Articles of Legislation Discriminatory to Non-Muslims

Human Rights Watch: The current law in Iran...

The Penal Code

A fundamental problem in the penal code is that the communities referred to by the terms unbeliever or non-Muslim are not defined in the law. This is important because while some non-Muslims, kafir zami, have some level of protection under the law, others who do not fall under this definition have no protection whatsoever.

According to Ayatollah Ruhollah Khomeini, the first leader of the Islamic Republic, the religious communities accorded the status of zami in the Islamic Republic are Christians, Jews and Zoroastrians. However, Ayatollah Khomeini’s statements and religious legal opinions (fatwa) do not have the status of binding written law in Iran.

To avoid ambiguity a definition must be provided in the constitution, the penal code or elsewhere in the codified law of the country. Not all religious authorities would agree that Zoroastrians, for example, should be accorded the status of zami, and yet the constitution provides, in Article 12, that other established schools of Islamic jurisprudence should be accorded equal weight. The inclusion of Zoroastrians as zami is an Iranian peculiarity not found in the established schools of jurisprudence. Thus the rights of non-Muslims are at best ambiguous and subject to divergent interpretations in the penal code.

In addition to this basic ambiguity about protected minorities, a number of articles of the penal code are directly discriminatory in their treatment of all non-Muslims. For example, Article 207 of the penal code states that if a non-Muslim kills a Muslim then the killer is liable to legal retribution, qisas, and subject to the death penalty. The principle of qisas requires that the nature and severity of the punishment should be equivalent to that of the offense. Therefore, the qisas punishment for murder is death. However, in some cases the penalty may be replaced by the payment of blood money (diyah) to the family of the victim. READ MORE

If a non-Muslim kills another non-Muslim, qisas applies. However, if a Muslim kills a non-Muslim, the law does not require qisas, and does not specify a punishment. Article 2 of the penal code makes clear that the existence of a specified punishment denotes the existence of an offense. Therefore, in the absence of a specified punishment in this instance, the judge may even rule that no offense has taken place in the willful killing of a non-Muslim by a Muslim. Therefore, the penal law applies less value to the life of a non-Muslim as compared to a Muslim and may even permit the murder with impunity of non-Muslims by Muslims.

Other lesser offenses also provide for differential sentences between Muslims and non-Muslims. For example, Article 88 of the penal code states that if a Muslim man commits adultery with a Muslim woman, the penalty is 100 lashes for the man. However, if a non-Muslim man commits adultery with a Muslim woman, his penalty is death. No penalty is specified for the Muslim man who commits adultery with a non-Muslim, woman. Similarly with homosexuality, under Article 121 of the penal code, non-penetrative sex between two Muslim men is punished by 100 lashes. However, if one of the partners is non-Muslim, the penalty for him is death. The crime of malicious accusation is punished, according to Article 147 of the penal code, by eighty lashes if the victim is a Muslim. However, if the victim is non-Muslim, the maximum penalty is set at seventy-four lashes. In this article, non-Muslims are equated in their treatment with minors and those lacking their full mental capacities. Article 494 of the Penal Code provides penalties for violating the corpse of a Muslim; no penalties are stipulated for violating the corpse of a non-Muslim.

The penal code, which is derived from traditional Islamic legal principles, is nevertheless applied fully to non-Muslims whose own traditions of penal law may be quite different.

Explicit discrimination is also found in legal texts other than the penal code. For example, Article 115 of the constitution of the Islamic Republic requires that the president should be a Shi’a Muslim, thus excluding more than 20 percent of population from taking full part in the conduct of the public affairs. Articles of the Iranian Civil Code that deal with matters of inheritance create a privileged status for Muslims. Article 881 of the civil code prohibits a non-Muslim from inheriting property from a Muslim. Moreover, it provides that if a non-Muslim dies and there is among his beneficiaries even one Muslim, this legatee, even if he is only a distant relative, inherits all the property. This article of the civil code conflicts with the constitutional provision permitting religious communities to deal with matters pertaining to personal status in accordance with their own laws and practices.

According to Article 1059 of the civil code, a Muslim man is free to marry a non-Muslim woman. However, the opposite does not apply. A marriage between a non-Muslim man and a Muslim woman is not recognized.

Other areas of legislation discriminate against non-Muslims. For example, according to the law on the selection of judges of 1983, the judge must be a Muslim man. The constitution provides, in Article 163, that the qualifications of the judge will be determined in accordance with the principles of fiqh, or Islamic jurisprudence. Many areas of the civil service have an explicitly Islamic mission or orientation, especially the army. The constitution provides in article 144 that, "the army of the Islamic Republic of Iran must be an Islamic army ... and must recruit into its service individuals who have faith in the objectives of the Islamic Revolution."