Public Law
mahdiyeh firoozi; Abbasali Kadkhodaei
Abstract
The concept of Law was the most important in terms of pre-constitutional reforms in Iran. The evolution of this concept as a basic concept can be generalized to the evolvement of reformist ideas in Iran; Thus, the importance of studying this concept becomes apparent. The beginning step of Iran's legal ...
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The concept of Law was the most important in terms of pre-constitutional reforms in Iran. The evolution of this concept as a basic concept can be generalized to the evolvement of reformist ideas in Iran; Thus, the importance of studying this concept becomes apparent. The beginning step of Iran's legal reform was affected by the reforms of Russia and the Ottoman Empire; hence it was formed under the title of the Age of Tanzimat. It was the first attempt by the Iranians to regulate and limit authoritarian and unconditional power. This research formulates by the descriptive-analytical method and library data collection method. This study attempts to show the concept of Nazm/Order as a measure to evaluate society and how it influenced Iranians' understanding of the concept of law by examining the works of Iranian writers, especially the works of Mirzamalkamkhan NazemAl-Dawla. The primary intention of this study is to investigate the concept of Law affected by the discourse of Tanzimat. The concept of law in such a context seemed to be highly centralist and with a formalist attitude, it sought to limit absolute power and tyranny, which was the most important symbol of the lack of Nazm/order in Iranian society.
Public Law
Ayat Mulaee; Nusratullah Nabeel Rahimi
Abstract
Post-positivism is a contemporary philosophical idea and has emerged with the influence of the criticisms of positivism. This concept is a part of the research methodology. The question is this: Does post-positivism have the potential to propose a research approach in public law? This article is fundamental ...
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Post-positivism is a contemporary philosophical idea and has emerged with the influence of the criticisms of positivism. This concept is a part of the research methodology. The question is this: Does post-positivism have the potential to propose a research approach in public law? This article is fundamental research, and the descriptive-analytical method has also been used for data analysis. Based on the findings of this article, First; most legal research does not take the research methodology seriously however, the validity of knowledge requires researchers to define the ruling paradigms of the research. If the researcher does not pay attention to this issue, the research output will not have scientific validity. Secondly; every knowledge cannot be considered as scientific knowledge. Correct scientific knowledge is subject to philosophical paradigms, which if not paid attention to, the output of the research will not have scientific validity. Thirdly; Post-positivism as a research approach can be extended to the knowledge of public law. Fourthly; this way of thinking enables public law researchers to adhere to descriptive and historical research methods (as contextual knowledge) in addition to using statistical techniques.
Public Law
hasan mohammadi; Ali Mashhadi
Abstract
Perfectionism, as an idea that has long influenced the political theories of the state, has a deep connection with the concepts of moral state, utopia, virtuous society, society's priority and the precedence of good. On the other hand, the public sphere, as a concept that has been born and developed ...
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Perfectionism, as an idea that has long influenced the political theories of the state, has a deep connection with the concepts of moral state, utopia, virtuous society, society's priority and the precedence of good. On the other hand, the public sphere, as a concept that has been born and developed in modern political thought, has been considered by modern political thinkers as a normative field and a rationalizing source for the state. Considering that one of the main approaches to the Constitution of the Islamic Republic of Iran is the perfectionist approach, Let's answer the question that, given the principles and pillars of the public sphere, is it possible to achieve it in a perfectionist approach to the constitution in the legal system of the Islamic Republic? Finally, by examining the foundations of the perfectionist approach and the public sphere, the refusal to realize the public sphere in this reading of the Constitution of the Islamic Republic of Iran is concluded.
Public Law
Mojtaba Ghasemi; Hasan Johari
Abstract
The ineffectiveness of laws and regulations related to the governance and administration the Social Security Organization and the National Pension Fund is one of the most important causes of the pension crisis in Iran. These laws and regulations have changed the state from a regulator to an interventionist. ...
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The ineffectiveness of laws and regulations related to the governance and administration the Social Security Organization and the National Pension Fund is one of the most important causes of the pension crisis in Iran. These laws and regulations have changed the state from a regulator to an interventionist. The dominance of the state and no recognition of any role for beneficiaries have aggravated the agency problem rooted in the separation of ownership from management. This problem in pension funds appears in a political form in addition to the traditional one. In addition, a lack of transparency and accountability has motivated appointed managers to pursue their personal and political interests rather than beneficiaries'. From the perspective of corporate governance, solving agency problem in pension funds requires strengthening transparency, accountability, and responsibility for managers. Therefore, it is necessary to reform laws and regulations to give more room to the stakeholders in the administration of pension funds. This paper purports to evaluate corporate governance in Iranian pension funds to highlight the existing shortcomings
Public Law
atefeh Moradi Eslami; Mohammad Javad Javid
Abstract
While the principle of "certainty" and "legal security" are known as principles of modern legislation; During the transition to the digital age and post-modernism, due to the necessity of rapid socio-economic developments based on technological progress, the principle of uncertainty, innovation and flexibility ...
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While the principle of "certainty" and "legal security" are known as principles of modern legislation; During the transition to the digital age and post-modernism, due to the necessity of rapid socio-economic developments based on technological progress, the principle of uncertainty, innovation and flexibility is adopted in some international legal documents. It is not an exaggeration to say that legal systems in the postmodern era are redefining the rule of law in the context of institutional dynamics and basic technological developments. In the meantime, the Deleuze school of philosophy deals with the function of law in the new era by proposing the assemblege theory with creative and critical approach and presents a dynamic analysis of the philosophy of law. The present article focuses on the epistemology and sociology of this theory in the eyes of three experts of the totalitarian school, namely Gilles Deleuze, Guattari and Manuel Delanda, and deals with the feasibility of understanding institutional dynamics in the rule of law process.
Public Law
Fardin Moradkhani
Abstract
The constitution is one of the most important concepts in the law. Scholars have made several interpretations of this concept. One of these interpretations is the legal understanding of the constitution, according to which it is the text that is the highest document in the legal system and is protected ...
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The constitution is one of the most important concepts in the law. Scholars have made several interpretations of this concept. One of these interpretations is the legal understanding of the constitution, according to which it is the text that is the highest document in the legal system and is protected by political or legal judges. The political constitution opposes this view, sees the constitution as a battleground for political actors, and intends to remove it from the monopoly of judges and lawyer And in addition to the text, pay attention to the existing reality and the political atmosphere.we using descriptive and analytical methods, we seek to answer the question of what the political constitution means and what changes have taken place since its formation until today. This concept was first presented by John Griffiths. Although the general outlines of this concept were defined by him, the generations after Griffith made changes in this concept with the criticisms that were made on this concept. The political constitution helps to go beyond the text of the constitution, to pay more attention to the reality of the political world, and to allow all actors in the political arena to be present.
Public Law
Ali Reza Nasrollahi; Mostafa Mansourian
Abstract
The detailed domain of public rights has different and even conflicting ambiguities. Looking at the legal and judicial opinions about the realm of public rights and interest, they can be framed in two general and competing approaches. On the one hand, there are opinions that, with the orientation and ...
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The detailed domain of public rights has different and even conflicting ambiguities. Looking at the legal and judicial opinions about the realm of public rights and interest, they can be framed in two general and competing approaches. On the one hand, there are opinions that, with the orientation and priority of narrow interpretation, push the realm of revitalization of public rights towards limitation in times of doubt. On the other hand, there are opinions that believe in the broadness of public law and its inclusion in interpretations and examples with a wider scope. Examining these two approaches due to the existence of many differences of opinions and also the need to provide a methodical platform for understanding, it is necessary to pay attention to the valid interpretation approach of the legal system. Objective purposive interpration as one of the interpretation methods with normative support provides a valid tool for evaluating these two approaches. In this way, the present article examines this question with an analytical method and using library sources: "Which one of the two narrow or broad approaches to the realm of the restoration of public rights and interests is acceptable from the perspective of objectivepurposive interpration
Public Law
seyedeh zahra saeid
Abstract
According to the articles 87 and 133 of the Constitution, president must take investiture vote for his ministers from Islamic Consultative Assembly. If representatives change during government tenure, it must not retake investiture vote for ministers. The vote is taken in individual format and on ministers’ ...
