A Clause and All This Criticism

The seventh of Esfand is recognized in Iran as "Lawyer's Day," commemorating the signing of the independence bill for the Bar Association by then-Prime Minister Mohammad Mossadegh on March 7, 1952. In a ceremony held on Wednesday, March 9, marking the 65th anniversary of the Bar Association's independence, the topic of the independence of defense lawyers and the issue of "Clause 48 of the Criminal Procedure Code" was discussed more than other matters. According to ISNA news agency, Ali Motahari, the Deputy Speaker of the Islamic Consultative Assembly, stated that the approval of this clause was illegal, created rent-seeking opportunities, and contradicted several principles of the Constitution. In response, Zabihullah Khodayan, the Legal Deputy of the Judiciary, said that this clause was enacted by the Parliament itself, and despite the Judiciary's initial opposition, it has no choice but to implement it. The statements of these two senior parliamentary and judicial officials not only brought the important issue of Clause 48 back into public discourse but also revealed two significant sidelights regarding its approval: the Parliament sent the bill to the Guardian Council without discussing it in a public session; for at least the past two years, appointing a lawyer for certain cases has only been possible from a list of lawyers approved by the head of the Judiciary. But what is Clause 48? Clause 48 and its background: Article 48 of the Criminal Procedure Code begins as follows: "Upon being placed under observation, the accused may request the presence of a lawyer." However, the clause added to the new law states: "In crimes against internal or external security and also organized crimes punishable under Article 302 of this law, at the preliminary investigation stage, the parties to the case shall select their lawyer or lawyers from among the officially licensed lawyers approved by the head of the Judiciary. The names of these lawyers shall be announced by the head of the Judiciary." Ali Motahari and Zabihullah Khodayan, the two senior parliamentary and judicial officials speaking at the session on Wednesday, presented new and strange points regarding the approval of this clause, which are better understood by first reviewing the history of the approval of the Criminal Procedure Code. The convoluted path of the Criminal Procedure Code's approval in the Islamic Republic has been fraught with obstacles. In 1999, the Islamic Consultative Assembly approved the experimental implementation of the initial law and tasked the Judiciary with drafting a "comprehensive and inclusive law" in this area. However, such a comprehensive law was not prepared in the stipulated time, and the Parliament extended the experimental law three times until 2005. The Criminal Procedure Code bill was finally sent to the Parliament by Mahmoud Ahmadinejad's government in January 2009. About a year later, it was discussed in the public session, but due to the discussions raised, its resolution according to Article 85 of the Constitution was referred to the Judicial and Legal Commission of the Parliament. According to Article 85 of the Constitution, the Islamic Consultative Assembly can delegate the authority to enact certain laws to its internal commissions. Meanwhile, the last deadline set by the Parliament for continuing the experimental implementation of the initial version expired in 2009. Nevertheless, Sadeq Larijani, the head of the Judiciary, stated a year later that the implementation of this law had been extended "with the approval of the leader" until further notice. In any case, the Criminal Procedure Code was finally implemented from the beginning of July 2015 with the approval of the Guardian Council. No one takes responsibility for the approval of Clause 48. Ali Motahari, the Deputy Speaker of the Iranian Parliament, pointed out two flaws in this clause during his speech on Wednesday: its illegality and the manner of its approval. Regarding the first flaw, Mr. Motahari noted that according to the added clause, the head of the Judiciary determines a list of lawyers for "security and political cases" and said: "Of course, such a list has not yet been presented to us and experts, and for this reason, security and political cases are usually examined without a lawyer." The Deputy Speaker described such an action as "creating rent" and "contradictory to multiple principles of the Constitution." He also pointed out that the initial bill was referred to the Judicial Commission due to the numerous articles and its "time-consuming and specialized nature." However, according to him, in the Commission, "the amendments made to it... with the assumption that the rest should also be according to Article 85... went directly to the Guardian Council; whereas it should have come back to the Parliament and fundamentally this was outside of Article 85 and should have been examined like a plan or like a bill in the Commission and reported to the Parliament for voting." The Deputy Speaker emphasized that this "negligence" was from the previous Parliament. Nemat Ahmad, a lawyer who was present at the Bar Association during Ali Motahari's speech, told Radio Farda that