The Special Rapporteur on the situation of human rights in the Islamic Republic of Iran in his latest report, published on March 7th, welcomed the omission of stoning as a punishment in the newly ratified Islamic Penal Code, but expressed his concern that severe punishments may still be issued at a judge's discretion in accordance with sharia law or fatwas.
Iran has finally overcome one of the big predicaments with the international community in terms of human rights, though in the Islamic Republic's style. About two weeks ago, Iran's Judiciary spokesman announced that stoning no longer exists in the new penal code. However those of us familiar with the complex working and implementation of the Iranian legal system who have studied the "revised" code in detail have to say while on the surface both of these claims may appear correct; in reality they are false. There is a nuance that has been lost in western media reports that have heralded these announcements as a victory and major advancement for human rights in Iran such as Financial Times and the Telegraph.
In comparison to the previous penal code, stoning has been removed from the section of the code dealing with penalties for 'adultery.' However, sexual relation outside of marriage remains a crime.
Furthermore, the word 'stoning' appears twice in articles 172 and 198 of the new penal code, although details about its implementation, such as the appropriate size of stones to be used, wrapping the convicted person in a white shroud (kafan) and burying the male adulterer in the soil up his waist and a female up to her shoulders, are all gone. But the omission of the implementation process is hardly reason to celebrate 'the end' of the practice.
The fact is, as long as adultery is a crime, judges are expected to hand down sentences to defendants accused of committing adultery. But since the punishment for adultery is no longer explicitly outlined in the new penal code, according to Article 221 judges are obliged to ask the Supreme Leader to issue a religious order (fatwa) in such cases. This means that Ayatollah Khamenei, Iran's Supreme Leader, who has never issued a fatwa, neither about the punishment for adultery nor about any other criminal matters, is expected to decide on these cases. While an Iranian Member of Parliament (Majles) has recently said that the Supreme Leader will seek an alternative punishment for adultery, this is no easy task. The Supreme Leader may have a vast political power, but often has insufficient religious power and credibility to issue such fatwa, since there are many religious leaders who are senior to him. What makes the case more complex is the existence of a consensus amongst Shi'a jurists (maraaje) that the proper punishment for adultery is only stoning, and nothing else will suffice. Therefore, if Iran's Supreme Leader issues a different punishment for adultery, it will likely be considered invalid by many religious leaders, even if it is execution by hanging or another less inhuman form of execution. The question is whether Ayatollah Khamenei would be willing to bear the consequences of such a revolutionary fatwa!
However, even if the Supreme Leader is ready to challenge Shi'a jurists, he still has deal with the existing problem of Articles 172 and 198 accepting stoning as a possible sentence for adultery in the new penal code.
At most what we have to celebrate as human rights activists is the prediction that Ayatollah Khamenei will brave it out, and despite the pressure from conservative religious leaders, issue a fatwa which could replace stoning with execution by other means, in order to get rid of the international pressure that has amounted in recent years, particularly due to the high-profile case of Sakineh Mohammadi Ashtiani, but also others. In a country where hundreds are being executed every year at a rate second only to China, some extra 'regular' executions for adultery would not present a problem for those in power. On the other hand, since the Islamic Republic and its Supreme Leader are both unpredictable, we should not underestimate the possibility that the omission of stoning may be used as a sign of improvement to ease the international community to think about the stoning in Iran as a concern and shortly after that, the Supreme Leader would simply re-issue the same stoning fatwa, reverting everything back to square one.
As a human rights activist, I suggest not rush to celebrate our victory, and continue our concerted efforts to stop stoning forever.