Petitition is a Legitimate Right in Iran / Judicial Authorities Can Only Block Telegram on Case-by-Case Basis
Last week, in reaction to the filtering of the Telegram social media app and its reverberations in society, Sadeq Amoli Larijani, the Head of the Judiciary Branch, stated that some people had insulted the Judiciary as Telegram was being blocked.
Noting various opinions voiced on the matter and alluding to a complaint lodged by six lawyers against the Investigating Judge who had issued the filtering order, he said: “Some say that the Judiciary Branch has deprived forty million people of their rights. One cannot help but be surprised at the way some people reason. The Government and the Majless (Parliament) have passed laws and regulations that put limitations [on certain activities].”
The following is a response to the Head of the Judiciary’s statements written by the lawyers who brought the complaint against the Investigating Judge that had issued the filtering order for Telegram. These attorneys have put this written statement the disposal of “Etemad Online”. In it, they provide legal arguments regarding the Judiciary’s statement:
“The Honorable Head of the Judiciary Branch has expressed surprise and has criticized the complaint we lodged against the Investigating Judge who issued the order filtering Telegram, and has made statements that are contrary to the general principles governing the nation’s laws. The following explanations are provided in order to shed light on the matter for the public’s benefit.
The right to a fair trial is a human right expressed and confirmed by Article 10 of the Universal Declaration of Human Rights, and the principle of impartiality is one of the conditions necessary for the realization thereof. The principle of impartiality has a special place in the Islamic legal system, so much so that one cannot find a single book on the Prophet’s and the Imams’ traditions and on Islamic jurisprudence, in any of the branches of Islam, where the subject of law and justice has been treated and this very important principle is not mentioned. For instance, Shahid al Thani (Zayn al-Din al-Ameli, a Shi’a scholar also known as “the Second Martyr”, author of the treatise “Al-Lum’ah Ad-Damashqiya”, “The Glitter of Damascus”) says in al-Lum’ah, the book of adjudication, and on legal procedure: “It is imperative for the judge … to treat both sides of the conflict equally, and it is also imperative that he listen to both parties’ contentions …, and it is Haram (“forbidden by the laws of Islam”) for him to prompt or present one party with evidence or anything else that will damage the opposing party.”
It appears that Mr. Larijani has expressed surprise at the lodging of [our] complaint without having seen its text and the evidence in support of the allegation [against the Investigating Judge] contained therein. It is incumbent upon him as Head of the Judiciary and a Mojtahed (“Islamic legal scholar of the highest order”) who, in principle, is supposed to be just, to respect the principle of impartiality more than others, and not utter words that might be construed as being suggestive and perhaps prompt the adjudicating authority [to proceed in a specific way so as] to constitute an instance of damage to the parties, thereby creating the appearance of straying from the path of justice in the very beginning of adjudication and prior to the start of investigations and consideration of the evidence of crime. Furthermore, does Principle 34 of the Constitution not provide that voicing grievances is a legitimate right of the Iranian people? Why then, should the act of attorneys and jurists bringing a complaint against the illegal actions of an investigating judge be cause for surprise and admonishment?
It is utterly amazing that Mr. Larijani assumes legislative powers for the Branch over which he presides, and in so doing, analogizes the investigating judge’s action to action by the Legislative Branch and the Executive Branch in imposing limitations [on certain activities] (in declaring trade of certain goods as trafficking, for instance), and attempts to legitimize the investigating judge’s action in issuing the order filtering Telegram. It must be said that first, and generally, the Judiciary Branch’s inherent duties are very clear, and we would not be faced with the volume of cases we’re facing and with this level of corruption had the Judiciary carried out those duties properly. Secondly, and more specifically, law-making is the inherent duty of the Legislative Branch, and there is the assumption that bills passed by that institution that are in conflict with the Constitution would not go through the Guardian Council [and become law]. Further, actions taken by the government are not self-propelled and arbitrary, but based on powers granted to it by the law. Aside from the powers of the Legislative and the Administrative Justice Tribunal in overturning the Government’s decisions and directives issued unlawfully, in the event that the Executive Branch’s officials illegally jeopardize the people’s civil liberties, their actions constitute a crime pursuant to Islamic Penal Code Article 570 and can be prosecuted to the full extent of the law.
In a portion of his statement, Mr. Larijani has described the duties of the National Security High Council and has talked about the overlap of powers between his Branch and the High Council, whereas, pursuant to the Leader of the Revolution’s decree, the Cyberspace High Council, established on May 7, 2011, is the sole entity vested with policy-making authority for cyberspace. Taking macro decisions regarding cyberspace is therefore within the inherent jurisdiction of the High Council. Consequently, judicial officials may issue filtering orders only in the event of commission of a crime, on a case by case basis, and in line with the principle of the personal nature of punishments. They do not have the right to violate the citizens’ acquired rights to a space they have chosen for the purpose of establishing contact, exchanging information, and conducting business, through impulsive and baseless decision-making. If they did, then one could go so far as to propound that the investigating judge has the authority to even block the country’s entire cyber network and have the peace of mind that in doing so, he has prevented the commission of any crime in cyberspace!
There is precedence for the competence and jurisdiction of entities other than the Judiciary, such as Municipality Commissions, Labor Conflict Resolution Councils, Governmental Ta’zirat Administration, etc., in hearing complaints, and the Judiciary cannot consider interfering in all matters within its domain and part of its inherent duties under the pretext that it is the official authority for hearing grievances.
In closing, we expect the honorable officials of the Judiciary to be pleased with such civil actions instead of making statements that seriously hamper the implementation of justice, since the action taken by lawyers can be used as a correct model for citizens to exercise their demands through legal means.
Signatures: Abazar Nasrollahi, Javad Parsa, Mohammad Mohgimi, Sa’eed Dehghan, Arash Keykhosravi, and Payam Dorfeshan.