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The conversation is with Mahdieh Fathi.

The issue of the approval of lawyers by the head of the judiciary and the footnote of Article 48 of the Criminal Procedure Code has sparked reactions from many legal experts and attorneys, and many criticisms have been written about it in various media outlets. Mina Jafari, a lawyer and member of the Central Bar Association, also says in this regard and in an interview with Khat-e-Solh that a lawyer should be trusted by citizens, not the head of the judiciary.

This lawyer and women’s rights activist, who considers this clause and law to be against the constitution, cites lack of familiarity with legal regulations and lack of mastery over the mother law – the constitution – as one of the reasons for proposing such laws. She says that if the lawmakers had mastery over legal writing and the constitution, they would understand the most basic principles.

The following is a discussion with Mina Jafari, a lawyer and a member of the bar association, regarding this matter.

How does the process of selecting and choosing a lawyer and discussing with approved lawyers by the judiciary comply with the principle of the right to defense and the principles stated in the constitution regarding the rights of the people?

In these past few weeks, many lawyers have spoken about this issue and I myself have written about it. The issue is that the selection of a lawyer, according to Article 35 of the Constitution, must be free. This means that the right is given to the citizen to choose whichever lawyer they want. Now, assigning this principle to a specific law is strange. It means that if we assign a specific law to the general law, it is strange and wrong, and practically this law will not be enforced. Unfortunately, in the issue of citizens’ rights, we have many laws that violate the rational and internationally accepted principles of the Constitution, but something else is being enforced. This means that a general law that contradicts the Constitution is being enforced.

In this case, to what extent can this issue undermine the justice and rulings of revolutionary courts? Should we not be concerned about the issuance of harsher sentences in political-security cases?

One of the foundations of fair legal proceedings is the right to freely choose a lawyer. We refer to these formal conditions. All lawyers in Iran and around the world know that without these formal conditions, the proceedings are not legally valid. They are completely flawed. And if a ruling is issued – as we have seen in recent years, rulings have been issued under these circumstances and we, as lawyers, have criticized them – they are not legally valid. For example, preliminary investigations are conducted by the interrogator, when this should be done by the prosecutor. We, as lawyers, do not have legal knowledge of the interrogator. This alone causes the legal proceedings to be flawed and problematic in terms of form. We criticize it legally, but how the judicial system will react is another issue. It is possible that even heavier rulings will be issued. Of course, we have to wait and see what the conversations and hearings of lawyers and the judicial system, which have existed until recently, will result in.

Is there a concern that this issue not only occurs in the preliminary research stage but also in the courts? What is your opinion on this matter?

This law itself, meaning Article 48 of the Criminal Procedure Code, is fundamentally flawed. If such an issue were to arise, it would be a problem within a problem. Therefore, this is not acceptable. You see, we talk about legal matters and say that we can do this! Yes, many people can do many things, but the issue here is that even from a legal standpoint, this clause is problematic, and any issue that is added to it will also be problematic. The head of the judiciary has also stated that the intention is only for preliminary investigations.

What do you think are the characteristics and criteria of the judiciary for selecting individuals as approved lawyers, who are mentioned in unofficial lists?

See, it has been said that the condition is to be trustworthy; meaning that it should be a matter of trust with the head of the judiciary. So the criterion is being the trusted one by the head of the judiciary. Now we must ask the head of the judiciary, what criteria do you have to place someone as your trusted one, and why do you not consider me, a lawyer who has been working for many years, as trustworthy, or even the head of the Bar Association who is at the level of a prosecutor, as trustworthy? We should ask what it means to be a trusted lawyer by the head of the judiciary. A lawyer should be trusted by the citizens. This phrase (being the trusted one by the head of the judiciary) is a wrong phrase. As a lawyer, I am only a defender of the rights of citizens. This matter of being the trusted one by the head of the judiciary is so irrational and illogical that it is better not to talk about it!

Why is there no female lawyer on this list (Tehran list)?

