4. ORGANIZATION AND PROCEDURE
The organizational aspects of the modern judiciary in Iran differed widely from the other elements of the system. As they were primarily non-substantive, their modification was least offensive to the Sharia; by being among the least developed parts of the traditional judiciary system, they were amenable to a total and comprehensive reconstruction; and finally, by being the most concrete and ultimate expression of the country's system of justice, they always had top priority in the list of reform targets.
Thus, throughout the nineteenth century, as we recall, all efforts for judiciary reform centred almost exclusively on judicial organization, and after the Constitutional Revolution Moshir od-Dowleh's first and second reform acts dealt respectively with the organization and procedure of the judiciary.
As founded by Moshir od-Dowleh in 1911 and revised and expanded in subsequent years, the modern judiciary organization of Iran developed into a colossal labyrinth which not only bore no resemblance to the country's traditional system, but, as an example of “total reception”, became a perfect example of cultural discontinuity, “social misfit”, and what I have called Westomania.
In essence, the system consisted of the following elements: (1) a two-stage litigation, of first instance and appeal;134 (2) a dual arrangement of the courts on the basis of (a) the nature of their jurisdiction135 and (b) their relative jurisdiction;136 and (3) a host of procedural features. The latter included a detailed treatment of “The Proofs of Claim” (cf. QM, arts. 1257–1335; CN, arts. 1315–1369; Esmein, 1968: 622–630) and an articulate and highly complex procedure of investigation, trial, appeal and review.
Lack of space prevents a detailed examination of these features; and in a sense, given the “totality of reception”137 in this area, a general characterization of the system as a whole would serve the purpose.
In this regard, we could do no better than to quote two men who represent two entirely different outlooks.The first is Ayatollah Khomeini, the present ruler of Iran. In one of his polemics against the Shah's regime while in exile in Iraq, Ayatollah Khomeini based his argument for his ideal form of government, the velayat-efaqih, on what he regarded as one of the cornerstones of modern Iran: “The imposition of foreign laws on [our] Islamic society has been the root of endless harms and trouble... A dispute which in �those days’ a qadi of the Sharia would settle in two or three days would not finish now even in twenty years.” (Khomeini, 1972: 11–12)
While one may or may not agree with the conclusions Ayatollah Khomeini draws, his basic arguments and descriptions of the scene are correct. This is attested to by the observations of a renowned scholar and keen observer, Ahmad Kasravi, who spent ten years during the height of Reza Shah's reforms, at the service of the Ministry of Justice and occupied key positions in the judiciary. Ironically, Kasravi was an unceasing opponent and critic of Shiism and the ulama138 and was assassinated by the same militant group, Fedaiyan-e Islam (Moslem Brotherhood) which after the 1978 revolution was headed by Sheykh Sadeq Khalkhali, the-now-famous qadi of the Islamic Republic of Iran.
Drawing on ten years of rich experience in the Ministry of Justice, Kasravi wrote devastating criticisms of the modern judiciary in Iran and clearly demonstrated the failures and pitfalls of the indiscriminate Westernization which had characterized the system. His first treatise on the matter begins with this introduction: “The people who for years live with troubles get used to them... The best example of this is the story of the Adliyyeh in Iran” (Kasravi, 1945: 1). Then, describing the paralysing inferiority complex which swept Iran from the beginning of the nineteenth century and with which the reform movement began, the author tells us how the French judiciary system was transplanted in Iran. Following this the author examines the modern judiciary and discusses what he calls “endless adjudications,” (ibid.: 14–22) or “futile red tapes” (ibid.: 22–35); and similar features. Then he cites cases where adjudication of a simple case which in theory had to be finished in two stages of litigation had lasted for twenty years and had gone through twenty or more hearings and reviews each time with a different conclusion (see also Kasravi, 1936; 1937).