Freedom of expression and freedom of the press are not adequately protected in Iranian law. The established regulatory structures are often violated or at best disregarded in practice. Article 24 of the Constitution of the Islamic Republic of Iran (1979), establishing the right to freedom of expression, qualifies that right by wide-ranging restrictions on its exercise:
Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law.
Article 168 of the constitution sets special conditions for the way in which press offenses are to be dealt with, stating that "political and press offenses will be tried openly and in the presence of a jury in courts of justice...."
In 1985 the Iranian parliament passed a press law which detailed the legal procedures for dealing with offenses by the press, defined to include all periodicals, including procedures to be followed in Press Courts. Article 2 of the law establishes the purpose of the press:
a) To enlighten public opinion and raise public knowledge and understanding....
b) To advance the objectives set forth in the Constitution of the Islamic Republic of Iran;
c) To strive to eliminate false and divisive social boundaries and to avoid setting different social groups and classes against each other by classifying them on the basis of ethnicity, language, mores, and local customs;
d) To fight against the manifestation of colonial culture (profligacy, love of luxury, rejection of religiosity, propagation of prostitution);
e) To maintain and strengthen the policy of "neither east nor west."29
In addition, the law is open to broad interpretation and arbitrary application in its sweeping prohibition of "discourse harmful to the principles of Islam" (mabani va ahkam-e Islami) or to "the public interest" (houghugh omumi).30 In this regard, the terms of the Press Law give little meaningful guidance to journalists and editors, while providing officials with ample opportunity to censor, restrict, and find offense. This lack of clarity in the law was highlighted by Minister of Culture and Islamic Guidance Mohajerani in his statement before parliament prior to a vote on his impeachment on May 1, 1999. The constitution's article 24, he remarked,
says the press have freedom of expression, except when it is detrimental to the fundamental principles of Islam or the rights of the public. The article moreover says: The details of the exception will be specified by the law.... The fact, however, is these details have not yet been specified.30
Article 34 of the Press Law requires that press offenses should be prosecuted in a general court before a specially constituted press jury. Under articles 12 and 36 of the Press Law, prosecutions are initiated by a council within the Ministry of Culture and Islamic Guidance, which is empowered to refer cases to the press court.31 Press courts area form of general court which also try ordinary criminal and civil cases, although in such cases without the presence of a jury. The press courts are empowered to impose criminal penalties on individuals as well as to order closures of newspapers and periodicals. Although the constitution provides for the separation of powers and speaks in aspirational terms about judicial independence, such independence is lacking in practice.32 The open proceedings of press courts and the presence of a jury have meant that those proceedings have tended to be fairer than in other types of Iranian courts. Verdicts of the press court have the same status as verdicts of other general courts and as such may be appealed to a higher appeals court.
A press jury of seven is chosen from a pool of fourteen individuals, selected every two years by the Head of the Judiciary and made up of representatives of the Ministry of Culture and Islamic Guidance and the city council in each locality where the court is convened. In any given trial, seven serve as the jury while the other seven remain in reserve. The law states that those who serve on a press jury must be at least thirty years of age, have no criminal record and be "known for trustworthiness and sincerity and have a good reputation" (article 31). In practice, such juries have been made up of a mixture of clerics, government officials, and editors of government-controlled newspapers. The jury, after hearing a case, is empowered to make recommendations to the judge in two areas: on the guilt or innocence of the defendant and, if recommending a conviction, on the severity of the penalty to be imposed. The jury's advice is not binding on the court in either regard. Some legal commentators have seen a contradiction in the role of the press jury, created as a safeguard for press freedom but having only an advisory capacity. It is unclear from the law whether the press jury must also be convened for the appeal hearing.
