4. JUDICIARY REFORM IN THE PAHLAVI PERIOD

The basic features characterizing Reza Shah's policies can be summed up as follows: (1) an autocratic centralism in excess of what the Constitution had allowed, thus arousing the opposition of the liberal nationalists who had fought for a constitutional government, (2) a strong secularism coupled with hypernationalism which was manifested in his vehement anti-clerical policies, and finally (3) an extreme pro-Western policy which clashed directly with the growing leftist groups.

Besides being a part of his general desire to change Iran rapidly into a modern, Westernized nation, legal reform had a very special place in the mind of Reza Shah. First, it was an important prerequisite to the abolition of the humiliating, century-old capitulation system which still continued. Second, it was central to his anti-clerical policies and echoed what was going on in Turkey under Mostafa Kamal.

Thus in the programme which he submitted to the fifth Majlis as Prime Minister (13 April 1924), he pledged himself, among other things, to the “completion of [the secular] judiciary and the extension of the judiciary organizations into the provinces” (M5: 284). Shortly after he ascended to the throne, he chose one of his most able lieutenants, Ali Akbar Davar, who had a degree in law from the University of Geneva, for that important task. On 13 February 1927, he appointed Davar as the Minister of Justice and, to give him a free hand, dissolved the ministry.⁸⁴ For the next seven years, that is until 18 September 1933, Davar remained at the centre of judiciary and played an important role in legal reform as an important part of the massive Westernization effort of the Reza Shah era.⁸⁵

On 16 February, only three days after Davar took office, the Majlis empowered him to reorganize the ministry of justice, to recruit new judges and to prepare new procedural laws.⁸⁶ Following the tradition set by the second Majlis it authorized him on 3 March 1928 to put into practice experimental laws after their ratification by the Judiciary Committee (cf.

With these authorizations, Davar began his tedious task. On 26 April he reopened the Ministry of Justice with new personnel, many of whom had received European educations. In the inauguration ceremony Reza Shah delivered a short speech where he expressed the importance he attached to the judiciary: “The prestige of a nation depends upon the quality of its justice. I expect of you the most honorable conduct that will at once bring justice and prestige to our country” (Quoted in Matin-Daftari 1930: 179–180).

Davar's next move was with regard to the capitulation. On 13 May letters were sent through the Ministry of Foreign Affairs to the foreign legations declaring unilateral annulment of the capitulatory rights as of 10 May 1928, thus giving them one year for signing new agreements. But given the long-used argument of the foreign embassies regarding the lack of an acceptable judiciary in Iran, Davar had to move fast. The next few months he spent on the preparation of various laws. Between December 1927 and August 1928, he enacted, through the Judiciary Committee of the Majlis, a variety of bills, some new and others revisions of the previous codes. Included were bills on the graded salary scale for the judiciary,⁸⁷ on the qualifications, recruitment, promotion and retirement of the judiciary personnel,⁸⁸ on arbitration,⁸⁹ on disputes between the citizens and government officials,⁹⁰ on trials of the cabinet ministers,⁹¹ on procedures for the military tribunals,⁹² on civil procedures and on the organization of the judiciary.⁹³

Important as these measures were, they were far from meeting the requirements of a modern judiciary in substantive areas. As we said before, on 13 and 27 January 1926, the first Penal Code had been passed by the fifth Majlis; but the other important area, the civil law, was still under the exclusive domain of the Sharia.

A few months after the passage of the first volume of the Civil Code, the sixth Majlis came to an end, and shortly after, the seventh Majlis (5 November 1928 – 5 November 1930) began. By this time, the matters of capitulation were out of the way and Reza Shah's autocratic march toward Westernization was well under way. Throughout these years, the Majlis, which increasingly became a rubber stamp, met regularly and passed into law a variety of measures which Reza Shah and the men around him deemed necessary for building what they considered a modern Iran.

Included in these measures was of course the judiciary reform; with the continued authorization of the Majlis for experimental laws, Davar and his successors continued work on the judiciary. While the move towards evermore delimitation of the Sharia continued, attention was also occasionally paid to the pitfalls of indiscriminate copying of the foreign models.

Thus on 1 January and 4 and 8 June 1929 the early Code of Civil Procedures was revised, delimiting the jurisdiction of the Sharia courts (M7: 5, 63–64; M8: 191–197); on 3 February 1929, and then on 16 March and 13 August 1932, laws were enacted which required official registration of property, marriage, divorce and all transactions, all of which had hitherto been parts of the functions of the ulama and important sources of revenue for them (M7: 22–25; M8: 122–152, 157–161).

If these unceasing and hasty efforts toward Westernization met the opposition of the ulama on ideological grounds or on the basis of “group interest,” public outcry against the modern judiciary, especially the procedural side which had developed into a labyrinth, was not less significant (cf. pp. 135–136 below). Cognizant of the unsuitability of the new system for the sociocultural setting of the country, the architects of the new order soon began remedial measures which, as we should judge today, were far from sufficient. Thus, as early as 1929 the Majlis twice rejected the revised Code of Procedures and ordered further scrutiny and revision to make it more culturally suitable. Following this, a bill was passed on 16 November 1931 on “Speeding up of the Trials” (M8: 188–191), and at the same time committees were established for revision of the existing experimental laws.

The years from 1935 to 1940 constituted the period of maturation and refinement of the modern judiciary. In the first days of 1935 the committee which had been working on the second and third volumes of Civil Code submitted its work (in 340 articles) to the Majlis; the articles were ratified, after thorough scrutiny, between 26 January and 30 October 1935.⁹⁷ On 16 October 1937 the long awaited Code of Civil Procedure (723 articles), which had been in the process of revision for years, was submitted to the newly-convened eleventh Majlis (18 September 1937 – 18 September 1939). Throughout its two years in session, the Majlis examined the long code clause by clause, and after some revisions and additions (which brought the final version to 789 articles), passed it on 16 September 1939.

