Source: Center for Human Rights in Iran
The growing number of women refusing to cover their hair while driving in Iran, especially during the hot summer months, has resulted in renewed threats of arrests for violations of the country's mandatory hijab law.
A woman stopped for not observing proper hijab while driving
However, the hijab-the head-to-toe Islamic dress code that women in Iran are required to observe-is only mandatory in public spaces, and the increasing visibility of women with "bad hijabs" in their cars has sparked debate over whether cars are private spaces.
"The Supreme Administrative Court could settle the debate with a final ruling," Hossein Raeesi, a former human rights lawyer and member of Iran's Bar Association, told the Center for Human Rights in Iran (CHRI).
"If someone inside a car starts firing a gun at people, that would be an obvious criminal act and the police could react without a judicial order," he said. "But if a woman lowers her hijab to cool off or even if she doesn't want to wear the hijab at all in her own car, the police would not be justified in taking action without a court order."
"The Law on Prevention of Vice is legally faulty because it violates the Constitution and contradicts the Criminal Procedures Law," added Raeesi, who practiced law in Iran for 20 years.
To end the debate, Raeesi suggests that the government ask Parliament to explain why it passed contradictory laws in the first place and offer a solution.
"Parliament should explain why they passed one law in 2014 that says private vehicles are private spaces and then a year later passed a different law that says the opposite," he said.
"Maybe they will notice their mistake and say that cars could be entered only in extraordinary situations," he added.
In the meantime, Iranians can sue any authority that violates the private space inside their vehicle, Raeesi told CHRI.
"If passengers are ordered by the police or vice squads and the like to step out of a private car and be searched without a judicial order, they can sue them in court for violating the Constitution and the Criminal Procedures Law," he said.
Iran's notorious morality police, a branch of the security forces co-directed by the Revolutionary Guards and the Interior Ministry, routinely subject Iranian men and especially women to harassment and arrests for alleged inappropriate public behavior.
According to Article 638 of the Islamic Penal Code: "Women, who appear in public places and roads without wearing an Islamic hijab shall be sentenced to ten days to two months' imprisonment or a fine of 50 thousand to five hundred rials."
Police Spokesman Saeed Montazer al-Mahdi declared on July 4, 2017 that if a space is in public view, it would no longer be considered private and police will take action if they witness any "abnormal behavior."
A week later, National Traffic Police Chief General Taghi Mohri warned that the same rule applies to cars with darkly tinted glass.
"The law specifies that tinted glass on cars should be bright enough so that the occupants are visible from three meters (10 feet) away," he said on July 11. "So we won't accept any excuses like blaming it on the people who installed it at the shop."
"At the same time, we will crack down on dealers who sell darkly tinted glass," he added.
Contradictory laws have exacerbated the issue.
On the one hand, Article 9 of the Constitution prohibits enacting laws that "abrogate legitimate freedoms... under the pretext of preserving the independence and territorial integrity of the country."
"Article 9 is a golden rule that cannot be broken even by an act of Parliament
because the Constitution overrides all other laws," Hossein Seifzadeh, a member
of Iran's Bar Association, told CHRI.
Hossein Seifzadeh, a member of Iran's Bar Association
Articles 55, 56 and 137 of Iran's Criminal Procedures Law meanwhile state that private spaces can only be entered with a warrant.
"When there are strong indications that a suspect or criminal material may be inside, homes and closed establishments as well as other private properties can be entered and searched with a judicial order that includes reasons for the operation," states Article 137.
Seifzadeh also told CHRI that the Supreme Administrative Court confirmed the law in 2001 by ruling that private cars are considered private spaces and entering them requires a warrant.
Nevertheless, the police are basing their actions on Article 5 of the Law on Prevention of Vice, which states, "Areas visible to the public, such as common areas in apartment buildings, hotels and hospitals as well as vehicles, are not considered private spaces."
Judicial officials are backing the hardline stance.
On June 27, 2017, Asadollah Jafari, the prosecutor of the city of Sari in northern Iran, claimed that women with "bad hijabs" would face criminal prosecution and their vehicles would be impounded if they violated Article 638 of Iran's Islamic Penal Code 8.
Article 638 states: "Anyone in public places and roads who openly commits a harām [sinful] act, in addition to the punishment provided for the act, shall be sentenced to two months' imprisonment or up to 74 lashes; and if they commit an act that is not punishable but violates public prudency, they shall only be sentenced to ten days to two months imprisonment or up to 74 lashes."
The Charter on Citizens' Rights, which was signed by President Hassan Rouhani in December 2016, upholds citizens' rights to privacy, but state bodies are not required to obey the non-binding document.
According to Article 36: "Every citizen has aright to have their privacy respected. Residences, personal spaces, belongings and vehicles are immune from search and inspection, except pursuant to the law."
Parliamentarian Yahya Kamalipour, a member of the Legal and Judicial Affairs Committee, has publicly opposed the police's policy on hijab observance in cars.
"Based on a number of our laws, the interior of a vehicle is considered to be a private space and violating that space is prohibited," he said on July 7, 2017.
However, ultimately Parliament and the courts must decide which law trumps the other, Raeesi told CHRI.
"There is no legal definition of a proper or improper hijab," he said. "It's completely arbitrary. The clothes many women in Iran wear today were considered improper hijabs two decades ago."
"Therefore, Parliament must clarify what the hijab is and put and end to the arbitrary prevention of so-called vice," he added.
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