3. THE PENAL CODE
Compared to its civil law the Islamic penal law, both in the Sunni and Jaafari schools, was far more formal and inexhaustive. Basically, it recognized two types of offence: crimes against individuals, jenayat, and offences against religion.123 The first were punishable by private vengeance and the second either by hadd, a fixed punishment set by God, or by taazir, a discretionary chastisement by the qadi.124 For this reason, as we said before, from the very early days, the administration of criminal justice in the Islamic societies was taken over by the state and was carried out mainly through the non-Sharia courts.
But throughout these centuries, no attempt was ever made to supplement, let alone revise, the Sharia penal law for the obvious reason that it would have meant an admission of deficiency in the Sharia and an interference with the hodud (limits) of God.Thus, to the architects of the new judiciary system in Iran, preparation of a penal code presented a very difficult problem. It required not only massive new legislation, but also a reconceptualization of crime to bring social order into the focus and, desirably, to replace the punitive approach of the Sharia with a more Western-inspired “restitutive” one.
For this, given the nature of the political climate and pace of change which was taking place in the country, it is obvious that the gap could be filled only with a massive borrowing. That this is exactly what took place can clearly be seen from the 289 clause, Qanun-e Jaza125 (Penal Code) which was promulgated in 1926.
The Penal Code, as we said before, was prepared under the direct supervision of M. Perni, the French advisor to the Ministry of Justice; and as the Code Napoleon served as an important source for the Qanun-e Madani, the Napoleonic Code Penal of 1810, “the most widely followed penal code in the world”126, seems to have been the primary if not the exclusive basis for the Qanun-e Jaza; and for this reason, it could be said that in the area of substantive law, the Qanun-e Jaza represents the most radical departure from and supplantation of the Sharia.
This is seen not only in the legislative technique and legal structure of the code but also in its underlying assumptions and penal philosophy.From the point of view of legislative technique, the Qanun-e Jaza is an almost exact copy of the Code Penal. It is organized in Babs (Parts). Part One, corresponding to Book I and II of the Code Penal, is devoted to the General Part of criminal law. Without going into any theoretical discussion, this part begins, like its French model but in a much less systematic way, with a basic conceptual framework. The framework provides a typological scheme for crime and punishment and discusses such issues as criminal liability, accessoryship, mitigating factors and merger and concurrence of offences.127 The rest of the compendium, the Special Part, contains the actual body of criminal law arranged by types of crime. Part Two, which corresponds exactly to Title I of Book III of the Code Penal is devoted to “Felonies and Misdemeanours against the Public Good,”128 and Part Three, with a similar correspondence to Title II, deals with “Felonies and Misdemeanours against Private Persons.”129 Finally, “Violations” (petty offences) which constitute Book VI of the Code Penal are treated in Part Four of the Qanun-e Jaza, as will be discussed shortly.
The treatment of felonies and misdemeanours in Part Two and Part Three is relatively exhaustive. The offences dealt with range from such problems as vagrancy (QJ, art. 273; cf. FPC, arts. 269–279), defacement of and damage to property (QJ. arts. 250–263; cf. FPC, arts. 283–290), bankruptcy, swindling (QJ, arts. 236–238; cf. FPC, arts. 402–405), betrayal of trust (QJ, arts. 239–241; cf. FPC, arts. 406–409), counterfeiting (QJ, arts. 93–112; cf. FPC, arts. 132–144), and usurpation of position (QJ, arts. 125–126; cf. FPC, arts. 258–261), to high treason and armed uprising against the state (QJ, arts. 69–79; cf. FPC, arts. 91–101).
Except when, under mitigating circumstances, some of these offences are reduced to “violations,” no detailed treatment has been given to the petty offence. Part Four, which is devoted to this subject, consists of only one article (276), making these offences subject to administrative regulations within limits set by the law (QJ, art. 11).As a whole and notwithstanding its being basically “received”, i.e. copied from a Western source, the Qanun-e Jaza does indeed reflect a relatively exhaustive picture of the penal and criminal problems of the semi-feudal Iran of the day, and in this sense, it is, needless to say, far more realistic than the Sharia penal law.
Departure from the Sharia is even more apparent in the legal structure of the code. Conscious of the sensitivity of the ulama, the authors of the Qanun-e Jaza begin the code with a careful statement: “The penalties which are specified in this code are set for the protection of social order and shall be enforced through the Adliyyeh. The offences which are uncovered and prosecuted in accordance with the Islamic rules shall be subject to the hodud and taazirat which are set by the Sharia” (QJ, art. 1). That the last part of the article was intended as a “legal fiction” is seen not only from the very conditional wording of the sentence (Ali-Abadi, 1965: 52), but also from the second article of the code itself, which is a verbatim translation from the Code Penal: “ No action could be regarded criminal unless stated so by the law,” i.e., the provision of the Penal Code (QJ, art. 2).
