Is Propagating a Religion Other Than Iran’s Official Religion a Criminal Act?
This is a brief article on a subject that should be clarified and elucidated so that misunderstandings about it are reduced and it can be addressed without prejudice and bias.
The premise of this issue, or essentially the question of this matter, is whether, according to the laws enacted in our country, propagating religions and beliefs other than the country’s official religion is permissible or is considered a criminal act?
In order to address this question, some preliminary points must be raised:
1 – According to Article 2 of the Islamic Penal Code, any act or omission for which punishment is prescribed in the law is a criminal act and is considered a crime. According to this legal provision, which is called the principle of legality of crime, whenever the legislator prescribes punishment for an action or omission, one can say that this act and action is criminal and contrary to the text of the law. Therefore, if an official of an agency or head of an organization, or even a prosecutor or prosecutor general, or even the head of a branch of government, contrary to the principle of legality of crime and solely based on their personal interpretation, declares an act as unlawful and contrary to law, is that act or omission truly considered criminal and contrary to law? The answer is no. Only an act or omission that the law has specified is a crime.
2 – Article 37 of the Constitution of the Islamic Republic of Iran states that the principle is the innocence of individuals, and no one is considered criminally guilty under the law unless their crime is proven in a competent court.
Based on this constitutional principle, the only authority and place that can consider an action or omission as criminal is the official courts of the country. The legislator has not authorized other individuals in any position, rank, or status to make statements regarding criminal acts, and if they make such statements, it is not considered valid and no power or authority is granted to these individuals for this interpretation.
3 – Article 166 of the Constitution of the Islamic Republic of Iran states that court rulings must be reasoned and based on legal provisions. Article 167 of the Constitution also states that judges are obliged to find the ruling of each case in codified laws, and if the ruling of a case is not explicitly stated in the law, the judge must refer to authoritative legal opinions and issue a ruling on the case.
We see that Articles 166 and 167 of the Constitution of the Islamic Republic of Iran, the latter part of Article 37 of the Constitution, and Article 2 of the Islamic Penal Code are in harmony and agreement. The court judge is also bound by legal provisions in examining the case and in issuing rulings must specify the violation of a legal article by the accused and cannot issue a ruling based on the validity of the statement and personal interpretation of individuals and officials.
We know that in our judicial system, expert opinion is not necessarily binding on the court judge. This means that these expert opinions can only serve as evidence to help the judge in examining the case, but by themselves cannot serve as conclusive proof and binding legal text for the judge in issuing rulings.
4 – According to Article 167 of the Constitution, a judge has the right to refer to legal opinions only when the legislator has not prescribed a ruling on that matter and essentially it can be said that the law is silent on the issue.
Therefore, is it valid to refer to legal opinions on a matter about which the law has spoken and a text exists?
According to this same article of the Constitution, the validity of this act must be questioned. When there is an explicit text, referring to legal opinions which are sometimes even conflicting would cause disagreement in the rulings issued by courts and might lead to injustice in the sense of not giving rights to those entitled to them. For example, some respected sources consider banking operations in our country’s banking system as usurious and forbidden, while others consider it permissible. Some of them consider the broadcasting of certain programs by radio and television forbidden, while others consider it permissible, and so on.
Therefore, it seems that the criterion and basis for the validity of declaring an act or omission as criminal and contrary to law should be sought in the explicit text of the law, and also that the persons responsible for examining the acts of the accused are judges and competent courts, not other officials and administrators of government and state agencies. (Article 36 of the Constitution of the Islamic Republic of Iran)
Now let us address the question posed in this premise: Is propagating a religion other than the country’s official religion a crime or not?
It appears that there is no explicit text in the enacted laws of the country on this matter—no text that explicitly considers the propagation of Buddhism, Hinduism, Zoroastrianism, Bahá’í, Christianity, or other religions in Iran as criminal, defines it as a crime, and deems those who commit it deserving of punishment.
Now what should be done? Should we refer to legal opinions, which as mentioned are sometimes conflicting and might not serve the interests of justice?
But in this regard, do we truly not have any law? And cannot we find anything in the enacted laws of the country?
According to Article 9 of the Iranian Civil Code, the provisions of treaties that are concluded between the Government of Iran and other states in accordance with the Constitution have the force of law. In fact, Article 9 of the Civil Code states and declares that in addition to what has been explicitly approved by the Iranian legislature, all international treaties that the country of Iran has accepted and whose correct procedures of approval and ratification have been followed in Iran have the force of domestic laws and must be observed.
Therefore, the scope of applicable laws in this matter, in addition to the laws enacted by the legislator, also includes international treaties and covenants. However, it must be noted that these treaties and covenants, which are usually first signed and ratified by the government, must also be approved by the legislature, and in fact, in a sense, the legislature enacts them through these procedures.
