Iranian law and the case of Sakine Mohammadi Ashtani

For Sakineh Mohammadi Ashtiani – a women among many others in Iran facing possible execution by stoning having had “illicit relationships” with men other than her husband – the 13th June 2010 is a date that she will remember for a long time to come. It’s the date her lawyer pointed out in a published article that there is “now no legal obstacle to her execution being carried out at any time”.

However the legal mechanisms under which Iranian justice operates do not appear to have become any more sophisticated than from those of the Persians. Evidence, for example, used during court hearings in Iran are a subject of much contention. Article 105 of the Islamic Penal Code of Iran states “The Shari’a Judge can act upon his own knowledge in the cases of [defending] the God’s Rights and People’s Rights and carry out the punishment constituted by the God and it is necessary that he documents his knowledge.” The way this law is practised often allows judgements to be made entirely on interpretation rather than documented evidence, which is the case for Sakineh where forensic evidence of her adultery is missing.

Rather than perceive Sakineh as innocent until proven guilty, the judicial system in Iran has decided to exploit the loophole provided them by the allowance of interpretation in courts of law, and formulate the conclusion simply on a “judge’s knowledge” – often producing evidence so paper thin, it would fail to hold in even the most primitive of courts.

Furthermore, the way in which this loophole can be exploited seems dubious measured against the International Covenant on Civil and Political Rights, to which Iran is a signatory. Article 14, paragraph 1 of this convention states that everyone be equal before the law, and be entitled to a fair and public hearing by an impartial tribunal established by law, though this case will not inspire belief that the court is bestowing Sakineh with the civil and political rights Sakineh is entitled to.

Even within Islamic law itself adultery cannot be proven satisfactorily before the perpetrator has confessed under free conditions on three separate occasions, or if four males, whom the court are happy to trust, actually witness the act of penetration – making testimony virtually implausible. If the single opinion of a judge can override that of the collective disagreement from five judges also involved in Sakineh’s case it would seem like that is even a violation of the Islamic Penal Code.

If the judiciary think that the case of Sakineh holds up then the burden of proof is upon them to show it meets with the above.

Concern that Sakineh will face stoning also brings up issues of both controversy and embarrassment for the Iranian government. Before his death in 2006, the then Minister of Justice and spokesman for the Judiciary, Mr. Jamal Karimi-Rad, became the first Iranian judicial authority to comment in reaction to the Stop Stoning Forever campaign – formed of various women’s rights organisations to see stoning as a form of punishment for adultery in Iran abolished. He denied that stoning took place in Iran, brushing aside examples where judge’s have sentenced it, often with little in the way of evidence.

Mr Jamal Karimi-Rad’s comments did demonstrate then an official disapproval of stoning, however flimsy it was, consistent with the ban on stoning ordered by the Head of Judiciary, Ayatollah Shahroudi, in December 2002. In order to rectify this problem Iran need not pull something from nothing; stoning as a punishment already makes Iranian politicians red-faced, and so too should questionable appeals to Islamic law in order to justify the primacy of a judge’s supposed knowledge. Whether the current Ahmadinejad administration has the political will to do anything about it is a separate matter altogether.