Public Law
Seyyede fateme haghighat talab; Reza Sharifyazdi; Mohammad Jalali
Abstract
Iran's first constitution, called the Mashruteh constitution, was constituted of two parts; NezamNameh Asasi and Motammem. This constitution is the initial document that marked the end of absolute monarchy and the commencement of the rule of law in Iran. Such a valuable text warrants extensive research ...
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Iran's first constitution, called the Mashruteh constitution, was constituted of two parts; NezamNameh Asasi and Motammem. This constitution is the initial document that marked the end of absolute monarchy and the commencement of the rule of law in Iran. Such a valuable text warrants extensive research as an introduction to comprehending the concept of a constitution in contemporary Iran. Nevertheless, it has not received adequate consideration and analysis.
In this regard, the present research focuses on a specialized examination of the drafting and arrangement of the Mashruteh constitution. For this purpose, this text discusses the necessity of drawing inspiration from other countries for drafting this constitution, its drafting process, its authors, and the determination of reference constitutions.
The results clarify that the majority of Articles in the Motammem and many in the NezamNameh Asasi borrowed or, in some cases, adapted from the constitutions of other countries. The NezamNameh Asasi drew inspiration from various foreign constitutions; However, the authors made significant changes in the foreign concepts to align them with the conditions of Iran. On the other hand, in the drafting of Motammem, few articles are unique to Iranian law, and most others are rooted in the Belgian Constitution of 1831.
Public Law
Mohammad Jalali; Mehrdad Aghaei
Abstract
Linguistic minorities often have their own unique lifestyle, culture, and traditions, and they have distinct demands based on their culture. In short, this demand pertains to their right to use their mother tongue, which is different from the right of each member of these groups to use their mother tongue ...
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Linguistic minorities often have their own unique lifestyle, culture, and traditions, and they have distinct demands based on their culture. In short, this demand pertains to their right to use their mother tongue, which is different from the right of each member of these groups to use their mother tongue individually. They demand the right to use their mother tongue collectively and as a third-generation right. However, sometimes the demand for this right conflicts with national security and territorial unity. Some governments, based on their approach to the issue of rights, the conflict between them and the public interest and their own security policies limit the right to the mother tongue and take a confrontational and restrictive stance on both the general right and the specific right to the mother tongue, in consideration of the issue of territorial unity. This study aims to explore and explain the theoretical framework of this conflict and its reasons, and to provide strategies for solving this problem by describing and expanding on various theoretical discourses related to the subject. Another goal of this study is to explore some of the concepts involved in this subject and to examine an appropriate theoretical approach to related concepts, which also aids to answer the main research problem. As research backgrounds, reference can be made to the book "Language Rights and Political Theory" by Will Kymlicka, published by Oxford University Press in 2007, and the book "National Security, Human Rights, Political Legitimacy in Fragile Democracies: An Introduction to the Foundations of National Security Law" by Mehdi Rezaei, published by Khorsandi Publishing in 2018.The main purpose of this research is to explain the relationship between the right of linguistic minorities to use their mother tongue and national security and territorial unity? Within this framework, the present study, while reviewing and analyzing all the concepts involved in the subject, by adopting a reductionist approach towards the rights of minority groups and emphasizing the individual nature of rights, and with attention to the requirements of positive discrimination in insuring group rights, explains and defends the rights of minority groups to the mother tongue and the necessity of ensuring those rights. It also examines and analyzes the relationship between the right to the mother tongue and national security, and territorial unity. It shows that the closer a state's security discourse is to a negative and commodity-based interpretation, the more threatened national security and territorial unity will be, and the more it will be in conflict with the right to the mother tongue. The choice of a political-legal system to adopt a security theoretical manifest has a direct impact on the definition and boundaries of national security in that country, and the degree of its democracy and human rights also has a complete impact on the model and approach of its security discourse. Non-democratic and non-human rights systems that adopt traditional discourse in national security not only refuse to tolerate any objections and opposition by the people but also, based on various security pretexts and through "securitization", initiate suppression and threatening of public freedoms and citizens' rights. However, the modern discourse, with a focus on the citizens' demands, internal vulnerabilities, and socio-economic issues, and with regard to pluralism, democracy, and human rights, seeks