Source: The Association of Combatant Clerics
Tuesday, August 4, 2009
After the controversial elections held in June 2009, Dr. Mohaghegh Damad released an open letter harshly criticizing the ten-year administration of Ayatollah Hashemi Shahroudi as head of the Judiciary. In this letter, Damad, who is a prominent professor of jurisprudence, law and philosophy, wishes that Shahroudi had continued his work on jurisprudence at the seminary in Qom instead of accepting a position in the Judiciary.
The following letter was published in the newspaper Ettela’at on August 4, 2009.
Honorable Ayatollah Hashemi Shahroudi
Head of the Judiciary
I remember in May of 1979 when I was on the pilgrimage to al-Najaf-al-Ashraf, Ayatollah Mohammad Baqer Al-Sadr (God bless his soul) greeted me as I entered the city and accompanied me to my residence with our mutual friend. What a blessed morning and auspicious night! I will never forget it. He was talking to me about his discussions with his beloved cousin, Imam Musa Al-Sadr, about my father’scourse notes and proposed theories in Qom’s school of jurisprudence. We talked about Maestro Morteza Motahari, whose martyrdom had occurred recently. He told me: “Mr. Seyed Mahmoud Hashemi Shahroudi, who is a son to me and has recently left Najaf for Qom for fear of death, can be a like-minded friend of yours”. I have since had the highest regard for you even though I had not seen you, and the first time we met I found you to be the same as he described. And now, for the sake of our old friendship and on the basis of my citizenship rights, I would like to write you the following candid lines:
In my opinion, the greatest and the most prevalent transitions for modern human beings in this century are linked to public rules of justice and the due processes of criminal law. Moreover, the world’s legal experts agree that the evaluation of a society’s system of justice and lawfulness is based on its public rules of justice and due processes of law. This is not an exaggeration by any means.
It is due to the existence of these basic rules that an individual knows which activities are crimes, which will be punishable by law, and, hence, which should be avoided in order to live in peace with one’s family. In the case of the former, the kinds of punishment and the processes and formalities of upholding this punishment are clear. In addition, if people are accused, the rights that they posses, the manner in which they are treated when they are charged and the ways in which they can defend themselves are known to them. I believe that although these procedures are written and regulated in this century, their origins and principles are so rational that they cannot be inconsistent with the higher teachings of Islam on the basis of open Shi’ite ijtihad. Hence, in the past, these procedures were approved by the great Islamic jurors of the time – such as Ayatollah Naeeni and Ayatollah Modares – and, fortunately, they were also approved by the official Marjas
after the Islamic Revolution. I believe that the primary demand of the Iranian nation in the Constitutional Revolution [of 1908], under the banner of the establishment of the House of Justice, was in fact the legislation of these principles and procedures. In fact, one of the motives for the upheaval of the Islamic Revolution was the fact that they were breached with the particularly unfair trials of the last regime.
Honorable Ayatollah Hashemi Shahroudi,
Please bear with my directness when I inform you that in your time as head of the Judiciary, not only was this basic pillar of social security trembling, it was in fact completely destroyed publicly. The Iranian nation has not paid a small price by any means.
I will not accept religious justification for violating the public rules of law and justice offered by some of our friends (whose wisdom and knowledge I will not accept, based on their “jurisprudence credentials”). You know well that I am a son of jurisprudence and I have a long history in this court. I can recognize the real Islamic jurors from those of the media. From what I know about you, you do not belong to the group of jurors who can support the idea of religious justification for breaching the due process of law.
Your 1995 lecture concerning the limits of relying on expediency is recorded in my office at the Iranian Academy of Sciences. I do not believe that your way of thinking has altered with the developments since then.
Several days ago, in a meeting with some of the relatively high officials, there was talk about the regretful events of the day and the unjust acts that were imposed on people; this news that was undeniable and confirmed in detail (I still wish it was all lies). Suddenly, one of the officials broke the silence, looked at me in a condescending way and told me that all these actions have religious justification!! God only knows that this phrase has burned my bones such that I am still in turmoil. I was reminded of the honourable Ali Ibn Abi-Talib who said that: “if a Muslim man dies after [hearing] this shame, I would not blame him; rather I would consider him worthy.”
Historians have written that Al-Hajjaj ibn Yusuf, in an order from an Umayyad Caliph (Abd al-Malik ibn Marwan), was ready to start a campaign of fear to silence the protesters. He entered Kuffa  with executioners , gathered everyone at the mosque, went to the top of the Minbar  and said “O people, neither will I have mercy for your children nor for your elderly. I will rebuke the innocent in place of the guilty, and I will hand them to the executioners based on mere speculation. . These are all in my authorities and whatever I find expedient is religiously legitimate!!” This kind of ideology mirrors the creation and development of the Ash’ari “theology without faith,” the implications of which are clear in Al-Ghazzali’s book, Al-Mostadhhari. If, God forbid, the public rules of justice and rules of court are breached, or violations of the law become justifiable with immoral justifications, life will become so bitter that (God forbid) even death will be better.