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According to the articles 87 and 133 of the Constitution, president must take investiture vote for his ministers from Islamic Consultative Assembly. If representatives change during government tenure, it must not retake investiture vote for ministers. The vote is taken in individual format and on ministers’ qualifications and resume. In the case that the president fails to take investiture vot, there is no problem for the establishment of the government, it just make the the government form lately and there is no dissolving parliament. The comparasion of the format, political context and the effect of no investiture vote between parliamentary and semi- presidential systems and Islamic republic of Iran shows some differences. In contrast, it seems that the investiture vote in Islamic Republic of Iran is more similar to Appointment Confirmation process in presidential systems. Compatibility of the aforementioned vote in Islamic Republic of Iran with the triple elements in the both legal institutions, proves the above assumption.
Public Law
Ayat Mulaee; Maedeh Soleymani Dinani
Abstract
Although the idea of an unwritten constitution and the identification of this concept can be very challenging and even be used as a tool to circumvent the text of the constitution or as or a template for explaining the nature of political preferences and legitimizing actions that do not have a specific ...
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Although the idea of an unwritten constitution and the identification of this concept can be very challenging and even be used as a tool to circumvent the text of the constitution or as or a template for explaining the nature of political preferences and legitimizing actions that do not have a specific place for explanation in the field of constitutional rights; But dealing with this concept cannot be more dangerous than ignoring. By examining the foundations of the legitimacy in its original origin the boundaries of this concept are defined and the way of any preferential use is taken. If introduce the unwritten constitution as a set of legal rules of the stature of the constitution that are not included in the written text of the constitution and not only do not derive their legitimacy from the text, but also give credibility to the principles contained in the text; This question is raised, where do such rules get their legitimacy? with the descriptive-analytical method and the collection of materials in a library, an attempt has been made to give an appropriate answer to the question by examining the concept of the unwritten constitution and analyzing its foundations in its watershed.
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.
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.
Public Law
Javad Yahyazadeh; Mohammad Mohammadi Gorgani
Abstract
Introduction
Universalism stands as a cornerstone in the realm of human rights, representing both a fundamental and contentious principle. Its significance lies in being foundational, shaping the minimal framework of international human rights law and influencing various international documents and ...
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Introduction
Universalism stands as a cornerstone in the realm of human rights, representing both a fundamental and contentious principle. Its significance lies in being foundational, shaping the minimal framework of international human rights law and influencing various international documents and declarations. However, it also sparks controversy due to the fact that human rights often reflect a specific perspective, rooted in the modern, liberal, democratic, and secular traditions of the West. It can be argued that constitutionalism, the prevailing paradigm in contemporary legal systems, is an accomplishment resulting from the historical evolution of the conceptof right, human experiences during the Age of Enlightenment, and, notably, the technological advancements spurred by the Industrial Revolution in the West.
Nonetheless, constitutionalism confronts substantial challenges in the contemporary era. For example, unamendable rules are the institution acknowledged in most constitutions. Noteworthy instances include the recognition of human dignity in Germany, republicanism and secularism in France, theocracy in Iran and Afghanistan, the separation of powers in Greece, territorial integrity in Madagascar, and political pluralism in Portugal and Romania. In “Constitutional Handcuffs,” Richard Albert, a preeminent scholar in this field, states: “The advent of the written constitution has given rise to an enduring tension in constitutional statecraft pitting constitutionalism against democracy” (2017, p. 18). However, the constitutional unamendability, facilitated through entrenchment clauses, entails the freezing of certain constitutional articles or fundamental values, potentially sidelining democratic principles and popular choice.
The present study aimed to explore the relation between constitutional unamendability and the universal values of human rights. The pivotal question revolves around whether constitutional designers have the authority to shield any value from popular amendment, potentially compromising democracy to a significant extent. The acknowledgment of a relation between the universal values in human rights and the incorporation of unamendability in the constitution would imply that constitutional designers are only allowed to entrench the universal values by superconstitutional provisions, thus imposing restrictions on democracy.
Literature Review
There are significant contributions about universality of human rights and unamendable constitutional rules. Notable among these are: the book titled Contemporary Human Rights written in Persian by Mohammad Qari Seyed Fatemi and the English paper titled “Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization” by Michel Goodhart (2003). Richard Albert’s outstanding book titled Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019) also serves as a key reference about constitutional unamendability. Despite these valuable contributions, there remains a gap in research concerning the relation between universalism of human rights and constitutional unamendability. Furthermore, it seems there is not a serious study addressing the approach of the Islamic Republic of Iran in this regard. Consequently, the present article stands as an innovative endeavor, as it seeks to delve into the unexplored relation and sheds light on the unique perspective of the constitutional designers in the Islamic Republic of Iran.
Materials and Methods
This study falls within the category of normative legal research. Normative legal theory seeks to offer a pure, self-sufficient explanation of the law, analyzing values, concepts, principles, rules, models, and argumentations in the legal doctrine. In this line, the present analysis relied on relevant theories and doctrines to examine the relation between universalism of human rights and constitutional unamendability.
Results and Discussion
The origins of the emergence of universalism principle in contemporary human rights can be traced back to the profound debates between two trends in philosophy and ethics: deontological ethics and utilitarianism. In Kant’s philosophy, the concept of right is articulated in a manner synonymous with human rights, warranting the characterization of Kant’s philosophy as a philosophy of human rights in the exact sense of the word. Kant ascribes a transcendental status to morality, giving rise to the notions of transcendental human and universal human rights. According to Kant, moral rules grounded in duty possess absolute generality akin to natural laws; in other words, they cannot be taken as exceptions. This is where Kant introduces the concept of the absolute in his philosophy. His most explicit proposition in this context was formulated as follows: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law”.
Nevertheless, the philosophical perspective of utilitarianism challenges Kant’s approach and presents thoughtful criticisms. Hegel, for instance, underscored the formal and abstract character of Kant’s philosophy, contending that social ethics finds no place in Kant’s intellectual framework. Hegel acknowledged the impracticality of Kant's philosophy, asserting its incapacity to formulate practical rules. Drawing from philosophical hermeneutics, Gadamer similarly scrutinized Kant’s concept of the absolute and his idea of universalizability. Gadamer actually placed emphasis on the spatiotemporal understanding of humanity and regarded a transhistorical and transgeographical understanding as, at the very least, contentious.
Moreover, unamendable constitutional rules are those roles that are by no means subject to modification and change as understood by the founders of a given legal–political system. Essentially, the only way to amend these rules involves a fundamental transformation in the nature and foundational values of the legal–political regime. As evident, there exist shared principles regarding the substance of unamendable constitutional rules in progressive legal systems, all converging on the central notion that values emanating from constitutionalism and universalism should be entrenched and safeguarded against amendment.
Conclusion
According to the research findings, acknowledging the universality of human rights hinges on recognizing the unique nature of the human and its capacity for transhistorical and transcultural thinking. Additionally, unamendable constitutional rules, as a pivotal aspect of the constitution, pose a significant challenge to constitutionalism. Aimed at safeguarding the achievements of constitutionalism, these rules restrict citizens from exercising their right to self-determination. Examples of such rules include human dignity, fundamental rights, democracy, separation of powers, and political and religious pluralism. The present research indicated that unamendable constitutional rules in modern constitutions are the logical-cum-historical consequence of the principle of universalism, all sharing common core elements. Consequently, global constitutions are not allowed to define the content of unamendable constitutional rules as contradictory to the values of constitutionalism and universalism. This phenomenon has propelled a shift towards transnational constitutionalism. Furthermore, the research findings shed light on the approach of the Constitution of the Islamic Republic of Iran. Article (177), in a contradictory and somewhat paradoxical stance, acknowledges certain core elements of unamendable constitutional rules aligned with the principle of universalism. Meanwhile, it recognizes several subjects, which diverge from universalism, given their distinct intrareligious and intralegal values. This inevitably necessitates efforts towards amendments and integration, propelling a move towards transnational constitutionalism.
Keywords: Universalism of Human Rights, Unamendable Constitutional Rules, Transnational Constitutionalism
Public Law
Mohammad Bahadori Jahromi; Hamid Feli; Mahdi Ebrahimi
Abstract
IntroductionThe Constitution of the Islamic Republic of Iran, particularly Principle (4), puts the emphasis on upholding Islamic standards in all legal norms. However, a priori sharia supervision over parliamentary approvals shall be exercised by the faqihs (Islamic jurists) of the Guardian Council ...
