Rasool Nafisi

WASHINGTON—Browsing through the Iranian journals and listening to the current discourses in that country, one might be shocked to find out that a major debate is under way over whether the government is entitled to “cut the right arm and the left leg” of those opposing the regime. But such is the state of discourse in a country that enjoyed a century of secular life and a penal code largely copied from those in France and Belgium, before it became an Islamic state.

Today, people actually could lose their limbs or lives simply because an ayatollah believed it should happen. The case in point is the recent conundrum over the death sentence for a student who was found guilty of throwing rocks “three times” at the police in a demonstration. The judge used the fatwa by an ayatollah to back up his verdict; fortunately, the ayatollah backed down, and the student is still alive.

In the case, an Iranian court condemned to death a twenty-year-old student, Mohammad-Amin Valian, for mohareba, or fighting against God and His Messenger. He was accused of violating the sanctity of the day of Ashura, the time of mourning for Shiite Muslims over the unjust martyrdom of the third Imam. The presiding judge referred to a fatwa by Ayatollah Nasser Makarem-Shirazi, who called the demonstrators mohareb who deserved a death sentence.

As soon as the case was publicized, the oppositional cleric Ayatollah Yousef Sanei rebutted the opinion and issued his own fatwa saying participation in the demonstrations is not considered mohareba, but indeed in certain circumstances it is mandatory for Muslims to participate in such oppositional actions.

Ayatollah Bayat-Zanjani followed suit immediately, and even announced that those who attack people and bludgeon them (that is, the security forces) are the real moharebs, because they use weapons against other Muslims. Eventually, Makarem-Shirazi himself had to intervene and go back on his words, saying, “We have never issued [the mohareba fatwa] against such people [demonstrators].” He claimed that “some people” (that is, Ahmadinejad supporters, and especially his advisors, such as Mashaee) use this and other tactics to weaken the institution of Marjaia (highest rank of clergy). Shortly after this clerical scramble, Attorney General Salavati announced that Valian’s death sentence “is not final.”

The fact of the matter is that Ayatollah Makarem-Shirazi had indeed preached against the violators in the sacred day of Ashura, and called for sentencing them like a mohareb. There could be multiple reasons why he changed his verdict. Obviously, the public outcry against the death sentence of a kid accused of stone-throwing was the main reason. But the reversal by Makarem also demonstrates how some of Iran’s clerics run their mouths before thinking of the consequences of their statements. Most clerics in power are not used to behaving like state officials, and they still act like Shiite preachers, using the hyperbolic and sanctimonious language of the pulpit.

Why did the judge use Makarem’s statement as the basis for his verdict? Was he really trying to undermine Makarem, as he later claimed? To the contrary, it seems that the judge was trying to sanctify Makarem’s assertions. Isn’t it the final test of greatness when even your passing words can cause life and death for others, especially a young man?

More important, what about the due process of the Islamic court? How can a judge discard the penal code of the country, and just use a single sermon of a cleric to condemn someone to death? Isn’t it a breach of the laws of the country? Well, not really. In the hierarchy of the legal system, primacy belongs to the Shariah, not the Constitution of Iran (which itself is largely based on Shariah). As a result, the penal code (which is mainly the translation of the Shariah) can be breached by the opinion of a marja or grand ayatollah.

The case of Valian highlights the state of lawlessness that is codified into law in Iran. From the constitution to various codes, supremacy is given to the Shariah, which only can be interpreted by a cleric. This ensures the absolute rule of the clergy over the life of the country, and never allows for the growth and development of the civic laws, and therefore suspends the rise of a robust civil society for the foreseeable future.

Rasool Nafisi is a scholar in Virginia who specializes in Iranian clergy.