WUNRN
United Nations Convention
on the Rights of the Child
Participant |
Signature |
Ratification, |
Iran
(Islamic Republic of) |
5
Sep 1991 |
13
Jul 1994 |
_________________________________________________________________________
Legal
Rights of Children in Iran
Children
are the most vulnerable among social groups. Observing their human rights is a
great responsibility of governments and legislatures. On September 5, 1991, a
representative from the Islamic Republic of Iran signed the Convention on the
Rights of the Child, and its provisions were approved, with conditions, by
Iran’s Parliament in March 1994. These conditions stated that if any provisions
of the Convention contradict Iran’s internal and Islamic laws, the latter would
override the Convention. This conditional acceptance of the Convention has
allowed repeated violations of children’s rights and has prevented the existing
legal system from protecting these rights.
This
article will show a few examples of how laws in Iran, which fail to conform to
international standards, violate the rights of children. Readers should be
reminded that these examples are only “needles” in the huge “haystack” of
violations that internal laws inflict on the rights of Iranian children. Iran’s
failure to protect children’s rights is not simply a legal problem; it also has
social, economic, and cultural dimensions. However, inadequate and
unsympathetic laws contribute to undermining the rights of children.
Consequently, it is crucial to deal with the legislative shortcomings governing
these rights.
The
Age of Majority
The
age of majority may constitute the most important aspect of children’s rights
in Iranian law. This is the age that a child leaves behind the years of not
being responsible for his actions and enters into adulthood, becoming
accountable in the eyes of the law. Based on the Article 1210 of the Civil Law
as amended in 1962, “the age of majority for boys is 15 lunar years and for
girls 9 lunar years.” Meanwhile, the first article of the Convention on the Rights
of the Child states: “For the purposes of the present Convention, a child means
every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier.” As we can see, the
first article of the Convention sets up a contrast between an international
standard and Article 1210 of Iran’s Civil Law, especially in regards to the age
of majority for girls. Legal experts and child psychologists acknowledge that
the age of majority has an undeniable importance in the life of children and
adult responsibility too early in life can result in damaging and irreversible
consequences. Legislators bear the responsibility of determining this crucial
turning point. Iranian children, especially girls, suffer from oversights in
the Islamic Republic’s legal system, as some examples below demonstrate.
Marriage
In
1931, the first law regarding marriage was passed. It was silent on the legal
age for getting married. Article 3 of this law indicated that marrying someone
who is not “physically developed” is forbidden and anyone who marries such a
person will be condemned to one to three years imprisonment in a correctional
facility. In 1934, the second chapter of the second volume of the Civil Law
described the physical preconditions for marriage. For the first time, in
Article 1040, the legislators determined the age for marriage; “Marriage is
forbidden for girls under age 15 and for boys under age 18. However, under
certain circumstances, with the permission of the public defendant and with the
court’s approval, exemptions may be allowed, but never to girls under 13 or to
boys less than 15 years of age.”
In
1974, when the Family Protection Law of 1967 was being revised, the age for
marriage was one of the issues that was reviewed. Here, Article 23 of the
Family Protection Law was revised to change this age for girls from 15 to 18
and for boys from 18 to 20. This new and special piece of legislation abolished
Article 1041 of the Civil Law of 1934. After the Islamic Revolution of 1978,
the Family Protection Law lost its legal standing. In 1982, the Islamic
Republic’s legislators amended the Civil Law, including Article 1041 that
addresses the legal age for marriage, and amended this section as follows:
“Marriage is forbidden before the age of majority.” The notes attached to this
Article state that “Marriage is allowed for those under the age of majority
with their guardians’ permission, if the best interests of the subject are
considered.”
This
article does not codify a legal age for marriage, instead, it refers to the
“age of majority.” Consequently, the legal age for marriage was reduced to (in
solar years) 8 years and 9 months for girls and 14 years and 7 months for boys.
