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map courtesy CIA World Factbook; click for enlargement Constitution, Government & Legislation

The Constitution

Iran ratified its first Constitution in 1906 following the Mashrootiat revolution. The foundation for a new Constitution was established in 1979 (after the Islamic Revolution) and it was amended in 1989.

The Constitution includes 14 chapters and 177 articles. The titles of the chapters are as follows:

Chapter 1 - Generalities
Chapter 2 - Official language, script, calender and flag
Chapter 3 - Rights of the nations
Chapter 4 - Economy and financial matters
Chapter 5 - Nation's right of sovereignty and the powers arising therefrom
Chapter 6 - The Legislature
Chapter 7 - Councils
Chapter 8 - Leadership
Chapter 9 - The Executive
Chapter 10 - Foreign policy
Chapter 11 - The Judiciary
Chapter 12 - Radio and television
Chapter 13 - National security high council
Chapter 14 - Review in the Constitution

It is obvious at first glance that the Constitution is dominated by the sovereignty of Islam and its clergymen. For instance, Article 4 says: "All laws and regulations including civil, criminal, financial, economic, administrative, cultural, military, political or otherwise, shall be based on Islamic principles. This Article shall apply generally to all the Articles of the Constitution and to other laws and regulations..." However, Article 4 directly contradicts Article 6, which declares, "In the Islamic Republic of Iran the affairs of the State shall be managed by relying on public opinion, through the elections such as the election of the President, representatives of the Majlis (Islamic Consultative Assembly), members of councils and the like, or through referendum in cases set forth in other articles of this law." The rights granted to the people in Article 6 are unreasonably restricted by the Article 4's mandate that no law or regulation may contradict Islamic principles. Restrictions such as those imposed by Article 4 of the Iranian Constitution stifle public will and prevent peaceful reformation.

The Leader

The Leader is the highest official state authority (Article 113). He is chosen by the Leadership Experts (LE) or leadership Khobregan, a division of the Faqihs (juristcounsults on religious law). All members of LE must be clergymen and are required to supervise the Leader.

The crucial functions and authorities of the Leader as set forth in Article 110 are:

A) To determine the general policy of the system of the Islamic Republic of Iran.
B) To supervise and ensure good performance of the system's general policy.
C) To decree referendum.
D) To hold the Supreme Command of the Armed Forces (including Islamic Revolutionary Guard Corps, Armed Forces and Police Forces).
E) To declare war and peace, and mobilize the armed forces.
F) To appoint, dismiss, or accept resignations of:
- The Faqihs of the Guard Concil (GC).
- The highest authority of the Judiciary.
- The head of Islamic Republic of Iran Broadcasting Corporation.
- Joint Chiefs of Staff
- Chief Commander of the Islamic Revolutionary Guard Corps.
- Chief Commander of the Armed Forces and Police Forces.
G) To resolve disputes and coordinate relations between the three branches of government (i.e. Executive, Legislature, and Judiciary).
H) To sign the order of appointment of the President of the Republic following his election by the people.
I) To dismiss the President of the Republic.
J) To pardon or mitigate the sentences of condemned persons

It is evident from the above list that the leader's authority encompasses as vast array of functions. Articles 110 and 113 illustrate the problems differentiating between the authority of the Leader and the powers granted to the President. According to Article 113 the President is responsible for the implementation of the Constitution, except those matters that directly relate to the Leader. In fact, it seems as if the Leader, not the President, should have been the authority who is responsible for the implementation of the Constitution. The Constitution grants the Leader special authority and high level power which supercedes all three branches (i.e. the Legislature, the Executive and the Judiciary).

It is interesting to note that the office of the Leader was not contemplated in the Bill of Rights of the Constitution, and that the highest state official planned was the President. When the Leader's office was created in the Constitution, harmony between the Articles was destroyed.

If the Leader violates the Constitution using Islamic issues for justification, no one is empowered oppose him. A recent example of this scenario occurred when the Leader wrote a letter to the members of Majlis prohibiting them from passing a new act concerning press regulations. This order fell outside the scope of the leader's authority and encroached on Majlis' function, but no one, not even the President, could do anything.

The President

The President shall be elected by the direct vote of the people for a four year term of office. His consecutive re-election shall be allowed only for one term (Article 114).