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IntroductionThe Constitution of the Islamic Republic of Iran, particularly Principle (4), puts the emphasis on upholding Islamic standards in all legal norms. However, a priori sharia supervision over parliamentary approvals shall be exercised by the faqihs (Islamic jurists) of the Guardian Council concerning the specific laws outlined in Principles (94), (95), and (96) of the Constitution. Other approvals, notably the regulations specified in Principle (4), lack constitutional provision. To ensure optimal implementation of Principle (4), there is a need for an effective mechanism that can guarantee adherence to Sharia standards in regulations. The current Sharia-based supervision mechanism is executed through the Court of Administrative Justice, but this approach has several shortcomings. First, it does not ensure Sharia compliance for all regulations since it is not comprehensive, only addressing the contested aspect of regulations. Moreover, regulations may possess significant importance based on inclusion, hierarchy of legal norms, authority level, and their impact on citizens’ rights and duties, leading to prolonged violations of citizens’ rights even when there are no complaints. In this respect, the present research aimed to examine the feasibility of establishing a mechanism for a priori Sharia supervision over key regulations, addressing the challenges associated with its implementation. The study is based on the hypothesis that there are factors favoring a priori Sharia supervision over other types of monitoring when it comes to some aspects of regulations. Although most challenges are manageable, certain challenges make it both desirable and achievable to implement such a mechanism. Literature ReviewThe literature has offered solutions, suggesting the mandatory submission of government regulations and approvals from the Supreme Council of Cultural Revolution to the Guardian Council before their implementation—which can ensure supervision over regulations from both a Sharia and constitutional perspective (e.g., Amjadian, 2012; Haji Ali Khamseh et al., 2021). Another proposed solution involves the establishment of boards specialized in Islamic jurisprudence and legal matters, overseen by the Guardian Council faqihs tasked with proactive monitoring subsequent to the enactment of regulations (Fe’li, 2020). The novelty of the present study lies in its detailed analysis of the feasibility and challenges associated with a priori Sharia supervision over regulations. Materials and MethodsThe study relied on a descriptive–analytical method, using library research to collect and analyze the data. Results and DiscussionA priori Sharia supervision over regulations can viably be applied after the regulations are approved and before they take effect—similar to the supervision over Majlis approvals. A priori Sharia supervision is more aligned with the objective of Principle (4) of the Constitution, so it is favored over other forms of supervision, especially retrospective supervision. Furthermore, it is essential that Sharia-based supervision be applied in advance or a priori to the implementation, at least for critical regulations that are not subject to appeal in the Court of Administrative Justice. Moreover, for the sake of legal security of citizens and the prevention of rights violations, a priori supervision is preferable over alternative types of monitoring because it is difficult to claim and restore the rights of citizens that might have been infringed upon in the past, especially if regulations are retroactively annulled long after their implementation. ConclusionThe challenges related to the principles of continuity and acceleration in delivering public services do not pose a significant obstacle to a priori Sharia supervision because it is feasible to set a deadline for expressing opinions and the Guardian Council faqihs have opinions aimed at guaranteeing these principles. Furthermore, certain regulations that are not allowed to be delayed in their approval and implementation can exceptionally be subjected to Sharia supervision outside a priori Sharia supervision mechanism. It is plausible that the structure and organization of the Guardian Council may not be entirely conducive or equipped to implement such a mechanism, given the unique responsibilities of the faqihs. However, it can be limited to a priori Sharia supervision of critical regulations, and it is not challenging as such, given the reforms aimed at reducing the Court of Administrative Justice’s inquiries from the Council (e.g., the ability to refer to the procedure of the Council’s faqihs in similar cases), and a comprehensive revision of the Council’s organization to lay the ground for a priori Sharia supervision. Additionally, the Head of the Judiciary and the President of the Court can notify the Guardian Council faqihs of cases conflicting with Sharia in order to eliminate the structural defects of the Guardian Council that render it incompatible with supervising important regulations. It is worth noting that Note (1) of Article (87) of the Law of the Court of Administrative Justice (1402/2023) also lays the groundwork for establishing a suitable structure for Sharia supervision over regulations.
Public Law
Mahdi Moradi Berelian; Mohammad Ghsem Tangestani
Abstract
IntroductionIn recent decades, significant advancements in biomedicine have paved the way for the establishment of biobanks, serving as repositories for individual samples crucial in biological research. These samples are instrumental in identifying genetic diseases and developing appropriate treatments. ...
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IntroductionIn recent decades, significant advancements in biomedicine have paved the way for the establishment of biobanks, serving as repositories for individual samples crucial in biological research. These samples are instrumental in identifying genetic diseases and developing appropriate treatments. Nevertheless, a pivotal concern within the domain of public law revolves around how governments address the challenges posed by biobanks and institute the necessary regulatory frameworks. Different legal systems adopt different models of biobank governance. Some legal systems have enacted specific laws, while others have embraced a combination of self-regulation and general government rules. As biobanks continue to expand, a novel form of governance is emerging, wherein biobanks wield influence over political decisions. The present study aimed to examine how Iran’s legal system regulates biobanks and navigates the associated challenges, including the absence of a comprehensive act and the multiplicity of regulatory norms and bodies. These distinctive characteristics may have impacts on transparency, efficiency, accountability, and the establishment of clear-cut mechanisms for sample collection, sample access, and data protection. Focusing on Iran’s legal system, the study addressed the following research questions: What is the model for management of biobanks and their interactions with the government in the legal systems under study? What are the defining characteristics of the regulation of biobanks in Iran’s legal system? What challenges exist in this field, and what potential solutions can be proposed to address them?Literature ReviewPersian literature includes several articles that touch upon this topic, yet they neither provide a comprehensive examination of the regulatory model nor analyze the topic within the context of Iran’s legal system. Instead, they predominantly concentrate on the ethical challenges posed by biobanks.Materials and MethodsEmploying a descriptive–analytical research method, the study relied on library and Internet sources to offer a description of biobanks and delineate their characteristics and various types, while conducting an analysis of selected legal systems to identify models of biobank governance. As a case study, the research meticulously evaluated all laws and regulations pertaining to biobanks within Iran’s legal system. Drawing upon the results of a comparative analysis, it analyzed the regulatory model for biobanks in Iran as well as its challenges.Results and DiscussionThe advancements in biomedical knowledge and the establishment of banks for storing human tissue and genes represent significant achievements as well as challenges for the modern state. The challenges arisen from legal, ethical, security, and commercial considerations associated with the collection and storage of human samples, donor consent, and privacy and data protection all have elevated the regulatory role of the state to a new and specialized level. Traditional laws and rules (e.g., public law, civil law, private ownership, privacy and even penal norms) certainly fall short of providing adequate solutions to the challenges arising from biobanking. Biobanks should be considered as emerging and complex objects of state governance. To deal with this complexity, some governments have adopted a model of regulation in order to design a comprehensive legal framework inclusive of (non-)institutional mechanisms concerning the regulation of biobanking. The adoption of the model assumes large-scale, governmental management capabilities to strike a balance between public interests, individual rights, and commercial interests resulting from biobanking; create integration and transparency in biobanking; and ensure public accountability in this regard. Alternatively, some other governments have opted for decentralized monitoring of biobanks by relying on self-regulatory mechanisms that are mostly based on the norms and principles set by non-governmental institutions as well as a few governmental regulations. The decentralized, self-regulatory approach may lack transparency and public accountability but offer adaptability to the rapid transformations in biotechnology, avoiding issues related to macro-bureaucratic governmental management. In any case, effective governance of biobanks requires appropriate methods to address the multifaceted challenges.ConclusionThe establishment and development of biobanks have ushered in a new era of bio-politics, focusing on individual dissected body parts rather than the body as a whole. Biobanks actively shape biological policies, functioning as subjects of governance rather than passive objects. It seems that ensuring effective network governance and safeguarding public rights and interests require a delicate balance between integrated regulation through legislative norms and self-regulation mechanisms. Governments must strike this balance to play a pivotal role in navigating network governance and guaranteeing its essential functions. Relying solely on integrated regulation through legislative norms can result in an inflexible governance structure that struggles to adapt to changing nature of biomedicine and biobanking. However, certain aspects of biobanking activities must be regulated to ensure efficiency, secure public interests, and maintain accountability while incorporating self-regulatory mechanisms going on in the non-governmental sector.In Iran’s legal system, which is relatively young in the realm of biobanking with a history of less than two decades, biobank governance tends to align more with the model of governmental regulation. However, the Iranian legislator has not introduced specific regulations on banks of human samples. A set of laws, regulations, and documents established by various government agencies, primarily addressing banks of non-human samples, reflects a fragmented and mosaic-like regulatory framework. This approach has not delivered the anticipated benefits of large-scale, governmental management of biobanks, such as transparency, accountability, and the implementation of specific mechanisms related to collecting samples, safeguarding individual rights and privacy, and managing legal and ethical challenges.The legislative body is expected to define general principles and rules for collecting and using human samples, striking a balance between various competing interests. However, due to the specialized nature of the regulated field and limitations related to the legislator’s technical capacity, delving into intricate details may not be a reasonable expectation. It is essential to entrust the detailed regulation to executive statutes or independent specialized bodies.
