Public Law
Seyed Naser Soltani; Faezeh Salimzadeh Kakroudi
Abstract
IntroductionConstitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often took shape in the guise of established customs. Yet, the passage ...
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IntroductionConstitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often took shape in the guise of established customs. Yet, the passage of time has highlighted the constraints of fixed principles when confronted with the dynamic demands of evolving societies and emerging generations. Should these principles fail to evolve in sync with contemporary concerns, even the most meticulously crafted written constitution risks becoming an archaic relic, relegated to obscurity on library shelves. Constitution Revision functions as an equilibrium between the twin poles of stability and transformation. It serves as a counterbalance that wards against the pitfalls of constitutional instability and ceaseless amendment, while simultaneously safeguarding the elasticity that codified principles. need to accommodate evolving circumstances The concept of constitutional revision is mentioned in the texts of codified constitutions in many legal systems. However, unwritten constitutional adjustments and revisions remain. Notably, in Iran, the interplay of customary transformations alongside formal amendments revealed an intriguing omission—namely, the absence of explicit reference to constitutional revision in the face of shifting societal paradigms. A parallel scenario arose post-Islamic Revolution when the developing Constitution of the Islamic Republic of Iran neglected to incorporate a provision for the revision of its textual framework. Only after the decree of Ayatollah Khomeini (RA) was the principle of revision formally enshrined within the constitution's text. Yet, despite this articulation, after more than three decades this principle still lays dormant. Simultaneously, in reality and practice, there have been undeniable modifications to the implementation and utilization of certain constitutional principles, alluding to a state of "unofficial" revision that contrasts with the structured processes outlined in the Constitution. The Comprehensive Nature of Constitutional ChangeA constitution, despite its comprehensive purview, seldom possesses the capacity to encapsulate the entirety of a political system. Irrespective of its encompassment of legal principles, even the most autocratic or democratic political framework grapples with the challenge of reflecting the evolving tapestry of political changes within the confines of a constitution. In instances where a nation's constitution remains ostensibly unaltered over prolonged periods, the possibility of a subtle, unwritten evolution looms large. This article tries to elucidate the framework of informal constitutional modification through established customs. Drawing from historical precedents predating the Islamic Revolution, as well as post-revolution occurrences, alongside a comparative exploration of revision experiences in global jurisdictions, the article embarks on a quest to address the central query: Can the constitution undergo revision by way of constitutional customs? Research BackgroundRegarding unwritten constitutional principles, the specific concept of constitutional revision remains shrouded in relative obscurity, with an absence of comprehensive articles or treatises delving into its intricacies. Iranian legal scholars, while contributing to the discourse surrounding formal revision within the constitution, have largely overlooked its informal, customary dimensions. MethodologyThis article embraces a descriptive-analytical methodology, an approach that holistically examines the subject matter in both its historical and contextual dimensions. The descriptive aspect entails a meticulous dissection of the historical progression of unwritten constitutional revision, tracing its evolution from pre-revolutionary times to the contemporary landscape. This chronological expedition provides invaluable insights into the genesis, evolution, and possible trajectories of unwritten revision. on the other hand, the analytical dimension engages in cross-examination of these historical occurrences, thereby identifying patterns, disparities, and commonalities that serve to shed light on the possibilities of informal constitutional change. This dual-method approach fosters a comprehensive comprehension of the subject matter by situating it within both its historical and contemporary setting. ConclusionAmendment and review of legal statutes are an essential part of societal development. The underlying philosophy of legislative endeavors centers on catering to societal needs, and as long as these needs persist, the volume of legal regulations inevitably increases. However, refinement and revision of existing laws rather than a sheer accumulation of statutes is an astute strategy. While the process of altering a constitution is inherently intricate, at its core, it is a form of legislation that demands responsiveness to contemporary demands. When textual revisions are hindered or fall short of aligning with the evolving demands, customary revision acts as a potential alternative. The identification and utilization of foundational customs play a pivotal role in the process of constitutional amendment. Nonetheless, caution must be exercised to prevent the misuse of these customs as tools for political manipulation. These fundamental customs, when synchronized with the tenets of governmental institutions, political actions, and the constitution's fundamental spirit, can facilitate the refinement and adaptation of core legal texts. The ambit of their influence, however, is subject to the limits and powers of governmental bodies and political actions. However, they cannot overrule the individual liberties enshrined within the constitution. In essence, these customs should function as instruments of societal progress in harmony with prevailing needs, rather than mechanisms for advancing political agendas.
Abdolmajid Soudmandi
Abstract
Reasonableness and Legality of judicial decisions are among the most accepted legal principles governing judicial and quasi-judicial institutions, and the Administrative Justice Court (“AJC”) as a judicial institution is subject to this rule. However, it is undeniable that in some cases, ...
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Reasonableness and Legality of judicial decisions are among the most accepted legal principles governing judicial and quasi-judicial institutions, and the Administrative Justice Court (“AJC”) as a judicial institution is subject to this rule. However, it is undeniable that in some cases, the General Board of Administrative Justice Court (“GBAJC”) has evaded or neglected to abide by this rule.
Failure of the GBAJC to comply with this rule could be occurred in invocation of any of the legal evidences. In this paper, by studying the types of violation of this rule by the GBAJC in invocation of "the Constitution", it was seen that this violation resulted in issuing doubtful or even wrongful decisions. Hence, given that the GBAJC is the unique referee for complaint of governmental regulations, and its judgments are not supervised by any other institutions, it can be rightly expected that it shall try harder for precise observance of this rule; in particular, given that the consequences of its wrongful judgments in revocation or not revocation of governmental regulations not only is confined to the plaintiff itself but can affect a large group of people.
Keywords: Reasonableness of Judicial Decisions, the General Board of Administrative Justice Court, Judgment, the Constitution, the Guardian Council.
abbas Mirshekari; marzieh mokhtari; javad farahani
Abstract
The paper is trying to show on the existing potential of Articles 2nd and 3rd of Iranian Constitution as ones of basic principles for defining the issue of citizenship and in order to representing the capacity of above mentioned articles for forming construction of the system of citizenship rights – ...
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The paper is trying to show on the existing potential of Articles 2nd and 3rd of Iranian Constitution as ones of basic principles for defining the issue of citizenship and in order to representing the capacity of above mentioned articles for forming construction of the system of citizenship rights – encompassing general guaranties of recognition, improvement, protection and ensuring the rights and freedoms for every citizen. we examine if the theoretical model of citizenship cube and its doctrinal basis is applicable to explain and interpret the aforesaid articles and also, to comprehend some complex layers and dimensions thereof. According to the citizenship-oriented theories, one side of the cube is consisted from five elements of citizenship, i.e. civil and legal, social, political, virtue-related and identity-related aspects. The other side of the cube is composed from functional networks or, in other words, the geographical levels of citizenship including local, provincial, statistical, regional and universal levels. And the last side is shaped from educating citizenship capacities covering levels of knowledge and skill. It is to argue that some contents of the Articles can be creatively employed to propose citizenship cube and to provide the legal capacity for understanding the model within the Constitution.
