The Right to Privacy

By Mohammad-Ali Dadkhah

Article 12 of the Universal Declaration of Human Rights states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

As part of our special series focusing on the Universal Declaration of Human Rights, Mohammad-Ali Dadkhah, an attorney and a civil rights activist, discusses Article 12 of the Declaration. Mr. Dadkhah is also a renowned legal historian.

As far as the Iranian judicial system and Article 12 of the Declaration is concerned, we have to focus on three areas: 1) Iranian customs, norms, culture, civilization, traditions and way of life; 2) Iran’s legal system; and 3) a comparative look at the laws of Iran and international law:

In 534 B.C., Cyrus the Great of Persia declared the “Charter of Human Rights,” which in many ways was more progressive and complete than the 1947 UN Declaration of Human Rights. Specifically, it addressed privacy rights and proclaimed that the views, beliefs, customs and religions of all nations under the great and vast Persian Empire are to be fully respected.

Cyrus himself was of course a Zoroastrian. Except for a reference in some texts to Ahura Mazda (the Zoroastrian God), in none of his decrees, orders or declarations did the monarch or the Achenmeian Empire promote or endorse the Zoroastrian faith over others.

This set a standard throughout the centuries and millennia of Persian civilization: No one may breach the privacy rights of others, nor persecute them for their views or beliefs.

Even when Islam came to Persia, the Iranian version of Islam respected this principle by stating: “We do not have the right to unveil the ugliness, faults, imperfections and shortcomings of others.”

The principle is also unambiguously stated in the 1906 Constitution, which came about as a result of Iran’s Constitutional Revolution.

There is a very famous proverb in the Persian language that says “Char Divari Ekhtiyari,” which roughly translates into “What one does under one’s roof is his or her own business.”

However, we have seen this principle violated by governments past and present. The same principle is even included in Article 22 of Iran’s current Constitution, which states: “The dignity, life, property, rights, residence and occupation of the individual are inviolate, except in cases sanctioned by law.”

In fact, one factor that led to the 1979 Revolution was SAVAK's (the Shah’s feared secret police) systematic violation of citizens' privacy rights.

It should be noted that many of the enlightened, progressive, liberal and tolerant views and principles expressed in the post-revolution Constitution are a direct consequence of the cruel actions of the previous dictatorship in Iran.

One example is Article 25, which states: “The inspection of letters and the failure to deliver them, the recording and disclosure of telephone conversations, the disclosure of telegraphic and telex communications, censorship, or the willful failure to transmit them, eavesdropping, and all forms of covert investigation are forbidden, except as provided by law.”

However, I take issue with “except as provided by law.” This is a copout and it isn’t limited to this single article.

Examples include Article 24: “Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law.” And Article 168: “Political and press offenses will be tried openly and in the presence of a jury, in courts of justice. The manner of the selection of the jury, its powers, and the definition of political offenses, will be determined by law in accordance with the Islamic criteria.”

Hence, we see that the Constitution as the “supreme” and “mother law” is violated and superseded frequently through “regular” laws and statutes ratified by the judicial and legislative branches. This is trampling upon the Constitution pure and simple.

Viewing it from the prism of international law, two points need to be raised: The first, instances in which human rights are violated in outright breach of the Constitution, international law and the Universal Declaration of Human Rights; the second, “exceptions” such as “except as provided by law,” added to the Constitution to provide a “green light” to draft and ratify laws contrary to principles of human rights, international law and the Constitution.

I now want to discuss Iranian morals, customs, norms, culture, civilization, traditions and way of life. Persians not only want but expect their privacy rights to be respected. In a boarder and more general sense, they accept the principles of the Universal Declaration of Human Rights, which is also reflected in the ethics and morals of ancient Persia, the 1906 Constitution and the post-1979 Constitution. However, we see that in practice the ruling establishment violates these principles.

Elsewhere, there is Article 9 of Iran’s Civil Code, which states: “Treaty stipulations, in accordance with the Constitution, concluded between the Iranian Government and other governments, shall have the force of law.”

In addition, there is “the Rights of Citizens,” drafted by the Judiciary and ratified by the Majlis (Parliament). But we see that, day in and day out, all of these laws are ignored and dishonored by officials in charge.

Recently Iran’s president stated that the “the Rights of Citizens” should be respected. The question is who should respect it? Human rights is a pact between the government and the people. But the fact is in Iran one side (government) doesn’t abide by its obligations.

I also want to mention Article 27 (Internal Law and Observance of Treaties) of the 1969 Vienna Convention, which states: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

This shows that the principle of national sovereignty may be superseded by international law toward preserving the rights of peoples. Distant examples include the Nuremberg Tribunals, and more recent examples include the court that tried former Yugoslav president Slobodan Milosevic, the Rwanda and Haiti tribunals, and the recent arrest warrant by the International Criminal Court issued for the Sudanese President Omar al-Bashir.

One other point I would like to make is that after September 11, and the wars in Afghanistan and Iraq, the privacy rights as well as the life and liberty of many innocent people were and continue to be infringed upon. In order to protect and safeguard the life of innocent human beings around the world, a global response and mechanism are required.