Promoting tolerance and justice through knowledge and understanding
Death Penalty

Tehran University Academic to Ayatollah Ardebili: An Indictment of Drug-related Executions

Mohsen Borhani, Tehran University Faculty Member
Telegram Channel of the Campaign in Support of Modifying the Death Penalty to Life Imprisonment
August 5, 2016
Letter

To His Excellency Grand Ayatollah Musavi Ardebili

Greetings and Salutations

As you know, drugs are one of our major social issues and our society has unfortunately had to grapple with this phenomenon for a great many years. Furthermore, the country’s judicial system has adopted different approaches [at different times] to deal with this destructive issue. Since before the Revolution, the forceful approach has been in favor with legislators, so much so that the death penalty has always been handed down to certain drug-related criminals in the Iranian penal system.

Upon victory of the Islamic Revolution and the necessity of basing laws on Islamic jurisprudence pursuant to Principle Four of the Constitution, a new barrier was created in allowing the death penalty for drug-related crimes. Given the absolute [and mandatory] nature of crimes subject to Hadd punishment, as well as non-acceptance of “Efsad Fel-Arz” (“Spreading Corruption on Earth”) by the most prominent Shi’a scholars as a crime subject to Hadd, the implementation of the death penalty for these crimes had a problem: lack of legitimacy.

The late Imam [Khomeini], like the overwhelming majority of Islamic legal scholars, considered Efsad as the condition for the existence of [the crime of] Moharebeh, and not as an independent crime [itself], and therefore did not consider the death penalty as legitimate in the case of drug crimes.

In the middle of the 1980’s, judicial authorities, including your Excellency, concluded that the death penalty must certainly and necessarily be carried out for this category of crimes.

In spite of your and your friends’ insistence, the late Imam did not issue a fatwa allowing the death penalty, and thereby did not deviate from his jurisprudential principles; since, however, officials of the judicial system considered use of this penalty as the only way to combat illicit drugs, he allowed that his [anointed] successor, Grant Ayatollah Montazeri’s fatwa be utilized in this regard (a fatwa that he revoked toward the end of his life).

With the granting of that permission and the issuance of that fatwa, the religious barrier in implementing the wishes of the judicial system’s officials at the time was removed. Legislation was not passed, however, through constitutional channels, but illegally, that is, through the Expediency Council – and without the Islamic Consultative Assembly’s (“Majless”) preliminary regulations and the Guardian Council’s opposition – a path that most regulations providing for the death penalty in Iran have traversed. This legislative innovation, that is, circumventing Majless (Parliament) and the Guardian Council and incorporating the death penalty into such enactments, appears to have been instituted by that same Law for the Fight against Illicit Drugs.

Now, 28 years after the enactment of said Law, there are many questions on the minds of jurists as well as the society, and since your Excellency were one of the individuals that were instrumental in the passage of the Law, your providing a response to these questions can certainly be helpful for the future:

First, based on what expert opinion, field research and/or criminological study did you and your friends reach the conclusion in the 1980’s, that the death penalty is an efficient [punishment for] drug crimes and can be an effective deterrent?

The officials’ insistence at the time and their exerting pressure on the Guardian [of Moslems, Ayatollah Khomeini] and [thereby] procuring authorization to refer to a differing fatwa must most certainly have been based on definitive and irrefutable evidence to which we do not have access.

Second, how did you and other judicial authorities come to the conclusion that an individual who transports and possesses only 30 grams of heroin, morphine, etc. is Mofsed Fel-Arz (“one who spreads corruption on Earth”) and deserving of the death penalty?

In religious jurisprudential [and philosophical] terms, if we accept the major premise that the death penalty based on Efsad Fel-Arz is legitimate – the proving of which is truly a very difficult task – how did you arrive at this [specific] amount of drugs [to be the appropriate amount] to prescribe the death penalty, as the minor premise of the syllogism?

Did you determine this amount based on expert opinion as well? Is this amount sufficient to establish Efsad Fel-Arz?

How is a person who transports 29.99 grams of heroin not Mofsed Fel-Arz, and one who carries 30 grams, is and deserves the death penalty? Wouldn’t such legislation be considered an instance of [the religious concept of] “accelerating the spilling of blood of Moslems” and against the rule of “caution in spilling blood”? Did the late Ayatollah Montazeri opine regarding the amount of drugs that resulted in the death penalty as well, or did [your] friends in the Judicial High Council decide on it themselves? What was the logic governing such a determination?

Would you still insist upon the necessity of the death penalty if you went back to the mid-1980’s?

And how could one answer for the thousands of executions carried out under the religiously suspect title of Efsad Fel-Arz? It is surprising that in the Illicit Drugs Law the one who initiates the trafficking and is only a transporter and a possessor is executed. Isn’t it true that Mofsed must spread corruption on Earth to deserve death? How is it, then, the one who has wanted to spread corruption but has failed to do so and has been arrested, is executed anyway!! Unless we consider transportation and possession without distribution to be an instance of Efsad Fel-Arz as well; in all fairness, a minority of religious scholars who generally accept Efsad, do not believe that the wish and the will to commit Efsad, without widespread disruption, amounts to commission of Efsad.

In crimes that require a result in order to be considered completed, the result must necessarily be achieved. Here, the result has not been achieved at all for us to be able to say that a person has spread corruption on Earth.

After the passage of this law, your Excellency were chief justice of the Supreme Court for only one year, but the foundation you along with other judiciary officials laid at the time, has entangled us [with these problems] to this day.

The result of that Law – which was enacted through illegal means – is thousands of executions in the years subsequent to its enactment. And the result is in fact absolutely nothing except the thousands of executed individuals, and Iran occupying first place in the world in number of executions (a title that is ascribed to the religious regime because of mismanagement). A person who wants drugs, easily obtains and uses them; the existence of one and a half million addicts is the best proof of this. Neither execution nor threat of execution can control the ever-increasing spread of drugs.

Other countries travelled the path of fighting drugs and achieved many successes and we, instead of learning and drawing from their experiences, are still busy executing. The speed and the ease with which drugs can be obtained in Iran increases on a daily basis, and we are still busy executing. Industrial drugs replaced traditional drugs; methamphetamine production labs have increased, and we are still busy executing.

Many were those who transported [insignificant] amounts of drugs for the first time and due to poverty, and were arrested, branded with the spurious and absurd label of trafficker, and executed; other poverty-stricken individuals, perhaps relatives of the executed, went the same route, were in turn arrested and executed: a never-ending cycle ... And never once did we ask ourselves “and then what?”

Or maybe we did but [self-imposed] formalities did not allow us to stop the execution machine.

The purpose of this article is to find an answer for the reason as to why this Law came into being, because if that reason can be properly analyzed, perhaps the Expediency Council would revise its illegal legislative chef d’oeuvre and no longer insist on going along this absurd path, courageously admit its mistake, and dispense with formalities regarding the vital subject of death penalty.

I hope that everyone, those who enacted the law, those who issued the sentences, those who carried out those sentences, those who approve this approach, and those who have kept silent in the face of thousands of drug related executions, have an adequate response for the Great Almighty, because on the Day of Judgment, priority is given to the issue of blood. Imam Baqer [fifth Imam of the Shi’a Islam religion] cites the Prophet as having said: “On Judgment Day, the Almighty Allah shall first judge matters of blood.”

May God give you a long and dignified life. Renewed Greetings and Salutations.

Mohsen Borhani

Tehran University, Member of Faculty