Public Law
Mohammad Amin Abrishami Rad
Abstract
IntroductionArticle 4 of the Constitution of the Islamic Republic of Iran has determined the jurists of the Guardian Council as the competent authority to exercise religious supervision over the application of the general principles of the Constitution. According to this article, "All civil, criminal, ...
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IntroductionArticle 4 of the Constitution of the Islamic Republic of Iran has determined the jurists of the Guardian Council as the competent authority to exercise religious supervision over the application of the general principles of the Constitution. According to this article, "All civil, criminal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic standards. This article governs [deciding] the generality or specificness of all articles of the Constitution as well as other laws and regulations, and it is up to the jurists of the Guardian Council to determine this matter."In recent years, the jurists of the Guardian Council, in the exercise of their competence, have accordingly limited or allocated some of the articles of the Constitution by providing "direct and explicit Sharia interpretations" or "indirect and implicit Sharia interpretations".Assuming the competence of the Guardian Council jurists to supervise the implementation of the Constitution, one of the issues that must be discussed and investigated is the limits of the Guardian Council jurists’ power in exercising this competence.Research Question(s)To what extent can the jurists of the Guardian Council restrict the articles of the Constitution? Literature ReviewThis research topic has had no precedent thus discussing this matter is completely novel and new. MethodologyThis study tried to ask the question above by identifying the examples of this authority and analyzing them with a descriptive-analytical method. ResultThe research proved that, although the assumption of the absolute and unlimited competence of the Guardian Council's jurists to exercise Sharia supervision over the articles of the Constitution can be useful and effective in taking advantage of purposive interpretations that also consider the evolution of the legal system, this view can be criticized and unacceptable for various reasons.One error in this view is that complete discretion might lead to a violation of the intention of the writers of the constitution; because the majority of the members of the committee in charge of the final review of the constitution were among the faqihs and were Islamic scholars, they paid attention to Sharia when drafting the articles of the Constitution. On the other hand, before the referendum was held and the people voted on it, the draft of the constitution was approved by Imam Khomeini (RA) as a faqih; therefore, the claim that the writers of the Constitution have approved matters that may be in violation of the Sharia rules and Imam Khomeini (RA) also approved them and put them to referendum is not acceptable.On the other hand, the assumption of such absolute authority for the jurists of the Guardian Council is contrary to the necessity of maintaining stability and coherence in the Constitution as a national covenant. Prevalence of this view may cause instability in the coherence of Iran's Constitution. Also, this view will make it impossible to use the capacity to revise the Constitution, which is already set out in Article 177 of the Constitution.Therefore, to protect the status of the Constitution in Iran’s political system, it is necessary to assume the legitimacy of the content of the Constitution, and presume that the competence of the jurists of the Guardian Council interpret the Constitution is limited to the cases which the drafters of the Constitution have overlooked or neglected in the process of approving that article. Therefore, the jurists of the Guardian Council cannot declare the specific rules of the constitution as contrary to Sharia or to limit the general articles of the Constitution. ConclusionBased on the mentioned rule, if there is a conflict between the Islamic approach of the drafters of the constitution and the approach of the jurists of the Guardian Council, the approach considered by the drafters of the constitution should be adhered to. Also, Sharia supervision cannot in any case modify the structure or the mechanisms defined in the constitution or introduce a new structure in contrast with the existing structure.
Hossain Ayene Negini; Mohammad Amin Abrishami rad
Abstract
According to Article 170 of the Constitution, judges of courts are obliged to refrain from enforcing regulations contrary to Islamic laws and regulations. In the form of descriptive-analytical research, based on the application of the phrase "judges of courts" in this principle, the Statute of the Administrative ...
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According to Article 170 of the Constitution, judges of courts are obliged to refrain from enforcing regulations contrary to Islamic laws and regulations. In the form of descriptive-analytical research, based on the application of the phrase "judges of courts" in this principle, the Statute of the Administrative Court of Justice in the Iranian judicial system and the procedure of that Court, proved that the judges of the branches of the Administrative Court of Justice are subject to this principle and obliged to refrain from enforcing such during their proceedings. In this regard, according to Article 11 of “the 2013 Law on the Organization and Procedure of the Administrative Justice Court” that obligated the convicts in the branches of this courts to observe the provisions of the court's decision in their subsequent decisions and actions, it was concluded that, contrary to the supervision of other judges, if the judges of the branches of the Administrative Justice Court find the regulations to be contrary to the Islamic laws and regulations, in some cases it will be possible to invalidate them in general, which was referred to as the "implicit Revocation of Government regulations". However, this situation is inconsistent with the interpretive competence of other judges of the courts in Article 73 and the wording of Article 170, which states that "the effect of the supervision of the judges of the courts is occasional".
mohammad amin abrishami rad; Hamed Nikoonahad
Abstract
The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his authority over the types of referenda has remained vague. In this research, ...
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The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his authority over the types of referenda has remained vague. In this research, it was attempted to explain the concept of the term "issuing of the referendum" based on an intentionalist approach and in the form of descriptive-analytic studies, in order to explain the authority of the Supreme Leader in the process of substantive and legislative referenda. Analyzing the discussions of the members of the Review Council and considering other relevant indications, it could be argued that the term "issuing of the referendum" was intended to identify the practical action of Imam Khomeini in issuing the decree on the beginning of the process of the "Constitutional Revision Referendum" and it should be considered as the Replica of the first sentence of Article 177. Therefore, this authority of the Supreme Leader does not extend to referendum subject to Article 59 of the Constitution.
