Archive for the ‘ Constitutional Values – Iran ’ Category

Constitutional Values in Iran

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Copyright Keyvan Tabari 2009 All Rights Reserved.

The information contained in this article may not be published, broadcast, rewritten, or otherwise distributed without the prior written authorization of Keyvan Tabari.                                 

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abstract: The Islamic Republic of Iran is a signatory  of nearly all major international conventions and declarations on human rights. Together, these proclaim support for a comprehensive list of values which, if honored in practice, could be the foundations of a cherished universal civilization. Many of these values have roots in Persian culture. Heavily influenced by Islam, this culture borrowed from and lent to cultures on its West and East through frequent interactions. To the extent that it evolved in the last fourteen centuries in a different environment of social relations, however, the Iranian society came to define differently what might have once been shared values. That gap has fast been closing recently due to the impact of an increasingly connected and integrating contemporary world. 

keywords: Iran* Constitutional values* Islamic Republic

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Introduction

This paper is submitted as a contribution to a comparative study of constitutional values in selected nations. The goal of the study is to explore the existence of fundamental values shared universally. The contributors are seasoned students of constitutional law representing a number of countries from all five continents. The template for the project was extensively discussed by the authors in a four day meeting in the fall of 2008 at the Rockefeller Institute in Bellagio, Italy.  It was agreed that the project should address such questions as the composition of the core constitutional values in each country, the measure of congruity in their practice, the systems of beliefs shaping those values, and the nature of values restraining the exercise of power. The template also proposed as a guide to facilitate comparison a number of values that appeared to enjoy rather wide universal acceptance: “fairness/justice, equality, honesty/Integrity, community, family, freedom/liberty/independence, responsibility/accountability, compassion/caring, respect/tolerance, life, security, learning/education, dignity, environment, participation/inclusion, democracy, secularism, property, diversity/multiculturalism/pluralism, privacy, religion, and peace.”

This draft relating to Iran is proffered only as an introductory opening on the subject. It outlines the scope of the work and suggests the contours of the conclusions. It is hoped that it succeeds by showing directions for needed further research. That cautionary disclaimer allows certain bold strokes. The paper has undertaken an unprecedented analytical inventory of basic principles in Iran’s 1979 written Constitution based on a direct translation from the original Persian text. It argues that the text of the Constitution is the most reliable source available for investigating Iran’s constitutional values. It considers those values to be heavily influenced by Shiah Islam. It sees the tension between the traditionalists and the modernizers as the main force shaping values in Iran. It deems the non-urban majority population of the country to be still siding with tradition. It gives weight to the power of charismatic leadership as it does also to the complex motivations of those vying for power.  

Background

Iranians proudly trace their recorded history to the Medes who ruled the land more than 2,500 years ago. They have been ruled by many other dynasties since. The more consistent element in their background has been their religion. Islam has shaped their culture since the 7th century. For the last 600 years, the Twelver Shiite School (mazhab) of Isalm has been the state religion; it has been actively promoted by the rulers of Iran as an instrument to unite their subjects against outsiders.

Military defeat at the hands of Russia in the early 19th century awakened the better educated segment of Iran’s small ruling feudal class to the need for modernization. It was not long before these reformers concluded that modernization of the army required reorganization of the autocratic system of government, following the model of European countries. The movement for limiting the king’s power (mashrutiyyat), which is the origin of Iran’s written constitution, gained popular support around the dawn of the 20th century when it won over an influential segment of the clergy. [1]

The system that resulted institutionalized the basic structure of a Western nation-state in Iran. The Shah, however, retained much of his power, paying only lip service to the democratic aspects, and the clergy’s potential influence remained alive, albeit dormant, in the absence of competing agencies of civil society. The modernizing trend of Iran’s constitutionalism, nevertheless, has continued. In that sense the 1979 revolution was one of rising expectations: the Shah failed by violating the old constitution and, on the other hand, by effectively suppressing his critics.

Over 100 political groups made claim to the fruits of the successful Revolution. There was no doubt about which group was dominant; the only unknown was how actively Ayatollah Rouhollah Khomeini and his group of clerics would rule. He made his intention clear within six months. Discarding the draft of the new European style Constitution which he himself had commissioned and approved, Khomeini arranged for a significantly different one to be drafted by an assembly the election of whose members he greatly influenced. Of the 72 members 55 were canonical jurists, many of them long-time Khomeini supporters.[2]

The draft that they produced closely reflected views about government expressed in Khomeini’s books on the subject -many unprecedented.[3] The other stakeholders in the revolution protested against both the process and the text. The nationalist-religious provisional government which Khomeini had installed voted to dissolve the drafting assembly. The government’s party and their nationalist affiliates, as well as the leftist parties, declared that they would boycott the referendum that was to be held to approve the Constitution. At the end, however, all were effectively intimidated by Khomeini who argued that the emergency conditions due to unrest by ethnic minorities and hostility of foreign powers did not allow any further deliberations. They all participated in the voting. The Islamic Republic’s Constitution was approved by 67% of those who voted in 1979.[4]

The supporters of the Constitution have maintained that it took into account the views of all major groups.[5] Indeed, the Constitution retained significant elements of the discarded earlier draft which had been prepared by lay jurists borrowing liberally from the 1958 French Constitution. It also has similarities with the earlier 1907 written constitution. It even addresses several specific constitutional issues that had troubled Iranian politics since then -such as the jurisdiction of the special military court and the legislative authority of commissions of the parliament (Majles)[6]. Its critics, however, are not few. To them the Constitution is not the true repository of Iran’s constitutional values. They argue that it distorts the common meaning of values through qualifications and contradictions.[7] 

 Values in the Written Constitution

 What are the fundamental values in the 1979 Constitution? How are they defined? What kind of society do they envisage? These questions are paramount for this study. The Constitution is a uniquely important document for several reasons. It established the first theocratic regime of our times. Further, it inaugurated an institution novel even in Islamic tradition: the absolute rule of a religious Canonical- Jurist Guardian (vali-ye faqih) over the people. Finally, its many and detailed provisions have been the supreme law of the land as they have remained intact except for a few amendments, in 1988, which only strengthened their existing tendencies.

Notwithstanding the incongruity in practice -which is discussed in the sections below- the text of the Constitution is by far the most reliable available source for investigating constitutional values in Iran. This is because other potential sources are far less helpful. Records of courts interpreting the Constitution have not been compiled.[8]  The body entrusted by the Constitution for authoritative interpretation, the Guarding (negahban) Council, usually limits itself to cryptic rulings, with inadequate indication of its reasoning.[9]  In the tradition of Civil Law countries, legal scholars have made contributions to the evolution and, accordingly, also to the understanding of the legal system in Iran.. A comprehensive commentary on constitutional values, however, remains to be written. As one student of the field has noted, there is no satisfactory work on much of the constitutional history of Iran; even in the best Western universities erroneous assumptions have distorted scholarship in the whole subject of public law in the region.[10]   Nor can we fully trust the nascent attempts by sociologists to gauge constitutional values in Iran. For one thing, quantitative methods such as taking polls could not produce highly credible results in the restricted political environment of Iran. Thus, partly by default, this study is mostly dependent on the written Constitution for its analysis of Constitutional values of Iran.