Next to the Leader, the President is the highest official State authority. The President is responsible for the implementation of the Constitution and, as the Chief Executive, for the exercise of the Executive Powers. Those matters that directly relate to the Leader are not within the President's power (Article 113).

The Judiciary and the Legislature supervise the President. The Leader can dismiss the President after a Supreme Court verdict or following an Islamic Consultative Assembly (Majlis) vote against the President (Article 110).

In order to proceed to a more democratic society and to reform the political system of Iran, the authority of the President must gradually increase. The President is elected by the direct vote of the people and, moreover, he must answer to the direct representatives of the people, i.e. the Majlis.

The Legislature

The Islamic Consultative Assembly (the Majlis) consists of 290 representatives of the nation elected by the people via secret ballot (Articles 62,64).

The Majlis may enact laws on nearly all matters (Article 71). They are prohibited from enacting laws contrary to the principles and rules of Islam or the Constitution, and any conflicts arising shall be decided by the Council of Guardians (GC) (Article 72). The primary function of the GC is safeguarding the rules of Islam and the Constitution.

The GC's twelve person membership is comprised of:
- Six Faqihs who shall be appointed by the Leader.
- Six Jurists elected by the Majlis (comprised of Muslim Jurists nominated by the Head of the Judiciary) (Article 91).

All legislation passed by the Majlis shall be sent to the GC for evaluation. If the GC finds any inconsistency between the legislation and the rules of Islam or the Constitution, the GC returns it to the Majlis for review. If the GC finds no inconsistencies, the said legislation shall be enforcible (Article 94).

Co-existing with the Majlis is the Regime's Expediency Council (REC) or Majma-e- Tashkhis-e- Maslehat-e- Nezam. The REC convenes at the order of the Leader in order to resolve those cases where the GC finds an approval of the Majlis against the principles of Sharia (religious law), or the Constitution. A case is sent to the REC when the Majlis is unable satisfy the GC even after review of the offending law. The REC also convenes to consult on matters referred to it by the Leader.

Both permanent and mutable members of the REC shall be appointed by the Leader. Regulations related to the REC shall be prepared and approved by the REC then ratified by the Leader (Article 112).

In a democratic regime, the Parliament can enact legislation protecting the decisions of its members, all of whom are elected by people. But in the Iranian model, the REC can overturn the Majlis' legislation even though its members are elected by the direct vote of people. Therefore, the REC can openly oppose public will.

Mansour Jafarian, LL.M.
JURIST Iran Correspondent

Director General, Dadpajooh Legal Services
Lecturer, Azad University, Tehran
Courts & Judgments

The Judiciary is an independent branch whose powers and responsibilities include administration and implementation of justice, supervision on the proper enforcement of the law, of the promotion of legitimate freedoms, protection of individual and public rights, providing due process for the resolution of judicial disputes, and investigation, prosecution, and punishment of criminals in accordance with the Islamic penal code. It is also incumbent upon the Judiciary branch to take adequate measures to prevent crime and to rehabilitate criminals.

The highest Judicial authority is a Justice well versed in judiciary affairs and skillful in the administration of justice. He is appointed by the Leader for a period of five years. The Ministry of Justice is the official authority to which all grievances and complaints are referred. The Minister of Justice is in charge of administrating the Ministry as well as coordinating the relationship between the Judiciary branch and the legislative and executive branches.

The courts are functionally classified according to their area of jurisdiction, civil or criminal, and according to the seriousness of the crime or the litigation, e.g., value of property under dispute or the level of punitive action involved. There are four civil courts: first level civil courts, second level civil courts, independent civil courts, and special civil courts. The latter attend to matters related to family laws and have jurisdiction over divorce and child custody. Criminal courts fall into two categories: first and second level criminal courts. The first level courts have jurisdiction over prosecution for felony charges, while the second level courts try cases that involve lighter punitive action.

