Sentencing and Criminal Policy between Rechtsstaat & Gottesstaat

The New Tunisian Constitution- A Success Model for a Secular Statebuilding in Islamic Context?

On January 26, the Tunisian Constitution 2014 was finally adopted, marking a historic groundbreaking event in the process of a democratic and open transition to a free and independent Tunisia. The constitution enshrines freedom of religion and women's rights very progressively compared to all other Muslim majority countries of the Middle East..

It is good to recall that the work of elected representatives in Tunisia took two years, three months and three days to complete the drafting of the new Const. Oct. 23, 2011, when the National Constituent Assembly (NCA) was elected, until Jan. 26, 2014, the constitution was being written word by word, article by article. This occurred under the watchful eyes of observers and civil society, under the spotlight of the media and commentators and sometimes under pressure from the street and the echoes of public opinion.

Anyhow, I think this text does worth reading and learning. There are many innovative formulations for protection of the state from return of authoritarianism..for instance look at the Art. 17, 18 AND 19  On military and security forces: It stipulates that these forces ‘HAVE TO REMAIN IMPRATIAL TOTALLY’. When we compare this with the place of army and revolutionary guards in the Islamic Republic of Iran's constitutional system we can easily understand how significant is this clause. The Art. 144 of the post revolutionary Iranian Const. of 1980 provides that "The Army of the Islamic Republic of Iran must be an Islamic Army, i.e., committed to Islamic ideology and the people, and must recruit into its service individuals who have faith in the objectives of the Islamic Revolution and are devoted to the cause of realizing its goals." Art. 150 stiplutes "The Islamic Revolution Guards Corps, organized in the early days of the triumph of the Revolution, is to be maintained so that it may continue in its role of guarding the Revolution and its achievements. The scope of the duties of this Corps, and its areas of responsibility, in relation to the duties and areas of responsibility of the other armed forces, are to be determined by law, with emphasis on brotherly cooperation and harmony among them."

 

From the other side, the Controversial Art.  6 of the Tunisian Conts. is also an innovation in itself: On freedom of belief systems and religions“ The state protects religion, guarantees freedom of belief and conscience and religious practices, protects holy places, and ensures the neutrality of mosques and places of worship from partisan instrumentalization. Accusations of apostasy and incitement to violence are prohibited."

But still a non-Muslim/non believer cannnot be elected as Tunisian president. Or on safeguards for protection of the principle of equality in particular on women rights which in somehow are vague.

 

Therefor it is neccessary to note that still there are some underdevelopments in this text like as the flaw in second clause of article 6 which stipulates that the state has a duty to protect religion, paving the way for future laws prohibiting blasphemy and curbing freedom of expression. Or in regard to Article 22, concerning the abolition of the death penalty, it is worth recalling that the right to life is sacred and it cannot be encroached upon, except for extreme cases established by law. I do not know why they did not vote for the total abolition of death penalty which is the complete human rights approach. Or furthermore, Article 39 of the constitution is also “problematic.” The article talks about constitutionalizing the Arabization of education. Or art. 74 that says only a Muslim can be elected as president..

 

Lastly, in my viewو the new Const. introduces many precious legal developments in a country that Islamists got the majority in elections..so Mabrook to all demorctaic and peaceful forces in Tunisia!

 

Enjoy reading...the full text with comments in Arabic is available here

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Symbolic Punishments from Theory to Practice: On Recent Cases of 74 Lashes to Journalist and Student in Iran

The images are shocking to the Iranian civil society and one becomes speechless how to comment on that. A student of political science (MA course) of Tehran university, Mr Peyman Aref, received 74 lashes for insulting Ahmadynejad. In an interview with Rahesabz online news he said that he has been sentenced to lashes because he wrote an open letter to Ahmadinejad reminding him of what he did to the universities, but as he refused to begin his letter with the formal greeting "Salam" it was perceived as a sign of political protest by the revolutionary court. The security based-judiciary apparently has taken this type of political dissent as offensive as serious crimes like offenses against public security and obviously wants to demonstrate that the judiciary is also ready to react by inflicting humiliating punishments. Interestingly Aref has been in jail for one year before the whipping. Also two weeks ago another young female activist, Mrs Somayyes Towhidlou, was whipped the same way. Based on the formal Iranian judiciary newspress this female Iranian Blogger and campaigner for former presidential candidate Mir Hossein Mousavi, was just sentenced to a "symbolic" lashing.

In order to see what precedes such practice let’s look at some scholarly activities of the Islamic criminal justice system which started recently.  Last August (24th) I saw an announcement from the Max Planck Institute for Foreign and International Criminal Law in Freiburg that Dr Mohsen Borhani will give a lecture on Islamic criminal law. Reportedly Mr Borhani who is on scientific board and teaching criminal law at Faculty of Law and Political Sciences of University of Tehran, the same faculty of Aref, came to Freiburg unexpectedly. Just from the first days of his short stay in the Freiburger Institute he insisted to hold a special lecture on "Islamic Punishments: Treatment or Retribution" in English for the audience who were international legal experts largely gathered at the MPICC forum during summer vacation. Regardless of some obvious fallacies on the content of Islamic Penal Code used in his presentation, Mr Borhani- while strongly defending harsh and cruel Islamic punishments under the absolute rule of Vali-e Faghih like stoning, hanging and whipping, concluded that "this system of punishment is symbolic". When asked what you mean by "symbolic punishment" he just referred to some rhetorical Shiite texts pointing that "these punishments are symbolic due to a combination of difficulties in proving as well as the ultra severity of sanction which automatically reduces the possibility of its implementation". Apparently he just could imagine one side of the symbolism by focusing on this sentence that “these punishments are all showing how serious the Islamic legislature perceives the social affairs”. But this is a very simplistic understating of symbolism in criminal law because in modern society and in an era of mass communication this is also the role of interconnected individuals who assign meaning and interpret such punishments.  Hence it is important to see how the middle class in Iran reacts to punishments like Aref’s lashing and whether they understand it the same way as the head of Iranian Judiciary and his scholarly advocates in academic centers.