Despite all its novelty, the Constitution of the Islamic Republic can be described in terms of familiar values. Abstracted, the Constitution of Iran is a blueprint for rule by the religious spiritualists (ruhaniun) in order to establish a community conceived by them through interpreting the mysteries in the word of God as revealed in the Qur’an. The interpretation is done by ejtehad, that is striving in learning and education. These rulers must be just and pious, manifesting integrity and honesty. Their goal is to spread the justice of God in society. This includes respect and tolerance toward non-believers and compassion and caring toward all. Equally it means siding with the weak and oppressed. Liberation from foreign oppressors is a concrete objective. Dignity is a motivating value in this struggle. Reverence for life is thus sublimated, especially since a greater reward is joining the divine in the next world. Individual freedoms are subordinated to collective independence. Extended family is the foundational unit of human bonding. A bigger grouping to link it with the community at large is not encouraged. Individuals are expected to follow the religious guardians at the top of the community. They are urged to select representatives from among candidates approved by the guardians so that they may voice their views on the affairs of the state in the national and local consultative assemblies. The guardians, however, are not accountable to them. Even transparency in their decisions is not offered.

This summary of the values in Iran’s Constitution -and their order of priority-  requires much amplification and explication. The all important nuances can be seen only in a comprehensive digest of relevant provisions. Values such as freedom in the Iranian Constitution are, typically, a hybrid of borrowed and traditional notions. The distinct results of such combining can be understood only by a close reading of the articles of the Constitution. This is attempted in what follows. While familiar patterns are pointed out, the goal of avoiding undue generalization here presages a descriptive narrative. The treatment of values is topical, but occasionally the same provision may appear in more than one place as it serves more than one value. 

The Constitution does not use the specific word “value” in the fundamental normative sense employed in this study. The Persian word arzesh (value) appears twice in the Constitution, but for its other meaning: worth.[11]  There are three other words in the Constitution which connote a meaning close to the fundamental normative “value”. The first is asl (principle) which is used in seven articles, in all but one qualified by the word Islam, referring to the Islamic principles in abstract[12] -save in one instance when that Islamic principle is specified as just and ethical (Islamic) conduct toward non-Muslims.[13]  In one of these articles, in addition to Islam another collection of associated principles is mentioned: freedom, independence, and national unity. The one usage of asl without the qualifying Islam is in reference to the principles on which court decisions must be based.[14]

The two other words connoting value in the Constitution are mabani (foundations) and payeh (basis). In connection with all such usage, the Constitution qualifies them with Islam. In two of these articles the reference is to Islam in abstract but, in addition, also to the specific “the Islamic Republic”[15]; in the third the addition is “the rights of the public”.[16] Still in another article the reference is specific: “unity and alliance of Islamic nations”.[17]

Aside from the aforesaid words which approximate the meaning of “value” -stressing the significance of Islam, nationalism, and populism- constitutional values are manifested in the many rights provided in the Constitution. Only by considering those rights carefully can the full scope of Iran’s constitutional values be grasped. They are enumerated in the following subsections: Community, Family, Spirituality, Learning and Education, Individual Freedoms, Integrity and Honesty, Dignity, Reverence for Life, Independence, Democracy, Transparency, Responsibility, Accountability, Justice, Equity, Equality, Compassion and Caring, and Respect and Tolerance.

Community

The Constitution invokes a Qur’anic verse to declare that all Muslims form a single community.[18]  The community that the Constitution is focused on is, however, the Iranian nation-state, not that Islamic community (ommat). The Constitution uses the term ommat only twice more when it refers to the country’s highest official as the Leader of the Islamic Community.[19] Far more frequently, however, the Constitution employs terms connected with a modern nation -especially mellat (nation) and its derivatives, and keshvar (country) – which are distinguishable from the concept of the community of Muslims.  This national community has the geographic boundaries of Iran.[20]  The Army is responsible to guard the territorial integrity of the country.[21] The Islamic Republic of Iran is based on the belief in national solidarity.[22]   The President takes the oath of office before the Iranian nation to protect the boundaries and independence of the country.[23] The government has the duty to strengthen the foundations of national defense.[24]   National security justifies secret sessions of the Islamic Consultative Assembly (Majles).[25]  A High Council for National Security is established to secure national interests, and defend national sovereignty.[26]  The government must make all efforts to prevent the influence of all foreigners, not just non-Muslims.[27]  Agreements resulting in any foreign control over the pillars of the country are prohibited.[28]

There are, however, Islamic symbols characterizing this nation-state. Its religion is the Twelver Shiite Islam.[29]  Its flag declares the Islamic creed of “No God but Allah”.[30] Its calendar begins with the date when the Prophet migrated from Mecca to Medina.[31]  Furthermore, the Constitution encourages a broader vision of community. While the Shiite designation separates this community from other Muslims, the Constitution still commands the government of Iran to make efforts to bring to realization the political, economic and cultural unity of the Muslim world.[32]  Its foreign policy is to be based on defending the rights of all Muslims.[33]  Furthermore, in reference to even the non-Muslims, it will support the struggle of the weak against the strong everywhere in the world.[34]

Family  

The Constitution calls family the foundational unit of society.[35]  The government has the duty to help in its formation, stability, and protection of its sacredness.[36] There is a right to housing for every family.[37] Family relations must be based on Islamic rights and ethics[38]-which are patriarchal.  Women’s rights require protection and preservation of family by a special family court.  By saying that this court is to preserve keyan (ancestry) the Constitution notes that the concept of family extends beyond the nuclear group.[39] The prophet’s family is regarded as special and blessed[40] and, hence, it is a venerated religious model.  

