Public Law
Ali akbar Jafari Nadoushan; Omid Shirzad
Abstract
Introduction
As a landmark achievement of Iran’s constitutional movement, the Constitution was of such great importance that some representatives of the first National Assembly—many of whom were dedicated fighters in the Constitutional Revolution—memorized its principles as if they ...
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Introduction
As a landmark achievement of Iran’s constitutional movement, the Constitution was of such great importance that some representatives of the first National Assembly—many of whom were dedicated fighters in the Constitutional Revolution—memorized its principles as if they were verses of the Qur’an. Their commitment to upholding and protecting the Constitution was so unwavering that it seemed inconceivable that any harm could come to it. However, following the fall of the Qajar dynasty and the rise of Reza Khan Pahlavi, the Constitution underwent its first revisions. Power was transferred from the Qajars to the Pahlavis in a manner that contradicted constitutional principles. Furthermore, during Reza Shah’s 16-year reign (1925–1941), both the text and spirit of the Constitution were systematically distorted to serve an authoritarian will, leading to its decline in value and significance. This study aimed to examine the historical causes and contexts underlying these constitutional changes during the First Pahlavi period. By tracing the evolution of constitutional law in Iran, it tried to shed new light on this significant episode of Iran’s contemporary history. In this respect, the following research questions were addressed: What was the historical context behind the constitutional revision that facilitated the transfer of power from the Qajar dynasty to the Pahlavi dynasty? From a legal perspective, what processes led to the establishment of the Pahlavi monarchy and the dissolution of the Qajar dynasty? And during Reza Shah’s 16-year reign—aside from actions that directly violated constitutional principles—what justifications or apparently legal procedures contributed to altering and undermining several principles of the Constitution?
Literature Review
There is some serious research on the Constitution of Mashruteh. Notable among them are: “A Study of the Legal and Historical Foundations of the Evolution of the Constitution of Mashruteh” (Jafari-Nadoushan & Tavakoli, 2020), “The National Assembly as a Corridor for the Establishment of an Absolute Monarchy” (Khalili, 2011), and “Extra-legal Actions to Re-interpret Article 82 of the Constitutional Amendment During Reza Shah Era” (Ali-Sufi & Sadeghi, 2021). Building on the existing scholarship, the present study aimed to examine the revision of the Constitution and its legal implications. From the perspective of constitutional law, it explored the evolution of the Constitution and the gradual weakening of its principles through interpretative mechanisms.
3. Materials and Methods
The present study employed the library research to collect the data. Moreover, a descriptive–analytical method was used to analyze the data.
Results and Discussion
The first part of the research analyzed the amendment of Principles 36 to 38 of the Constitution and the transfer of power from the Qajar dynasty to the Pahlavi dynasty. A review of historical events of the time led to the conclusion that neither the establishment of the Constitution at the end of Muzaffar al-Din Shah’s reign in 1906 nor its revision in 1925 and the subsequent transfer of power to the Pahlavis followed a democratic process. In other words, in both 1906 and 1925, the Constitution—both in its establishment and later amendments—was shaped through a semi-authoritarian, semi-granted process, with minimal direct participation from the people. The second part of the research examined the substantive transformations of the Constitution that arose through the interpretation of certain principles. During Reza Shah’s 16-year reign, two significant attempts were made to interpret constitutional principles. Although these did not constitute formal constitutional revisions, their impact was profound enough to be considered in any study of constitutional evolution during the First Pahlavi period. The results support the hypothesis that these interpretations effectively led to the alteration and weakening of the Constitution. The first instance involved the interpretation of Principles 81 and 82, which resulted in the weakening of the judiciary and the erosion of judicial independence. The second occurred in 1938 when Principle 37 was interpreted to fulfill Reza Shah’s desire to establish a hereditary monarchy within his family.
5. Conclusion
The research findings confirm that in the post-Constitutional era—despite the weakening of tyranny, the preservation of territorial integrity, certain aspects of modernization, and some advancements—the conflict between the traditional authoritarian order and the democratic order persisted. This situation led to Reza Shah’s dominance over the Constitution. His dominance and violations of the Constitution occurred both during the transfer of power from the Qajar dynasty to the Pahlavi dynasty in 1925 and in subsequent years (particularly in 1931 and 1938) when the National Assembly interpreted the Constitution in ways that favored his rule. While the 1925 revision of the Constitution may be considered inevitable due to the shift in monarchy, the interpretations during Reza Shah’s reign were undeniably clear violations of the Constitution. These actions undermined principles of public law, such as judicial independence. The events of 1931 and 1938, which involved proposals from judicial ministers and interpretative rulings by the National Assembly, demonstrated that the Shah, as head of the executive branch, effectively dominated both the judiciary and the legislative branch. In doing so, he imposed his will to power on the Constitution.
