Authors: Professor Intisar Rabb and Marzieh Tofighi Darian
Iran’s New Islamic Penal Code: Have International Criticisms Been Effective for Children and Juvenile Offenders?
Professor Intisar Rabb and Iran editor Marzieh Tofighi Darian analyze changes made to statutes defining juvenile crimes and punishment under Iran’s new Islamic Penal Code, passed in 2013. The Code follows a traditional dichotomy between ḥudūd fixed crimes and qiṣāṣ retaliatory scheme (which are directly incorporated from classical Islamic law interpretations of criminal law into the modern Code) and taʿzīr discretionary (which are acts left to the government to regulate). But the reform has not been balanced to address modern needs and developments in the link between maturity and accountability. The authors see the different means of assessing children’s maturity as problematic for reform, especially under the hudūd-qiṣāṣ section of the Code. Because crimes in this category are derived from classical Islamic law interpretations, Iranian officials find little room to legally redefine them or their associated punishments. Through a side-by-side comparison of the hudūd-qiṣāṣ and ta’zir sections of the Code, the authors suggest areas for which new attempts at reform may focus.
In May 2013, Iran’s new Islamic Penal Code finally entered into force after five years of debates and deliberations in the Islamic Consultative Assembly (Iran’s name for its Parliament). A review of literature on Iran’s 1991 Islamic Penal Code and the new draft bill reveals that they have been subject to harsh criticism by human rights bodies, NGOs and activists with most of them focusing on the provisions of qiṣāṣ (retaliatory penalties) and hudūd (fixed criminal sanctions) as those parts of the code that are almost entirely based on the Shīʽī version of sharīʿa. The new Code, in return, has taken steps to respond to some of these critiques. Fairly speaking, most of the issues raised over the years are somehow addressed in the process of drafting the new code. The outcome, however, has not been a complete success. Many of the legislative initiatives did not survive either the formal objections of the Guardian Council or the informal pressures of religious forces in Qom.
Focusing on children and juvenile crimes under the new code as an example, I argue that national and international pressures have resulted in significant but insufficient changes. The dichotomy between sharīʿa-based crimes (hudūd and qiṣāṣ) and customary crimes (ta’zirāt) has impeded the parliament to extend its more favorable and lenient approach under the rules of discretionary penalties (ta’zirāt) to hudūd and qiṣāṣ crimes committed by children and juvenile offenders.
Juvenile punishments have gone through considerable though insufficient changes under the new code. For a long time, there was a single test of puberty to demarcate childhood from adulthood for the sake of criminal responsibility. The default ages of puberty were set at: ages 9 and 15 (respectively for girls and boys), before which no criminal responsibility would apply. Upon reaching that age, both were subject to full criminal culpability. Besides general concerns over the low age of criminal culpability, the execution of juvenile offenders has resulted in national and international outcries. In particular, the recent instances of qiṣāṣ executions have outraged people who, in the absence of any legal means, have resorted to informal reconciliation campaigns designed to persuade the victims’ family (as the sole rights holder) to withdraw from qiṣāṣ.
In these circumstances, the parliament attempts to modify its rules on juvenile offenders. However, as they still bind themselves to the dichotomy of hudūd-qiṣāṣ punishments (crimes directly incorporated from sharīʿa to the Code) versus ta’zir punishments (crimes left to the government to regulate), the progress has not been even in these two sets of crimes. The Code even uses different terminology. While in ta’zirāt, the Code regulates “children and juveniles”; in hudūd and qiṣāṣ, it adopts the language of “mature” and “immature” referring to the traditional puberty test under sharīʿa.
In the section on ta’zirāt, as shown in Table 1, the gradation of criminal responsibility has replaced a simple test of puberty. As depicted in this table, there have been two major developments (Articles 88-89). First, the Code expands the definition of children to include any person under 18, treating boys and girls equally. Second, the Code provides a substantial reduction of all punishments. It replaces punishments as harsh as more than twenty-five years imprisonment with a maximum of five years of detention in the Rehabilitation Center for a first degree ta’zir offense. The significance of this article can only be appreciated by bearing in mind that under the former Code, a 9-year-old girl could potentially be sentenced to life imprisonment.
The text still remains vague as capital punishment based on ta’zir laws are not included in the new Code’s classification. Filling the gap, the Legal Division of Judiciary in an advisory opinion proposed that article 88 (as illustrated in table 1) includes ta’zir executions as well. That division further argued that, by way of comparison, capital punishments based on ta’zir laws should be equated to first-degree ta’zir offenses.
On the other hand, according to the parliamentarians, hudūd and qiṣāṣ crimes due to their immutable nature under sharīʿa, do not allow much room for legislative maneuver. Hudūd, as defined in article 15 “are those punishments for which the grounds, types, amount, and conditions of execution are specified in sharīʿa a.” The decision to implement the retaliatory penalties of qiṣāṣ rules is solely left to the wish of the victim’s family with no room for judges to exert discretion. In regulating hudūd and qiṣāṣ, the language of “mature” and “immature” appears again to reinforce the puberty test under sharīʿa. As illustrated in table 2, the category of immature persons now enjoys graded responsibility (two groups of under 12 years of age and 12 to 15 years of age according to article 88, note 2). This change, though at first seemingly progressive, should not deceive the reader. The term “immature” suggests that this provision is, in fact, only applicable to boys, since according to an unreputable legal presumption, no girl over 12 years of age can be immature to take advantage of these provisions for reduced responsibility. In fact, if the article was equally applicable to both sexes, then it would be mitigation of punishment for girls and the aggregation of punishment for boys. Since according to sharīʿa and the Islamic Penal Code, any girl over the age of 9 is mature and subject to full criminal responsibility. On the other hand, boys reach maturity at the age of 15. The Legal Division of Judiciary, confirming this conclusion, stated in an advisory opinion that article 147’s determination of the age of puberty is definite such that article 88, note 2 applies only to boys. Therefore, not only does the note exclude girls from eligibility for reduced punishment, but it also increases the punishments for boys who were previously totally absolved of any criminal responsibility prior to the age of 15 (in the old Islamic Penal Code). The latter part of the note takes the regression another step further by providing correctional measures (though not a punishment) for any child under 12 years of age. This leaves the question of minimum age requirement for a child to be involved in a judicial process unresolved.
The real innovation of the new code to circumvent the immutability of substantive hudūd and qiṣāṣ punishments lies in article 91, which for the first time introduces legal grounds to avoid punishments of both types. The article stipulates that if a mature person under the age of 18 does not realize the nature of the crime, its prohibition, or if there is uncertainty about his full mental development, he shall instead be sentenced to ta’zir punishments as stated above. Whether this provision will be successful in reducing the number of children on the death row depends on how the provision is perceived and exercised by judges in practice. What is clear is that, unlike the old code, the new Code at least provides legal grounds for judges to avoid hudūd and qiṣāṣ punishments. It does so in a way that is fully consistent with and thus codifies, the procedural aspects of the Islamic law that typically do not make it into substantive criminal codes. In a progressive move, in its latest Unification Decision, the Supreme Court ruled that children facing death penalty under previous convictions are now eligible to request a revision on the basis of these new grounds, hopefully reducing the number of children on the death row.