Public Law
Mohammad Mohseni Rad; Ali Akbar Gorji Azandariani
Abstract
IntroductionLegal system is a legal concept that has been addressed less directly, except in a few cases. Legal order and later on legal system were initially introduced into legal literature by German jurists. In the first half of the 19th century, scholars of public law in Germany pioneered the discussion ...
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IntroductionLegal system is a legal concept that has been addressed less directly, except in a few cases. Legal order and later on legal system were initially introduced into legal literature by German jurists. In the first half of the 19th century, scholars of public law in Germany pioneered the discussion on the concept of legal order, influenced by the philosophies of their predecessors, namely Kant and Hegel. Similarly, the concept of a legal system, denoting an organic and systematic set of rules, emerged concurrently with the concept of the rule of law in the scholarship on law. The concurrent emergence suggests that the prerequisite for the existence of a legal system is the prior establishment of the rule of law. In all likelihood, the concept of a legal system had held more significance for scholars in private international law, whose aim was to elucidate how the rules of one system could be applied in another. Therefore, recognizing the concept of a legal system seemed to be a precursor to delving into the core discussion of international law. Later on, the concept of a legal system fell into neglect and received scant attention until it regained its importance during the 20th century. However, the revival did not stem from the inherent significance of the legal system itself, but rather from a debate between positivists and anti-positivists regarding the concept of law. Neither Hart nor Fuller—as the great figures of positivism and anti-positivism, respectively—explicitly referred to something as of legal system; however, their formulation and theorization would inevitably end up in the concept of a legal system. In any case, legal system can be viewed as a cohesive set of all elements that significantly contribute to establishing the rights governing the life and functioning of any human society.In this respect, the present study aimed to investigate the nature of the concept of a legal system by addressing the following questions: Why is the concept of a legal system important to us? What is a legal system? What are its defining characteristics and constitutive components? How are the components intertwined? and What kind of relationship does the legal system impose on its internal environment? It is presupposed that a precise conceptual definition of legal system is essential to understand the relevance between ethics and the legal system. Accurate identification of constituent elements of the legal system, as well as a careful examination of the criteria for the system’s validity, are crucial steps to gain insight into the relationship between ethics and the legal system. Literature ReviewAs the legal system consists of a set of laws, understanding the legal system requires a detailed analysis of the nature of law. It is thus crucial to note that any conceptualization of law significantly influences the understanding of the legal system. In the literature on legal studies in Iran, it seems that that there is a dearth of research concerning the conceptual and philosophical definition of legal system. The concept of a legal system and its related notions have not been a focal point for Iranian jurists. Although a few significant translated works deal with the concept of law, there is no independent research specifically dedicated to the concept of a legal system. In the non-Iranian context, the English-language literature includes notable works published in the early 70s, such as The Concept of a Legal System by Raz (1970) and Normative Systems by Alchourron and Bulygin (1971).The concept of law, as a normative-cum-institutional system, has become a battleground for positivist and non-positivist doctrines. The discussions on the existence, elements, and purpose of the law form an integral part of the analysis of the concept of a legal system, with each jurist and scholar interpreting it based on their theoretical perspective. In general, a legal system is deemed to exist when its laws do exit. Therefore, to understand the legal system requires a keen understanding of the conditions under which the law exists. Materials and MethodsThe present research employed a descriptive, analytical, and conceptual methodology, relying on library research and internet resources to collect the data. ConclusionIn light of the research findings, it seems that the study of the theory of a legal system is still in its early stages, for neither the nature of associated issues nor its significance has been recognized and understood. The research highlighted that understanding the nature of law requires an understanding of the internal relationships among laws, emphasizing that every law is necessarily linked to a legal system. In summary, it appears that the analytical theory of a legal system suffers from two shortcomings. First, it neglects the problematic issue of content, thus offering an inadequate explanation of the legal system’s dynamics. Therefore, such a theory needs to be complemented by ethical considerations. Second, this doctrine falls short in giving adequate attention to all constituent elements of the legal system.
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.
Public Law
Fardin Moradkhani
Abstract
IntroductionAlthough Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and political thought issues, realized the importance of some legal concepts, ...
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IntroductionAlthough Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and political thought issues, realized the importance of some legal concepts, especially constitutional law. Constituent power and constitution are two important concepts in Arendt's thinking. Arendt's distinctions between the American and French revolutions are actually a way to understand the Constitution and the Constituent power in her thoughts. Knowledge of law and legal concepts also have an important place in Arendt's thought. It is necessary to deal with these researches for several reasons; these studies link legal issues to political and philosophical ideas, help advance matters related to the theories of constitutional law, and make the Constitution distance itself from text-oriented positivist views that ignore history and reality.Research Question(s)This article seeks to answer the question: “What Arendt's understanding is of the constitution and Constituent power as the creator of the constitution, and how she examines the different nature of the French and American revolutions to explain the concept of the constitution and Constituent power”.Literature ReviewThe interpreters of Arendt's thought have mostly neglected the importance of the concept of the constitution in her thinking, but in recent decades, especially with the rising influence of Carl Schmidt's ideas in constitutional law, many have relied on Arendt to criticize Schmidt’s ideas. Also, essays and books were written about Arendt's legal philosophy. Even though that many of Arendt's works have been translated into Persian, her legal theories have never been discussed. The only thing that can be seen in the Iranian legal literature about Arendt is her criticisms of the concept of human rights. MethodologyIn this article, we have researched and discussed issues with a descriptive-analytical method and by relying on the writings of Arendt and her commentators. ResultsThe constitution and constituent power are connected. The constitution is considered the most important legal document of a country. It is written by the constituent power which constituent power belongs to the people and the sovereignty of the people -sovereignty means the superior power to give orders. Arendt, fully familiar with the issues and theories of constituent power, makes a distinction between the American and French experiences regarding constituent power in order to explain constituent power and criticize it. Arendt understood constituent power very differently from what Schmidt theorized so complicatedly. Both Schmidt and Arendt have emphasized the role and power of people. For Schmidt, this power is absolute and beside the constitution, but for Arendt, it is limited and derived from the authority of pre-existing institutions. Also, both Arendt and Schmidt are indebted to Max Weber’s thinking. Arendt also stands against the constituent power and general will theories in the thought of Sieyès. According to Arendt, Sieyès has claimed the constituent power i.e., the nation to be a permanent state of nature. She has tried to criticize the supporters of public will and the strong role of the people. According to Arendt, emphasis on the will of the people makes the law in totalitarian governments a tool for the government, as a representative of the people which it can easily use to violate the constitution.She also discussed the concept of law based on what she theorized about constituent power and the Constitution. Arendt believed that the people, as the constituent power, write the constitution, but the ordinary law that is written in the parliament is no longer under the absolute will of the people and is bound and limited by the constitution. According to Arendt, in both the Roman and Greek experiences, law was man-made. The Greek nomos and the Roman lex did not have any divine origin and there was no need for legislation that was outside and above the laws, and there was no need to obtain inspiration from God. The concept of divine law required that the legislator be outside and above the circle of laws that he enacts. Arendt's analysis of Rousseau's influence on the evolution of the French Revolution led her to the conclusion that since then, the concept of the nation led to the idea that law should be the product of the people’s will, and thus the concept of law gained a new meaning thereafter. ConclusionHannah Arendt is one of the most important thinkers of the 20th century. Her thought system covers a wide and complex purview, and commentators of her thought have discussed various philosophical, political, and social aspects of her theories. One of the important aspects of Arendt's thinking is her legal philosophy, which has been less discussed than other aspects. Her legal philosophy covers a wide area in the philosophy of law, criminal law, international law, human rights, constitutional law, and administrative law, analysis of which requires writing numerous articles. In this article, only one of Arendt's theories, namely the constitution and its relationship with the constituent power, was discussed. For a more precise understanding of the Constitution, one refers to its author, that is, constituent power. Her understanding of the constituent power is different from the Western European tradition, from Sieyès to Carl Schmidt, and criticizes the exaggeration of the role of the people. Undoubtedly, the fate of the Weimar Republic and the bitter experience of 20th-century Europe, the emergence of totalitarian regimes in Germany and the Soviet Union, and her life experiences in America have influenced these ideas. regard to Arendt is increasing day by day in the world of legal thought and philosophy, and many aspects of Her thinking still need to be discussed.
