In most democratic and free societies, governance based on the rule of law and an independent judiciary form the basic founding principals. The societies may be heterogeneous ranging from differences in language, religion, or even legal systems. These differences may however be more apparent than real as long as the rule of law and an independent judiciary are made viable components of the democratic apparatus.
The crux of the notions of independent judiciary and the rule of law is grounded in a societal and cultural appreciation for these values. Although a nation may have a written constitution, which separates the three branches of government, a constitutional framework alone in the absence of wide spread societal appreciation for independent judiciary is not sufficient to ensure that the national legal structure will operate independently. In fact the opposite is often the case.
The Iranian constitution serves to illustrate the above statements. In section “11”, Article “ 156” of the Islamic Republic’s constitution, one of the constitutionally created branches of government is the judiciary. The constitutional framework, at least on paper, creates the appearance of independence. But this illusion of independence evaporates as soon as the everyday workings of the Iranian judiciary are examined. Despite the constitutionally mandated independent judiciary, the courts and the Islamic judges are the proxies of the executive branch and are the ones often used by the unelected ruling mullahs to silence dissent. All of this is possible because there exists in Iran a lack of appreciation for governance based on the rule of law. There is no system of checks and balances because the true power resides with a handful of unelected clerics.
Whenever, the balance of power in any society tilts toward totalitarianism, the very first casualty of the shifting political landscape is the independence of judiciary. In Nazi Germany following Hitler’s assent to power, the German legal system underwent a profound change. The ruling Nazi party immediately moved to establish a new court called the Volksgerichtshof, which means “People’s Court”. These courts were used to try and punish those accused of political crimes. From 1934 to 1945, these sham tribunals imposed in excess of 5000 death sentences. Similarly, after the Russian revolution, the judicial system there was also used to silence political dissent. The Russian legal system was not independent and its judges were the habitual instruments of the ruling Communists who savagely silenced any and all dissent. The same is still happening in China and North Korea. Ironically, both China and North Korea are allies of the Islamic Republic.
The historical events have an uncanny zest for repetition. What is even more amazing is the humanity’s inability to learn from its past. The Iranian judiciary today is an all too familiar reminder of Nazi brutality and Communist savagery of the decades past. The revolutionary courts are remarkably similar to the Nazi Germany’s “People’s Courts”. They conduct mass witch-hunt trials of political dissidents, punishing many by long prison terms or death sentences. The so-called Islamic judges are neither impartial nor independent. One wonders what might happen if an Iranian Judge elects to exercise his constitutionally guaranteed right of independence by acquitting protesters who are simply exercising their freedoms of speech and assembly? Such anomalies need not concern the Regime since all the judges are hand picked for their loyalty to the Supreme Leader and not for their commitment to fairness and impartial application of the law.
Authors such a Ingo Muller have correctly argued that when the judiciary loses its independence and becomes a wholly owned subsidiary of the executive branch, not only will totalitarian regimes flourish, but also the judiciary often becomes an accomplice to the regime’s brutality. In these cases, any dictatorial regime can imprison and even murder dissidents under the guise of due process and rule of law. Hence, a complicit judiciary is often a key ingredient of unilateralism. These sham courts and corrupt judges provide dictatorial regimes with a shroud of legitimacy. This was done in Nazi Germany and Communist Russia; today, it is happening in Iran. Anyone who disputes this assertion should look no further than the ridiculous televised mass trial of arrested protesters brought to court in pajamas, plastic sandals, and phony confessions. None of the accused appeared to have been provided with the assistance of counsel.
The democratization of Iran must begin with the establishment of true and independent judiciary. It is essential that the Iranian judiciary, as the instrument for enforcement of laws, be at arms length relationship with other pillars of government. This will ensure that other branches of government will not act unilaterally and that their actions will be subject to legal scrutiny. While establishing such system on paper may operate as the first step toward a free and democratic Iran, the politicians, party leaders, and elected officials must learn to exercise due deference to the rule of law. John Adams, who with Thomas Jefferson drafted the Declaration of Independence, wrote in 1776 in his Thoughts on Government, “a republic is an empire of laws, and not of men. This is something the Mullahs in Iran apparently forgot when they designed their brand of Islamic Republic.
