Article 156 of the Constitution provides for an independent judiciary.
According to Articles 157 and 158, the highest judicial office
is the High Council of Justice, which consists of five members
who serve five-year, renewable terms. The High Council of Justice
consists of the chief justice of the Supreme Court and the attorney
general (also seen as State Prosecutor General), both of whom
must be Shia mujtahids (members of the clergy whose demonstrated
erudition in religious law has earned them the privilege of interpreting
laws), and three other clergy chosen by religious jurists. The
responsibilities of the High Council of Justice include establishing
appropriate departments within the Ministry of Justice to deal
with civil and criminal offenses, preparing draft bills related
to the judiciary, and supervising the appointment of judges. Article
160 also stipulates that the minister of justice is to be chosen
by the prime minister from among candidates who have been recommended
by the High Council of Justice. The minister of justice is responsible
for all courts throughout the country.
Article 161 provides for the Supreme Court, whose composition
is based upon laws drafted by the High Council of Justice. The
Supreme Court is an appellate court that reviews decisions of
the lower courts to ensure their conformity with the laws of the
country and to ensure uniformity in judicial policy. Article 162
stipulates that the chief justice of the Supreme Court must be
a mujtahid with expertise in judicial matters. The faqih,
in consultation with the justices of the Supreme Court, appoints
the chief justice for a term of five years.
In 1980 Ayatollah Mohammad Beheshti was appointed by Khomeini
as the first chief justice. Beheshti established judicial committees
that were charged with drafting new civil and criminal codes derived
from Shia Islamic laws. One of the most significant new codes
was the Law of Qisas, which was submitted to and passed by the
Majlis in 1982, one year after Beheshti's death in a bomb explosion
(see The Rise and Fall of Bani Sadr , this ch.). The Law of Qisas
provided that in cases of victims of violent crime, families could
demand retribution, up to and including death. Other laws established
penalties for various moral offenses, such as consumption of alcohol,
failure to observe hejab (see Glossary), adultery, prostitution,
and illicit sexual relations. Punishments prescribed in these
laws included public floggings, amputations, and execution by
stoning for adulterers.
The entire judicial system of the country has been desecularized.
The attorney general, like the chief justice, must be a mujtahid
and is appointed to office for a five-year term by the faqih
(Article 162). The judges of all the courts must be knowledgeable
in Shia jurisprudence; they must meet other qualifications determined
by rules established by the High Council of Justice. Since there
were insufficient numbers of qualified senior clergy to fill the
judicial positions in the country, some former civil court judges
who demonstrated their expertise in Islamic law and were willing
to undergo religious training were permitted to retain their posts.
In practice, however, the Islamization of the judiciary forced
half of the former civil court judges out of their positions.
To emphasize the independence of judges from the government, Article
170 stipulates that they are "duty bound to refrain from executing
governmental decisions that are contrary to Islamic laws."
Data as of December 1987