Mr. Motahari's remarks were the "first riddle" at the ceremony on Wednesday, and if, as he explained, the amendments from the Judicial Commission went to the Guardian Council without being discussed in the public session, "it contradicts all principles of law drafting and legislation. This clause, according to Mr. Ali Motahari, lacks legal validity." Nevertheless, Ali Motahari's statements at Wednesday's session were also met with a reaction from a judicial official. Zabihullah Khodayan, the Legal Deputy of the Judiciary, in the same session, while responding to Ali Motahari's remarks, raised other unspoken issues. He stated that Clause 48 was enacted by the Parliament itself despite the Judiciary's opposition. Mr. Khodayan said in his remarks on Wednesday: "This is a law that you enacted yourselves, and we are obliged to implement it... This issue of Article 48 of the Criminal Procedure Code and its amendment was not proposed by the Judiciary. Come and see how much we opposed its approval in the Commission and said that what you are approving... we do not agree with it." Zabihullah Khodayan also emphasized that the fact that "the head of the Judiciary selects individuals from among the lawyers is discriminatory" and said: "We also say that this should not have been approved, and you should correct it right now." Nemat Ahmad, the lawyer, considers Mr. Khodayan's statements the second "riddle" at the ceremony on Wednesday and tells Radio Farda: "Clause 48 is like a child that neither the Parliament recognizes its guardianship nor the Judiciary." The list of lawyers approved by the head of the Judiciary: According to Article 35 of the Constitution of the Islamic Republic of Iran, "In all courts, the parties to the case have the right to choose a lawyer for themselves, and if they are unable to choose a lawyer, facilities must be provided for them to appoint one." However, the initial version of the Criminal Procedure Code in Clause 48 proposed that in certain cases, such as "organized crimes or crimes against internal or external security," the accused "would not have the opportunity to meet with a lawyer for up to a week after being placed under observation." The Guardian Council opposed this clause. Ultimately, the current clause was replaced, which states that at the preliminary investigation stage in the mentioned crimes, one can only choose from lawyers approved by the head of the Judiciary. According to Nemat Ahmad, there is no specific list, and "at the discretion of the judges," only specific lawyers are allowed to take on the representation of certain cases. Mr. Ahmad adds: Despite the fact that Clause 48 explicitly mentions the "preliminary investigation stage," "unfortunately, recently some courts say that when in the preliminary investigation stage, by extension, it must also be in the court." According to Nemat Ahmad, judges respond to criticisms by saying: "When the head of the Judiciary responds to letters saying this lawyer can be, this lawyer cannot be, then our work is correct." Mr. Ahmad refers to several personal cases where a designated lawyer was involved, and after several sessions, the investigator said that since he considers the matter "as part of organized crimes," he must "get approval." The accused; solitary confinement; without the presence of a lawyer. Ali Motahari, the Deputy Speaker of the Parliament, also emphasized in his remarks on Wednesday that currently "political cases are going to a few specific judges with a few specific lawyers, and the outcome is evident from the beginning and serves the interrogators' views." He also referred to the issue of prolonged solitary confinement and said: "One of the security and political defendants told us that he was in solitary confinement for six months without a lawyer, and their argument was that your lawyer must be approved by the head of the Judiciary and on the list announced by the head of the Judiciary. While such a list does not exist. Whereas from the beginning of the investigations and the interrogation, the accused should have a lawyer." Abdolkarim Lahiji, a legal expert and one of those who played a role in drafting the Constitution of the Islamic Republic, told Radio Farda that according to the Constitution, anyone who is arrested must be informed of the reasons for their arrest within 24 hours, "this has never been implemented in the Islamic Republic over the past 39 years." Mr. Lahiji, referring to those arrested during the nationwide protests last December and also the Gonabadi Dervishes who have recently been arrested and for whom the head of the Tehran police has issued a death sentence, states: "When parallel institutions have free rein, they no longer want the interference of a lawyer to come from the first day and constantly warn them that their actions and behaviors are against the law." In Iran, there have been numerous criticisms of the interference of political motivations in the judicial process. International organizations and human rights defenders have repeatedly accused the Islamic Republic of Iran of widespread human rights violations and non-transparent and unfair trials. This criticism, however, is rejected by judicial officials of the Islamic Republic.