Public Law
Abdollah Ghaderi; Haneh Farkish; Arkan Sharifi
Abstract
IntroductionAs a fundamental human right, the right to peaceful protest has always been the focus of governments. Therefore, after studying the concept and the legal framework concerning the exercise of this right according to the international documents, the constitution, important international principles, ...
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IntroductionAs a fundamental human right, the right to peaceful protest has always been the focus of governments. Therefore, after studying the concept and the legal framework concerning the exercise of this right according to the international documents, the constitution, important international principles, and standards, and also after examining theories of welfare and social contract, this essay has considered the theory of relative deprivation (the most complete theory proposed so far) as the basis of general dissatisfaction and then, by stating the importance and application of the right to peaceful protest and examining this right at the domestic level (according to Article 27 of the Constitution), it has tried to reach new findings that have not been accepted so far. In the following, by discussing and examining the standards for the implementation of the said right has been regarded and through referring to international documents, books, articles, theories, and especially the universality of human rights, the importance and enforceability of the rights contained in international documents, especially the International Covenant on Civil and Political Rights has been emphasized so that the governments be adherent to their international obligations. The right to peaceful protest, which has been recognized in Article 20 of the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights, and other international and regional documents, is a compound right that includes rights such as the freedom of opinion and expression, right of Self-determination, freedom of organization and association, etc. Therefore, the right to peaceful protest is specific to societies that follow a system of democracy, and accordingly, governments are required to provide the necessary preparations, platform, and space for its implementation given their responsibility to facilitate the implementation of human rights. These governments work to the benefit of the nation and should not put restrictions on this right in ways such as requiring permission or strictly monitoring peaceful protest gatherings by violating the privacy of the protesters, which effectively brings the implementation of the right of peaceful protest to a dead-end. Literature Review2.1. GharibNawaz in his book entitled Civil Liability of Persons in Public Protests (2015), examined the issue from the perspective of private rights and determined the situation where damages are caused by public protests and the loss is not compensable in the usual ways.2.2. Eslami and KamalVand in their article titled "Challenges of freedom of assembly in Iran's legal system in the light of the international human rights system"(2013), criticized and examined the freedom of assembly according to international legal documents, and examined the characteristics of gatherings (according to Article 27 of the Constitution), and also the restrictions limiting this right. They have reached the conclusion that the said right should be guaranteed and supported because it is a natural right and belongs to all people. MethodologyThe current research was carried out in a descriptive-analytical way, by describing various international and domestic laws and documents, as well as analyzing the various forms and criteria in governance aims to achieve a conclusive result in the pursuit of the right to peaceful protest. ConclusionIn the domestic legal field, considering the constitution and regarding the theory of relative deprivation as the main basis and criteria, it should be stated that failure to observe principles such as Article 59 of the constitution has been an important factor in dissatisfaction and the feeling of relative deprivation. Thus, by attracting the attention of the authorities to the need fot making important and decisive decisions in line with the implementation of this right, it would be possible to manage and minimize any dissatisfaction and feeling of relative deprivation in society. Another solution is to pay attention to \ Article 27 of the Constitution, which is in accordance with Article 20 of the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights, and international standards, and if it was necessary to include other conditions, the honorable legislator would have predicted so. According to the international standards and the practice of certain countries (including Germany) which have recognized the mere notification of a peaceful protest rally to be sufficient, and considering the mandate of the constitution, if there is a protest rally without a permit, but notification has already been made, we should consider such a gathering as legal and provide the legal support of the government. Concerning the matter of the foundations of Islam which is a precondition for the legality of gatherings in Article 27, one should try to have an interoperation in line with the benefit of the nation to do public good, and instead of expanding the scope of the mentioned clause, try to limit its examples so that citizens can protest peacefully while maintaining observing a specific legal framework. Regarding the actions taken by the officials and officers’ executive actions, it must be mentioned that they should try to manage the peaceful protest gatherings as best as possible by exercising discretion and balancing between the interests and the results of their actions so that there is no room to violate the rights of the protesters as well as third parties. Now, according to the above-mentioned, the absence of a Constitutional Court is sensed even more than before, and with which many problems would be solved, including determining the matters that disturb the foundations of Islam and the need to take permission. Finally, in the international arena, the lack of an Asian human rights institution or a court to manage and exert pressure on the governments of the region to meet their human rights obligations is felt more than ever. Considering the fact that most of the governments in the region are Islamic, it is a good idea to look for theinherent dignity of people and human rights in international documents instead of referring to the religion of Islam and especially the Holy Quran. On the other hand, with the expansion of the interactions and relations between countries, the existence of such an institution can solve many problems and fill many legal gaps.