In 2001, after 19 years of pleas by human rights defenders, especially those
involved with children’s rights in Iran, and with the support of international
bodies, Article 1041 of the Civil Law was changed by the Expediency Council to
the following: “Marriage for girls before attaining age 13 and for boys before
attaining age 15 is only allowed by the guardian’s permission, with the
interests of the subject in mind and by the ruling of a competent court.” So
after many years, the legal age for Iranian girls for entering into marriage
was raised to what is still a young age of 13.
Even
though the legal age is defined in this law, it still awards absolute power to
the guardians of Iranian children to allow marriage of their minor children,
“having their best interest in mind.” Based on Article 1180 of the Civil Law
and, according to Islamic principles, the father and the grandfather are
“automatic guardians” of the child. One of the legal rights awarded to these
automatic guardians is making decisions about the marriage of their minor child
or grandchild. The law provides that such a marriage is legal if the best
interests of the child are considered by his or her guardian. However, once
this under-aged child married by his or her guardian reaches the legal age, is
he or she allowed to nullify the marriage? Most Muslim lawyers and faqihs
[expert in Islamic jurisprudence] have responded “no” to this question, arguing
that a marriage, entered legally, cannot be nullified later. Even in rare cases
where some legal grounds exist to nullify marriages of these under-aged
victims, a 13 year-old girl or a 15 year-old boy would rarely dare to confront
a father and rebel against him because it goes against traditional and cultural
norms.
Consequently,
Iranian children can not only be subject to forced marriages at the early ages
of 13 or 15, but their fathers and grandfathers have full and legal authority
to arrange their marriage to whomever they want, as they “have their best
interest in mind.” In the judiciary system of Iran, there is no legal mechanism
to determine what is in the best interest of children and therefore no legal
retribution for those who do not act with those interests in mind.
Accepting
Legal Responsibility
Based
on Article 49 of the Islamic Penal Law and its notes, children are excused from
any punitive responsibility if they commit a crime and, by court decision, can
be placed under the supervision of a guardian or in a correctional center for
children. Note 1 defines a child as “someone who has not attained the age of
majority in religious terms.” Note 2 states that if physical punishment is
determined to be necessary for guilty children, those punishments must be just
and executed with good intentions.
As
mentioned earlier, Article 1210 of the Civil Law sets the age of majority for
girls at 9 lunar years and for boys at 15 lunar years. Therefore, 9 year-old
girls and fifteen-year old boys, who are considered adults in the religious
sense term by Islamic legislators, can be punished like adults if they commit a
crime, and can even be subject to physical punishment. The Islamic Penal Law
allows severe physical punishments such as whipping, cutting parts of the body,
stoning and execution for those found guilty of a crime. Since 9 and 15
year-old children are considered adults and, as such, held responsible for
their acts with possible severe physical punishments if they commit crimes,
they will be subject to the full force of the law and will not receive reduced
punishments. Adolescents are treated as adults in the eye of the law and if
caught committing a crime, face severe punishments.
Corrective
Measures
The
Civil Law of Iran allows parents to punish their children. Article 179 of this
law states: “Parents are allowed to punish their child, but this right does not
give them authority to go beyond the normal scope.” The emphasis of the
legislator on not going over the “normal” limits in these punishments does not
preclude the parents’ cruelty against the child. In the absence of definite and
specific criteria, the child’s legal protection is compromised and subject to
the opinions and interpretations of those involved with such decisions in the
courts.
This
open-ended right of a parent to punish his child puts children in great danger.
Article 220 of the Islamic Penal Law openly states: “A father or a grandfather
killing his child will not face the death penalty, but has to pay blood money
to the heirs of the deceased and be subjected to a reduced beating sentence.”
As we can see, the law is tolerant of parents, specifically fathers and
grandfathers, punishing children; even the act of killing a child does not
render the maximum legal punishment (death penalty). This article fails to
comply with international standards of human rights to which the Iranian government
is bound and jeopardizes children’s lives and safety inside their
families.
Inheritance
Iranian
children, like other Iranian citizens, can inherit from their family members
according to laws which define terms of inheritance. The gender of the child
plays an important role in this process. According to the laws of the Islamic
Republic, a female child’s share of an inheritance is half of the share of a
male child. As Article 907 of the Civil Law states: “If the deceased has no
parent but one or more children, the estate is divided as follows: if there is
only one child, either male or female, the entire estate goes to him or her. If
there is more than one child and all male or all female, the estate is divided
evenly among them. If there is more than one child with different genders, the
male children inherit twice as much as the female children.” Hence, the
financial status of Iranian girls can be adversely affected by gender
discrimination before they reach adulthood.
