2. THE NINETEENTH CENTURY ATTEMPTS AT JUDICIARY REFORM

Under these conditions, judiciary reform in Iran began. Until the revolution of 1978, however, Westernization or, to use a better term, “Westomania” was the most powerful force in determining the course of all reform activities, and the new legal system served as one of the best examples of the process.

While the general reform movement in Iran started from the administrative reform in the early nineteenth century,⁴⁴ judiciary reform began in a later phase. It started during the premiership of Mirza Taqi Khan Amir Kabir (1848-1852), whose efficiency, dedication and fame in Iran's modern political history is rivalled only perhaps by Dr Mossaddigh who came a century after him.⁴⁵ Of the matters of utmost importance to Amir was his Socratic observance of law and justice and his dedication to the principle of separation of the judiciary from the executive – the principle on which he founded his Nezam-e Jadid (new military system) (Iqbal, 1962: 307–317, esp. 309). Knowing the chronic deficiencies and the basic features and potentialities of the dual court system which had existed for centuries, he took action in both directions. He reorganized the notorious secular orf judiciary, then called Divan Khaneh, he appointed a new chief administrator, established new courts (Sheil, 1856: 169), and extended their jurisdiction.⁴⁶ At the same time he paid considerable attention to the chaotic situation of the Sharia courts. He took an uncompromising attitude toward the corrupt elements amongst the ulama. He removed and punished the corrupt mollas⁴⁷ from the bench, abolished the legal force of contradictory verdicts and did everything to restore piety and order to the Sharia courts.

In one of the darkest episodes of what Lord Curzon has called “the crime-stained and bloody pages of Persian history” (Curzon, 1892,1: 456), Amir Kabir was dismissed on 15 November 1851 and was savagely assassinated on 6 January 1852.

With this tragic event, all reform activities practically stopped. In 1855, a European-inspired code of laws which was modeled after the Ottoman Khatt-e Sharif-e Golkhaneh was proposed to the Shah (Lambton, 1970: 259); but as far as the records show, the project proved abortive and nothing took place in the area of law till 1858. In that year the Shah ventured into a new experiment. Dismissing the prime minister,⁴⁸ he appointed for the first time a six-member Shura-ye Dowlat (council of ministers) and divided the duties of the government among them. In the following year (November 1859), he took another promising step, establishing a Maslahat Khaneh (house of consultation), hence giving an indication that he intended to separate the legislative from the executive power. The Maslahat Khaneh was composed of twenty-five individuals hand-picked by the Shah on the basis of their “familiarity with the outside world,” their experience, dedication and respect among the public (Adamiyat & Natiq, 1977: 189, 196–197). It had a constitution and a set of rather comprehensive procedural rules.⁴⁹ Its purpose, as stated in the constitution, was to assemble “the wise and sound-minded men of the country so that they will discuss, confer and decide on the matters which would lead to the improvement of the government, to the development of the nation and to the good of the people” (ibid.: 189).

In the first year of its existence, the Maslahat Khaneh was very active. It took measures on many areas of public interest such as marketing and distribution of public necessities, smallpox vaccination, and care for the homeless, giving the impression that it was going to succeed in meeting the goals for which it had been set up.⁵⁰

Among all the new efforts which the Shah had launched, the judiciary reform occupied a high priority. Of the six new cabinet posts created, one was the Ministry of Justice, or Adliyyeh as it then came to be known.

Besides these specific efforts, the judiciary reform, notwithstanding the tremendous sensitivity of the ulama,⁵² received other attentions as well. We are informed for instance that the Maslahat Khaneh, apparently with the intention of compiling different codes as had been suggested by Mirza Malkom Khan, “collected, within six months of its existence, four thousand articles of law;⁵³ and in a long report written on �?The Improvement of the Maslahat Khaneh” attention was called particularly to the need for strengthening of the secular courts and for reorganization and reform of the Sharia courts (Adamiyat & Natiq, 1977: 212–213, 215).