Spirituality

The Constitution professes faith in a specific, sole metaphysical God, Allah.[41] Man’s ultimate goal is to evolve toward God. God’s laws are just.[42] Human beings must submit to God,[43] and their current Guardian, anointed by God.[44] Islamic principles are immutable. The Constitution cannot be amended or altered with respect to them.[45]

This faith in God -defined by a specific Shia’ school of a specific religion, Islam- is the source of basic epistemological, moral and legal, and ideological consequences. Allah is the Creator. We know about Him through His revelation[46] in the Qur’an.[47] Human beings have a God-mandated reciprocal duty toward each other to enjoin the good and forbid the evil.[48] The State must create an environment for the growth of moral virtues based on faith and piety and the struggle against vice and corruption.[49] Ethics of Islam must be observed in laws.[50]

God is the ultimate law-giver.[51] Man can make laws,[52] but they must be in compliance with God’s laws, or Islamic standards.[53] Judges can decline to apply government regulations which they consider not to be Islamic.[54] Especially, Islamic criminal laws preempt man-made legislation.[55] What is morally forbidden in Islam, such as usury or gambling, is legally a crime.[56] Islamic standards guide economic policy,[57] determine what can be broadcast on radio and television;[58] limit woman’s role;[59] set prerequisite qualifications for the President,[60] judges, and high officials of the judiciary;[61] and establish conditions for the application of justice and the laws.[62]

Spirituality is the source of the ideology of governance by a very small group of Iranian Shiite clergy. A group of six Islamic canonical jurists (foqaha) of the Guarding (negahban) Council determines what are the all important Islamic standards (mavazin) broadly stated in the Constitution.[63] This they do by interpreting the Qur’an and the tradition of Shiite saints.[64] They are appointed by another clergy, the Leader of the Revolution,[65]  who is in turn appointed by a group of clerics called Leadership Experts.[66] While those jurists serve to “guard” Islam, the Leader is deemed to be the current deputy of God on earth with absolute power over the people as their “guardian”.  Their freedom is ultimately defined at his will.

Learning and education

The Constitution considers the continuous ejtehad (striving) of Shiite scholars as the way to achieve its goals of justice, independence, and national unity.[67] Learning is an essential element in ejtehad. A qualification for the high officials of the Judiciary is that they be mojtahed, that is having already achieved a high level of religious learning.[68] The more important members of the Guarding Council who pass on the Islamic compliance of the laws must have a higher learning credential: they must be canonical jurists (foqaha).[69]  For the most important official in the country, the Leader, the highest level of learning which is necessary for issuing mandatory religious decrees (fatwa) in all fields of canonical law is a primary qualification.[70]

The Constitution also recognizes the value of using science and technology for achieving its goals.[71] It mentions education as one of the fundamental needs that must be met in order to achieve freedom and overcome poverty.[72] Free education is promised to all up to twelve years of school, and free higher education to the extent required for the country’s self-sufficiency.[73] The economy is to be based on the principle of using science and technology and training the needed skilled personnel.[74] Economic planning must take into account the need for all in the labor force to have sufficient time and energy to engage in intellectual activities.[75] To help in educating the masses, the use of the Army in peacetime is mandated;[76] and local councils are to be elected to encourage their involvement.[77] While all these provisions apply to all citizens, religious education is considered separately. The followers of the Sunni Schools of Islam are allowed freedom in their religious education;[78] as are the Zoroastrians, Jews, and Christians.[79]

Integrity and honesty

In the Constitution several qualities are mentioned which are close to integrity and honesty. Majles deputies are required to take the oath to be the “just or upright (adel)” trustees of the Revolution’s accomplishments.[80] Being trustworthy -conveyed by the word amin– is also specified in the President’s oath of office.[81] Taqva (piety or virtue) is a primary quality required of the Leader.[82] It is also in the oath of the office of the Majles deputies.[83] In the President’s oath it is substituted by the kin word parsa (devout or committed).[84]

The Constitution reflects regard for the value of honesty in forbidding the use of government positions for personal benefit. Thus all employees of the Executive branch are barred from holding any additional post in any institution financed by the government or any high position in a private company.[85] Similarly, members of the armed forces are banned from personal use of any military equipment or personnel, especially as servants and chauffeurs.[86]

Dignity 

The Constitution declares that belief in the human being’s keramat -meaning nobility, a term close to dignity- is fundamental to the Islamic Republic.[87] The President in taking the oath of office must affirm that he will protect the dignity (hormat) of all citizens.[88] The Constitution forbids, at the penalty of punishment, affront to the dignity of all those detained, imprisoned or banished. Used in conjunction with hormat in this provision is a related word, heysiyyat (reputation).[89]

Reverence for life

The Constitution declares that the life of a person is inviolable except in cases provided by law.[90] The one law which the Constitution specifically mentions and commands to be implemented, Islamic criminal law,[91] puts limits on the reverence for life by allowing capital punishment, based on  retributive or revenge justice (qasas), and by valuing lives unequally -women less than men and non-Muslims less than Muslims. Furthermore, that law sanctions the death penalty even in cases other than murder, such as adultery.[92] 

Individual Freedoms

The Constitution states that the Islamic Republic is based on belief in human being’s freedom (azadi).[93]  More specifically, it recognizes such abstract freedom for all Iranians[94] and all people of the world.[95] As discussed below, however, the Constitution imposes specific restrictions on freedom.

The components of freedom are enumerated as all human, political, economic, social, and cultural rights.[96] The Constitution makes ensuring “political and social freedoms” a main goal of the government.[97] These are elaborated to include -in an extensive list- the right to form “parties, societies, political and professional associations… (and) religious societies”,[98] freedom of publications and press,[99] freedom of expression and dissemination of thoughts on the radio and television,[100] the right to freely hold public gatherings and marches,[101] the right to citizenship and to abandoning it,[102] and the right to choose one’s residence.[103] Furthermore, freedom of belief is guaranteed as no one may be “molested or taken to task” simply for holding a certain belief.[104]  The right to communication by telephone, telex, and telegraph free of inspection, recording, disclosure, and censorship is assured.[105]   No one may be arrested except by the order of the law and by due process, or detained without immediate notice of charges. There is the right to a speedy trial;[106] the right to seek justice from competent courts, and the right to have counsel, even paid for by the state in case of need.[107] Economic rights are specifically included in the Constitution’s definition of human rights. All citizens are entitled to these “basic necessities  …housing, food, clothing, hygiene, medical treatment, education, and the necessary facilities for the establishment of a family”.[108] The right to choose one’s occupation[109] is augmented by the right to employment opportunities which it is the government’s duty to assure.[110] The government has the duty to make sure that this right to occupation is free from “exploitation” of one’s labor by others.[111] One cannot be denied the fruits of one’s work “under the pretext of” another’s right to ownership.[112] The right to private ownership, on the other hand, is “respected”.[113] These “human rights” are specifically recognized also for all non-Muslims.[114]

 The Constitution imposes restrictions on individual freedom based on the following: rights of others, public rights and interests, interests of the country, national unity, independence, and territorial integrity.[115]  Within those limits, the Judiciary is assigned the task of expanding legitimate freedoms.[116] By “legitimate (mashroo),” the Constitution means religiously legitimate. Two types of legitimate rights are specified. A person is the owner of the products of merely his legitimate business and labor,[117] and only that private ownership is respected that has been legitimately acquired.[118] In many other provisions, the Constitution restricts freedom by the general requirement that they be in compliance with Islam.[119]   The Constitution does not specify the exact Islamic limitations of freedoms. To the extent that future laws could specify individual freedom, the Constitution has designated the canonical jurists of the Guarding Council to decide if they violate the limits of Islamic standards.[120] If the Constitution or statutory laws are silent in a specific instance, then the judge must make his own interpretation based on authoritative Islamic sources or authoritative opinions (fatwa).[121] Judges may also refuse to honor individual freedoms allowed in government regulations based on their own interpretation of Islam.[122]

