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Iranian Law and the Media*
Writing about the Iranian print media, one may
take the risk of running after a train that has already departed (the
electronic media, being in the monopoly of the government, hence far
less susceptible to change, is another story). No sooner is an
analytical essay on the Iranian press published than the situation may
change, leaving the author in the unenviable state of being irrelevant.
When reprinting essays published on the subject years ago, footnotes
should be added to explain the atmosphere of the bygone era being
discussed. Phrases such as ‘now defunct’ or ‘ceased publication’ are
often inserted in retrospections so to describe the newspapers in
question.
This precarious state of affairs is by no means caused by a shortage of
press laws, six of which have been enacted since the 1906 Constitutional
Revolution. The first press lawsuit was filed by no less an authority
than the penultimate Qajar monarch Mohammad Ali Shah. Advised that
winning the case would be as bad as losing against a vociferous
journalist, the monarch reached an out-of-court settlement that he
withdraw the complaint and the reckless editor-publisher lower his
inflammatory tone.
That was in the late 1900s, a time when the burgeoning Iranian press,
among other things, felt obliged to compensate for a lack of books on
politics, while taking sides in the endless political rivalries and
quarrels.
In 1920, in the second
out-of-court press settlement, the grand vizier of Ahmad Shah, Qajar’s
last monarch, arranged that the two defendants, who had vehemently
attacked the crown and seemed poised to win the
trial, leave the capital and the case be closed
The vehement press attacks on almost everything and everybody
ended with a regime change a few years later. A similar outburst of free
press in the late 1940s was brought to an end by another coup in 1953.
The vicious circle of a thunderous press stifled by repressive measures
was repeated in the 1979-1981 and 1997-99 periods.
In all those vicissitudes, the tool supposed to be vitally needed for
more discipline was an up-to-date press law. A comparative study of all
relevant laws in the last nine decades may add up to a full volume, but
the common fate of all those legislations has been that they, in effect,
remained on paper, simply because they were not needed in the first
place. When and if powers that be decide that enough is enough and a
crack down on an obstinate publication, or a dozen of them, is
indispensable, they cling to any pretext and resort to any law,
regulation or memo that could serve the purpose. Very rarely, if ever at
all, can the press enjoy the benefit of the doubt when it comes to a
lawsuit as a result of challenging the established authority.
What the governments favour is the so-called constructive criticism;
what the readership demands from the press is to reveal the truth,
meaning that the incumbent government is exposed as a bunch of
treacherous thieves. But who is to discern fair criticism from
mendacious coverage?
The idea of having a jury in the courtroom has never been part of the
Iranian penal code. Borrowed from the West, engaging the public in
matters of deciding what is good for them is not only incompatible with
rule from above, but is anathema to the Islamic jurisprudence that is
based on the ‘omniscience of the judge.’ By inviting comments from the
common folk, the Islamic jurisprudence may find itself subject to
demands for amending the tenets of faith or even discarding some of them
altogether.
Shortly before one more wave of press closures and journalist arrests in
the 1990s amid the crescendo of an outcry for bolstering the civil
society, a press jury had been formed to oversee lawsuits filed against
the reform-minded press. Meanwhile, the prosecutor’s office was deleted
from the Iranian judicial system, on the grounds that it did not exist
in the Islamic canon (it was later restored). The end result was a court
in which the judge played the roles of the magistrate and the prosecutor
as well, while a jury attended to advise him.
Ceremonial resemblance is, however, deemed harmless. In Iran’s legal
procedure, being charged should not be taken synonymous with the
application of the word in many other judicial systems. When an indicted
journalist is subpoenaed, the list of offences may add up to a dozen. In
the court, almost all of the charges may be dropped, with the remaining
one sending the defendant to jail for years. Here a ‘charge’ more often
than not means a complaint on the part of the government and/or its
pressure groups, rather than being a documented assertion by the
magistrate that a certain article of the law has been breached.
Traditionally, Iranian press laws stipulated that when and if the
publisher was a resident of Iran, the author of a questionable piece was
exempt from prosecution. In 1996, a supine parliament amended it so that
the contributor shared the burden of the offence. In 2001, a succeeding
reformist-dominated Majlis’ attempt to amend the press law so to relieve
the author from liability, on the grounds that it entailed
self-censorship, was torpedoed by a decree.
Another attempt by the same reformist Majlis succeeded to go through,
but it was shelved too. Taking the example of jury-based systems,
supporters of the bill argued that the jury should not comprise a
hand-picked group of officials, but should represent all strata and
layers of society at large. The implementation of the new legislation,
the Judiciary later argued, was ‘too costly to be affordable.’
In a similar attempt, for years there has been talk of drafting a law
upon which to hear cases of political offence, as stipulated by the
Constitution of the Islamic Republic of Iran. Once again form runs
counter to the substance. When and if a certain political behaviour in a
small town, or a piece published in an obscure newspaper, is deemed
liable to prosecution, allowing the defence lawyer to address public
hearings complete with television cameras that would bring the defendant
overnight international celebrity is the last thing legislators and
prosecutors desire.
Such a hearing would make sense only when and if there exists a
consensus and charges are based on common laws already taken for
granted. In Iran, one can hardly talk of consensus. What can be detected
is a confrontation of subcultures that have only agreed to disagree.
Moreover, in a culture imbued with deep-seated cynicism, indicting
someone as political offender is a recipe for deploying the victim to
the martyrs’ Pantheon.
Round the turn of the twentieth century, Iranian constitutionalist
intellectuals were obsessed with the notion that law per se was a
panacea. After decades of legislation, certainly there do exist enough
laws for any kind of press court or political offence hearing.
Nevertheless, the obsession persists, because the required underlying
consensus is not forged yet. Nor is an establishment based on the
division of the branches of state anywhere to be seen. The side putting
the media insiders on trial claims to represent an unassailable truth
beyond dispute i.e., national interests and what is deemed expedient
by the government while defendants reason that they are being
persecuted merely as dissidents. There is a vexing organic incongruity
between what is cherished by the intellectuals and demanded by the
reformists, what is preached by the religious canon, and what is adopted
as pro-forma legal procedures. |
