[ejiltalk.org, 10 Dec 2013] Nazila Ghanea
100 days into his presidency, Iranian President Hassan Rohani delivered a partial result on the nuclear issue (see EJIL:Talk! discussion by Dan Joyner)and released his draft Charter of Citizens’ Rights (henceforth ‘the Charter’) on 26 November 2013. Though the Presidential website offers content in 7 languages including English, the draft Charter has only been made available in Persian.
It is reported that the President consulted religious elites, experts, activists and academics within Iran with regard to this draft Charter, but not the Iranian judiciary. Academics, thinkers, universities and others have been asked to send their comments on the draft Charter to the legal deputy of the Iranian President within a month so that it can be revised and a final version released. So what feedback can one give the President’s office on the draft Charter? What does the Charter add and which rights does it guarantee? Does it fulfill the President’s aim (see here) that citizens’ rights make “all Iranians feel they are part of one nation, one identity, under one umbrella they can feel proud of”?
The Charter itself announces that it will not have an effect on existing rights, laws and obligations or on international conventions (article 1.1). The Charter states that it declares the most important citizenship rights and the direction of the government’s human rights policy, but that it does not intend to create new rights or obligations (article 1.6). The importance of the Charter, therefore, lies in the fact that it is declaratory of the Islamic Republic of Iran’s understanding of the most important citizens’ rights that it will henceforth prioritise in its activities. Though it should not impact existing UN human rights obligations according to article 1.1, this ‘prioritisation’ suggests that there will be a notable impact on Iran’s future human rights compliance. This is underscored in the follow-up suggested within the Charter, for example that there will be three-monthly updates to the Presidency regarding activities concerned with advancing Charter rights (article 15). Such Charter activities may well overshadow action on other human rights obligations binding upon Iran and on recommendations stemming from international human bodies. That is, this Charter may well be used to guide (and further impoverish) human rights understandings in Iran; setting aside Iran’s ratification of a number of international human rights treaties (International Covenant on Civil and Political and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities), its reporting on its 123 accepted Universal Periodic Review recommendations due in the forthcoming UN review in October/November 2014, and its responsibilities as a designated country of international human rights concern through the Human Rights Council’s mandate of the UN Special Rapporteur on the human rights situation in the Islamic Republic of Iran.
The Charter is extensive and wordy. Constituted of 3 sections and 20 pages of text, a quick overview may suggest that it is comprehensive in its scope. It does include the three generations of rights and a number of rights captured in newer areas of international human rights normative concern such as disability, the elderly, group rights and the environment. However, it doesn’t take long to discover the vague and open-ended conditionalities through which most of the rights are restricted, limited or even eradicated. There are around 50 such conditionalities throughout the Charter, stating that the declared rights are to be understood ‘within the framework of the law’, with ‘due consideration of Islam’ or as outlined in the Iranian Constitution. These are not stated in separate paragraphs but come within the outlining of the freedom concerned and serve to make them yet more toothless. A few examples will illustrate the implications. In article 3.16, freedom of the media and publications is upheld insofar as it does not contradict the sources of Islam or public rights and insofar as it is within the framework of the law. Considering Iran’s record to date in this area, these limitations raise concerns. What is meant by ‘sources of Islam’, what are the implications of ‘the law’ and which ‘public rights’? Article 3.107 says that women should have every opportunity to benefit from free choice of suitable attire according to Islamic and Iranian standards and that the government is responsible for providing the conditions for the promotion of such suitable attire. Who is to decide what is ‘suitable’ and what exactly are Islamic and Iranian standards regarding dress? It is not entirely clear in these instances whether any genuine residual human rights remain.
The reliance of so many of the Charter rights on the Iranian Constitution brings with it explicit discriminatory exclusions. It is notable, for example, that the Charter makes repeated reference to diversities, minorities and groups based on ethnic, linguistic or mazhab-based diversity, but not on the basis of religion. Though the terms mazhab and deen can be used interchangeably in every day usage, the Constitution and other law draws out a sharp distinction between the two.Mazhab refers to Islamic schools of thought and, as upheld in article 12 of the Constitution of the Islamic Republic of Iran, is not to be taken to be inclusive of other religions or beliefs. Article 13 of the Iranian Constitution, in contrast, addresses religious minorities, but it states that the only recognized religious minorities according to Iranian constitutional law are Christians, Zoroastrians and Jews. That purposeful exclusion of the largest non-Muslim religious minority community in Iran, the Baha’is, is extended and entrenched further in this rights Charter.
Freedom of thought and expression, including the freedom to express and promote thoughts and beliefs (article 3.11) is conditional in the Charter on its practice being in accordance to ‘the law’. Since Baha’is are not recognized in ‘the law’, they can be excluded from freedom of thought and expression. The recognition of the identity of Iranian citizens without discrimination concerns their cultural, ethnic, mazhab (Islamic school of thought) and linguistic identity (article 3.21), but not their religious identity. This implies that discrimination on the basis of religion (even the recognized religions) remains legitimate. Historical and cultural sites and monuments are to be protected by the state regardless of which ethnic, cultural or mazhab group they belong to (article 3.24), but there is no protection upheld for religious historical sites and monuments. Respect for the freedom of parents and guardians to bring up their children according to theirmazhab is upheld (article 3.27), but again there is no reference to respect for their freedom to bring up their children according to their religion. This is in contradiction with article 14 of theConvention on the Rights of the Child to which Iran is a party. Even the articles dedicated to minorities and ethnic groups refer to respect for diversity of culture, mazhab, language and ethnicity (article 3.116), but not religion. Article 3.117 states that the holding of, and presence in, mazhab or religious ceremonies is free with respect to religions that have been officially recognized in the Constitution. It is therefore quite explicit that participating in ceremonies belonging to other (non-recognised, according to article 13 of the constitution) religions is not free. It is only in specifying the exclusion of religions that are not recognized in the Constitution that the Charter finally uses the term ‘religion’ deen rather than ‘school of thought’ mazhab.
Another reading of the Iranian Citizens’ Charter is, therefore, that – by way of example – Baha’is in Iran are to not enjoy: freedom of thought and expression, identity, non-discrimination, the protection of their historical and cultural sites and monuments, parental rights, minority rights and religious freedoms. The Charter is also replete with other exclusions that time doesn’t allow attention to. Even the name registers its concern only with nationals, excluding millions of Afghan migrants and their families.
Despite the rather touching references to the right of citizens to be happy and hopeful towards the future (article 3.8), enjoy polite service from government officials (article 3.39), access cinemas, theatres and green spaces (article 3.82), and the welcome delineation of a few youth rights (article 3.110), one can be forgiven for being somewhat distracted by the discriminatory exclusions that are being championed in this Citizens’ Charter. As it stands “Iran’s first citizenship rights ever drafted” leaves much to be desired. It is hoped that the above comments can be taken on board towards a major revision of the Charter so that it can – indeed – achieve the Charter’s stated objectives of upholding the rights of all Iranians, otherwise it will only serve to camouflage continuing and serious human rights concerns.