Public Law
Mohammad Javad Javid; Qudsia Frotan
Abstract
IntroductionPeace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with the participation of women, as peace is based on the principles of ...
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IntroductionPeace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with the participation of women, as peace is based on the principles of equality and brotherhood, and its realization is only possible through collective engagement. Afghanistan, apart from the post-Taliban era, has always witnessed the dominion of oppressive and discriminatory ideologies and structures, which have led to numerous conflicts. Wherever there is oppression, there will consequently be.Research QuestionThis article seeks to identify how women can contribute to the realization of sustainable peace in Afghanistan. Therefore, it is based on the hypothesis that by recognizing the official and unofficial role of women in various public domains, sustainable peace is achievable. In peace, the structures and situations that lead to conflict are dismantled.Literature Review Regarding the role of women in achieving sustainable peace in the public legal system of Afghanistan, no work has been done in Afghanistan yet. However, considering the rapid developments that have taken place in the field of peace in Afghanistan, during my research, a significant number of studies have been conducted. Among these, there is the valuable research report titled "Women's Participation in the Peace Process in Afghanistan (A Case Study)". Another valuable work on this subject has been published by Dr. Omar Sadr under the title "Peace Processes in Afghanistan: People’s Perspectives", published by the Afghanistan Strategic Studies Institute. Another valuable article by Dr. Anahita Saifi, titled "Women, Peace, and Security in Afghanistan from the Perspective of the UN Security Council," was written in 2019. In this article, she examines the role of women in the peace-making process based on Resolution 1325 and the National Action Plan for Afghan Women, as well as the role of international institutions and women's participation in this process. Another valuable book, written by Mohammad Amin Ahmadi, who was also a member of the Afghan peace negotiating team, is titled "Peace in Afghanistan: The Struggle between the Republic and the Emirate."This book covers topics such as avoiding war, defending the republic and parliamentary democracy, a comparative study of the republican constitution and the emirate constitution, defending human rights within the framework of Islamic constitutional law, peace experiences and techniques, and finally, the legitimacy and sustainability of peace. This article has explored new horizons by, firstly directly addressing the issue of peace while considering the Afghan public legal system, and secondly, by being written concurrently with the latest news of peace negotiations and the confrontation between the Taliban and the Afghan government before the fall of Kabul, and referring to many recent meetings and events for the first time. Hence, it can claim to be new and original in its subject. Alongside that, our outlook on peace in this article is about sustainable peace that goes beyond ending war and conflicts and focuses on good governance and empowerment. This aspect has not been paid attention to in previous articles and sources.MethodologyThis article aims to contribute to increasing knowledge in the field of sustainable peace, with an emphasis on the role of women. In practical terms, it aims to assist in the current situation of Afghanistan which is on the brink of new developments in its political system, and provide a practical response to women's concerns arising from the Taliban's return to power in Afghanistan, as well as to strengthen the discourse on the role of women in achieving sustainable peace in Afghanistan and help guarantee women's rights as a vulnerable part of the country. This research has been conducted with a descriptive-analytical method.ResultNot until the social and cultural infrastructure is fundamentally reformed will top-down reforms to enforce the empowerment of women and project-based plans to increase their contribution in society achieve the desired result. DiscussionThe analyses in this article prove that the mechanism for achieving peace in post-war Afghanistan has been vertical (from top to bottom), and there have been significant international legal documents and domestic laws based on which many institutions and organizations have been created. However, what has prevented the realization of the goals set to achieve peace in Afghanistan are the structural and cultural problems in this area that have hindered women's participation in the desired positions.Therefore, to achieve peace, the structures and conditions that cause conflict must be eliminated. Moreover, to achieve sustainable peace, we need a structural reform that includes the participation of everyone, regardless of gender and ethnicity, as well as a cultural reform that supports political inclusivity. of the absence of peace in the current situation is evidence that, due to the lack of appropriate conditions for the participation of all Afghan citizens, especially women, the peace process has reached an impasse. ConclusionTo conclude, although the political system in Afghanistan after the war is defined as a modern and democratic system, its foundation is still the traditional and outdated national and tribal culture that has prevented the engagement of ethnic and social minorities and women in the body of the system as official actors. Therefore, women's struggles in recent years have primarily focused on reforming these structures and breaking down traditional anti-women structures, and because of the obstacles in front of their official actions to achieve sustainable peace, most of their efforts have been carried out through informal channels.
Public Law
Ayet Mulaee; Sayed Ali Mousavi; Farshid Bandehali
Abstract
IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce ...
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IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce rights, or promote benefits beyond its own existence, and only in this capacity can it be recognized by everyone as a right. On the other hand, in his theory, the divine and intrinsically purposive government is trying to incorporate all the desirable features of these schools, despite all these criticisms. notwithstanding this paradox, this research, whose sources have been collected through the library research method and descriptive-analytical study, aims to prove the hypothesis that the Hegelian state emerges from within the traditional liberal and democratic state-building philosophies in a special and distinct way. It is trying to answer the question “What are the characteristics of the ideal state in Hegel's view, In a practical look at the political philosophy of the state?”, The results show, while proving the hypothesis; that contrary to the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, Hegel's state is ‘a reasonable and inevitable institution of society that everyone must recognize its by force and accept its obedience’. Research Question(s)What are the characteristics of the ideal state in Hegel's view? Literature ReviewSeveral research papers have been published Related to the subject of the research, including; Zahra Vashqani Farahani's thesis titled: "State Theory in Hegel's Political Philosophy" published by the Faculty of Literature and Humanities of the Islamic Azad University (Central Tehran Branch), as well as an article titled "The Importance of Hegelian Separation, State and Civil Society" written by Azim Rahin, Prepared and published in No. (1.2) of Social Sciences Quarterly. However, the distinct feature of this research is the examination of Hegel's paradigmatic view of the government, which is in many ways against or in favor of democracy and liberalism. MethodologyConsidering that research in most humanities disciplines is mainly focused on theoretical solutions, the present study has used a library research method to collect the desired data and examines the data with a descriptive-analytical method. ConclusionHegel's philosophy, methodology, and valuable critiques present an outlook that thinks about modernity, instead of being oriented towards the Enlightenment era of his time. Because, basically, from Hegel's point of view, modernity is a bridge in the evolution of the soul towards freedom, and in this way, the self-awareness of the soul is the most important characteristic of the new era. In summary, for the purposes of this research and its main question, what is certain is that Hegel rejects the political theory of social contract that philosophers such as Locke and Rousseau established and views them as inefficient abstract concepts and, by rejecting the abstract idealism of "Reason" and the empiricism of "History" as an independent and durable ground for authority, established a dialectical relationship between reason and history and thereby resolved some of the contradictions raised in the state's founding phase. He also, based the political right on having an independent nature from the state and supports the concept of political right where it maintains its idealistic aspect, but is based on a certain historical era. On the other hand, even though Hegel criticizes the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, his divine and intrinsically purposive government tries to incorporate all the desirable features of these schools and support them. Hegel's goal was to achieve the desired political power system for Germany, and so in this way, he presented his government specially and distinctly from the democratic and liberal state-building philosophies of his time.But what are the characteristics of Hegel's ideal government? The key to understanding this question lies in the ideal concept of political right in Hegel's belief and his opinion about the inherent rationality of the state. From Hegel's point of view, the state is the manifestation of realized freedom and the perfect ethical life. Therefore, the state is an ethical soul that emerges in the form of an essential will by becoming more transparent and definite. Therefore, the state is nothing but "the action of the spirit in the world" realized in a self-conscious form. But since the soul in Hegel's philosophy has an absolute, and even divine essence, according to Hegel's definition, the state is God's will in the world. Such a government is not a responsible or parliamentary government, and this was at a time when the belief in a responsible government was considered the most important feature of 19th-century liberalism. Overall, by studying the philosophy of rights that Hegel talks about, it cannot be said that he does not explicitly accept responsible government, nor can it be said that he explicitly rejected such a government.