Since we are all honored and grateful to be followers of Ahl-ul-Beit  (peace be upon them) and open ijtihad on justice, we are forbidden from applying theocratic trusteeship, just as we are prohibited from abolishing contemplation on the beauty of justice and the odiousness of cruelty when our people can easily recognize both.
You, sir, have of course done a great service to the justice system; this is undeniable. However, regretfully, the bitter events that occurred under your administration and especially in recent days will never be forgotten by the people of Iran. Whether these events were orchestrated by government officials, by justice officials or whomever has judicial authority, only the Judiciary – for which you are responsible – will be held accountable.
I assure you that you were head of a branch of power that, despite all of the damages and failures, was still home to distinguished, courageous, virtuous, and judicially reliable judges who were shaped by the nature of the work and the structures of the past.
By supporting the independence of the Judiciary (which you did not), you could have solved many of the obstacles that squandered hours from the legislative branch.
You could have adjudicated the offending agents and the law enforcement (of any rank) involved in recent events by the noble judges; something you also have not done as of yet.
Amazingly, the judicial branch has been demoted to such a position that leaders of Friday prayers dare to suggest that it should act ruthlessly, lest they honor it for “producing confessions.” It’s as if they have forgotten the tradition of the Holy Prophet, who said that: “Anyone who is without mercy is without faith.”.
In actuality, the situation in the judiciary is such that the head of the executive branch  has requested that it act with Islamic kindness and human dignity. This is, of course, a great suggestion – thank God for his efforts – but wouldn’t it have been better if the President of the ninth government criticized his own interior minister and handed him to the justice system instead of producing these humanitarian suggestions? How can the minister, under whose responsibility these shameful events occurred, not be responsible? Isn’t this situation due to your delay in choosing a judicial course of action?
Under the codified laws of state, all prisons in the country are managed under the judicial branch; hence, your branch is responsible for them. Wouldn’t it have been better if you ordered the inspection of “Kahrizak prison” as well as its closure (once you found it to be unsuitable) before receiving the order from the Supreme Leader? Unfortunately, you delayed this decree for so long that this incident is now among the entries of a global encyclopaedia, in the records of the theocratic government of Iran and adjacent to entries for the Guantanamo and Abu-Ghraib prisons. I have heard from a reliable source that one of the contemporary Marjas who was vaguely following the trials being shown on state TV, has said: “it would be better for these trials not to be televised, as they are a disgrace to the Islamic judiciary!”
Friends of the writer of this script know that my openness is nothing new. Rather, the background papers I have written while reporting to the previous Supreme Judicial Council and to the executive positions which should be found in General Inspection Organization documents demonstrate and prove this claim. The officials of those days, who practically neglected my sincere advisory reports and solemn pleas for the correct enforcement of the law as well as my emphasis on institutionalizing civil life under the rule of law, are now trapped by violations of the law. I still believe that violations of the law are not in anyone’s interest and any delay in upholding the law is unjust and cruel for everyone.
I would like to apologize for this long letter. Although these lines are “too little, too late” since you are soon to leave office, they might be beneficial for future generations and a point of regret for you. I wish that you had continued your work on teaching and research at the seminary in Qom; that you had never entered this dangerous territory so as to have reached the level that your martyred maestro had hoped for you.
I will end this petition with a ghazal  from Hafez:
به قد و چهره هرآنکوکه ماه مجلس شد
جهـان بگيـرد اگر دادگستـري دانـد
Seyed Mostafa Mohaghegh Damad
August 2, 2009
1) Ayatollah Mohammad Mohaqeq Damad
2) Ijtihad (Arabic: اجتهاد), is a technical term of Islamic law that describes the process of making a legal decision by independent interpretation of the Quran and the tradition of the Prophet and Imams
3) The label provided to a Grand Ayatollah with the authority to make legal decisions within the confines of Islamic law for followers and clerics with lesser credentials.
4) First Imam of the Shi’ites
ولوکان امرءا مسلما مات من بعد هذا اسفا ما کان عندي ملوما بل کان عندي جديرا (5
6) A city in Iraq
7) A pulpit in the mosque where the Imam (leader of prayer) stands to deliver sermons
9)The House of the Holy Prophet
10) لا دين لمن لا رحم له
12)A ghazal is a poetic form in the Persian languages, consisting of rhyming couplets and a refrain, with each line sharing the same meter. A ghazal may be understood as a poetic expression of both the pain of loss or separation and the beauty of love in spite of that pain.