Right now looking at these inhuman and cruel images of Islamic punishments on the back of Peyman Aref one can easily get the full picture of attempts of the Islamic criminal justice of Iran under the current regime. It is easy to trace the tracks of how the Islamic Republic is working on the both fields of theory and practice, domistically and internationally, together. This is called "offensive foreign policy" particularly in the formal language of the Iranian leader. It is deliberative and planned policy since when Ahmadaynejad became the president.

So the “symbolic” punishment has been exhibited not only in Tehran's Evin jail but also by those well-paid lecturers and scholars who devoted their time and skills to find modern justifications for such a cruel, medieval and degrading criminal justice system.

Yes these lashes are symbolic because it exposes the realities of an inhumane justice system perfectly as it deeply hurts Iranian human rights activists. This system of punishments discloses many accumulated layers of violence and destruction placed at the center of theory of Islamic Republic both symbolically and factually.

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For an insightful analysis of such unthinkable sentences and their impact on Iran's future, read this article by Abbas Abdi

Lashes on the Body of Towhidlou and New Revolution in Iran by Abbas Abdi

When the State plays Allah: alarming death penalty rate in Iran in 2010

Increasing numbers of death penalty in Iran year by year is alarming. This trend is completely against the global trend that shows a clrear decrease worldwide. In my view, the Iranian case needs immediate focus of global politics as Iran, claiming application of Sharia, is playing a model role for many fundamentalist movements across the globe.

Amnesty International's research shows that countries that still carry out executions are the exception rather than the rule. In addition to China, the worst offending nations were Iran with at least 388 executions, Iraq at least 120, Saudi Arabia at least 69 and the USA with 52. The past year saw capital punishment applied extensively to send political messages, to silence opponents or to promote political agendas in China, Iran and Sudan, according to Amnesty International's report. Based on the AI report, in Iran, 112 executions were known to have taken place in the eight-week period between the presidential election on 12 June and the inauguration of Mahmoud Ahmadinejad for a second term as President on 5 August. The report addresses the discriminatory way the death penalty was applied in 2009, often after grossly unfair trials, and used disproportionately against the poor, minorities and members of racial, ethnic and religious communities.

All this shows the Iranian criminal justice under Islamization project has dramatically failed to establish a secure Islamic Republic. Fears of crime and violence in large cities like Tehran are accumulating. The regime is getting more and more repressive and violent crimes are on the rise. Many progressive Iranians gradually questions this inhumane treatment of the criminal justce system and continously ask if they will be able to start realizing the aim to abolish the death penalty? To be realistic, under the current political structure it seems Iranians have much unaccomplished jobs concerning the question of death penalty.

However, we should not forget that the death penalty and all forms of inhumane punishments are stronlgy linked to the theory of State. The most concrete and obvious expression of the Islamic state’s sovereign power is done through criminal law. The theory of punishment and criminal law has significant connection to political theory in post revolutionary Iran. Therefore, it was not surprising to witness the number one agenda item of clerical rule was changing criminal punishment system.

In our time, the history of human rights and dignity is strongly linked to history of punishment and the expressive functions of punishment can be easily read in the context of capital punishment. Anyway, death penalty is a state’s action in the modern world even in the Islamicized, (=Feghhi-based Islam) criminal justice systems like Iran. Therefore, to get knowledge and information about the role of state and its interaction with society and religion in the Muslim world, to have comparative and scholarly reflections on capital punishment, in both its theoretical and practical aspects, will be enlightening.

In 2009, as Amnesty International reports, the number of countries that have stopped implementing the death penalty in practice or/and law has grown to an all-time high of 139. 139 countries of the 192 in the United Nations shows a historic trend. Among this number 90 countries and territories have abolished the death penalty for all crimes. In this year only 25 countries carried out executions in practice, 91 percent of them in just six countries: China, Iran, Iraq, Pakistan, Sudan and the USA, so-called the World Alliance for Death Penalty.

Last but not least, I feel we Iranians have to acknowledge those courageous women and men inside Iran who stand against death penalty despite of all threats and intimidations. Above all, the late Iranian political dissident Dariush Forouhar (1928-1998) is an example. As a founder and leader of the Hezb-e Mellat-e Iran (Nation of Iran Party), just some months before his assassination in Tehran he, in the name of his party too, issued a statement for abolishment of death penalty in Iran. After the failed resistance of National Front against Ayatollah Khomeinihi's Islamic Punishment Laws in 1980, this statement is unique regarding after revolutionary criminal policy approaches of oppositional groups from inside Iran under repressive intelligent services of Islamic Republic of Iran. As an independent critic of the Islamic government, Forouhar and his wife Parvaneh Eskandari were cruelly assassinated by stabbing in one of the chain murders of Iran, for which the Iranian Intelligent Service (WAWAK) was officially found culpable.

For the full text of Forouhar's statement click the below link:  

1997 Declaration of Hezb-e Mellat-e Iran on Abolishment of Death Penalty