The law stipulates that in exceptional circumstances the Supervisory Press Board within the Ministry of Information is empowered to close newspapers or magazines by administrative order.33 The two instances specified in the law are for insulting the Supreme Leader of the Islamic Republic or the "recognized sources of emulation" (marja-e taghlid),34 and for repeatedly insulting public morals.35
The Press Law forbids censorship while at the same time it broadly establishes a basis for the harsh punishment of content deemed inappropriate. Article 4 declares that "no official or unofficial authority has the right to exert pressure on the press for the publication of any material or article, or to attempt to censor or control the press." But article 6 forbids, among other things, publishing material which "creates divisions among the different strata of society," or "harms the bases of the Islamic Republic." Such sweeping language is open to abuse.36
The authorities have also employed other courts, such as Islamic Revolutionary Courts, to prosecute publishers, editors and journalists for their press activities, in apparent contradiction to the constitution's stipulation in article 168 that "political and press offences will be tried openly and in the presence of a jury...." The Islamic Revolutionary Courts, established as a temporary measure in 1979, have become a permanent fixture of the Islamic Republic's justice system. They are empowered to try "any offense against internal or external security."37 Procedures in such courts fall far short of international standards: Defendants may be held indefinitely in incommunicado pretrial detention, proceedings are held in secret, and the defendant has no right of access to counsel. A second exceptionalcourt, the Special Court for the Clergy, has also been used in some press-related cases where the defendants have been Muslim clerics. These courts, which also offer few safeguards to the defendant and whose hearings are usually held in secret, are used to discipline dissident clerics and to stifle religious opinions regarded as heretical.
The powers of the Supervisory Press Board are not clearly defined in the Press Law. A debate has arisen over whether the board's powers to order the closure of newspapers (article 27 of the Press Law) contravenes the provisions of article 168 of the constitution as they concern the function of press courts. Iranian legal scholars have argued that the constitutional provision should take precedence, and have called for the revision of the Press Law to do away with any ambiguity over the need for all proceedings against the press to be dealt with "openly ... in courts of justice" rather than through the administrative channel of the press board.38 Impartial, transparent judicial control over the regulation of constitutional freedoms such as freedom of the press would be more likely to result in such freedom being upheld in practice.
At a November 1998 press conference, in addressing the terms of the Press Law, Minister of Culture Mohajerani acknowledged that "in some instances they are ambiguous and in need of interpretation, but the ambiguities are not intended to impede the activities of the press." He acknowledged also that there were two views on the legality of the Supervisory Press Board's power to revoke publication licenses, but endorsed the status quo, characterizing as "extreme" both those who call for reform of the press law to bolster press freedom and those who think the law too permissive.39
On July 7, 1999 the parliament passed the first reading of amendments to the Press Law designed to increase restrictions on the freedom of the press. The parliament has yet to agree on the details of the proposed amendments, which will further restrict the ability of Iran's independent press to function freely.
The thrust of these measures is to undermine the protections of the right to freedom of expression provided in international human rights law. In the language of the Universal Declaration of Human Rights,
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Iran in 1975, reads in part:
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The ICCPR requires that restrictions on expression "will only be such as are provided by law and are necessary: a) For respect of the rights or reputations of others; b) For the protection of national security or of public order (ordre public), or of public health or morals" (article 19 (3). The practice of the Iranian government clearly exceeds these narrowly drawn limits on restrictions of freedom of expression in which, for instance, national security grounds are permissible only in serious instances of political or military threat to the entire nation.40
Article 14(1) of the ICCPR further provides that "in the determination...of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." In cases where rights such as freedom of expression are at stake, administrative actions such as newspaper closures should be subject to immediate appeal to an independent judicial authority, in keeping with the obligation of states under article 2(3) of the ICCPR to encourage judicial remedies to civil and political rights violations. In Iran, the Supervisory Press Board, dominated by members of the executive branch of government, is neither independent nor impartial and its rulings are not subject to judicial review. Moreover, in practice it exceeds the powers assigned to it in domestic law. Because there is no right to appeal an administrative decision, and because of the law's catch-all restrictions on freedom of expression, the government falls short of its obligation under article 2 (3)(a) of the ICCPR to provide an effective remedy to those whose right to freedom of expression is violated, "notwithstanding that the violation has been committed by persons acting in an official capacity."
The U.N. Human Rights Committee has noted that the manner in which a state defines and restricts expression determines the extent to which individuals enjoy the right to freedom of expression: "It is the interplay between the principle of freedom of expression and such limitations and restrictions which determine the actual scope of the individual's right.... [W]hen a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself."41 The restrictions on freedom of expression in Iranian law and practice create unacceptable infringements of the right to freedom of expression.