Gridlock
Student protests, the government and the constitution
July 14, 1999
The Iranian
Iran is in the grip of the early stages of a constitutional reform movement,
which is brought about, inevitably and unavoidably, by a constitution which,
as a friend has put it, is a blueprint for gridlock. Gridlock, maintained
for too long, even if it is in the natural order of constitutional checks
and balances, is a recipe for disaster, because nothing of good can get
accomplished, while everything evil remains unaffected. The student demonstrations
in recent days in Tehran and other Iranian cities are demanding constitutional
reforms when they chant "Islam and law, or another revolution"
or when they call for the resignation of Ayatollah Khamenei, the supreme
leader. (See
latest student protest photos)
The student demonstrations were sparked by news of the parliament
considering a new law restricting freedom of press and the shutting down
of a reformist newspaper. The attack on the demonstrators be it by the
police, "hardline vigilante," or the security forces, regardless,
produced more demonstrations. At a deeper level, the demonstrations by
the students and their supporters is informed by a general feeling that
the government, including the leadership at all levels and the bureaucracy,
is not capable of governing itself.
The evidence for that proposition has been mounting with greater
regularity since the disappearance and murder of a number of prominent
Iranian activists and literary figures. In recent weeks, there was yet
another reminder of the lawless nature of the government when 13 Jews were
arrested on charges of spying for Israel and the United States. The various
spokespersons of the "Resolute Nation" said the detainees would
be tried and punished. It did not require a criminal lawyer to notice the
glaring absence of a small technicality called "conviction" which
usually comes after trial and before punishment.
Article 37 of the Iranian constitution expressly provides for the presumption
of innocence of an accused: "The objective is acquittal and from a
legal viewpoint no person is deemed culpable, unless his crime is proven
in a court of competent jurisdiction." If 13 citizens, presumably
spoken for by the powerful foreign governments, are denied the protection
of the constitution, what hope can other citizens have in getting the procedural
and substantive protection of due process?
Contrary to general opinion, the latest attempts by the parliament
to restrict the activity of the press is a constitutionally mandated prerogative
of the legislative process. Also, contrary to general impression, freedom
of the press in Iran is not a constitutionally protected freedom. Article
24 of the Constitution states, simply and literally, "Publications
and newspapers are free to express matters, unless contravenes fundamentals
of Islam or general laws. The law defines the extent of it." For this
conditional license to publish and print to rise to a constitutionally
protected freedom, the people should demand a wholesale amendment to the
constitution.
On the other hand, the shutting down of newspapers, summoning
editors before tribunals and regulatory bodies, and arresting of editors
by the executive branch are not constitutionally sanctioned activities.
To undertake them lawfully, there must be adherence to a minimum standard
requirement of due process and proof of guilt based on facts supported
by legal significance instead of innuendo, conjecture, paranoia, or fear
of losing political office.
The present constitution was drafted in revolutionary haste,
with pens oozing the proverbial blood of martyrs than the cold blue ink
of a calm and deliberative process. As a compromise document, it had to
have something in it for the groups and personalities who had delivered
the nation from the bondage of monarchy. The numerosity of its amendments
in the first ten years alone speaks volumes for the document's imperfections.
Not much thought went into the establishment of multiple councils and centers
of power and rival institutions; while decentralization of authority is
desirable at some level, multiplicity of rival or parallel institutions
usually produces waste, mismanagement, gridlock and conflict.
The present logjam looks like the intractable situation at the
proverbial Roman intersection. At the risk of stretching the analogy farther
than it might yield, in such a situation, the gridlock may be overcome
by all sides advancing all at once with full force and insisting on their
right, producing a massive collision in the end of which the bigger vehicle
may get the right of way. Often everyone loses. Or, an arbiter could step
in and undo the gridlock in an orderly fashion, paying sufficient attention
to each party's legitimate interest. Or, one party may just stand down,
back out of the traffic, and let the flow of traffic resume by reference
to the existing rules of the road.
The clash between Khamenei and Khatami symbolize the clash between
fatwa and popular vote, parliament and council. The position which Mr.
Khamenei occupies today was tailor-made for Ayatollah Khomeini, the father-figure
of the revolution, but not much thought went into what will become of the
powers of the office in the hands of a successor who may not have the same
savvy or authority. The legacy of the Islamic government as represented
in the person of Khomeini has clashed with the new generation of Iranians
inspired by notions of popular sovereignty.
In the forefront of any constitutional reform there also should
be a demand for complete and unfettered freedom of the press, as a matter
of human liberty and not one that can be taken away by a simple majority
of an elected body or regulated by the government in an arbitrary, capricious
or outrageous manner. Much of the debate surrounding freedom of press is
expressed generally in terms of political rights of the citizen. In that
context, a free press is essential for the good workings of the government.
In Iran, the press as a whole, regardless of ideological or
editorial differences, is the only institution capable of holding the government
and its officers to account, demand transparency, uncover corruption, expose
waste and inefficiency, educate the general public on the issues, and prompt
open and public debate. While role of the press may be animated by political
consideration and may result in political consequences, keeping an eye
on the government and scrutinizing its doings is also essential to advancing
the cause of economic development and arresting misuse of the public trust.
To wit: Nasseredin Shah canceled the Reuter mining concession in 1873 and
the tobacco concession in 1892 in part because freely circulating information
and opinion galvanized the intellectuals and the ulema community into action.
In the present crisis, collision, arbitration or retreat each
is a possible outcome. Yet, what one party resorts to cannot involve lawless
behavior and this includes the student demonstrations in violation of law.
In a play by Robert Bolt, A Man For All Seasons, a character named
Roper announces his readiness to "cut down every law" in order
to achieve his purpose. In response, Sir Thomas Moore asks rhetorically,
"And when the last law was down, and the Devil turned round on you,
where would you hide, Roper, the laws all being flat? This country's planted
thick with laws from coast to coast, man's laws, not God's, and if you
cut them down, and you're are just the man to do it, d'you really think
you could stand upright in the winds that would blow then? Yes, I'd give
the Devil benefit of law, for my own safety's sake."
For the sake of avoiding similar constitutional crises in the
future, it would seem a propitious moment for leaders of the "Resolute
Nation", be they doves or hawks, sheep or fox, to seize the opportunity
and call for fundamental constitutional changes. A government incapable
of governing itself is no government at all. (See
latest student protest photos)
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