A Legal Analysis of
The Right to Freedom of Expression
in The Islamic Republic of Iran
By Mehrtash Rastegar*

I. Introduction

The recent demonstrations in Iran have been in protest to what many have argued to be a manipulation of the presidential election in order to render Mahmoud Ahmadinejad as president of Iran for a second term . These protests have reportedly been met with brutal force by the authorities, in which protestors have fallen as a result of gun-fire. Neda Soltan became the symbolic face of the martyrs; she was shot in the chest as she took part in one of the many peaceful demonstrations on the streets of Iran . The authorities in Iran had also barred foreign journalists from reporting on the protests . It is evident that the basic human right to the freedom of expression for the press, as well as the individual, has been disregarded by the government of Iran; the voice of dissent is not tolerated, as illustrated by the State's response to the protests. This paper shall analyze the national law of the Islamic Republic of Iran (Iran hereafter) with regards to the extent in which the freedom of expression is protected and promoted; the international law that aims to safeguard the right to freedom of expression shall be examined and assessed agains the practice of Iran.

II. National Law

In order to ascertain an understanding of the extent in which the right to freedom of expression in Iran is protected and promoted, Iran's national law, with reference to the Constitution, Penal Code and Press Law, shall be analyzed.

II.i Constitution of the Islamic Republic of Iran

Adopted by referendum on 24 October, 1979, the Constitution of the Islamic Repubic of Iran ('the Constitution' hereafter) replaced the 1906 Constitution, and took effect on 3 December, 1979. As illustrated within the title, the Constitution is based on the Islamic principles and aims of the Islamic revolution that took place in Iran in 1979 (1357) . The Constitution etablishes various civil and political rights, as well as other issues pertaining to procedure and policy. There are few provisions that pertain to the right to freedom of expression; in fact, the only provisions that explicitly safeguard the right to freedom of expression is accorded to the press and other branches of the media. The only provision that addresses the right to freedom of expression which does not concern the media is Article 26, which maintains: "Political parties, societies, political and craft associations, and Islamic or recognized minority religious associations may be freely brought into being, provided that no violations is involved of the priniciples of independence, freedom, national unity, Islamic standards, and the foundations of Islamic Republic. No person may be prevented from joining, or compelled to join, one of the above" In essence, anyone is at liberty to form or join any group on the curtailing condition that it is in line with the principles of the Islamic revolution ; therefore, there is no freedom to form a body that would be considered non-Islamic, or even critical of the Islamic regime. Any form of such 'dissidence' is met with brutal consequences . This restrictive condition is reminiscent of Henry Ford's offer to have any colour Ford 'as long as it is black' . Thus, accoring to Article 26, the right to freedom of expression is very limited. Article 24 accords the press with the right to freedom of expression; however, the issue of such a right is incomplete: "Publications and the press have freedom of expression except when it is where there is infringement of the basic tenets of Islam or public rights. In this respect, detailed provisions will be laid down by law" The term 'infringement' is empty, due to the fact that the provision fails to provide a definition, or standard by which 'infringement' can be assessed against. As a result, there is a high risk that the courts would pass inconsistent judgements. Consequently, the publication of articles that may be critical of the government gives rise to the possibility of being penalized for falling foul of Article 24, in that they could be argued to be an 'infringement of the basic tenets if Islam'. Furthermore, Article 175 provides the right to freedom of expression and dissemination of thoughts via the radio and television in Iran, on the condition that such is 'guaranteed' to be 'in keeping with the Islamic criteria and best interests of the country'. Both, Articles 24 and 175, echo what is tantamount to a 'claw-back clause' - the State provides the people with a right, and yet reclaims that right from them. According to Udombana such 'claw-back' clauses 'permit the routine breach of legal obligations for reasons of 'public utility or national security'; thus, confining the legal protections to 'rights as they are defined and limited by domestic legislation'. Udombana elaborates that the effect of such manifests itself in the form of governments taking it upon themselves to determine the scope and applicability of such rights to further their own interests . Therefore, such claw-back clauses inherent within the Iranian Constitution gives rise to the same possibilities of the curtailment of rights accorded to the people by the government. As dictated in Article 24, the remit of the 'infringement of the basic tenets of Islam' will be elaborated upon by the 'detailed provisions', which 'will be laid down by law'. The most relevant provision of law that provides detailed provisions on what comprises the 'infringement of the basic tenets of Islam' is found in the Penal Code, which will be analyzed next.

