Forbidden act, the principle of legality of crime and punishment, Article 638 of the Islamic Penal Code of Iran.

Article 167 of the Constitution and Article 214 of the Code of Judicial Procedure of the General and Revolutionary Courts, approved in 1999, allow the criminal judge to issue a verdict in cases of silence, defect, brevity, conflict or ambiguity of the law, referring to jurisprudential sources. The ordinary legislator, relying on the wording of the said principle and its misinterpretation, and without considering other principles of the constitution and certain inalienable legal principles, has allowed the judge to refer to jurisprudential sources in criminal cases. This interpretation has caused the legislator to implicitly refer to Article 638 of the Islamic Penal Code by creating a general and vague criminal title of "pretending to commit a forbidden act" and the dubious application of the text of the said article on the punishment of the act of haram act in order to remove ambiguity from this article. Prescribe to the jurisprudential sources to determine the instance and punishment of the forbidden act. However, since this leads to the creation of a crime and falsification of punishment, it contradicts the principle of legality of crime and punishment and the principle of separation of powers and the exclusive competence of the legislature in the enactment of the law. Therefore, the logical interpretation of Article 167 of the Constitution requires that, given the acceptance of the principle of legality of crime and punishments in the Constitution, the permission to refer to jurisprudential sources in criminal cases should be avoided from cases that lead to the creation of crime and punishment. Therefore, in Article 638 of the Islamic Penal Code, referring to jurisprudential sources is contrary to the Constitution and Sharia standards. It is expedient for the legislator to amend or repeal this article and to pay more attention to the constitution in amending it. Before amending or repealing this article, the observance of the constitution requires that judges deal with unauthorized behaviors and punishments in law. Vote for innocence. < p >