Independence

When the Constitution speaks of independence it means collective national independence. It considers such independence to be the right of all peoples of the world.[123] It defines this right broadly to include political, economic, social, and cultural and military independence.[124] It deems it so valuable that no one has the right to infringe in the slightest way upon the independence of Iran under the pretext of exercising freedom.[125] The Islamic Republic has the duty to safeguard the independence of Iran;[126] the President must take the oath to guard it;[127] and the Army is responsible for guarding the independence of the country.[128]

Unity is said to be inseparable from independence.[129] National solidarity is mentioned along with independence as a major goal of the Islamic Republic.[130] Territorial integrity is another objective that is said to be inseparable from independence.[131] It is a term often used in conjunction with independence.[132] To preserve independence the establishment of any kind of foreign military base in Iran, even for peaceful purposes, is forbidden.[133] Similarly, the granting of concessions to foreigners for the formation of companies or institutions dealing with commerce, industry, agriculture, mines, and services is absolutely forbidden.[134]. Self-sufficiency in sciences, industrial technology, agriculture, military matters, and the like, is the stated goal.[135] 

 Democracy under the Guardians

The Constitution recognizes the benefits of democracy. It is valued as both contributing to the legitimacy of the rulers and in obtaining the active participation of the people in their support. Democracy is shaped, however, by the overriding value of guardianship: the belief that the ultimate decision must rest with the supervising clerical guardians. According to the Constitution, absolute sovereignty (hakemiyat-e motlaq) over the world and human beings belongs to God, and it is He who has made human beings the masters of their “social destiny”. No one can deprive the human being of this divine right. The nation shall exercise this God given right in the ways that are prescribed in the Constitution.[136] A human being’s mastery of his destiny is not allowed to cover all matters. Certain specified provisions in the Constitution are absolutely “unalterable.” These include the principle of the “Guardian of Our Time (wilayat al-amr) and the Leadership of the Community (emamat-e ommat)”.[137] Accordingly, the powers of government in the Islamic Republic must be exercised under the “supervision” of that Guardian or Leader.[138]

The Leader’s “duties and powers” are far from the mere supervisory. They include: setting the general policies of the country and resolving those problems of the regime which cannot be solved by conventional methods; assuming the supreme command of the armed forces;

appointing and dismissing the chief of the joint staff, the chief commander of the Islamic Revolutionary Guards Corps, the supreme commanders of the armed forces, and the canonical jurists on the Guarding Council and the supreme judicial authority, and formalizing the election of the President and his dismissal.[139] The Leader is a canonical jurist.  He is not necessarily a marja taqlid (Source of Emulation) which requires direct allegiance of individual members of the community. Instead, he is appointed by 86 Leadership Experts[140]  who could also dismiss him.[141] The Experts are chosen by the people.[142] However, the Guarding Council -whose members are in effect the Leader’s appointees-, is responsible for approving the Experts’ qualifications and supervising their election.[143]

People in the Democracy

The Constitution states that the affairs of the country must be administered in reliance on (be etekka) public opinion by the means of election or referenda;[144] elsewhere, resort to “popular votes” is also mentioned.[145] The Constitution specifically provides for election regarding three institutions of government: the Islamic Consultative Assembly (Majles), the Presidency, and the local Councils.[146] All elections, recourse to popular votes, and referenda are under the supervision of the Guarding Council.[147] The authority to interpret the Constitution is vested in the Guarding Council,[148] allowing it to define its right to “supervise” elections as the power to reject candidates to the Majles. The Majles members are to be elected directly and by secret ballot. The qualification of voters and candidates and the conditions of the election will be specified by law.[149]   

The function of legislation is exercised through the Majles, but distilled -including revised through remand- in other organs of government as specified in the Constitution.[150] All laws are initiated in the Majles by its members or the Executive branch.[151]  Majles can pass laws on all matters within the limits laid down by the Constitution.[152] All legislation passed by the Majles must be sent to the Guarding Council which must review it within ten days -extendable for another ten days[153] -to ensure compatibility with Islam and the Constitution. If incompatible it will be returned to the Majles for revision.[154] When the Majles cannot meet the Council’s requirements, the Leader will convene the Exigency Council for “consultation” on what he should do in the best interest of the regime.[155] The President must sign the legislation which has completed these legal stages.[156]

The Majles also has the right to investigate the affairs of the country;[157] to pass the budget;[158] and to approve international treaties.[159] The President must obtain a vote of confidence from the Majles for his cabinet.[160] The Majles may interpolate the Cabinet or an individual Minister, or the President and, if it chooses, pass a vote of no confidence leading to their dismissal -in the case of the President subject to the ultimate decision by the Leader.[161] The President is elected[162] after his qualifications as a candidate have been approved by the Guarding Council.[163] The President only has such executive powers that are not given to the Leader by the Constitution.[164]

To obtain the cooperation of the people, locally elected councils from the village to province levels are provided for in the Constitution so that they may “supervise” the administration of local affairs.[165] Similarly, to ensure cooperation in all units of production, councils of workers, peasants, employees and managers shall be formed in industry and agriculture with powers and functions to be determined.[166]  

Transparency

The Constitution requires transparency in court proceedings and the work of the Majles, but not with respect to the decisions of the more important Guarding Council, the Assembly of Experts, the Exigency Council, or the Leader. The Majles deliberations shall be open and the full minutes are to be published in the official gazette and the state radio. In emergencies due to national security, closed sessions may be held and laws may be enacted, but after the emergency has ceased the minutes and legislation of such closed sessions must be made available to the public.[167] The National Accounting Agency’s report to the Majles on its inspection and audit and its conclusions regarding the way government has spent the general budget shall be made public.[168] The results of Majles’s investigation of complaints to it on issues of public interest must be announced.[169]

Trials are to be held in open court and every person may attend them except in cases where the court decides that it would be detrimental to public morality or public order and in private cases where both parties so request.[170]

Responsibility

The Constitution declares that all people in Iran have the mutual duty to each other to encourage doing good and avoiding evil as commanded by Islam and defined by law.[171] It specifies only one civic duty for all: they must be trained for national defense.[172] In over twenty other Articles, the Constitution assigns specific duties for the State and various government institutions and officials. In one instance, it fails to deliver in the promise to define the duties of one important organ, the Exigency Council.[173] The duties of some are explicitly left to future laws.[174] To one important institution, the Assembly of Experts, is given the right to change its own duties.[175]

Some of the Constitutional duties can be delegated such as some duties of the President.[176] Some cannot be delegated such as the Majles’s duties regarding non-provisional laws.[177] Some duties belong to only certain members of an institution such as to the canonical jurists of the Guarding Council.[178] Some duties are shared by more than one institution such as legislation which is shared by the Majles,[179] the Executive branch,[180] the Guarding Council,[181] the Exigency Council[182] and the Leader.[183]