II.ii Islamic Penal Code of Iran

The Islamic Penal Code of Iran was amended shortly after the Islamic Revolution in 1979, as part of the Cultural Revolution that sought to rid the country's Penal Code of its 'western influence' and, thus, Islamicize the country . The final draft of the Penal Code was approved by the Law Affairs Committee of the Islamic Consultative Assembly , and ratified by the High Expediency Council . The Penal Code states the offences under Islamic law, and stipulates the punishments. In protecting the tenets of Islam, the foundations of the Islamic revolution, and national security, the government legislated Book 5 of the Penal Code, which prescribes Ta'azirat (punsihments that are not specified in Islamic law) and deterrent punishments. Chapter 2, of Book 5 of the Penal Code, declares that to 'insult the religious sanctities or State officials' constitutes a serious offence, which may carry severe punishments. Article 514 forbids one from "somehow" insulting the founder of the Islamic Republic (Ayatollah Khomeini), or the Supreme Leader ; the punishment is imprisonment for up to six years. The term 'somehow' is very wide, lacking any robust definition or credibility; subjecting it to many different standards of interpretation, which results in inconsistent rulings, further facilitating the crackdown on dissenting opinions and publications. The combination of the words 'somehow' and 'insult' serves as an umbrella provision that paves the way to silence anyone who expresses a view contrary to that of the governing power. Unfortunately, the Penal Code further incriminates any dissenting expression by rendering it an offence to publish satirist materials, for which the punishment is six months imprisonment ; or publicize any text, picture, newsletter, article, movie or 'anyother thing' that violates public morals, for which the punishment will be a fine of up to six million Ryals (£370.33p) and seventy-four lashes ; and insult any leader of the three branches of government, presidential deputies, ministers or members of parliament, for which the punishment is up to six months imprisonmet, seventy-four lashes, and a fine of up to one million Ryals (£61.72). As articulated within the above articles, the price for exercizing the freedom of expression in Iran is one's liberty and physical integrity. The gravest form of the State-sanctioned violation of the right to freedom of expression is contained in Article 513, in which one is forbidden to insult the 'Islamic sanctities' or to speak critically of the Prophet of Islam. The punishment for doing so is death: "Anyone who insults the Islamic sanctities or any of the Imams...should be executed if his insult equals to speaking disparagingly of the Prophet Mohammad..." A State that legislates for the execution of those who seek to express a view, be it contrary to the views of the government, immeasurably offends the very moral fibre of humanity; the human intellect has been able to progress due to the very freedom to analyze and question. This provision acts to silence those who seek to criticize or question anything that pertains to the Prophet Mohammad, and the successive Imamas. As a result, those who seek to express an opinion are persecuted if they do not speak in a manner that appeases the government, or praises Islam; thus, illustrating that the government of Iran does not tolerate dissidence in any form, and will resort to extreme measures in order to maintain power.

II.iii Press Law

Ratified 19 March, 1986, Iran Press Law provided the framework on the rights of the press, in the context of the freedom of expression. However, the usual wide and often ambiuous terminology plagues its text . The law further outlines that it is deemed a 'violation' for the press to publish material that is critical of somebody ; any publication containing information regarding the Islamic Revolutionary Guard Corps, or other intelligence material during war or peace time is an offence ; and to 'insult the Leader or Council of Leadership of the Islamic Republic of Iran, or senior religious authorities', will warrant the prosecution of the managing director, and writer, of the 'insulting article' . In ensuring that the press perform in accordance with 'Islamic principles' the Press Supervisory Board must be comprised of 'devoted' Muslims, who not only possess extensive knowledge on Islam, but must also be committed to the Islamic revolution . This serves to further restrict the publication of non-Isamic articles, such as Christian, Jewish or Zoroastrian editorials that seek to encourage discourse and debate on Islam, or issues that could be deemed non-Islamic. As a result, the right to freedom of expression by certain groups and minorities is further curtailed. 'Yas-e No' daily newspaper is one of the many papers that have been closed down by the authorities. The reformist paper was banned in December, 2008, for publishing a letter from the reformist members of pariliament that questioned the Supreme Leader for the mass disqualification of candidates running in the 2004 parliamentary elections. Upon receiving a court order form a judge to resume publishing, Tehran Prosecutor Saeed Mortazavi filed an appeal and had the paper re-closed; he was responsible for the closing of Yas-e No in the late 1990's and early 2000 . The re-closure of Yas-e No has been argued to be in breach of Article 168 of the Constitution, which requires a trial, legal adjudication and the right to a defence . Even though the domestic legislation of Iran contains provisions that accord the press with the right to freedom of expression, such a right is not compelete; it hinges on conditions that are bias to the ruling regime and are one-dimensional, rather than to permit lateral thinking and to challenge discourse. There is hardly any mention of the right to freedom of expression for individuals, other than one may freely join political groups or societies that are in accordance with Islam and the foundations of the Islamic revolution, which hardly amounts to freedom of expression. It is unequivocal that the right to freedom of expression is not an absolute right, in that it can be restricted for the respect and reputation of others . However, such a provision should not be abused as a gag on the voice of dissent. Domestic legislation, and indeed domestic practice, has failed to honour the right to freedom of expression. The following shall examine international mechanisms that seek to protect and promote such a right.

