The Right to Freedom of Assembly in Iran
Mohammad Amin Amin Roaya[1]
Freedom is a broad concept that sometimes has an individual aspect and sometimes a group aspect. Group and collective freedoms are in line with collective life in society and the realization of common human interests. These assemblies actually balance the power and freedom of citizens. Also, despite the diverse ideas and thoughts in society, different groups and assemblies within a society may be created, and the cohesion and institutionalization of each of them can be a solution to a rational and peaceful dialogue in a democratic system. These social talents, supported by group freedoms in international and domestic systems, may be institutionalized, organized, and coherent as parties and associations or accidentally appear to express some of the shared demands at a specific time as short and temporary assemblies and demonstrations (Hashemi, 2005, 287).
The privileged nature of the general rights is due to the uniqueness of the duties that the law performs in the practice of governance. Law, in addition to creating a structure for the establishment of rulings and regulations ordering social life, also plays a role in determining and maintaining the structure of the government’s authority (Loughlin, 2009, 330). In the series of public law, individual law and public freedoms are among the most fundamental principles of democratic governments (Ghazi Shariatpanah, 2006, 119). The establishment and sustainability of democratic societies are not possible without the recognition of individual rights and freedoms, such as the right to human dignity, equality, freedom of thought and expression, etc., to the extent that their observance is specified in international and domestic laws and charters of countries.
The topic of freedom is one of the most important issues in the field of human rights, citizenship rights, and democratic systems. The right to freedom of peaceful assemblies, marches, and demonstrations is one of the most important issues of individual rights that are done collectively and one of the most important manifestations of democratic societies. This has a fundamental root in international rules. The right to freedom of peaceful assemblies is, in fact, a right for people to express their views and attitudes towards various issues to the authorities and other people in society (Organization for Security and Cooperation in Europe, 2016, 29-30).
The freedom of assemblies is more important from the point of view of public order because the final stage of the formation of political and security crises emerges in the form of assemblies, and the abuse of assembly is a far more imminent danger than the abuse of any other type of freedom. Even unarmed and peaceful assemblies have a glorious history of surrendering their enemies or political rivals; its enormous examples in the Indian anti-colonial revolution, led by Mahatma Gandhi, which was accompanied by the slogan of the rejection of violence, and the Islamic Revolution of Iran, led by Imam Khomeini are special and universal (Khalkhali, 2000, pp. 93-122) Therefore, the issue of public order is very important in regulating how to use the freedom of assemblies and gatherings.
Before anything, we will define freedom and assemblies to further explain the subject:
In The Spirit of Law, Montesquieu defines freedom like this: “Freedom is that man has the right to do whatever the law allows and allows and does not force what the law is prohibited and is not appropriate (Montesquieu, 1983, 292).” He also interprets freedom as the ability to do something that does not harm others (Javan Arasteh, 2020, 46).
In his first report in 2012, the special rapporteur of the United Nations defined the assembly as follows: “An assembly is a temporary and voluntary gathering in a public or private place for a specific goal (Report of Special Rapporteur, Op.cit, Para 24).”
From the definition of the special rapporteur, it is inferred that for each assembly, a gathering is first needed. However, for the gathering of people to be described as an assembly, other conditions are needed. In fact, the conditions of temporary and voluntary are the distinction of the gathering supported by under the title of the right to freedom of assembly with other gatherings that the other rights included in the Covenant seek to guarantee.
The Right to Freedom of Assembly in International Documents of Human Rights
Among the international documents of human rights that have recognized the right to freedom of assembly, several documents have an important and privileged position in the field of human rights and support, which is enough to mention only these things in this part.
The first important document in this regard is Article 20 of the Universal Declaration of Human Rights (UDHR) (1948), which recognizes this right as follows:
1. Everyone has the right to freely form peaceful assemblies and associations.
2. No one can be forced to participate in the assembly.
Also, the UDHR to recognize this right, Clause 4, Article 23, emphasizes one of the most important examples of this freedom to recognize: Everyone has the right to form a union to defend their interests with others and participate in unions (Mehrpour, 2004, 431-438).
The recognition of the freedom of assembly is not limited to this binding document. In addition, the right to freedom of assembly in other internationally binding documents, such as Article 23 of the International Covenant of Civil and Political Rights (1966), has also been recognized in more detail as follows:
1. Everyone has the right to assemble freely with others, including the right to form a trade union (Syndicat) and join it to protect their interests.