Following these efforts, the Shah started regular mazalim (acts of injustice) hearings in 1860, an institution which continued in the following decades and functioned as a court both of appeal and of first instance.

But given the utterly corrupt and inefficient nature of the political system, none of these innovations took root, in spite of all their initial enthusiasm and relative success. By the time this last degree was issued the Maslahat Khaneh had been almost completely forgotten. Moatamad od-Dowleh was replaced by a cruel and corrupt man⁵⁵ who repealed the 1858 decree, dropped the idea of establishing regional courts – on the pretext that “the provincial governors consider such courts a nuisance”⁵⁶ – and brought all the efforts of Moatamad od-Dowleh to nought. Thus, as Amir Kabir's efforts in the late 40s had proved abortive, so were the reforms of the late 50s; and except for the first two years of the 1860s, the whole decade, like the 1850s, went by in stagnation.

The 1870s began with another round of renewed interest. This time the principal player was Mirza Hoseyn Khan Moshir od-Dowleh Sepahsalar who, after Amir Kabir, was the most efficient administrator and reformer of the Quajar period.⁵⁷ As a career diplomat with twenty years of foreign service in Bombay, Tiflis and Istanbul, Moshir od-Dowleh was thoroughly familiar with the theoretical and practical aspects of reform, and like his close friends Mirza Malkom Khan and Mirza Yusof Khan (later Mostashar od-Dowleh)⁵⁸, had been a strong advocate of Westernization reform.

In some seven months of his service as Minister of Justice, Sepahsalar’s achievements were truly remarkable, and it was this very fact that paved the way for his subsequent promotions (Mostowfi, 1945, I: 153, 155). Aided by his faithful and enthusiastic friend, the above-mentioned Yusof Khan (Mostashar od-Dowleh), Sepahsalar started where the early 50s and 60s had left off.

In March 1871, he issued a decree⁶⁰ introducing a vast programme of reform; three months later, on 22 June he published his 119-article “Law of the Grand Ministry of Justice and the Houses of Justice in Iran” which described the plan in full detail, and on 9 July he issued a very strongly worded decree to the provincial governors and judges on his new programme. Modelled basically on the Ottoman version of the Westernized judicial system, the programme had three basic features: ideological, organizational and procedural.

Ideologically the programme aimed at guaranteeing certain basic human rights. It forbade arrest without court order, detention after being found innocent, and undue infliction of harm and punishment on persons of lower rank or lesser influence. These ideals were especially developed and elaborated in the second decree which, at the same time, and like the Shah's decree of 1858, was intended to assert the authority of Central Adliyyeh over the provincial courts. The decree specifically prohibited the provincial governors from the pronouncement and “execution of physical punishment and the death penalty...

To ensure proper carrying out of these plans, Sepahsalar created a new office: that of “ nazir” (overseer) of Adliyyeh, who was dispatched to the provinces and, reminding the divan begi of the early 60s, charged him with supervision of the observance of the new regulations (Adamiyat, ibid.: 177). But this was too limited a measure, and the experience of the 1860s had clearly demonstrated the futility of such remedies. What was needed was a radical structural departure from the past and this was exactly what the Sepahsalar did. By this first decree, he created six courts or “majlises” as they were called: three specialized courts dealing respectively with crime, real estate and commerce; a court of appeals, and two other “courts": an executive court to carry out the decisions of the Ministry of Justice and a legislative court to draw up laws and regulations (cf. Adamiyat, 1972: 174–177; Bakhash, 1978: 87). The decree also provided specific guidelines on such procedural matters as regular opening of the courts, hearing of the cases by turn, registration of petitions, proceedings and decisions of the courts, taking evidence and estimating injuries (Adamiyat, 1972: 174–177).