security through creating national convergence and synergy. The postmodern discourse, on another hand, looks at national security with a focus on global security centered on human beings and from the perspective of fundamental human rights, culture, and cultural issues. Therefore, the two modern and postmodern discourses not only recognize the right to the mother tongue, but also guarantee it and consider guaranteeing it as a booster of national security. Regarding the right to the mother tongue, political regimes with a traditional security approach see this right and its enforcement in conflict with national security, and thus restrict the freedom of linguistic minorities. Non-democratic and non-human rights regimes, with a security-oriented approach, always label linguistic minorities as secessionist forces and with various titles, including labeling them as threats to national security and unity, and territorial unity, and they restrict the freedom to use their mother tongue. It seems that the democratic or non-democratic and human rights or non-human rights nature of a political system determines which security approach and discourse that system has, and it is this discourse that shapes the government's position on the basic freedoms and rights of the people and following that, the path of that political system will become apparent. In the face of the duality of “the existence of linguistic diversity and minorities increases threats and insecurity”, or conversely, “confronting the linguistic freedoms of minorities leads to their dissatisfaction and desire for secession", the proposition of the authors is the second approach; especially since governments that seek security only outside their borders with a traditional security perspective, naturally overlook internal security threats or even consider their source as foreign, and over time, people’s dissatisfaction with the deprivation of their fundamental freedoms such as linguistic freedom will only be one of the problems and dissatisfactions, and economic and social problems will also prevail. at that time, the centrifugal forces due to injustice, economic deprivation, and restrictions on fundamental freedoms will become more apparent. Therefore, in a general proposition, the less democratic a government is and the less commitment it has to human rights, the more traditional and outward-looking its security policies and approaches will become. It will also restrict domestic rights and freedoms, resulting in an increase in centrifugal forces and threats to national security and territorial unity. Regarding linguistic minorities Specifically, the more the governments disregard democracy and human rights, the more probable that they view national security negatively so as to consider threats only from external or foreign roots. By closing these outlets and making the phenomenon of linguistic diversity and minority mother tongues a security issue, they threaten the freedom of using the mother tongue in many aspects. On the other hand, focusing on militarization to gain security at exorbitant costs, neglecting human rights and freedoms, and the absence of a monitoring and desirable balance system for a democratic system will lead to a "crisis of efficiency" and a "crisis of legitimacy" of that political system, which will result in deep economic and social crises and dissatisfaction, especially among minorities. This economic pressure, coupled with severe repression of the freedom to use the mother tongue, will plant the seed of anomie and subsequently, the revival of separatist movements and threats to national security. Thus, the unity of the land and territorial unity will be compromised.
Mohammad Jalali; Saeed Barkhordari
Abstract
The Prosecution is one of the most important public institutions in the realization of the rule of law and the protector of political rights and freedoms. However, there is no theoretical basis or practical practice regarding the position of this institution among the three powers. Affected by the legal ...
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The Prosecution is one of the most important public institutions in the realization of the rule of law and the protector of political rights and freedoms. However, there is no theoretical basis or practical practice regarding the position of this institution among the three powers. Affected by the legal structure and historical and political issues of each country, four factors have been influential in the formation of the position of the Prosecutor's Office: the executive structure; the structure of the judiciary; the independent prosecution; and the elected prosecution, which makes it impossible to introduce a desirable and ideal model for all systems. However, this paper will attempt to examine the four factors and concerns about the prosecution's position among the three powers. These factors include: the independence of the prosecutor's office; the separation of the Prosecution and Adjudication; and the need for prosecution policy-making and accountability. For the desirable position of the prosecution among the powers, it is necessary to strike a balance among these four concerns and effective factors in accordance with the political situation and the historical context of the formation of powers in any legal system.
Keyvan Sedaghati; Mohammad Jalali
Abstract
Abstract: management of Public endowment affairs without a trustee or an unknown one and private endowment have been delegated to endowment and charity affairs organization under certain conditions. Supervisor is an authority that the settler appoints for supervising trustee’s affairs and accurately ...