Accountability

The Constitution considers all human beings accountable to God.[184] The President is accountable to the nation, the Leader, and the Majles.[185]  Every Majles deputy is accountable to the entire nation.[186] The Ministers are accountable to the Majles. The Constitution envisages accountability for the action of one’s appointees, as in the case of the President, for the decisions of his cabinet.[187] It also recognizes joint accountability for colleagues as that of the Ministers for cabinet decisions.[188]

To enforce accountability the Constitution creates a National General Inspector to investigate the work of Administration officials,[189] a National Audit Agency to audit expenditure of the general budget by government agencies,[190] and a Court of Administrative Justice to hear complaints against Administration officials.[191]  According to the Constitution, the Head of the Judiciary shall investigate the assets of the Leader, President, his Deputies, Ministers, and their respective wives before and after holding office to make sure that the assets did not increase unduly.[192] Judges are personally liable for violations in their judgments; they could be brought to court.[193]

The fact that the President, the Majles deputies, and the Experts of Leadership must stand for election provides a popular sanction for their accountability. No such sanction exists for the Leader who is accountable to the Experts -elected from among those candidates allowed by his appointees in the Guarding Council. Nor does it exist for the members of the Guarding Council or the Exigency Council members who are also appointees of the Leader.

Justice

The Constitution values justice as an abstract concept. One of the two primary qualities required of the Leader is being just – the other is being pious.[194] The President must take an oath to uphold justice.[195] The Head of Judiciary [196] and the Chief of the Supreme Court[197] and judges must be just.[198]

In the Constitution justice is sometimes used along with the word haq.[199] Haq could mean both right and truth. Elsewhere, however, the Constitution specifies the justice that it has in mind. It is called God’s justice,[200] Islamic justice,[201] and Qur’anic justice.[202]  While the Constitution envisages man-made laws,[203] it insists that they must conform to Islam. The ultimate arbiter in this test is God’s anointed Guardian, the Leader, after the laws passed by the Majles are first reviewed by the Islamic jurists of the Guarding Council for compliance with Islam.[204] When there is no written law, judges must apply Islamic sources and opinions.[205]

Unequal Equity

 In conjunction with the word justice, the Constitution also uses a term akin to it, Islamic qest (fair share or equity).[206]  The Constitution states that men and women are equal based on Islam.[207] However, not every one has an equal share in Islam. This may help explain the inequality in the system of justice under the Constitution. Their unequal Islamic shares are reflected in both substantive law and procedures such as the evidentiary value of their testimony. The Constitution implicitly confirms this inequality by the very fact of providing special provisions regarding women’s rights.[208] No such specific provision was needed for men.

 Similarly, religious minorities are not equal to Muslims. Judges must be qualified according to Islamic standards.[209] The Constitution is explicit that non-Muslims are to be treated with justice and qest, so long as they do not conspire or act against Islam.[210] Followers of other Muslim Schools are not equal to the Shiites whose different jurisprudence is to be used as the test of Constitutional compliance with Islam. Finally, members of ethnic minorities are not equal to the majority as they lack the latter’s full share of privilege in using their language.[211]

Another jurisprudential peculiarity of the Constitution should be noted here. The Constitution extends the Islamic concept of retributive justice initiated by the State from criminal law into civil matters when it commands that the government seize property that has been legally or morally misbegotten and return it to the rightful owner.[212]

Equal Justice

Within the limits noted above, the Constitution provides the following remarkably detailed system of justice for all. No one is justified to harm others in the exercise of his rights. [213]  Even the Leader is equal to others before the law.[214] The President and Ministers can be tried in court for wrongdoings not related to their work.[215] All persons have the indisputable right to seek justice from courts.[216] Courts are the place all should resort to for justice.[217]  All have the right to counsel and, if they can not afford it, the right to free counsel.[218] All matters are dealt with in courts of general jurisdiction except in specified cases. The   only specified special courts are the military court for military acts and omissions,[219] the Court of Administrative Justice for complaints against acts of government officials,[220] and the special court for the protection of family.[221]

Judges must accept and resolve all disputes properly brought before them.[222] Trials must be open, unless the court decides otherwise.[223] Trials must be speedy.[224] Charges against the press and political crimes must be tried before a jury.[225] Judges must base their ruling on reasoning based on applicable law.[226] There is a presumption of innocence until a court decides otherwise.[227] No act or omission can be deemed a crime based on a law passed afterward.[228] Defamation of a suspect, detainee, or convict is prohibited and shall be punished.[229] There shall be no torture in order to collect information or confession. Confession or testimony obtained under duress is not valid.[230] There shall be no punishment unless based on a court order and carried out in accordance with the law.[231] Independence of judges is promised in that there shall be no removal or transfer of them, except in case of necessity determined by the Head of the Judiciary.[232]  The judiciary shall supervise the proper implementation of the law through a National General Inspectorate.[233]

Compassion and Caring

The Constitution treats compassion and caring as a religious duty toward all, with special attention to Muslims. The scope is extensive and government obligations in this respect are detailed and specific. Majles deputies and the President shall begin their oath of office by the common Iranian invocation of the name of God which stresses that he is compassionate (rahman).[234] A Qur’anic verse (9:71) is quoted in the Constitution to declare that all Muslims are guardians of one another.[235] The Islamic Republic is said to believe in active opposition to the infliction of and submission to all forms of oppression.[236]  The government is commanded to direct all its resources to expand and strengthen Islamic brotherhood and cooperation among all people.[237] Its foreign policy must be based on “brotherly commitment to all Muslims and unsparing support for all the weak of the world”.[238] The Islamic Republic supports the just struggles of the weak against the strong in every corner of the world.[239] It offers political asylum to the deserving.[240]

Among the principle objectives of the economy of the Islamic Republic are uprooting poverty and fulfilling human needs.[241] The government must provide social security services with respect to retirement, unemployment, old age, disability, absence of a guardian and benefits relating to being stranded, accidents, health services, and medical care and treatment.[242] The government must provide all citizens with free education.[243] It must make available means to satisfy the right of everyone to suitable housing.[244] One goal of the Islamic Republic’s economy is to provide the conditions for employment for all.[245] In peace time the Army must be utilized in relief operations, education and construction campaigns.[246] The preservation of the environment is declared to be a public duty.[247]

Respect and Tolerance

 The Constitution states that all Iranians enjoy equal rights, and that color, race, language, and the like, do not bestow any privilege.[248] Religion is missing in this disclaimer and, furthermore, ethnic minorities are not fully equal. The Constitution elsewhere makes it clear that all Iranians equally enjoy all rights in conformity with Islamic standards.[249] The official religion of the country is declared to be the Twelver Jafari Shiite School of Islam, and this is eternally unalterable. Five other named Sunni Schools of Islam (Hanafi, Shafi’i, Maleki, Hanbali, and Zaydi) are fully respected.  The followers of these schools are free to act according to their own religious jurisprudence in religious rites. Such right is also recognized for them in religious education, and personal status matters (marriage, divorce, intestacy inheritance, and wills) and litigations concerning those matters. Further, in areas where followers of any mentioned Sunni Schools are in the majority, local regulations will be based on their teaching, keeping in mind the rights of the followers of other schools.[250]

