and tamiz, respectively) and the office of attorney general (moddail omum), an independent budget for the Ministry of Justice and regular salaries for its functionaries were established, and thus the principles of appeal and hierarchy of courts which had been introduced by Sepahsalar in 1871 and had been foreseen in the Supplement became an official reality.
One of the interesting contributions of Moshir od-Dowleh was a long, 139-article, law concerning registration of legal documents (sabt-e asnad). Though limited strictly to legal and court proceedings, this law constituted an important step in the direction of bringing the ulama and the Sharia courts under the control of the Ministry of Justice. It was repealed by a single act of the fourth Majlis on 17 April 1923 and was revived with a much wider scope during Reza Shah's rule.76
Moshir od-Dowleh was well aware that in Iran, especially in those chaotic days, no innovation, no matter how well conceived, was sure to last to the next minute. Thus, to ensure at least some degree of continuity, he employed, by the approval of the Majlis, a French jurist, Adolph Perni, who helped him in preparing the codes and remained in the service of the Ministry for fifteen years until 1926.77
After finishing the first two major codes, Moshir od-Dowleh began work on a code of criminal procedures. Using the French Code of Criminal Procedures as a base, he prepared, with the help of M. Perni, a relatively exhaustive code (492 articles), and submitted it to the Judiciary Committee of the Majlis in late 1911. In the middle of the second round of its deliberation, however, the Majlis adjourned (8 December 1911) and the code remained unfinished. But in view of the urgency of the matter, the Ministry of Justice organized a new committee which included the honorable Sayyed Hasan Modarris, Moshir od-Dowleh himself and M. Perni.78 After a thorough scrutiny and the addition of fourteen more articles and after the approval of the Council of the Ministers on 12 August 1912, Momtaz od-Dowleh, then the Minister of Justice, was authorized to put it into effect (cf. Hedayati, 1953: 11–12; Forughi, 1936: 973). In the following year a short Code of Commercial Procedures and Drafts (in 62 articles) was also prepared but since the Majlis was adjourned the same procedure was followed, and it went in effect on 8 July 1914.79
Thus came to an end the first phase of the establishment of the modern judiciary in Iran. Under the direct or indirect auspices of Mirza Hasan Khan Moshir od-Dowleh, and with the help of such men as Mohammed Ali Forughi Zakaol Molk, a modern organizational chart of the Ministry of Justice and codes of civil, criminal and commercial procedures were ratified and, along with these, other steps toward establishing a modern Western-inspired judiciary were taken. But leaving aside the quality and cultural suitability of these measures, the task was far from complete. Most conspicuous was the absence of equally modern penal and civil codes. But these were substantive laws, touching the very core of the Sharia, and any attempt at even discussing them was sure to create an uproar that no one was prepared to face.
When the third Majlis convened (4 December 1914), World War I had already begun and Iran was under Russian occupation. In the turmoil of struggle with occupying forces, the leaders of the Majlis and other nationalists were scattered; on 13 November 1915, the Majlis adjourned and did not meet again for almost six years.
The fourth Majlis (22 June 1921 – 21 June 1923) began in an entirely different climate. Internationally World War I had ended, and with this had come the October Revolution, which, insofar as it had removed the age-old menace of Czarist Russia, was “a divine gift”80 for Iran. And domestically, on 27 February 1921, a coup had taken place in which Reza Khan had emerged victorious and was fast ascending the Iranian political pyramid.81 In the cabinet that followed the coup he served as Minister of War, and while retaining that important post by the special acclamation of the Majlis he was appointed Prime Minister on 28 October 1923. On 31 October 1925 the Majlis deposed the last Shah of Qajar and declared Reza Khan the Shah of Iran (M5: 18, 78–79).
Notwithstanding the struggle with Reza Khan's ambitions, the fourth and fifth Majlis enjoyed a relatively substantial degree of stability and calm. In both, the special authorization for experimental laws which was initiated by the second Majlis was renewed,82 and through the Justice Committee of the Majlis, the Westernization of the judiciary continued.
In the fourth Majlis, the Civil Procedure Code of 1911 was revised (Matin-Daftari, 1948, I: 25, 46 ff.), delimiting the jurisdiction of the Sharia-based district (solh) courts, and the most important step, which hitherto had not been dared, was taken: on 21 June 1923, it authorized the government “to establish a twelvemember committee of well-informed men for the preparation of a penal code” and even “to put it to experimental use if it were completed before the opening of the fifth Majlis” (Ml–4: 624). The Majlis also passed on 1 December 1922, and then on 20 March 1923, a law on jury trials for the primary and appeal courts. On 14 April 1923, a law was passed specifying the qualifications, recruitment, promotion, salary scale and retirement of judges and public prosecutors (Ml–4: 584–586, 611–612).
Although the fifth Majlis (11 February 1924 – 11 February 1926) had a much more stormy life due to the heightened struggle with Reza Khan, it nonetheless did make important contributions – thanks to the traditional authority of its Judiciary Committee. One of the laws it ratified was a Commercial Code (in 387 articles) which was adopted from the French Code by the help of M. Perni,83 and which was a considerable improvement over the rudimentary Law of Commercial Draft passed in the second Majlis. Perhaps more important was the first Penal Code (Qanun-e Jaza) whose preparation was authorized by the fourth Majlis. It was enacted by the Judiciary Committee on 13 and 27 January 1926, and as a first major substantive code it constituted the first true challenge to the Sharia (Saleh, 1964: 994–995; Ali-Abadi, 1965, I: 25). It was a process which became more open and sweeping under Reza Shah.