Finally, we must also mention Sepahsalar ’s articulate tactics. Fully aware of his potential enemies, the ulama and the reactionary courtiers – who ultimately brought him down – he took every precaution to ensure the success of his plans. In the prologue to the first decree, he declared his purpose to be the restoration of the spirit of the Sharia and the establishment of the conditions which would permit the state “to emulate the golden times” (ibid.). Furthermore he took full advantage of the protective shield of the Shah's position and name. He issued all decrees with the Shah's name and signature, and to put an end to the common abuses by the governors, he reminded them that punishment of crime was “reserved to the Shah alone” and it was he who had the exclusive authority to dispense justice (ibid.: 88; cf. Farhad-Moatamad, 1947: 38; Mostowfi, 1945, I: 155; Sani od-Dowleh, 1876–78, III: 6–9).

Like Amir Kabir and for the same reason, Sepahsalar ’s hopes were also short-lived. On 20 April 1873 (after seventeen months as Prime Minister) he and his advisor and friend Mirza Malkom Khan, took the Shah on an “educational” tour of Europe. While they were abroad, reactionary forces seized the opportunity and instigated a public uproar against the Prime Minister's alleged anti-religious motives. Upon their return in early September and even before the arrival of the entourage in the capital, he resigned under duress and with that began the end of his dreams (Fasai, 1972: 379).

Thus, just as it was in the early 50s and 60s the relative improvements of the early 70s also proved to be temporary. After Sepahsalar, affairs naturally returned to their “normal” state. Of his innovations only the three specialized courts (of crime, real estate and commerce) survived and continued to function up to the Constitutional Revolution of 1905.

Along with these, the archaic mazalim tribunal which had existed since 1860 also continued and, in view of the decreasing power of the Adliyyeh, became increasingly active. To these tribunals, letters of complaint poured in from all over the land, but whether they had any effect on the brutal injustices inflicted upon the helpless people by landlords and local government officials is seriously in doubt.⁶¹

Throughout the past decades, although the idea of the European judiciary system was at the centre of attention, no conscious attempt was ever made to translate the European codes directly and openly. But frustrated with its repeated failures, especially in view of the mounting criticism and public cry for justice, it was natural that the regime would finally resort to such a measure, a step which had been taken in Ottoman Turkey more than thirty years before.

Thus, upon his return from his third visit to Europe in September 1888, the Shah assembled the ministers and the dignitaries of the court and delivered to them a short but very hearty speech: “In this journey we realized that all the order and progress of Europe was due to their having law. We are strongly determined to create a law in Iran and work on that basis. You go and write a law” (Molk-Ara, 1982: 175).

Following that order, a committee of five individuals who were familiar with the European languages and legal systems was set up. Using the Code Napoleon as the main source, the committee obtained copies of other codes such as the modified version of the Code Napoleon prepared for the French Islamic colonies of Africa, the British code prepared for the Moslem population of India, and the codes which were prepared by the Ottoman reformers. With these sources at hand, the committee commenced the work of translation. A series of pamphlets were completed and, after the approval of the government, were signed by the Shah (ibid.: 175–177; Adamiyat, 1976: 12–13; Curzon, 1892; I: 462). But from the very start, the influential courtiers “who had learned nothing but robbing others and embezzling public funds started criticizing the laws which had taken years for the European philosophers to prepare.”⁶² The end, of course, was not difficult to predict. “In response to recent inquiries,” wrote Lord Curzon three years later in 1891, “I am informed that nothing further has been heard of the new code, hence I am led to infer that one more excellent chance has gone into the waste-paper basket and that one more stone must be added to the cairn of abortive reforms that has been so conscientiously piled by Nasir-ed-Din Shah” (Curzon, 1892, I: 462).

But if not the last from the political point of view, this indeed was the last abortive attempt of the nineteenth century from the point of view of judiciary reform. In the spring of that year, and following the fatva of a grand mojtahid, Ayatollah Shirazi, against an infamous tobacco concession which the government had granted to a British company, mass demonstrations erupted in the country for the first time in history and forced the Shah to cancel the concession. Though not the first concession, the tobacco agreement served as a precipitating factor which touched off an explosion and that finally led to the assassination of the Shah in 1896 and to the collapse of absolute monarchy in 1906. In these years judiciary reform was almost completely pushed to the background and was not resumed until after the opening of the first legislative assembly, the Majlis, in 1906.