The Constitution recognizes only three non-Muslim groups- Zoroastrian, Jewish, and Christian Iranians- which are specifically called religious minorities. Like the Sunnis, they are free in performing their religious rites and in personal status matters and religious education may act based on their own rules (a’in).[251] They have the right to send their own elected representatives to the Majlis.[252] These Majles deputies will take their oath of office on their own sacred book. This oath, however, includes the promise to guard the sanctity of Islam.[253] The Constitution provides that the government and all Muslims must treat all others kindly and gently, in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights, provided that they refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran.[254]

As to ethnic minorities, the Constitution declares that Iran’s official language and script are Persian and all official documents and correspondence and text books must be in Persian. Other regional and tribal languages may be used in the press, mass media, as well as the teaching of (only) their literature along side Persian.[255] The Constitution bans regional discrimination in the use of national resources commanding that capital and other facilities be provided commensurate with each region’s needs and capacity for growth.[256]

Priorities among the Constitution’s Values

The Constitution makes one value supreme by declaring that a certain principle prevails over all other provisions of the Constitution:  all laws and regulations must be in accordance with Islamic standards.[257]  This is emphasized by further requiring that Majles legislation[258] and Government regulations not contravene just the Constitution but also Islamic standards, principles and laws.[259] The Constitution then establishes priority for certain other values by stating that its provisions covering them are “unalterable.” These are the principle that Shiah Islam is Iran’s official religion [260]and other principles  relating to “the objectives of the Islamic Republic of Iran, the democratic character of the government, the religious Guardianship of the community, and the administration of the affairs of the country based on national referenda “.[261]

                                                Constitutional Values in Practice

Gaps between Practice and the Constitution

The 1979 Constitution reflects a distinctly Iranian historical experience. Its closest contemporaries, the post-cold war written constitutions of the former Soviet bloc countries might have celebrated the triumph of capitalism and democracy, but the Iranian Constitution, on the contrary, protested perceived Western domination and exploitation. It was as much a manifesto of self-determination as liberation from monarchical autocracy. Indeed, domestic tyranny (estabad) was seen as principally sustained by foreign colonialism (estemar).[262] The hovering evil of colonialism and imperialism was not a new specter; even the Shah and his secular nationalist opponents led by Mohammad Mosaddeq had frequently invoked it. The 1979 Constitution as detailed above leaves no doubt that individual freedoms would be subordinated to the demands of collective national independence. In the era of the cold war cultural independence from both the East and the West was sought in the Persian exceptionalism of Shiah Islam. The new rulers of Iran have justified their practice in this context. They point out that values given priority in the Constitution have been upheld: national independence, Guardianship of the religious leader, compliance with his Islamic standards, and popular elections. They could also argue that they promoted such Constitutional values as education and learning, compassion toward the poor, and dignity. In the broader field of human rights, justice, and equality, however, the gap between practice and the Constitutional values of Iran is too glaring to gloss over.

In the immediate period after the 1979 Revolution individual freedoms mentioned in the Constitution were suppressed. The first waive of suppression began in August 1979 when the most important moderate secular party, the National Front was effectively prevented from further political activity.  By 1981 all parties were brought under control as they were required to have a government permit -not envisaged by the Constitution. In 1983 the most important leftist party, the Tudeh was banned. The Liberation Movement of Iran, the moderate Islamic nationalist party that had formed the first government after the Revolution was gradually and progressively suppressed. In 1990, its leaders were arrested. The official policy was that Iran needed no more than a single party of God.[263]

Contemporaneously, the free press was silenced. Within a year following the Revolution the number of newspapers declined from 444 to about 200. By 1988 there were 121 and they all now adhered to the official line[264] Major pre-Revolution newspapers were taken over by the loyalists. In contrast to them, opposition publications were denied subsidized paper which was vital for their economic survival. A government appointed board was established to supervise the press.[265] Censorship and consequently self-censorship became common. Other mass media faced the same stern policies, as did artists, writers, and scientists.[266]

Freedom of occupation was denied. By 1984, nearly 10,000 high ranking government officials and 3,500 university teachers were purged. New eligibility requirements disqualified many more. High positions in government and the Army were closed to the non-Muslims.[267] Women were, additionally, barred from judicial positions and from studying for certain other professions. Programs for comprehensive Islamization of the culture led more than one million educated secular professionals and intellectuals to exile abroad. Many more who stayed were forced into internal exile, intimidated into avoiding public political and social life.[268]

The judiciary and the Revolutionary Court engaged in unconstitutional interferences in the operation of the free press.[269] Torture of political prisoners was not uncommon.[270] A court to discipline dissenting clergy was established, contravening the Constitution’s bar on special courts expect those it specifically authorized. New laws and court rulings undermined the due process protections of the Constitution[271] and intensified inequality, especially for women[272] and minorities.[273] The wearing of Islamic veil was imposed and polygamy was encouraged.[274]

These gaps between practice and constitutional principles were readily admitted by Iran’s rulers, not the least by their leader, Ayatollah Khomeini. Initially, they proffered as justification the extraordinary conditions which the country faced as the tumult of the revolution was aggravated by the subsequent uprisings of ethnic minorities, active foreign hostility in the form of economic boycott, and the long war of the 1980s with Iraq.[275] The same breaches of the Constitution, however, continued far beyond these emergencies.[276]  By 1997, the United Nations still had an extraordinary special human rights representative assigned for Iran who for the past 16 years had reported on relentless and extensive violations.[277]  That year a Commission appointed by Iran’s new President, Mohammad Khatami, undertook its own investigation. Its findings enumerated six areas where the Constitution had not been implemented, and eight areas where it was being violated: courts jurisdiction; legislation; protection of life, property, and reputation; freedom of belief; freedom of occupation; criminal law and procedure; prohibition of torture; and press freedom.[278]

Systems of beliefs shaping values

Khatami, the regime’s ardent constitutionalist, has explained that the real problem was the Iranian people’s negative attitude toward the law. At best they considered the laws as mere formality. More often they were at war with the whole concept of law.[279] This is not an uncommon observation. The cultural proclivity for lawlessness has been noted by other observers of Iran. It is related to the tendency toward anarchy (harj o marj). The two opposites of anarchy and despotism are a favorite framework for some students of Iranian history.[280]