Public Law
Mohjtaba Vaezi
Abstract
Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts ...
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Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts of “ministerial power and discretionary power”. Given the place of foreign law in the field of administrative law, analyzing the origins and aspects of words can help prevent mere adaptation with no attempt at conformity. Examining the concept of competence and its types distinguishes public law, in particular administrative law, from civil law, and consequently makes it easier to identify the appropriate legal rules. The division of competence is not limited to the two types of ministerial and discretionary power. These divisions Affect the manner of judicial control, the type of civil liability regime, and the quality of the principle of legality. Contrary to popular belief, it has also been shown that the principle of "assumption of no authority" does not apply equally to all areas of administrative law. Competence also has its own reflections in the field of administrative contracts, unilateral actions, management of internal affairs of the administrative organization, public order, and public service, which, of course, should be examined on a broader basis.Regarding discretionary power, valuable books have been written, which are mostly focused on the two types of discretionary and ministerial power, such as the book " Discretionary Power" by Dr. Ali Mashhadi in 2013 and the book "Discretionary Power in the context of Modern Public Law" " published in 2014 by Dr. Reza Fanazad.Despite the importance of the two concepts above, it seems that diving deep into analyzing and clarifying the main concept of competence is still necessary and can help to provide appropriate legislation and more accurate judicial decisions in this area. Method and PurposeThis article, through a comparative-analytical method, discusses the different types and functions of competence in the field of administrative law, after dealing with the concept and similar concepts. Also, with a library research method of data collection, we seek to provide as much precision as possible to the key legal concepts in the field of administrative competence, to further explain the nature of administrative functions and facilitate judicial supervision over them. Main Text Competence in the judicial sense, simply, is the lawsuits and complaints that a judicial authority can, and must, deal with.With the provided definition, it should be possible to distinguish the concept of "competence" from "authority". The authority of a judicial authority can be considered as a set of legal facilities that a judge possesses and uses to discover the truth and verify the validity of the parties’ claims, in his capacity of adjudicating and after establishing his jurisdiction. Despite such a distinction in the field of judicial law, in the specific topics of administrative law, the concept of competence includes both the authority and scope of action of the agent. Therefore, it can be said that in Article 170 of the Constitution, in the phrase " or lie outside the authority of the executive power " authority means the field of action of executive authorities.Administrative competence in its strict sense, i.e., inherent or special competence, regarding its content and raison d’etre, has three basic characteristics:1- Undertaking affairs of others: The authority is basically a set of powers and duties that are provided to the administrative officer to perform a public mission or serve the public interest. Therefore, administrative competence is actually the power to administrate the citizens' affairs, or in the words of civil law, administration of another’s affairs.2- Exclusive tenure of a mission: competence is the exclusive responsibility of a public matter which is determined by thematic, temporal, or geographical criteria.3- Possessing legal powers and privileges: the mission of securing the public interest, in principle, requires the possession of a special privilege of authority.- Categories of administrative competence:1- Discretionary competence vs. ministerial competence: The most common and familiar division of administrative competence is ministerial and discretionary. ministerial competence in the shortest definition is where only one option is available to the administrative officer, and on the other hand, discretionary competence is where more than one option is available to the administrative officer based on which he has to decide and act.2- Instituting competence (constitutional) vs. diagnostic competence (declarative): when discussing diagnostic competence, it is noteworthy to check its resemblance with the discretionary competence of the administration. There is a fine line between these two types of competence. The diagnostic competence oversees the identification and diagnosis of the subject and has similarities with the judicial function, in the sense that the relevant authority checks whether the subject of investigation is in accordance with the legislative decree or not. For example, the interview board for PhD selection or employment interview committees identify people who possess the scientific and moral capabilities required by the law. In other words, diagnostic competence is basically declarative in nature and therefore has a quasi-judicial function. Also, to prevent errors and personal conflicts as much as possible, diagnostic authority is usually assigned to a council of experts. The said council is speciallyfounded based on this type of competence, and it has no other functions, so it can be said that the mentioned competence is the reason d’etre of these bodies of authority. On the other hand, instituting authority is where the administrative officer takes an initiative decision and creates a right or obligation or a new legal situation and so, it can be said to be a completely administrative measure. Also, the holder of instituting authority can be an individual officer or a council consisting of people. In addition, the range of functions of an officer with instituting authority is not limited to one or more cases, and to fulfill his multiple missions, he may have ministerial authority in some cases and discretionary authority in other cases.3- General competence vs. special (inherent) competence: administrative competence in its common sense is special or intrinsic competence. The authority of the administration in the legal actions it takes can be divided into two main types according to the nature of its function and goals: general authority and specific or inherent authority of the administration.General authority is the total authority that the administrative body has like any other legal entity. As a legal entity, the administration is considered to have a legal personality and should have the powers that every legal person needs to carry out its affairs. Competences such as concluding contracts and the capability to possess property rights to meet specific needs are among these common competencies.specific or inherent competence of the administration are the powers that the administration has as an official for public service. Not only do private legal entities not have this type of authority, but in many cases, it is specific and exclusive to a certain public person, and for this reason, they are called the special authority of the administration. For example, supervising the standards of urban buildings is the responsibility of the municipality, and in this regard, it can change them if necessary where deemed necessary.In the following, we have discussed the concept and basis of the principle of assumption of no authority in administrative law and we show that the said principle has different functions in different areas of administrative contracts, unilateral actions, internal affairs of the organization, public order, and public services.finally, we have discussed the consequences of different types of competence and their relationship with the scope of judicial control, the regime of civil responsibility, and the principle of legality. ConclusionAdministrative authority, due to belonging to the field of public law and conducting public affairs, has two important characteristics of exclusiveness and authoritativeness. In addition, other classifications of competence which have a practical impact in determining the applicable legal regime should also be recognized. Classification of competence into two types of instituting and diagnostic, on one hand, and into two types of general and special competence on the other, as well as identifying the characteristics of the principle of “assumption of no authority” in terms of its basis and function, require more reflection.It is needed to separate the scope of the implementation of the mentioned principle in the two areas of public order and public services and consider the different circumstances. The public law nature of the concept of competence makes the role of the administration important in administrative contracts, unilateral actions, management of internal affairs of the organization, and the fields of public order and public services, so much so that one cannot expect acceptable function from administrative bodies if this concept is not accurately defined in the field of public law.
Public Law
Hadi Tahan nazif; Ali Ariannezhad
Abstract
According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the president's chosen minister who has received a vote of confidence from the Islamic ...