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Abstract: management of Public endowment affairs without a trustee or an unknown one and private endowment have been delegated to endowment and charity affairs organization under certain conditions. Supervisor is an authority that the settler appoints for supervising trustee’s affairs and accurately implementing the deed for an endowment. In this review, we criticized maximum supervision by the government agent (endowment organization) in the field of endowment. We also criticized withdrawal of observer’s fee from incomes of disputed endowments and proponents’ reasons for government supervision that have relied on concepts including “charity affairs”, Muslims interests”, “public interests” , and “government dignities” . Doing so, we investigated statute law and practices of endowment organization and opinions of general board of administrative justice court. Hence, considering concepts including “respecting settlers’ intents”, “guarantee the independence of the endowment”, “delegating most of management and supervision to citizens” in line with “reducing role of government controlling endowments” and “reinforcing civil society” will be led to this conclusion that related rules and regulations are at least not tolerant to interpretation of receiving observer’s fee from endowments income by the endowment and charity affairs organization.
Mohammad Jalali
Volume 17, Issue 47 , October 2015, , Pages 71-100
Abstract
Today Decentralization, has been globally accepted as a modern approach in administration of nation –states. The conviction is that it must be governed and codified by various principles so that it may serve as guidelines both in theory and practice and to be applied by commentators, scholars and ...
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Today Decentralization, has been globally accepted as a modern approach in administration of nation –states. The conviction is that it must be governed and codified by various principles so that it may serve as guidelines both in theory and practice and to be applied by commentators, scholars and authorities in policy-making and law-making process and in shaping various political, administrative and judicial policies. The principle of administrative freedom of local units, the principle of priority in implementation by local units, and the general condition of competence are instances of the principles existing therein. In Iran, due diligence has neither been paid to such principles in regards with policy-making and law-making process nor as to any decentralization project carried out across the country thus far .The reason behind this is probably that the said principles hardly have any reflection in the countries constitutional – administrative doctrine . The present article, particularly by making reference to their status in France jurisdiction, shall use investigative - descriptive approach as to identify these principles in French administrative law, then it employs analytic approach in reviewing the absence of such principles in Iran’s law and the implications thereof
Mohammad Jalali; Rezvan Ziaei
Volume 15, Issue 39 , July 2013, , Pages 129-166
Abstract
In every society, power is deemed as an essential element for securing andmaintaining sovereign governments worldwide; however, human history showswhere it is not laid under control and supervision, in the absence of unaccountabilityto members of society, there is a likelihood of its inclination towards ...
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In every society, power is deemed as an essential element for securing andmaintaining sovereign governments worldwide; however, human history showswhere it is not laid under control and supervision, in the absence of unaccountabilityto members of society, there is a likelihood of its inclination towards abuse of powerand corruption. Meanwhile, even so the government structure may well be assumedas democratic, maintaining constant supervision over its various constituentelements and divisions is a prime objective destined, within a legal framework, to beachieved and that it requires efficient supervisory vehicles in place as to carry outduties of such grave importance. Notwithstanding that, it is a duty assumedprimarily on judicial bodies to fulfill, prevalent complexity and bureaucracy in mazyaisles of courts coupled with lengthy proceedings therein, compelled some statesestablish organizations delegated to deal with complaints brought by people throughnon-judicial fast and brief process. These organizations were termed “Ombudsman”or non-judicial supervisory institutions.Nowadays, Ombudsman-providing the public with convenient non-judicialmechanism, through which their complaints against government are heard - isconsidered as an indication of political development and an inalienable part ofeffectively protecting basic rights of citizens living in democratic societies, to suchextend that one may argue that the notion of a democratic and developed nation maynot realize without independent and efficient Ombudsman in place. Indeed, bystriking a balance between the interests of the people and the government to whichthey are nationals, Ombudsman function as powerful mean laying down thenecessary foundation for realization of a favorable democracy. Accordingly, giventheir superb functionality and potentials, Ombudsmen may well serve the vitalpurpose of developing and institutionalizing a democracy by reinforcing itsfundamental principles and satisfactory addressing of citizens grievances or petitionswhich may arise as a result of government wrongdoing.Adopting a question-oriented approach and through a descriptive-analytic method, thispaper attempts to examine the relationship between democracy and Ombudsman as anon-judicial supervisory establishment; and respond to the questions of how and bywhat means may it globally contribute to development of democracy.