Ayatollah Khomeini had also made clear his fear of anarchy as it could lead to injustice and insecurity.[281] The view that lawlessness had historical roots in despotism is shared by his critics and supporters alike. The latter emphasize the impact of the rule of the Shahs which they had overthrown.[282] Their critics find despotism in the current regime. Indeed, Khomeini who ruled as an autocrat overriding the legislature, executive branch, and judiciary,[283] claimed that he had the right to absolute rule as the vice-regent of God on earth. These two positions are reconcilable when one considers that prominent clerics as late as the onset of the constitutional revolution argued in support of the absolute rule of the king.[284]

Because of his charismatic personality, his leadership of the Revolution, his position as the religious Source of Emulation, and his active and public involvement in the every day operation of government until his death in 1988, Khomeini has had a unique impact on shaping constitutional values in Iran.[285]  His copious pronouncements in this period, officially complied in the 21 volume Sahifeh-ye nur (The Book of Light), are frequently invoked by the current rulers of Iran. For Khomeini, the Koran contained everything that man needed.[286]  Its mystery, however, could only be known with the help of the select, “initiated in the knowledge (ahl-e marefat),” [287] who were the spiritualists.[288] They, the select clergy, must rule as the guardians of the people.[289] Indeed, according to Khomeini, having the additional facility of guardianship (velayat), was what distinguished the Shiites from the Sunnis, who only had the revelation (vahi).[290]  Khomeini wished that the Constitution which he bequeathed be applied as interpreted by the Shiite canonical jurists.[291]

No single person could be found to replace Khomeini who died in 1989. Instead, a few of his leading clerical followers established a hierocracy that rules in councils, with a Leader who is first among equals.[292] The members of the Assembly of Experts, who choose the Leader, all have to be qualified as learned clergy by the Guarding Council.[293] The cleric members of this Council are appointed by the Leader; its other members are nominated by the cleric who heads the Judiciary, himself appointed by the Leader.[294] The hierocracy has ensured its domination by making extensive use of the Guarding Council’s authority to interpret the Constitution and approve new laws -especially the criminal code, civil code of civil procedure, press law, and the law on qualifications of judges. The hierocracy has established new supervisory, security, economic, and judicial institutions to safeguard its increasing powers.[295] Correspondingly, it has reduced the role of the elective organs of the government. The Guarding Council has asserted a Constitutional right to approve candidates for President and the Majles- broadly interpreting its right to supervise their election. The requirement that the Leader be a Source of Emulation – who depends on the direct affirmation of confidence by the people – has been eliminated by amending the Constitution. Decisions of the ruling Councils are made in closed sessions and announced oracularly. Typical is the Guarding Council which generally does not offer explanatory reasons for it cryptic rulings.[296]  The non-clerics who have been employed by the hierocracy for their needed special expertise have shared its inclination toward authoritarianism.[297]

Unabashedly ideological (maktabi), the hierocracy has used its power of government, and its control of the media, the mosques, and Friday prayer gatherings to impose its own values on society. Believing that it has attained power through a popular revolution,[298] it has been eager to obtain signs of public support through frequent elections.[299]

The hierocracy’s value system does not allow freedom of belief. It allows only such belief that is based on thought and not on emotions.[300] Liberalism is denounced because it tolerates all beliefs. In doing so, liberalism hinders a person’s transcendence to Godliness; it lowers him to the level of animals.[301] Humanism is denounced as it is based on taking distance from God.[302] Everything is the wish of God.[303] Materialism is renounced.[304] Reaching the divine is the ultimate goal.[305] This world is worthless.[306] The sacrifice of life for God is a source of joy.[307] Iranians must fight foreign cultural invasion.[308]  They should not “mimic” them as such an imitation is deplorable begging.[309] The great foreign powers only aim to exploit Iran.[310] Only when the messianic rule of the just (hokoomat-e adl) is established, will everyone be free to express their diverse views. Until then, in these unsettled (ashofteh) times and turbulent environment the people may argue with each other, but they must always remain united.[311] Tolerance of sectarian and ethnic minorities must be balanced with caution regarding the danger of their irredentist demands encouraged by foreign enemies.[312]

Some of these pronouncements resonate even with those educated Iranians who had been looking abroad for guidance in modernizing their country. They share the national resentment toward a history of Russian territorial ambitions and Anglo-American economic exploitation and political meddling in Iran.  They differ, however, on the meaning of such values as freedom and democracy, not just with the hierocracy but even among themselves, since for some these notions came from Socialist sources and for others from capitalist countries. These mostly urban Iranians have not mattered much to the hierocracy as they have been in external or internal exile[313] -their discourse is dismissed as based on a superficial impression of Western culture, without regard to Iranian traditional values.[314] Far more important for the hierocracy has been the mostly rural population of Iran, including those who were just migrating to the cities. They were the core of the tradition-bound majority.[315] They have been deemed to be “submissive,” “sinecure,” “non-assertive,”[316] “always expecting someone from above to solve their problems.”[317] In short, they were ideal subjects for the rule of the Guardian.

Long isolated in small towns and villages, this majority’s attachment to tradition has been strong.[318] Their tradition is patriarchal both in their treatment of women and in exhausting social capital on the family, extended to the clan. From here they have no intermediate social grouping until the abstract community of Muslims. Islam has dominated their world view: their notion of reality, their rules of conduct, and their concept of government.[319] In a broad sense, they follow their prayer leader (pishnamaz). The elite of the hierocracy has reflected affinity with this social behavior. Their political factions have been clusters formed around prominent personalities where “connections” and not “principles” mattered.[320]

Values restraining exercise of power

The clerical rulers and their subjects, however, live in a nation-state that is Iran of today. This is a society with different needs from the agricultural, nomadic, and mercantile community for which the Islamic law was developed. Khomeini recognized this fact when he boldly decreed that the pursuit of the interest of the State could justify not only the violation of the Constitution, but even prevail over the fundamental ordinances of Islam.[321] The absolute rule of God’s vice-regent, on occasions, has had to yield to pressures from the people as a modern state could not last long in opposition to them.

Accordingly, when the very women who were mobilized in the service of the Revolution, the war with Iraq, and the enforcement of Islamic public demeanor, awakened to their legal inequality with men, their demands were heeded by the hierocracy who toned down the implementation of Islamic marriage and divorce laws and allowed women to practice law and serve as court advisors in civil cases.[322] Similarly, demands by workers forced the hierocracy to avoid Islamization of labor laws which would have barred government regulatory intervention in labor relations. Farmers prevented plans to comply with Islamic law’s respect for private property through the reversal of the Shah’s land reform measures. The importance of education, especially sciences and technology, for the cherished goals of economic self-sufficiency and independence could not be denied.[323]  Finally, the need for greater participation by the people in the reconstruction after the Iraq war, especially in the private sector, made the government promise to ease restrictions on forming associations.[324]