Throughout these years, that is from the eighth to the thirteenth Majlis, the early penal codes also went through continuous revisions (cf. e.g. M8: 35–40, 44–50, 59–78; Q1312/1933, 1: 46–49). On 31 May 1932 the Penal Procedure Code of 1911 was revised. In this revision, elements of the German and Swiss laws concerning judicial delegation, the jurisdiction of public prosecutors and lawyers, oral indictment and bailment were added to the French inspired code (Hedayati, 1953: 13). In 1939 two committees were set up by the Ministry of Justice to further revise the Penal Code and the Code of the Penal Procedure. With a view to shortening the time between arrest and trial and to effecting a balance between the so-called accusatory and inquisitory systems of investigation, the committees adopted the latest developments in France, Switzerland and especially in Fascist Italy, and on 16 June 1940 submitted the two revised codes to the Judiciary Committee of the Majlis (ibid.: 13–14). Though the committee did review and debate the codes, their passage in the full Majlis was interrupted by the outbreak of World War II and the occupation of Iran, which ended the rule of Reza Shah on 16 September 1941.

By this time, though far from being complete, the basic groundwork of the modern judiciary system in Iran had been laid. In the chaotic years that followed no comparable developments took place. In the subsequent Majlises the special permission for experimental laws – which actually always continued beyond their expiration date – was renewed; and except for the act on the unification of the statute law which was passed in the fifteenth Majlis (28 August 1947 – 28 August 1949), no appreciable development took place until the premiership of Dr. Mohammed Mussadegh (1951–1953). Following the extraordinary legislative powers granted him by the Senate on 2 August 1952 and by the Majlis on the following day, Mussadegh introduced a vast number of new laws – on the electoral and judiciary reforms, on finance, on public administration, and in many other areas (Saleh, 1964: 986–987).

Included in this legislation was a thorough revision of the Civil Procedure Code, which was introduced in January 1953. In this revision, the measures which were incorporated in the last revision of the code in 1939 were repealed; and speed in adjudication, even at the expense of undermining the quality of justice, was once again emphasized.⁹⁸

With the fall of Mussadegh naturally came an end to his special process of legislation and laws which were officially annulled – on the ground that they were unconstitutional – on 9 November 1954. In the nineteenth Majlis (31 May 1956 – 30 May 1960), from which the legislative period was extended from two to four years, reform was once again resumed. Following the traditional permission for experimental legislation, about 50 new acts were introduced by Dr. Hadi Hedayati, the Minister of Justice, and by others. They covered a wide range such as judiciary organization, recruitment of judges and their dispatch abroad for training, the establishment and procedures of disciplinary courts (for the judiciary), the appealability of the decisions of the Supreme Court in certain cases, the establishment of moving tribunals, the judiciary affairs of the nomadic tribes and the establishment of the infamous National Security Organization (SAVAK).⁹⁹

Of the most interesting and famous of these new laws were those which concerned criminal rehabilitation and civil liability. By the first, passed in 1958 and revised in 1960, criminal offenders became eligible for a reduction in their prison term upon showing good conduct, and many rehabilitative institutions were established. By the second, the Civil Liability Act, which was enacted in 1960, every individual was held liable for “any loss or damage which his unlawful act, whether done intentionally or by mere carelessness, causes to the life or liberty or property or status or business reputation or to any other right of others.”¹⁰⁰

In the process of the Shah's so-called “white revolution” which began in the early 60s, although attention focused largely on social and economic reforms, the judiciary also received considerable attention. In an attempt to relieve the highly overloaded, labyrinthine and utterly inefficient judiciary, two simple tribunals were created. They were introduced in July 1966 and were modified subsequently; although functioning as a part of the Ministry of Justice, they were “not bound to the formalities of the procedural law” and could “litigate in whatever manner [they] deemed appropriate.”¹⁰¹

The first, called khana-ye insaf (house of equity),¹⁰² was a rural tribunal, charged with settling disputes among villagers. It was composed of five “trusted” members of the community elected for four years, and had jurisdiction over criminal and civil cases, including property disputes, of up to 100,000 rials ($1,300). (Kamangar n.d., arts. 1, 2, 10–14). The second tribunal was the shura-ye davari (judiciary council) which was intended for urban areas. It was similarly composed of five “trusted” individuals elected for four years. It had jurisdiction over misdemeanours which entailed a fine of up to 200,000 rials and over a variety of civil cases, including property disputes, valued up to 200,000 rials.¹⁰³

Though not strictly judicial, mention must also be made here of another act, the Family Protection Law of 7 January 1967 which has drawn considerable attention from Western analysts¹⁰⁴ and to whose substantive aspects we will return later.

In July 1977, among the revisions which were introduced in the preceding laws, came the last judiciary reform of the Pahlavi period. Continuing the attempt at simplification of the judiciary, an act was promulgated (Kamangar, n.d.: 621–634) by which district courts were completely discontinued (art. 1), the process of appeal was shortened (arts. 4–7), certain procedural formalities were eliminated (arts. 8–10), and the Ministry of Justice was authorized to take extraordinary measures for training new judges and for improving the hopeless conditions in which it was (arts. 35–38).

But whether these measures could perform miracles or, more likely, would simply add a few more pages to the voluminous file of the similar abortive attempts, is a question which never received an answer. Soon after, the winds of revolution which are still lashing the country started to blow. Today, gone with the wind is not only the Pahlavi dynasty but also the Westernized judiciary and all which was wrought along with it in the long and tedious process of Westernization.