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According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the president's chosen minister who has received a vote of confidence from the Islamic Council. Since, according to Article 113 of the Constitution, the President, who is the highest official of the country, heads the executive branch, including the ministries -except in matters directly related to the Supreme Leader’s powers, the powers of a vice president may interfere with the powers of ministers. Considering the obscurity of Article 124 and the legal gap regarding the limits to the powers of the vice presidents, the framework grounded for the powers of the vice presidents and the limits to the powers of the ministers should be determined.Research QuestionThis essay seeks to answer the question "Could the president appoint deputies with duties that are in the jurisdiction of the ministries?". The exact answer to this question depends on analyzing whether, on a legal basis, it is possible to appoint a vice president in the jurisdiction of the ministries or not. On the other hand, it should be investigated as to what extent this type of appointment has occurred in the legal system of the Islamic Republic of Iran, and what is the opinion of the Guardian Council as the main judge in this matter? And finally, considering the capacities provided in law, how can this conflict be prevented or solved? Literature ReviewBefore this research, the subject of vice presidents has not only been examined under the general concept of the president and the first vice president’s powers but also specifically in articles such as "The legal requirements of delegating the powers of the president to deputies in Iran's constitutional law system with regards to the opinions of the Guardian Council", "A look at the assignment of president’s legal duties to the deputies" and "Regulations for the appointment and the position of special representatives and deputy presidents". However, these articles did not deal with the issue of any interference between the competence of the president and the ministers and thus, their topic is fundamentally different from this research. Regarding the relationship between the vice presidents and the ministries, there has been a report on "carrying out executive affairs through the vice presidents instead of the ministries", which is also different from this research because it focuses on the possibility of doing executive affairs by the vice presidents instead of the ministries, irrespective of the issue of interference of their powers. Therefore, the innovation of this research is first, in its topic of examining the conflict between the legal powers of the vice presidents and ministers and, second, in its analysis at two theoretical and practical levels, and third, in its examination of the plausible legal answers and providing an innovative solution to overcome this problem. MethodologyThe current essay has been done through library research and adopting a descriptive-analytical approach meaning that, in addition to identifying the qualifications of vice presidents and ministers, we have analyzed the research problem using logical arguments. ResultsAccording to Article 124 of the Constitution, the president can have deputies to perform his legal duties. By examining the detailed summary of the deliberations of the Constitutional Revision Council, the proposed arguments, and the systematic approach taken to the enactment of the Constitution, we find that the deputy is considered a representative of the president by the legislator and a non-authentic person, and since the authority of the president is limited, he cannot appoint a deputy within the jurisdiction of the ministries.From the opinions of the Guardian Council regarding the issue of the "consulting minister", it is also deduced that the president can create institutions under his supervision and delegate matters to them to handle some extra-ministerial affairs and his special duties such as "supervising the work of ministers", "harmonizing government decisions", "formulating the government's programs and policies", "synchronizing and policy-making of executive bodies" and "mobilizing the facilities of executive bodies for a specific issue", but other duties and executive affairs that are not part of the president’s special duties which are under the jurisdiction of the ministries, cannot be entrusted to his affiliated institutions, and such assignment would be against the Constitution.In the current status, vice presidents are assigned in four ways: by the Constitution, the resolution of the supreme councils, the statutes, and by the decree of the president. On the other hand, the only bodies that determine the ministers’ powers are the statutes, and in case of a conflict between the powers of the vice presidents and the ministers, conflict resolution of the above-mentioned bodies with the statutory law should be examined. In case of adding to or changing the powers of the ministers by the statutory law and their conflicts with the powers of the vice presidents; If the founding document of the vice president is the statutory law or the decree of the president, the recent statute is applied, but if the founding document is the Constitution or the decree of the supreme councils, the recent law is invalid. To change or establish the powers of the vice-presidents, only the parliament or supreme councils such as the Cultural Revolution Council have the authority to appoint vice-presidents acting in duties that are considered to be in the jurisdiction of the ministers. ConclusionA conflict between the powers of the ministers and the vice presidents is only problematic where the founding body for appointing the vice president is the decree of the president himself, and in order to get out of this problem, it is possible to use the capacity provided by the constitution in the matter of supervision of the General Inspection Organization of the Country, the supervision of the parliament in Article 90 of the Constitution, and the case law of the Court of Administrative Justice; However, these solutions are difficult to reach and only reactive; Therefore, it is suggested that in the statutory law, the president -while appointing the vice presidents- should be required to approve bylaws on the limits of their authority in the cabinet so that the speaker of the parliament can prevent the interference of the authorities a priori, and that filing a well-grounded complaint in the administrative court of justice would become less complicated and problematic.
Public Law
Mohammad Sadegh Farahani; Abasali Kadkhodaei; Vali Rostami
Abstract
1. IntroductionThe expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of business plays in today’s world economy is so much that now the ...
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1. IntroductionThe expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of business plays in today’s world economy is so much that now the top companies in the world, in terms of capital and market value, are companies in the field of digital economy. This is a reality that Iran will also face in the not-too-distant future; then, companies in the field of digital economy will take a significant share of the market. So, today, it is especially necessary to pay attention to the issue of competition in digital platforms and to set the appropriate rules to govern them. Literature ReviewUntil the writing of this article, most of the issues raised in Iran's competition law are devoted to the examination of rules governing competition in traditional markets. Only one article titled "Competition Council and Internet Businesses" by Zarei et al. (2019) has been written in relation to platform markets, and this work is also based on the traditional rules of competition law and regardless of the specific challenges of this field. Analysis of the vote number 306 of the Competition Council. Therefore, it can be claimed that the explanation of the characteristics and challenges of platform markets and its effect on the regulation of competition in this field, which is examined in this article, qualifies as innovation. MethodologyIn order to correctly set the new rules applicable in the field of digital platforms’ competition, it is necessary to go through a three-stage system: first, we must get a correct understanding of the prominent features of the digital platform markets that affect the issue of competition. In the second stage, the competitive challenges arising from these characteristics, with which the traditional rules are not able to fully deal, should be examined and evaluated; and finally, new rules of competition in the field of platform markets based on the aforementioned characteristics and challenges should be put in place.As the title of the article suggests, the purpose of this article is to explain and analyze the first and second stages of the aforementioned process to show the deficiency of traditional rules in response to the competitive challenges of the field of digital platforms and the necessity of revising them. For this purpose, after explaining the meaning of "platform" and its conceptual evolution over time (the first part), the prominent features of digital platforms that affect the issue of competition are counted, identified, and evaluated (the second part) and finally, the challenges due to the aforementioned characteristics and the inadequacy of the traditional rules in response to them will be explained (part three) to prove the necessity of revising the traditional rules of competition law in the field of platform markets. ConclusionBased on the findings of this article, the main economic features of digital platforms are such as "the network effect", "reduction of transaction costs", "replacement of ownership with access", "fragmentation of supply and demand", "economy of scale and economy of significant scope", "simultaneous improvement of economies of scale and personalization" and "fundamental importance of data". Although they are not entirely new and traces of them can be seen in traditional markets, their simultaneous presence in digital platforms makes the market tend towards them. In addition, this problem may be aggravated by the actions of digital platforms to strengthen and expand their position in the market. It is noteworthy that none of the aforementioned features that have led to the occurrence of the mentioned challenges have been recognized in the traditional rules of competition as an obstacle to entering the market or as an anti-competitive practice. Therefore, the first competitive challenge of platform markets, which requires the regulation of appropriate rules, is the growing monopoly of these markets. Naturally, the most suitable solution to get out of this situation is to recognize the aforementioned features as specific types of entry barriers for digital markets.It should also be kept in mind that the preliminary stages to apply anti-competitive rules and guaranteeing them in digital platform markets face serious challenges. In these markets, it is not possible to identify the product as easily as it is in traditional markets, and the application of the conventional SSNIP test cannot be applied to many platforms that offer zero-price services or two- or multi-modal platforms. This makes it a serious challenge to recognize the exact share of the platform in the market and, accordingly, to recognize the market power. It seems that the transition from "quantitative criteria" to "qualitative criteria" is the way out of such challenges.Also, following the traditional rules in recognizing the anti-competitive behavior of platforms, causes many platforms to be accused of aggressive pricing at the very beginning due to having zero marginal cost. In addition, the existence of the aforementioned features has facilitated the conditions for committing anti-competitive acts, such as establishing exclusive conditions in the transaction, selling a package of products, collusion, etc. It seems that the requirement to overcoming such challenges is to promote ex-ante regulations along with the implementation of the current (mostly a-posteriori) regulation model.Finally, it seems that the simultaneous presence of these features in digital platforms has largely led to the reemergence of traditional issues of competition law as current issues, and this will consequently require a review of competition laws in this area, as countries such as the United States, China, and the European Union have followed the same path.
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.