Public Law
Hasanali Moazenzadegan; Seyed Mohammad Hosseini; Abdulqodus Arseen
Abstract
1. IntroductionA judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's ...
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1. IntroductionA judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's lack of trust in the judicial system leads to a decrease in the legitimacy of the political system which causes political and social crises and at higher levels, the collapse of the political system. Based on the principle of separation of powers, which has been one of the most important intellectual achievements of mankind in social administration, the power of the government is separated and divided into the three branches of legislative, judiciary, and executive organs (although they maintain their interaction), in order to prevent the concentration of power in one person or institution. Judicial independence is, therefore, one of the logical results of accepting the principle of separation of powers, the origin of which can be found in the era of Aristotle. Today, this principle is considered one of the most important principles and, in fact, the cornerstone of democratic governments–a form of government that seems better able to provide justice than other forms of government. The Principle of Judicial Independence in International Documents and the Legal System of AfghanistanOne of the results of accepting the principle of separation of powers, as mentioned earlier, is the acceptance of the principle of judicial independence. This principle has been discussed and supported in international and regional documents. In Afghanistan, for the first time during the reign of Amanullah Khan, it was recognized in Article 53 of the Constitution of Afghanistan (1923) by stating that "all courts are free from any interference". In the Constitution of the Islamic Republic of Afghanistan (2004), there is no clarity about accepting the principle of separation of powers. But from its general structure and its division of chapters –the fourth chapter (government) the fifth chapter (the National Council) and the seventh chapter (Judiciary) it is inferred that this principle is accepted. Judicial independence is also explicitly accepted in Article 116: "The judiciary is the independent pillar of the government of the Islamic Republic of Afghanistan". Research ProblemIn Afghanistan, in recent years, several criminal cases have resulted in decisions that raised questions about the status and position of judicial independence in the judicial system of the Islamic Republic of Afghanistan: Do judges and the judicial system of Afghanistan act independently? History of Research and Its MethodAlthough much research has been done about judicial independence in the world, it has received less attention in Afghanistan which is perhaps the reason why Afghan legal writers have made fewer claims about the strength or weakness of judicial independence in Afghanistan based on evidence. Therefore, evidence-based research about judicial independence, in which the personal judgment of the authors is minimized, is one of the needs of Afghan society. The main question of this essay is regarding the status of judicial independence, as one of the most important pillars of good governance, in the legal system of the Islamic Republic of Afghanistan.Judicial independence can be studied at both organizational and individual levels. At the organizational level, it is indicated by a look at factors such as the recognition of the independence of the judiciary in the constitution and other laws, the exclusivity of judicial authority in the judiciary, the binding nature of the rulings of the judiciary on other organs, administrative independence, and finally, its financial independence. Also, to evaluate individual judicial independence, one should consider indicators such as the process of selecting and appointing judges, job security of judges, prohibition of engaging in political and other duties for the judges, prescribing objective conditions for their promotion and demotion, documentation of judicial decisions, establishing a judicial panel in court, judicial immunity, the salaries of judges and finally their safety and security. Conclusion The results of this study show that in Afghanistan during the republic period, at the organizational level, while the independence of the judiciary was recognized in the constitution and other laws of the country, the exclusion of jurisdiction in the judiciary was not desirable. The rulings of the judiciary were not so binding on other organs which had damaged its independence. Administrative independence was also weak, but financial independence was in a good condition. At the individual level, the selection and appointment of judges was not suitable, but the job security of judges had been relatively good as the mechanism of hiring judges was in a good situation that ensured their job security to a large extent. The guarantee of the prohibition of their employment in political duties was weak, but in other duties, the ban had been appropriately executed. Also, while the prescription of objective criteria for the promotion and demotion of judges was very bad, the judicial decisions were documented and the judicial boards were established in proceedings. Judicial immunity had been realized incompletely, judges' salaries were assessed as appropriate but their safety and security had been inadequate. In general, judicial independence in Afghanistan was weak which, according to the authors, had caused people's distrust in the judicial system and as a result, a decrease in the legitimacy of the republican system. This can be considered one of the factors for the fall of the Islamic Republic of Afghanistan.