In addition to the regular courts, which hear criminal and civil suits, the judiciary encompasses clerical tribunals, revolutionary tribunals, and the Court of Administrative justice. Clerical courts are entrusted with the task of trying and punishing misdeeds by the clergy. Revolutionary tribunals are charged with the responsibility of hearing and trying charges of terrorism and offenses against national security. The Court of Administrative Justice under the supervision of the head of the judicial branch is authorized to investigate any complaints or objections by people with respect to government officials, organs, and statues. The Constitution also requires the establishment of a Supreme Court with the task of supervising the implementation of laws by the courts and ensuring uniformity in Judicial procedures. The head of the judiciary, in consultation with the judges of the Supreme Court, nominates the Chief of the Supreme Court and the Attorney-General who, among other qualifications, must be specialists in Islamic Law.

The Constitution requires all trials to be open to the public unless the court determines that an open trial would be detrimental to public morality or public order, or in case of private disputes, if both parties request that open hearings not be held.

Source: Government of Iran
Human Rights

The Iranian Government's human rights record remained poor in 2001; although efforts within society to make the Government accountable for its human rights policies continued, serious problems remain. The Government significantly restricts citizens' right to change their government. Systematic abuses include summary executions, disappearances, widespread use of torture and other degrading treatment, reportedly including rape, severe punishments such as stoning and flogging, harsh prison conditions, arbitrary arrest and detention, and prolonged and incommunicado detention.

Judicial proceedings against some government officials for misconduct continued; however, perpetrators usually go unpunished. A group of 20 police officials was brought to trial in March 2000 for their actions in an attack on a Tehran University student dormitory in July 1999. However, according to the U. N. Special Representative for Iran of the Commission on Human Rights (UNSR), all but one were cleared of charges and released; the court sentenced one individual to 6 months in prison. In December 2000, 18 former officials of the Intelligence Ministry were tried before a military court in closed proceedings for the killings of four dissidents in 1998. On January 27, 15 were convicted. However, the Supreme Court reversed the convictions in August.

The influence of conservative government clerics, which pervades the judiciary, often prevents citizens from receiving due process or fair trials. The Government uses the judiciary to stifle dissent and obstruct progress on human rights. The Government infringes on citizens' privacy rights, and restricts freedom of speech, press, assembly, and association. Over the last 2 years, the Government has closed nearly all reform-oriented publications, and brought charges against prominent political figures and members of the clergy for expressing ideas viewed as contrary to the ruling orthodoxy. The Ministry of Culture and Islamic Guidance continued to issue licenses for the establishment of newspapers and magazines, some of which eventually challenged government policies, but those, too, were shut down.

The Government restricts freedom of religion. Religious minorities, particularly Baha'is--who are viewed not as a religious group, but as a heretical group and a subversive political organization--continued to suffer repression by conservative elements of the judiciary and security establishment. In July 2000, 10 Iranian Jews were tried and convicted on charges of having illegal contact with Israel, and sentenced to between 2 and 13 years in prison. Three others were acquitted. The trial procedures were unfair, and violated numerous internationally recognized standards of due process. Their appeal to the Supreme Court was rejected in January. One was released at the conclusion of his 2-year sentence in March, but the other nine remain in prison.

The Government controls the selection of candidates for elections. An intense political struggle continued during the year between a broad popular movement that favored greater liberalization in government policies, particularly in the area of human rights, and certain hard-line elements in the government and society, which view such reforms as a threat to the survival of the Islamic republic. In many cases, this struggle was played out within the Government itself, with reformists and hard-liners squaring off in divisive internal debates. During the year, reformist members of Parliament were harassed, and for the first time, prosecuted and jailed for statements made under cover of parliamentary immunity.

Khatami's June reelection does not appear to have resulted in meaningful reform. To the contrary, the repression of reformers, including parliamentarians, continued, and according to some reports, intensified.

The Government restricts the work of human rights groups and continues to deny entry to the UNSR. Violence against women occurs, and women face legal and societal discrimination. The Government discriminates against religious and ethnic minorities and severely restricts important workers' rights, including freedom of association and the right to organize and bargain collectively. Child labor persists. Vigilante groups, with strong ties to certain members of the Government, enforce their interpretation of appropriate social behavior through intimidation and violence. There were reports of trafficking in persons.

Source: U.S. Department of State
Legal Profession

Law Schools

Correspondents' Reports

JURIST's Iran Correspondent is Mansour Jafarian, LL.M., Lecturer, Azad University and Attorney-at-Law, Tehran

Mansour Jafarian, LL.M.
Lecturer, Azad University; Attorney-at-Law, Tehran