III. International Law

On 10th December, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights (the Declaration hereafter). The preamble recognized the inherent dignity and 'equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world' . Article 19 of the Declaration stipulates: "Everyone has the right to freedom of opinion and epression, and to seek, receive and impart information and ideas through any media and regardless of frontiers" Hence, the Declaration unequivocally protects the right to freedom of expression, without any conditions or claw-back clauses. Because the Declaration is just that - a declaration - it lacks any binding force on States; however, Article 19, amongst vaarious other provisions, has acquired legal force by way of customary international law . Perhaps the most relevant and effective human rights instrument is the International Covenant on Civil and Political Rights, 1966 (ICCPR) . This is because, unlike the Declaration, the ICCPR is an international law that binds all 156 member States , including Iran , and has the power to limit the degree of reservations submitted by States who are party to it . Similar to Article 19 of the Declaration, Article 19 ICCPR also safeguards the right to freedom of expression:
  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice..."
By virtue of Article 19(1) and (2), the people in Iran are free to hold demonstrations against the Supreme Leader or the 2009 (1388) presidential election, express their views, question the governent's rules and policies, and even criticize the government's application of the 'Islamic standards' . However, as demonstrated in the Constitution and Penal Code , no such expressions are permitted; therefore, the concerned provisions of national law are in blatant breach of Article 19(1) and (2) of the ICCPR. Having commended the ICCPR for its protection of the right to freedom of expression, it does not, however, exist without its flaws. The remainder of Article 19 is worded in such a manner that creates an opportunity for oppressive governments to exploit; this inalienable right may be subject to restrictions: "For the protection of national security or of public order (ordre public), or of public health or morals" The government of Iran has taken such draconian measures in legislating for the protection of national security and public morals, that this provision of international law must appear as heaven sent to rely upon for when they maintain tight restraints on the people's right to freedom of expression. Perhaps the fault lies not with the drafts-person(s) of the ICCPR, but rather with the corrupt and weak-natured men of power in Iran who seek to exploit such a provision. In further breaching international law, the government of Iran blocked all access to newtorking sites, such as facebook . This served to prevent people in Iran from campaigning for the reformist opposition, and to freely exchange ideas and views. The UN Human Rights Committee emphasized that a free media is crucial in the political process 'without censorship and restraint' .

IV. A Reflection

The Freedom of expression is a fundamental right, in which the understanding and realization of all other human rights hinges upon; without such a freedom, one is not able to be educated, nor educate others, on the inalienable rights that humankind inherits. The United Nations Report of the Special Rapporteur on Iran held that the intrusion of the authoritarian rule of the Islamic clerics in Iran into government has created problems for the right to manifest a belief system and enjoy the right to freely hold an opinion or make an expression . The Special Rapporteur also reported that individuals who sought to exercise their right to freedom of expression were threatened with violence, in order to deter them from doing so; such acts of intimidation have been defended by 'prominent members of the government bureaucracy, in the full knowledge that such actions have taken place outside the confines of the law' . The harsh corporal punishments, such as flogging, meted out by the State against those who seek to exercise their right to freedom of expression not only breaches Article 19 ICCPR, it also violates the right to be free from torture or cruel, inhuman or degrading treatment or punishment . The restraints and limitations that the government of Iran imposes on the press, and their failure to legislate a complete protection for the right to freedom of expression, is a manifest injustice. It is demonstrative of the fact that the government is not committed to a free and democratic society in Iran; as a result, more and more people will be provoked into taking a stand and voicing their protests against the current theocratic system of governance. Shamefuly, the violent and inhumane measures the government resorts to in order to maintain a tight gag on the voice of dissent is a blatant abuse of the laws that protect the physical integrity of the person, and a betrayal to the very fabric of democracy, because: "[f]reedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate, which is at the very core of the concept of a democratic society "

