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Professor Ali Khan
Washburn University School of Law
JURIST Contributing Editor

Iran's Guardian Council, the supreme constitutional body designed to safeguard the rule of Islam, has disqualified thousands of applicants from contesting the February 20 parliamentary election. Election laws allow the Council to disqualify applicants who are found not respecting Islam. Based on this screening standard, pre-election disqualifications have particularly hit hard among members of the Islamic Iran Participation Front, a reformist political party. Among the disqualified are 80 sitting members of the parliament, including President Khatami's younger brother who heads the Front and accuses the unelected Guardian Council of abusing the rule of law.

Part of the crisis stems from power politics. Political cleansing in the name of Islam is a conservative device to win the elections through disqualification rather than political competition. After losing seats to reformers in the previous election, the religious right, headed by the Guardian Council, is resolved to prevent reformers from reclaiming the parliament. Cleansing would remain incomplete, the Council has concluded, unless both the incumbents and new reformers are simultaneously disqualified from the electoral contest.

To achieve its political objective, the Guardian Council is using elections laws to disqualify its opponents for not respecting Islam. But what does the charge of "not respecting Islam" mean? A case-by-case disqualification might be acceptable if an independent court determines on the basis of solid evidence that an applicant has violated what Iran's constitution calls "the essentials of Islam." Even judicial decisions are sound only if disqualification standards are clear and constitutionally permissible---for the constitution specifically prohibits investigation of one's beliefs. But when the Guardian Council uses elusive standards and unsubstantiated accusations to disqualify its political opponents en mass, an outside observer would conclude that the law of disqualification has become a tool of the intolerant.

In the midst of intolerance, the conception of Islamic democracy itself is at stake. Does Islam allow political dissent and diversity of viewpoints? The Iranian reformers, including President Khatami, are committed Muslims. They do not want to abandon Islam as a guiding force, nor do they wish to establish a secular state. They simply assert that an open democracy, under which political parties with diverse viewpoints are free to contest elections, is compatible with Islam. A democracy with no normative constraints, the Guardian Council fears, would undermine the theocratic foundation of the republic. Committed to protecting Islam from the corrupting influence of unchecked freedoms, the Guardian Council has been overly vigilant in combating reform ideas. First, intellectuals have been arrested and newspapers closed. And now the political process is being engineered to eliminate reformers from the parliament. The story of the Council's self-righteousness splattered across the pages of world newspapers gives credence to the stereotype that Islamic democracy is inherently intolerant.

So what can be done?

Any radical proposal to dismantle the Guardian Council is unlikely to win popular support. Even the reformers understand that the Iranians are not ready for any big restructuring, let alone for a counter-revolution that would disempower the clerics for good and establish a Western-style liberal democracy. It appears to most observers that Iran will remain an Islamic state in the foreseeable future, unless the Guardian Council through its unreasonable hold on power completely de-democratizes the political process.

To save Islamic democracy from subversion via extremism, the Guardian Council must be shepherded away from politics and confined to its constitutionally mandated juristic obligation. The Guardian Council can be a valuable juristic institution in overseeing the conformity of parliamentary legislation with the Quran and the Sunna. Many Muslim countries, including Afghanistan, are embracing the idea of a juristic council. As a juristic body, however, the Guardian Council must not interfere in the ins and outs of political parties and electoral competition. Even in its juristic role, the Council must be pragmatic and open to modernity. It must respect legislative choices of a popularly elected Islamic parliament. For otherwise the Guardian Council would block, as it has in the past three years, much of the legislation passed by what it perceives to be "reformers."

Iran's Supreme Leader must discharge its constitutional obligation in changing the Council's orientation from a political guild to a juristic body. Ayatollah Ali Khameini is a progressive leader who believes in science and development. He has already demanded that the disqualification crisis be settled in accordance with the rule of law, a demand that the reformers have also made. But the rule of law requires that decision-makers not have a blatant political stake in the outcome. As presently oriented, the Guardian Council identifies itself with the conservatives and refuses to acknowledge that Iran cannot develop as a progressive Islamic state unless political competition is free and elected officials are not arbitrarily disbarred from the parliament. De-politicization of the Guardian Council is a gradual process, but it can begin by allowing the reformers to freely contest the February parliamentary election.

Ali Khan is a professor at Washburn University School of Law in Kansas. His publications are available here.

January 20, 2004


JURIST Contributing Editor Ali Khan is Professor of Law at Washburn University School of Law in Topeka, Kansas. A law graduate of Punjab University in Lahore, Pakistan, he also holds LL.M. and S.J.D. degrees from New York University, where he was the Robert Marshall Fellow in Civil Liberties and the Judge Jacob D. Fuchsberg Fellow in Criminal Law. At Washburn he teaches international law and human rights. He has published numerous articles on international law. His latest book, A Theory of Universal Democracy: Beyond the End of History has just been published by Kluwer.

Professor Khan is a member of the New York Bar.