Public Law
seyedeh zahra saeid
Abstract
1. IntroductionThe president’s interpellation before the Islamic Consultative Assembly (ICA), set in the Constitutional law of the Islamic Republic of Iran, has been a challenge. The cause of the challenge is the contrast between the 2nd clause of Article 89 of the Constitution and Article 114 ...
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1. IntroductionThe president’s interpellation before the Islamic Consultative Assembly (ICA), set in the Constitutional law of the Islamic Republic of Iran, has been a challenge. The cause of the challenge is the contrast between the 2nd clause of Article 89 of the Constitution and Article 114 of the Constitution. Article 89 says: “In the event that at least one-third of the members of the Islamic Consultative Assembly interpellate the President concerning his responsibilities for leadership of the executive power and managing the executive affairs of the country, the President must present himself to the Assembly within one month after the submission of the interpellation and to give adequate explanations regarding the matters raised. After hearing the statements of the opposing and favoring members and the reply of the President, if two-thirds of the members of the Assembly vote for his incompetency, the vote will be communicated to the Supreme Leader for implementation of Article 110(10)”. Article 114 holds: “The President is elected for a four-year term by the direct vote of the people. His re-election for a successive term is permissible only once”In other words, The main cause of the challenge is the appointment of the president through elections and the lack of any power by the Islamic Consultative Assembly in this regard. The current presumption among the legal society is that interpellation would be applied to an authority that is elected by the ICA. Although the current presumption is relatively true, what has been neglected during these years is that in fact, the interpellation of the president in the Constitution of the Islamic Republic of Iran is impeachment in a different, unique concept. Discussion In some political systems, the president would be removed by legislative assemblies by means of impeachment. Comparing the elements of the term impeachment with the elements of interpellation proves the above claim. Hence, comparing the two elements of their grounds and their procedures are notable.in the draft of the Constitution, a two-stage procedure for the removal of the president was set, but after the enactment of the Constitution, two different one-stage procedures were created. One procedure would be run by the Islamic Consultative Assembly, and the other would be run by the Supreme Court. In fact, two procedures that work together in an impeachment, have been transformed into two independent procedures, both of which leave the final decision-making to the Supreme Leader.ConclusiomThe grounds for the president’s removal have been changed from “treason or conspiracy against national security” in the text of the Constitution to “treason and violation of legal duties” and eventually, to “violation of legal duties” and “lack of qualification”. Lack of qualification and being unfit to continue in office are common concepts among the grounds of impeachment in different political systems. lack of qualifications, incapability in doing his executive duties, or ineptitude in executive management in the text of the Constitution of the Islamic Republic of Iran are the instances of the general notion of “being unqualified unfit”. Both concepts of “lack of qualification” and “violation of legal duties” are incorporated in the general notion of unfitness in the legal and political literature of the Islamic Republic of Iran and are equal to impeachment in other systems; However, interpellation is often based on political reasons. Since the causes and the grounds of the president’s removal are enumerated in the Constitution, we can conclude that the nature of presidential removal in the Constitution is impeachment, but its title is interpellation.Thus, some clarification and some reforms are required by amending the Constitution. Before any constitutional amendment, the nature of the interpellation of the president and its elements should be explained by the legal society. It may prevent this oversight tool to become a reason to remove the president based on political disagreements and may regulate and restrict the oversight tool to only clear legal grounds. This may, in the future, be the inspiration to possibly omit or add to the grounds for presidential removal in the constitutional amendment. According to the current laws and regulations, the procedure of presidential removal via Islamic Consultative Assembly is almost clear but the procedure of presidential removal through the Supreme Court is unclear. Again, reforming the procedure of presidential removal and merging the two procedures requires an amendment to the Constitution. Another subject that must be considered is the effect of this presidential removal mechanism and whether, irrespective of the removal from office, there are any other effects and sanctions for the president or not. Another sanction for the president’s incompetency would be exclusion and prohibition from holding any public office which is worthy to be debated and considered for the future.
Public Law
Ebrahim Azizi; Farshad Farazmand; Hossein Taleqani Mansournejad; Mohammadhossein Osta
Abstract
1. IntroductionGovernmental development plans have always been a point of concern for countries in terms of how to use national wealth in these projects. Governments have tried to devise possible ways to make better use of public resources in development projects. One of the solutions provided in Iranian ...
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1. IntroductionGovernmental development plans have always been a point of concern for countries in terms of how to use national wealth in these projects. Governments have tried to devise possible ways to make better use of public resources in development projects. One of the solutions provided in Iranian law is the establishment of a legal body called the Supreme Technical Council. This council was established according to Article 80 (amended) of the Budget Law of 1977, approved in 1979, and was responsible for duties and powers, such as the authorization of price floors and the revision of general contract rates. In 1999, according to paragraph (c) of Article 53 of the General Conditions of Construction Works Procurements (a uniform regulatory document issued by the government that prescribes some general conditions that apply to all construction projects engaged in by a public authority), it was considered to be the arbitrator in disputes arising from development projects and so, this role was added to its aforementioned capacities. In this study, by analyzing the nature of these duties, powers, and authorities of the Supreme Technical Council, we will examine whether, first of all, the assigned missions are in line with the existential philosophy of this council. Is there a need to plan such tasks or not? further, is there a consistency between the duties, authorities, and powers of the council? Finally, some solutions and suggestions will be provided accordingly. MethodologyIn this article, by collecting data through library resources, we answered questions with the analytical-descriptive method. Results1- According to parts "a" and "b" of amended Article 80, the Supreme Technical Council is responsible for reviewing and approving the basic prices and related market regulations and instructions, as well as reviewing and approving the prices of special items (which are marked with an asterisk). This has so far been the best way in preventing the unusual increase in the cost of public construction projects and the abuse and waste of public resources. In this role, the Supreme Technical Council has an executive duty.2- According to part "c" of the amended Article 80, the duty to revise the general contract rates has also been assigned to the Supreme Technical Council. The appeal request by the general contractor is subject to the approval of the highest administrative authority of the public party (the employer) and after that, the Supreme Technical Council makes a decision regarding the request. This type of adjustment is a contractual price adjustment and the role of the Supreme Technical Council in agreeing to the appeal is to be a part of the decision-making elements of the public party's executive body which makes it a party to the contract (on the side of the employer). Therefore, in this perspective, the legal nature of the role given to the Supreme Technical Council is as a party to the contract.3- The last duty assigned to the Supreme Technical Council in part "D" of amended Article 80 is to review and make a decision on issues that have been raised by the public parties (employers) for which the contract has not provided a specific solution beforehand. it has been discussed that, in this role, it seems that the Supreme Technical Council is, again, a part of the decision-making side of the public party, and therefore, as a matter of its legal nature, it plays the role of party to the contract.4- The last power that has been considered for the Supreme Technical Council is the authority of arbitration in construction projects, which is derived from paragraph "C" of Article 53 of the general conditions of Construction Works Procurement, which is a judicial role and the Supreme Technical Council acts as a judge between the parties in this role. In addition to the problems that exist in terms of the possibility of exceeding its legal powers in setting guidelines about the general and specific conditions of Construction Works Procurements, and in providing templates for drafting arbitration clauses and the terms used in them, it seems that this authority causes the litigant to be the judge of its own case. Because as mentioned, in some cases, the Supreme Technical Council is on the decision-making side of the executive board of the public contracting party and is somehow involved in this litigation. ConclusionAccording to the aforementioned results, the suggestions are as follows:1- Considering the practical benefits of the duties mentioned in clauses "a" and "b" of the amended Article 80, we suggest keeping them as they are until a better solution is found in this regard.2- Regarding clauses "c" and "d", considering their negative effects in terms of time and money, it is suggested that these powers be assigned to the highest authority of the executive body of the public contracting party just like they were before the amendment of Article 80.3- Finally, regarding the duty of the arbitration, it is suggested that the position of alternative dispute resolution methods in the General Conditions of Construction Works Procurements should be strengthened and it should be mandatory to refer to them and not be at the discretion of the parties (as it is). Also, by amending the laws, the parties of construction projects should be given the right to choose an independent and validated arbitration authority active in the country.Keywords: General Conditions of Construction Works Procurements, Supreme Technical Council, BOQs, Contract Rates, Development Plan, Arbitration