Following these preliminary remarks, the Code sets the theoretical scheme of its legal structure which is also taken directly from the French code. The scheme consists of two components. The first, a utilitarian component, is a three-fold division of offences into (1) felonies (jenayat), (2) misdemeanours (jonheh) and (3) violations or petty offences (khalaf) (QJ, art. 7; cf. FPC, art. 1); this is followed by the second, a legalistic component, in which a range of punishments is set for each of the three types of offence.
In all, the punishments consist of (1) the death penalty, (2) imprisonment (of varying degrees), (3) banishment (from the country or residence), (4) loss of civil rights (all or some), (5) loss of freedom of movement, and finally (6) fines (of varying amount) (QJ, arts. 8–12; cf. FPC, arts. 6–9). This principle of legalism, of which the above-mentioned article 2 is the clearest expression, is then followed by the corollary principle of non-retroactivity of penal law, which, it is explicitly said, is applicable only to the imposition of and not exemption from the punishment – a point not mentioned in the Code Penal (QJ, art. 6; cf. FPC, art. 4).The legal structure thus described constitutes an important departure from the Sharia, not only in form but also in content. Focusing on “social order,” the new Penal Code omits such issues as apostasy, the highest religious offence which in the Sharia Penal Law incurred the death penalty. Similarly, wine-drinking and false accusation of sexual relations, which in the Sharia had been treated as independent offences, are dealt with under more general headings, “On Vagrancy and Public Use of Alcohol and Narcotics” (QJ, art. 275; cf. QJ, arts. 273–275 and FPC, arts. 269–282) and “On Moral Offences” (QJ, art. 214 mokarrar [i.e. the second issue]: Part B; cf. FPC, arts. 368–378) respectively. More important is the complete abandonment of the harsh and rigid hadd punishment on these and other offences. Instead, a more “humane” and flexible range of punishments is provided and the judge is allowed the discretion of choosing between a maximum and minimum, hence making room for the play of mitigating factors.
On these issues, although the code is basically Western, and, as we have said, in many cases a literal translation, its authors have exercised a notable degree of independence. For instance, in both the French and Iranian penal codes, adultery is regarded as a private offence, prosecuted only upon the charge of the spouse (FPC arts.
336; QJ, art. 212, last paragraph). From that point, the two codes diverge. According to the Iranian law there is no difference between a man and a woman in their right to charge adultery (as a spouse) or in incurring punishment (as a partner in adultery).130 In the French law, however, while the male partner in adultery is sanctioned with a heavier punishment,131 the right of a wife to charge her husband for adultery is also limited only to cases where the husband “keeps a mistress at the matrimonial home.132This independence or divergence from the Western model has not of course always been in the direction of liberalism as implied by this example. In some cases punishments even harsher than and contrary to that of the Sharia are stipulated: “If a husband sees his wife in bed or in a similar situation with another man whom she could otherwise marry, and kills or injures her or him or both, he is exempt from punishment” (QJ, art. 179).
Obviously, this is the influence of the traditional mode of thinking which has occasionally led the authors of the Qanun-e Jaza even to forget their own theoretical framework: “If minors (of above 12) who had not reached the age of fifteen commit a felony or a misdemeanour, they shall be sentenced to flogging from ten to fifteen lashes...” (QJ, art. 35); as we know, flogging as a hadd was very common in traditional Iran but is excluded from the list of punishments set in the beginning of the Code.
The examples cited provide good clues to our third area of interest, the penal philosophy of the new code. On this, as we have indicated before, although the new code is far more restitutive than the Sharia, it nevertheless retains the basic premises of the classical school, namely legality, mens rea and retributive punishment, which characterize its main source of inspiration, the Code Penal. Minors under twelve years of age (QJ, art. 34; cf. FPC, art. 69), the insane (QJ, art. 40; cf. FPC, art.
64), and those who commit a crime in self-defence or in defence of their marital chastity (QJ, arts. 41, 179) are excluded from criminal responsibility. In a similar vein an attempted felony is regarded punishable as in the case of a completed felony (QJ, art. 20; cf. FPC, art. 2); the accessory is subject to the same punishment as the principal, and any mitigating factors affecting one partner will not necessarily affect the other (QJ, arts. 27–29, 30, cf. FPC, arts. 59–60). The death penalty is retained; and taking the concept “innate criminal” for granted,133 the Code, like the Code Penal, has no place for individualization of the penal process. Resocialization is profoundly alien to the Code; the only place where it comes close to the idea of rehabilitation of the offender is when it mentions assigning of the non-political prisoners to work in industrial or agricultural institutions, (ibid.)Throughout the years following its first promulgation in 1926 very little change took place in this conception of crime. In the late 1950s the appearance of many rehabilitative institutions seemed to signify a new outlook; but being introduced under an increasingly repressive political climate these measures, like many others, rarely brought any meaningful change beyond the facade of an inherently degenerate system.