Document Type : Research Paper
Authors
1 Assistant Professor, Department of Public Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran
2 Ph.D. Student of Public Law, Imam Sadiq University, Tehran, Iran
3 Ph.D. Student of Public Law, Islamic Azad University, Central Tehran Branch, Tehran, Iran
Abstract
Introduction
The 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 Review
The 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 Methods
The study relied on a descriptive–analytical method, using library research to collect and analyze the data.
Results and Discussion
A 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.
Conclusion
The 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.
Keywords
- Sharia Supervision
- A Priori Supervision
- Guardian Council Faqihs
- Regulations
- Court of Administrative Justice
Main Subjects
Books
- Ainenagini, Hossein & Hamed Nikunhad, "Nezarat", Included in the Book Introduction to Constitutional Concepts; Analysis of some Keywords of the Constitution of the Islamic Republic of Iran (Tehran: Guardian Council Research Institute, 2019).
- Hadavand, Mahdi & Mashhadhi, Ali, Principles of Administrative Law (in the Light of the Decisions of the Administrative Court of Justice); Along with a Comparative Study in (Laws of France, Switzerland, Germany, Egypt, Lebanon, England and America) Second Edition (Tehran: Khorsandi, 2012).
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- Hashemi, Seyed Mohammad, Constitutional Law of the Islamic Republic of Iran, Volume 1 (Tehran: Mizan, 2009).
- Hedayatnia, Farajollah & Kaviani, Mohammad Hadi, Legal and Jurisprudence Review of the Guardian Council (Tehran: Research Institute of Islamic Culture and Thought, 2001).
- Hofman, Herwig C. H., Rowe, Gerard C & Türk, Alexander H., Administrative Law and Policy of the European Union (Oxford: Oxford University Press, 2013).
- Izdehi, Sajjad, Jurisprudential Foundations of Monitoring Power from the Perspective of Imam Khomeini (PBUH) (Qom: Oruj, 2010).
- Markaz Malmiri, Ahmad, Rule of Law; Concepts, Basics and Impressions (Tehran: Islamic Parliament Research Center, 2015).
- Mazarei, Gholam Hasan, Revocation of Executive Regulations in the Administrative Court of Justice and Guardian Council, First Edition (Tehran: Khorsandi, 2013).
- Mehrpour, Hossein, New Perspectives on Legal Issues (Tehran: Information, 2008).
- Qazi Shariat Panahi, Abulfazl, Constitutional Law and Political Institutions (Tehran: Mizan, 2004).
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- Tabatabai Motamani, Manouchehr, Comparative Administrative Law (Tehran: Samt, 2012).
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Articles
- Abrishami Rad, Mohamad Amin, “Legal and Jurisprudential Analysis of the Views of the Guardian Council and the Procedure of the Administrative Justice Court about Extending the Effect of Revocation to the Time of Ratification”, Quarterly Journal of Fiqh and Islamic Law Studies, No. 23, (2019).
- Aghaei Tough, Moslem, “Thinking about the Effects of Annulment of Regulations Contrary to the Law”, Public Law Studies Quarterly, No. 2, (2018).
- Faghihi, Seyedeh Fatemeh & Asakereh, Zeinab, “Legal Analysis of the Effects of the Shariah Supervision of the Jurists of the Guardian Council on Codes and Regulations”, Islamic Government Quarterly, No. 99, (2021).
- Haji Ali Khamseh, Morteza, Masoudian, Mostafa & Feli, Hamid, “The Desirable Mechanism for Religious Review of the Supreme Council of Cultural Revolution's Enactments by the Jurists of the Guardian Counci”, Public Law Knowledge Quarterly, No. 30, (2019).
- Kabi, Abbas, Asghari Shourestani, Mohammad Reza & Amir Hossein Asle Zaeim, “The Role of Preamble of the Constitution in the Interpretation of Principles & Comprehension the Goals and Missions of the Constitution of Islamic Republic of Iran”, Public Law Knowledge Quarterly, No. 10, (2015).
- Khosravi, Hasan, “Analysis of the Supervision Mechanism of the Speaker of the Islamic Parliament on the Regulation of the Executive Branch”, Journal of Political Sciences, No. 72, (2015).
- Mahmoudi, Javad, “Effect of Revocation of Governmental Regulations on Acquired Rights of Individuals”, Administrative Law Quarterly, Year 6, No. 6, (2014).
- Mousazadeh, Ebrahim, “Analysis of Cognitive Conclusion on the Fourth Article of the Constitution”, Law Quarterly, 40th Volume, No. 2, (2010).
- Parvin, Khairullah & Mohammad Amin Abrishami Rad, “The Desirable Mechanism for Review of the Governmental Regulation by the Islamic Jurists of the Guardian Council through the Administrative Justice Court”, Public Law Knowledge Quarterly, No. 20, (2018).
- Rostami, Vali & Rashidi, Reza, “Criticism and Analysis of Public Service Theory and Its Governing Principles, Based on Islamic Teachings”, Islamic Government Quarterly, No. 86, (2016).
- Shafiei Sardasht, Jafar, Gorji Azandariani, Ali Akbar & Fazli Nejad, Javad, “Lexical Ambiguity of Supervision in the Iranian Legal System”, Administrative Law Quarterly, Year 6, Number 16, (2017).
- Vaezi, Seyed Mojtaba, “The Role of the Administrative Justice Court in the Sharia Proceedings of Administrative Regulations”, Legal Studies, No. 1, (2009).
Reports
- Amjadian, Hassan, “Gaps of Shariah Monitoring and the Constitution of the Guardian Council”, Scientific Supervisor: Seyed Mohammad Mahdi Ghamami, Analytical Report of the Virtual Law Research Center of the Basij Legal Organization, Serial Number 911116014, (2012).
- Islamic Parliament Supervision Deputy, “Report on the Supervisory Actions of the Islamic Shura Majlis in the First Session of the 10th Session of the Majlis”, (2016).
Thesis
- Ebrahimi, Mahmoud, Legal Analysis of the Competence and Authority of the Supreme Council of Cultural Revolution in Iran's Constitutional Law, Master's Thesis of Public Law, University of Tehran, (2011).
- Feli, Hamid, “Religious Supervision of the Guardian Council on Regulations”, Master's Thesis of Administrative Procedure Law, University of Judicial Sciences and Administrative Services, (2020).
- Mirmohammadi Meybodi, Mostafa, “The Legal Position of the Supreme Council of Cultural Revolution”, Master's Thesis of Islamic Studies and Public Law, Imam Sadiq University, (2012).
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