The purpose of this reference is that according to the International Covenant on Civil and Political Rights of 1966 by the General Assembly of the United Nations, and Article 18 thereof, everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to have or adopt a religion or beliefs and also the freedom to manifest one’s religion or beliefs, whether individually or in community, whether publicly or in private…. And Article 19, paragraph 2, also explicitly covers the right to seek and disseminate information and ideas of all kinds.
Therefore, individuals can adopt any religion and doctrine, which means they can change their religion and doctrine or express and disseminate them without these acts being subject to punishment.
Although Articles 18 and 19 of the Universal Declaration of Human Rights adopted in 1948 were the model for this covenant, reference to them might be subject to objection, since it is conventionally established among legal scholars that declarations do not have binding force. However, according to the explicit text of Article 9 of the Civil Code, treaties are valid and have the force of domestic law, and Article 2 of the aforementioned covenant also obligates the states parties to the covenant to ensure and observe the provisions of this covenant.
It might be raised here that according to the legal opinions of respected sources of emulation, propagating other religions and doctrines in Iran is forbidden or is not permissible and should not be done. However, it must be noted that from the beginning, the intent has been to address this issue from the perspective of legal texts. On the other hand, according to Article 167 of the Constitution, judges have permission to refer to legal opinions only when they cannot find the ruling of a case in legal articles, not when there are texts and provisions and ignoring those legal provisions they refer to legal opinions. (Regarding the use of legal opinions, many legal scholars also hold the view that the application and use of this principle is only permissible in civil legal matters and will not be applicable in criminal matters.)
Moreover, according to Article 4 of the Constitution, the jurists of the Guardian Council are authorized and determine and announce which legal provisions are contrary to Islamic law. According to current procedure, even legal provisions from before the revolution are referred to them, and they announce their opinion on them. We even see this reference to the opinion of the jurists of the Guardian Council in the rulings of the general assemblies of the Supreme Court and the Administrative Justice Court and even in court judgments.
However, thus far, the jurists of the Guardian Council have not announced that the Convention on Civil and Political Rights, which the Iranian government has accepted and which was approved by the Parliament on November 23, 1972, and by the Senate on May 7, 1975, is contrary to Islamic law, or pointed out that a particular article of this convention is contrary to Islamic law and should not be paid attention to and implemented.
Therefore, reliance on this convention is valid and the respected judges of the courts must pay attention to it, observe it, and take it into account in issuing rulings.
In addition, as mentioned, in Article 2 of the Covenant on Civil and Political Rights, the member states and signatories have committed to implement and ensure the implementation of the rights provided for in this covenant.
In relying on the Convention on Civil and Political Rights, it might be questioned whether the subject of this discussion could be restricted by the limitations that exist in paragraph 3 of Articles 18 and 19. That is, limitations that are legally established in a democratic society for the preservation of national security and interests or public order and safety or public health and morals. In response, it is noted that what can be effective as a limitation in the implementation of Articles 18 and 19 is “the existence of a legal text” on this matter. However, as mentioned, in the enacted laws of the Islamic Republic of Iran, no law regarding the limitation of belief or the expression and dissemination of opinions and beliefs, especially religion, has been observed. Also, according to Article 4 of the Covenant on Civil and Political Rights, states can only take measures outside the obligations stipulated in this covenant in cases of public and exceptional extraordinary danger that threatens the existence of the nation, and on the condition that they immediately notify the United Nations and the states parties to the covenant of these circumstances. In simpler terms, they can disregard and violate these provisions. However, throughout all the years of the Islamic Republic of Iran’s governance, there has never been an announcement by the government of exceptional and extraordinary circumstances that threaten the existence of the Iranian nation, so that we could consider it as a basis for implementing some limitations on human rights and non-implementation of the Covenant on Civil and Political Rights. Finally, it should also be noted that according to paragraph 2 of Article 4 of this covenant, even assuming the existence of emergency circumstances, the implementation of Article 3 must not restrict the implementation of provisions of this covenant, including Article 18.
Summary of the matter:
Is the propagation of a religion and doctrine other than the country’s official religion in Iran, according to codified and enacted laws, contrary to law and a criminal act or not?
In response, it must be said that given that the law is silent on this matter and there is no explicit text on the criminality of this act, one cannot say that this act is contrary to law and criminal. Even with reliance on Article 18 of the Covenant on Civil and Political Rights adopted in 1968 by the General Assembly of the United Nations, and given the validity of these covenants according to Article 9 of the Civil Code, and based on the fact that the jurists of the Guardian Council have not announced this covenant and its provisions to be contrary to Islamic law, and also considering Article 2 of this covenant whose observance and implementation is committed and ensured by member states, the propagation of religions and doctrines other than the country’s official religion in Iran is free and cannot be considered a crime, and those who engage in it cannot be punished.