Well, what do you mean women can be lawyers!? Women should just stay at home, do housework, and be childbearers!

Does this look exist?

Is there anything else? In traditional societies like Iran, this is how women are viewed. There is no difference between reformists and fundamentalists. Men believe that a woman’s place is in the home.

Does it mean that the absence of any woman’s name on these lists implies that they generally do not hold such positions for women?

They truly believe that women should primarily be in the home and use them as decoration in their meetings. Otherwise, the absence of a female minister in Mr. Rouhani’s cabinet (for example) is evidence of this claim. How many female ministers did we have during Mr. Khatami’s time? These are only related to the reformists, with whom we think we can have a dialogue. What do you expect from others? Of course, at least Mr. Ahmadinejad had a female minister and broke this taboo.

“Before the Judiciary presented this list of 20 people, there was a provision that had been approved by the ninth parliament. During this time, were you witness to any restrictions on taking on a case as an attorney by yourself or other colleagues at the court stage?”

Personally, I had heard about this issue from some colleagues, but it was not taken seriously or publicly addressed. Of course, you know better than me that in countries like ours, there are illegal issues in the administrative and judicial system, but for this matter to be officially raised and not cross the line of honesty is strange.

What will happen to the current assignments of political-security cases that were previously handled by other lawyers?

For these cases, nothing happens by chance and these lawyers are present in these cases; although the presence of a lawyer in human rights cases is generally difficult. According to the law, the presence of a lawyer in the preliminary investigation stage is subject to the acceptance of the investigator or assistant. That is, these two must accept and deem it appropriate. This is much more difficult in political and security cases. That is the flaw and most of the violations occur in the preliminary investigation stage. For example, the accused is subjected to beating, torture, or illegal interrogation. Of course, these issues also exist in a regular theft case. As a result, such laws and restrictions have always existed but were never openly announced that we trust 20 people and the rest are not trustworthy. As I mentioned, a lawyer must be trusted by citizens and these words have no meaning at all.

Can this provision not be considered part of the efforts to combat the independence of the Bar Association and its affiliation with the judiciary?

I am taking a step back. I have always said that we lawyers do not want independence for ourselves and our homes. I, who have gone and become a lawyer, have had this audacity and saw in myself the desire to defend the people. Everywhere in the world, when someone chooses the profession of law or judging, there are those who, regardless of their social and economic status, seek to serve the people. Unfortunately, they always ask why lawyers want independence. We want independence to support the rights of the people. Whether I am independent or not, it does not affect my economic income. The issue is that in the face of cases that are a part of the government, I can defend the people with freedom, audacity, and without fear. I think here, the rights of the people are being violated. Independence, the Lawyers’ Association, and the right to defend citizens go hand in hand. Essentially, it is the right of citizens that has been harmed. If we make

Aside from these issues, another point is that when the judiciary only mentions 20 names on its list in Tehran, how is it possible for this number to be able to handle the representation of all the numerous political-security cases?

Your letter is correct, but keep in mind that this initial list has been published for the evaluation of reactions from legal, judicial, and activist communities, and the head of the judiciary has also announced that this is an initial list that will expand.

Basically, what do you know about the motivation behind such discussions and changing them into laws?

Unfortunately, we have flaws in our law-making. This means that our lawmakers must go through specialized courses in this field. You cannot write a law contrary to the constitution; you cannot write a law contrary to accepted global principles. I think that even if we say there is no ill intention, the issue is unfamiliarity with the rules of law-making, and you should not deviate from basic principles of law-making. I see the issue more from a scientific perspective, and from this angle, lawmakers lack familiarity, knowledge, and mastery of these principles, and that is why they come and commit violations in these matters. Otherwise, if they had knowledge – even if they had stubbornness – they would not write such laws. The constitution gives the right to choose, and those who write such laws do not have mastery over the constitution. If they had mastery, they would know the most basic principles. These incorrect laws play with the spirit and psyche of the people in society and harm the legal rights of

Thank you for the opportunity you have provided in the peace line.