Bibliography

  • Iran Doctor Tells of Neda's Death, BBC World News, 25 June, 2009 at http://news.bbc.co.uk/1/hi/world/middle_east/8119713.stm.
  • Nsongurua J. Udombana, 'Towards the African Court on Human and Peoples' Rights: Better Late than Never', 3 Yale Human Rights and Development Law Journal (2000) 45-111
  • Silence and Dissent on Iranian Border, BBC News, 17 July, 2009, at http://news.bbc.co.uk/1/hi/world/middle_east/8156622.stm.
  • 'Iranian Reformist Daily Banned One Day After Relaunch', Golnaz Esfandiari, Payvand Iran News, 17 May ,2009, at http://www.payvand.com/news/09/may/1170.html.
  • 'Press Charge Against Those Who Have Illegally Banned "Yas-No" Daily', Defenders of Human Rights Center Issues a Statement, Defenders of Human Rights Center, 25 May, 2009, at http://www.humanrights-ir.org/php/view_en.php?objnr=269.
  • Castells v Spain, 24April, 1992, ECHR 13778/88, paragraph 63.
  • Constitution of the Islamic Republic of Iran;
  • Filartiga v Pena-Irala, 630 F. 2d 876 (1980) (U.S. Circuit Court of Appeals, 2nd Circuit).
  • Human Rights Watch, 'Human Rights Overview - Iran', at http://hrw.org/english/docs/2006/01/18/iran12214.htm.
  • International Covenant on Civil and Political Rights, 1966, U.N. General Assembly Resolution 2200A (XXI)
  • Islamic Penal Code of Iran
  • Mohsen Rahami, "Development of Criminal Punishment in the Iranian Post Revolutionary Penal Code", Vol. 13/4, European Journal of Crime, Criminal Law and Criminal Justice, 585-602, 2005.
  • Mousavi Blames Organisers of 'Rigged' Iranian Poll for Bloodshed During Street Protests, The Guardian, 25 June, 2009.
  • Tehran Blocks Access to Facebook, BBC World News, 24 May, 2009, at http://news.bbc.co.uk/1/hi/world/middle_east/8065578.stm.
  • Time, 'Builders and Titans: Henry Ford', at http://www.time.com/time/time100/builder/profile/ford3.html.
  • UN Human Rights committee General Comment 25, 12, July, 1996.
  • United Nations Economic and Social Council, Commission on Human Rights, Fifty-Second Session, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Mr. Abid Husssain, Submitted Pursuant to Commission on Human Rights Resolution1993/45, Report on the Mission of the Special Rapporteur to the Islamic Republic of Iran, 1996, UN Doc. E/CN.4/1996/39/Add.2,
  • Universal Declaration of Human Rights, 10 December, 1948 U.N. General Assembly Resolution 217 A (III).

    • Notes

    * Law (LLB) graduate; Masters degree in law (LLM), specialized in international human rights law from Brunel University.