2. The exercise of this right cannot be subject to any restrictions unless the law is provided in this regard or there is a necessity for national or public security, public order, or to protect the health or public ethics or rights and freedoms of others in a democratic society. This Article will not prevent the members of the armed forces and the police from becoming subject to legal restrictions on the exercise of this right.
3. None of the provisions of this Article shall allow the Governments of the Convention 1948 of the International Labour Organization (ILO) on the Freedom of trade unions and the protection of the right of trade unions to harm the legislative measures or to enforce the guarantees provided for in that convention (Mehrpour, 2004, pp. 453-467).
As can be seen, the mentioned Covenant, while recognizing the right to freedom of assemblies, has also provided regulations on the permissible restrictions and enforcement of this right. The International Covenant for Economic, Social and Cultural Rights (ICESCR) (Article ICESCR, 1966, p. 8) also focuses on an economic and social approach in Article 8 and has paid more attention to the right to freedom of assembly from the perspective of the right to form unions and trade unions in order to secure economic and social benefits and has recognized it specially. In fact, it has emphasized and endorsed one of the most prominent examples of assembly freedom, and similar to the International Covenant of Civil and Political Rights, has provided restrictions on the exercise of this right (Article ICESCR, 1966, p 8). This dimension of the right to freedom of assemblies and unions has been widely considered in the Conventions on ILO, including the Conventions No. 11, 87, 98, 135, 141, 151, 154.
The Right to Freedom of Assembly in the Law of the Islamic Republic of Iran
The orientation of the Constitution of the Islamic Republic of Iran on the freedom issue is toward “Responsible Freedom” because the Islamic Republic is a military based on the dignity and value of man and his or her freedom with his responsibility to God (Clause 6 of Article 2 of the Constitution), in which the provision of political and social freedoms within the law limit (Clause 7 of Article 3 of the Constitution) as one of the policies of the Islamic Republic of Iran, has been considered necessary and in order to guarantee its implementation, the legislator has considered punishments for the authorities who, contrary to the law, deprive people of their freedom or deprive them of their rights stipulated in the Constitution.
The Constitution in every country is the highest legal document, and it is not possible to pass a law contrary to it. Article 27 of the Constitution of the Islamic Republic of Iran can be considered one of the most progressive principles of this law in which the right to peaceful protests is recognized in accordance with two conditions: 1) not having a weapon and 2) not disturbing the principles of Islam.
The Party Law of 1981 also states the cases in Article 16 that may be subject to these two conditions. Article 16 states: The groups subject to this law must refrain from committing the following in their publications, assemblies, and activities:
1. Commitment to the actions that lead to a violation of the country’s independence.
2. Any communication, exchange of information, collusion, and connivance with embassies, agencies, government agencies, and parties of foreign countries at any level and in any way that is harmful to the freedom, independence, national unity, and interests of the Islamic Republic of Iran.
3. Receiving any financial and logistical assistance from foreigners.
4. Violation of the legitimate freedoms of others.
5. Spreading slander, defamation, and rumor.
6. Violation of national unity and committing actions such as planning for the breakup of the country.
7. Attempting to create and exacerbate the difference between the ranks of the nation using the diverse cultural, religious, and racial contexts in Iranian society.
8. Violation of Islamic standards and the basis of the Islamic Republic.
9. Anti-Islamic advertising and distribution of harmful books and publications.
10. The concealment, maintenance, and carrying of unauthorized weapons and ammunition.
As it is clear, among the two conditions set by the Constitution, the first condition, namely, not having a weapon, it is clear which includes any type of cold and warm weapon, but the second condition, namely, not disturbing the principles of Islam, can be the subject of discussion. But it should be noted that Imam Khomeini’s opinion confirms that the foundations of Islam or the necessities of religion do not include the principles and subsidiary rules of religion, and it encompasses each of the essential rules and issues of Islam (Qotbi et al., 2016, 62). In this regard, Article 46 of the Charter of Citizenship Rights, with the condition of compliance with the law, provides the right to establish assemblies and marches, and it has placed the two duties of neutrality and protecting the safety of assemblies on the responsible institutions.
