The Council of Guardian (Shurai-e Negahban) in an unprecedented
event has today opposed the sentencing part of the Majlis Bill on Punishment of Distributors of Obscene CDs and Films. The speaker of
the GC in his weekly press session said that "the approved Bill, although it is a very blessed action adopted by Majlis against distributors of Porno CDs, has
not considered "proportionate" punishment in sentencing of those convicted for
this offence." According to the statements of Mr Kadkhodaei, the speaker, the GC
clearly sees the death penalty for this offense disproportionate. As far as I
know this kind of argument is very new in history of GC and needs more reflection.
Based on this development we may say the GC has opened a new chapter in debate
on criminal sentencing law in post revolutionary system of criminal legislation of Iran.
This development in the process of law making in Iran is very significant. The manner that the GC deals
with question of punishing convicted offenders according to the principle of proportionate
sanction may set us to think more about whether the sentencing theory and system
in Iran can be at all sensible to the principle of parsimony of punishment. The
challenging question in the context of Iranian CJS is that how the Islamic and
revolutionary law makers, who try to show no tolerance in regard to porno productions and proposed the new draft in order to aggravate the current
punishments of pornographic distributors, can apply the death penalty parsimoniously?
It seems to me that the GC has no consistent theory for its new opinion. Because it is not clear that how the can argue for the requirement of proportionality in this issue while they support stoning and other sever corporal sanctions in other less serious offenses.
It might be here helpful for foreign observers of the Iranian CJS to notice that the Council of Guardian in Iran is composed of six Islamic jurists (high ranking clergymen) appointed by the Leader of revolution and six civil jurists elected by Parliament among those introduced by the Head of the Judiciary. On the basis of article 91 of the Constitution this legal-political body has been established: “in order to examine the compatibility of the legislation passed by the Islamic Consultative Assembly with (the tenets of) Islam a council to be known as the Guardian Council is to be constituted…”
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