    1. See Mousavi Blames Organisers of 'Rigged' Iranian Poll for Bloodshed During Street Protests, The Guardian, 25 June, 2009, at: http://www.guardian.co.uk/world/2009/jun/25/mousavi-presidential-election-ayatollah-iran.
    2. Graphic footage, discretion advised at http://www.breitbart.tv/?p=364443; see also Iran Doctor Tells of Neda's Death, BBC News, 25 June, 2009, at http://news.bbc.co.uk/1/hi/world/middle_east/8119713.stm.
    3. See Silence and Dissent on Iranian Border, BBC News, 17 July, 2009, at http://news.bbc.co.uk/1/hi/world/middle_east/8156622.stm.
    4. Preamble, Constitution of the Islamic Republic of Iran; also see Article 1 of the Constitution.
    5. Which expresses the aim to "...provide the basis for the continuation of that revolution, both inside and outside the country...to prepare the way towards a united single world community".
    6. Human Rights Watch, 'Human Rights Overview - Iran', at http://hrw.org/english/docs/2006/01/18/iran12214.htm.
    7. Time, 'Builders and Titans: Henry Ford', at http://www.time.com/time/time100/builder/profile/ford3.html.
    8. Nsongurua J. Udombana, 'Towards the African Court on Human and Peoples' Rights: Better Late than Never', 3 Yale Human Rights and Development Law Journal (2000) 45-111; at pp 62 & 63.
    9. Ibid.
    10. Mohsen Rahami, "Development of Criminal Punishment in the Iranian Post Revolutionary Penal Code", Vol. 13/4, European Journal of Crime, Criminal Law and Criminal Justice, 585-602, 2005.
    11. Tuesday 30th July 1991.
    12. 28th November 1991. See http:www.iran-law.com-IMG-pdf/iran_criminal_Code_in_English.pdf.; and http://mehr.org/Islamic_Penal_Code_of_Iran.pdf.
    13. Article 514 of Chapter 2, Book 5, Penal Code.
    14. Currently Ali Khamenei.
    15. Article 700, Penal Code.
    16. Article 640, Penal Code.
    17. Article 513, Chapter 2 of Book 5, Penal Code.
    18. Such as 'insult', 'detrimental effect', 'violate Islamic principle', and 'crimes against domestic security'. For examples, see Article 3 and its note, Article 5 and Article 25 respectively.
    19. Article 23.
    20. Article 24.
    21. Article 27.
    22. Article 10.
    23. 'Iranian Reformist Daily Banned One Day After Relaunch', Golnaz Esfandiari, Payvand Iran News, 17 May, 2009, at http://www.payvand.com/news/09/may/1170.html.
    24. 'Press Charge Against Those Who Have Illegally Banned "Yas-No" Daily', Defenders of Human Rights Center Issues a Statement, Defenders of Human Rights Center, 25 May, 2009, at http://www.humanrights-ir.org/php/view_en.php?objnr=269.
    25. International Covenant on Civil and Political Rights 1966, Article 19(3)(a). International law will be examined in the next section, below.
    26. Preamble to the Universal Declaration of Human Rights, U.N. General Assembly Resolution 217 A (III).
    27. Filartiga v Pena-Irala, 630 F. 2d 876 (1980) (U.S. Circuit Court of Appeals, 2nd Circuit).
    28. International Covenant on Civil and Political Rights, 1966, U.N. General Assembly Resolution 2200A (XXI), adopted 16 December, 1966, and came into force 23 March, 1976.
    29. Official number of States party to the ICCPR, as of May, 2006.
    30. Signatory on 4 April, 1968, and ratified 24 June, 1975.
    31. By virtue of Article 4(2), articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may not be derogated from. These Articles pertain to the right to life; the right to be free from torture, inhuman, cruel or degrading treatment or punishment; the right to be free from slavery; the right to be free from imprisonment on the grounds of inability to fulfil a contractual obligation; the right not to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed; the right to recognition everywhere as a person before the law; the right to freedom of thought, conscience and religion, respectivley.
    32. Constitution of the Islamic Republic of Iran, Article 26.
    33. Articles 24, 26 and 175, above.
    34. Supra, notes 13, and 15-17 inclusive.
    35. ICCPR Article 19(3)(b).
    36. Tehran Blocks Access to Facebook, BBC World News, 24 May, 2009, at http://news.bbc.co.uk/1/hi/world/middle_east/8065578.stm.
    37. UN Human Rights committee General Comment 25, 12, July, 1996.
    38. United Nations Economic and Social Council, Commission on Human Rights, Fifty-Second Session, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Mr. Abid Husssain, Submitted Pursuant to Commission on Human Rights Resolution1993/45, Report on the Mission of the Special Rapporteur to the Islamic Republic of Iran, 1996, UN Doc. E/CN.4/1996/39/Add.2, at paragraph. 61.
    39. Ibid, at paragraph 65.
    40. Ibid, at paragraph 66; also see Article 7 ICCPR - Protection from torture or cruel, inhuman or degrading treatment or punishment.
    41. Castells v Spain, 24April, 1992, ECHR 13778/88, paragraph 63.

     
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