Given the explicit concept of Article 27 of the Constitution, as well as the detailed negotiations of the approval of the Constitution and the interpretive theory of the Guardian Council, the announcement and licensing for the marches and the formation of assemblies is overwhelming, so the opposite act cannot be criminal. In other words, it can be stated that only assemblies and marches are illegal associated with the carrying of weapons and not disturbing the principles of Islam, despite the fact that in the new bill, how to hold assemblies and marches for an important part of the demands, the requirement to obtain a permit has been canceled and there is no need to obtain the permit (www.irna.ir, 2023-5-15).
According to the detailed negotiations of the Constitution of the Islamic Republic of Iran in Article 27, which can be said to be one of the most progressive principles of the Constitution, we find a very important point. From the legislature’s point of view, the formation of assemblies and marches is free without any permit or previous announcement and only with two conditions: not having a weapon and not disturbing the principles of Islam. This freedom, which is the explicit principle of the Constitution, has an internal meaning. This means that the protection and security of this freedom, like other legal freedoms, is the responsibility of the government. In this regard, a by-law entitled “By-law on How to Provide Security for Legal Assemblies and Marches” for the law on the activities of parties, populations, political and trade associations, and Islamic associations or religious minorities was approved by the Cabinet on 2002-9-22. The purpose of this by-law is to establish public order and security. However, Article 4 of this by-law, contrary to Article 27 of the Constitution, considers the holding of assemblies and marches to be subject to the issuance of a permit:
Note 1- Observing the deadline for unpredictable occasions is not necessary, and its determination is with the Ministry of Interior.
Note 2- Assemblies and gatherings within universities are excluded from the provisions of this by-law and are subject to the relevant rules.
Note 3- The Commission of Article 10 of the Law shall obtain the opinions of the head of the Supply Council before issuing the march permits.
Note 4- The establishment of the security of cultural and artistic assemblies shall, at the request of the organizers of the assemblies as mentioned above, be with the police force.
Article 5 of the by-law speaks of the place of the marches and assemblies; the provincial councils must designate the appropriate place for the ceremony. However, the following is stated that the ceremony should be held in the designated places. This constraint means the guidance of this Article does not have an obligation, but one of the reasons for its approval can be said to facilitate the security of the march.
Article 6 of the by-law, as mentioned above, requires the organizers to provide measures that it is only possible to accept Clauses F and G below the condition of not disturbing the principles of Islam and in order to ensure the security of the assemblies. However, the other Clauses are against the Constitution. These obligations include:
A. Non-commitment of provisions of Article 16 of the law.
B. Observing the provisions of Article 31 of the by-law
C. Control slogans, announcements, tracts and placards.
D. Performing the ceremony in the time and place stated in the permit.
E. Performing the lecture and presenting the material within the framework of the issued permit.
F. Preventing and avoiding insults of natural and legal personalities.
G. Cooperation in the implementation of the recommendations of governors and police commanders of the neighborhood
It is worth noting that this by law, in Article 8, puts the responsibility of ensuring the security of marches and assemblies on the police force, as indicated by the law, and prohibits the intervention of other military forces and plainclothes.
In the end, it can be said that the freedom of peaceful assemblies in Iran as a democratic country at the highest levels of legal (Constitution) is recognized as a principle with the mention of restrictions. It is also said that in the new bill, how to hold assemblies and marches, for an important part of the demands, the requirement to obtain a permit has been canceled. There is no need to obtain a permit, and with this action, the conflict between the Constitution and the law regarding the activities of parties has been resolved to a large extent.
References[2]
1. Executive By–law of the Activities of Parties, Populations, Political and Trade Associations, and Islamic Associations or Religious Minorities approved 1982-6-20. (In Persian)
2. Javan Arasteh, H., (2019). Constitutional Law (Generality, Resources, and Foundations), Qom, Institute of Seminary and University, second edition. (In Persian)
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14. Article The International Covenant on Economic, Social and Cultural Rights, 1966.
15. Human Rights Council, Report of the special rapporteur of freedom of peaceful assembly and of association, A/HRC/20/27, (21, May 2012).
16. Human Rights Council, Report of the special rapporteur of freedom of peaceful assembly and of association, A/HRC/29/25,(28, April 2015).
17. Human Rights Council, Report of special rapporteur of freedom of peaceful assembly and association, A/HRC/26/29,(10, June.2014).
18. Human Rights Council, Report of the special rapporteur of freedom of peaceful assembly and association, A/HRC/23/39,(24, April 2013).
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20. Www.irna.ir, 2023-5-15.