Blood
Money
Gender
discrimination in financial matters is not limited to inheritance. Even an
unborn Iranian baby is affected by it. Based on the Islamic Penal Law, a
murderer must pay diyeh or “blood money” to those survived by the
victim. This law states that if someone causes a miscarriage, they must also
pay blood money. Article 487, Section 6 of this law, after defining the amount
and the manner in which the blood money must be paid based on the stage of the
fetus’s development, states that “After the fetus is ‘spirited,’ [according to
this law, the fetus receives its spirit two months after conception] the blood
money is payable in full for a male fetus, in half for a female fetus, and by
one-third if the gender is undeterminable.” Therefore, blood money for a two
month-old female fetus is half of that for a male fetus. The Iranian legal
system discriminates between the genders of two month-old fetuses.
Citizenship
Some
of the most inadequate Iranian laws are those governing citizenship, which has
created numerous difficulties for children. In awarding citizenship to a child,
only the citizenship of the father matters, not that of the mother. Therefore,
if a woman becomes a citizen of Iran, her children are not considered Iranian
citizens. If an Iranian woman marries a foreign citizen and gives birth to a
child outside Iran, the child cannot acquire Iranian citizenship through the
mother.
The
lives of many Iranian children have been greatly affected by this law. When
they return to Iran with their mothers, they have no legal mechanism through
which to acquire Iranian citizenship and no civic rights. They cannot enjoy any
social or legal protections and live in a state of constant uncertainty. In
order to apply for Iranian citizenship, such children must live in Iran until
age 18 and may begin the application process at age 19. As children, they are
essentially being punished for not having an Iranian father. They are deprived
of educational benefits and other civic rights. If children could become
citizens of Iran through their Iranian mothers, this problem would be solved.
Children
Born out of Wedlock
Iranian
laws fail to protect children born out of wedlock. According to Iranian law,
the parents of these “illegitimate” children are defined as “natural” parents
as opposed to “legal” parents. Natural parents do not have a legal right to
raise their children, according to Iranian law, and can lose custody of them to
“legal” guardians.
Article
1167 of the Civil Law states that “A child born out of wedlock cannot be
attributed to the adulterer or male violator.” Therefore, children born out of
wedlock cannot inherit wealth or property from their parents and their parents
do not have any financial responsibility towards them. Also, their civic rights
such as citizenship or child support can be compromised. These children are
deprived from their full civil, legal, and human rights because their parents
engaged in an “illegal” relationship.
Conclusion
This
article addresses only a small part of the discrimination imposed on Iranian
children through the legal system. Laws governing the lives of children,
including homeless children, have created many challenges in our society. The
custody of children after divorce and the status of those who lose their
fathers present still another set of legal setbacks in the context of
children’s rights. The lack of legal authority for Iranian mothers to manage
their children’s assets, and the absolute rights given to the fathers and
grandfathers to control their children’s destiny and property is another aspect
of the inadequacy of the governing laws.
Current
law must be changed to conform to international standards of human rights,
specifically the rights of children. For years, children’s rights activists,
along with international supporters, have worked to achieve small changes.
Increasing the legal age for marriage is one of them. Yet a human rights crisis
exists in Iran today. Children, women, students, journalists and many other
social groups need legal protections to achieve freedom and equality. Any
attempt to improve the legal status of any of these and others groups is a step
towards fulfilling the goals of humanity and enhancing human rights. It has
become the most important struggle of Iranian society at this time in its
history.
________________________________________________________________________
Lily
Pourzand is a law school graduate from Shahid Beheshti University in Tehran.
Ms. Pourzand has been involved in various
research projects related to women’s
issues, including at the Center for Gathering and Studying
of Iran’s Human Rights Documents, Human Rights Issues in Khatami’s Era, and the
Iranian Women’s Conference.
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