People who took part in the Revolution have now become, as a result, almost fearless in expressing their criticisms openly in the streets.[325] Tehran’s “shared” taxis are notorious venues. Equally important are student gatherings. The number of university students has grown exponentially as the State has heeded the Constitution’s call for education as a necessary tool to achieve its goals. Iranian Presidents have famously attended student forums to defend charges voiced against the regime.[326] Even these inchoate types of venting force caution in the exercise of power. In the same vein, the rulers of Iran are pressed to profess honesty, dignity, and integrity which are the values lauded by the Constitution.[327]

The Iranian hierocracy is also sensitive to international criticisms of its conduct. It has felt unease in the fact that the United Nations had lumped it with regimes -such as the Taliban of Afghanistan- which Iran has condemned for their records of human rights violations.[328] It has considered this “a challenge to its sense of dignity (kasr-e sha’n),” compelling a response. It has implicitly acknowledged the weakness of its arguments that the United Nations’ condemnation was political, instigated by Iran’s enemies,[329] and did not take into account Iran’s special culture. Even the Leader is said to have called for restraint in government’s human rights abuses,[330] mindful of the Constitutional values to which Iran has also committed itself in at least twenty two major international conventions and agreements.[331]

The 1979 Iranian Constitution attempted to harness the meaning of the universally familiar terminology of values it espouses by subjecting them to Islamic standards. That qualifier may only delay the convergence of the Iranian meaning of those values with the global standards in an increasingly integrating world. In reconciling with modernity, Iran’s Shiah tradition would be helped by the three characteristics that separate it from Islamic rigidity: its espousal of rationalism (falsafeh aqli); its active embracing of change (ijtehad); and its roots in the mellow temperance of mysticism (erfan).

_______________________________________________________________________________

Notes

[1] Adamiyyat, 1976:203, 225-28, 460

[2] Schirazi, 1998:32

[3] Khatami, 2000: 428; Kadivar, 1999: 166-68

[4] Schirazi, 1998: 47-52

[5] Mehrpur, 2001: 228

[6] Tabari, 2006

[7] Schirazi, 1998: 1, et passim.

[8] Katuzian, 2006:18

[9] Mehrpur, 2001:49, 64, 65, 108

[10] Amir Arjomand, 1996: 332-34

[11] Constitution: Arts. 2.5, 38

[12] Constitution: Arts. 4, 12, 26, 85, 172

[13] Constitution: Art. 14

[14] Constitution: Art. 166

[15] Constitution: Arts. 67, 115

[16] Constitution: Art. 24

[17] Constitution: Art. 11

[18] ibid

[19] Constitution: Arts. 109, 177

[20] Constitution: Art. 78].

[21] Constitution: Art. 143

[22] Constitution: Art. 2.6

[23] Constitution: Art. 121

[24] Constitution: Art. 3.11

[25] Constitution: Art. 69].

[26] Constitution: Art. 176

[27] Constitution: Art. 3.5

[28] Constitution: Art. 153

[29] Constitution: Art. 12

[30] Constitution: Art. 18

[31] Constitution: Art. 17

[32] Constitution: Art. 11

[33] Constitution: Art. 152

[34] Constitution: Art. 154

[35] Constitution: Art. 10

[36] Constitution: Arts. 10; 43.1

[37] Constitution: Art. 31

[38] Constitution: Art. 10]

[39] Constitution: Art. 21.3

[40] Constitution: Art. 17

[41] Constitution: Art. 2

[42] Constitution: Art. 2.3

[43] Constitution: Art. 2.1

[44] Constitution: Arts. 2.5, 177

[45] Constitution: Arts. 12, 177

[46] Constitution: Art. 2.4

[47] Constitution: Art. 2.6-1

[48] Constitution: Art. 61

[49] Constitution: Art. 3.1

[50] Constitution: Art. 10

[51] Constitution: Art. 2.1

[52] Constitution: Art. 72

[53] Constitution: Arts. 72, 85, 61, 91

[54] Constitution: Art. 170

[55] Constitution: Arts. 61, 156

[56] Constitution: Art. 49

[57] Constitution: Art. 44

[58] Constitution: Art. 175

[59] Constitution: Art. 21

[60] Constitution: Art. 115

[61] Constitution: Art. 162

[62] Constitution: Arts. 61; 167

[63] Constitution: Art. 96

[64] Constitution: Art. 2.6-1

[65] Constitution: Art. 91

[66] Constitution: Art. 107

[67] Constitution: Art. 2.6

[68] Constitution: Arts. 157, 162

[69] Constitution: Art. 91

[70] Constitution: Art. 109

[71] Constitution: Art. 2.6

[72] Constitution: Art. 43

[73] Constitution: Arts. 30; 3.3

[74] Constitution: Art. 43.7

[75] Constitution: Art. 43.3

[76] Constitution: Art. 147

[77] Constitution: Art. 100

[78] Constitution: Art. 12

[79] Constitution: Art. 13

[80] Constitution: Art. 67

[81] Constitution: Art. 121

[82] Constitution: Arts. 5, 109

[83] Constitution: Art. 67

[84] Constitution: Art. 121

[85] Constitution: Art. 141

[86] Constitution: Art. 148

[87] Constitution: Art. 2.6

[88] Constitution: Art. 121

[89] Constitution: Art. 39

[90] Constitution: Art. 22

[91] Constitution: Art. 156.4

[92] Ebadi, 2004: 76-84, 88

[93] Constitution: Art. 2.6

[94] Constitution: Art. 121

[95] Constitution: Art. 154

[96] Constitution: Art. 20

[97] Constitution: Art. 3.7

[98] Constitution: Art. 26

[99] Constitution: Art. 24

[100] Constitution: Art. 175

[101] Constitution: Art. 27

[102] Constitution: Art. 41

[103] Constitution: Art. 33

[104] Constitution: Art. 23

[105] Constitution: Art. 25

[106] Constitution: Art. 32

[107] Constitution: Art. 34

[108] Constitution: Art. 43

[109] Constitution: Art. 21

[110] Constitution: Art. 43.2

[111] Constitution: Art. 43.4

[112] Constitution: Art. 46

[113] Constitution: Art. 47

[114] Constitution: Art. 14

[115] No one is free to choose an occupation that might be against the rights of others (Constitution: Art. 28], publication and press are not free to say what might harm “public rights”(Constitution: Art. 24] and no one is free to choose an occupation that might be against public interest (Constitution: Art. 28), publication and press are not free to say what might harm the interests of the country (Constitution: Art. 175), the formation of parties, societies, political or professional associations, and religious societies are allowed provided that they do not violate national unity (Constitution: Art. 26], and no one has the right to infringe upon the political, cultural, economic, and military independence of Iran under the pretext of exercising freedom (Constitution: Art. 9].

[116] Constitution: Art. 156.2

[117] Constitution: Art. 46

[118] Constitution: Art. 47

[119] The Islamic Republic is a system based on belief in human being’s freedom “coupled with responsibility before God” (Constitution: Art. 2.6). Publications and the press have freedom of expression except when that harms the foundations of Islam (Constitution: Art. 24). The formation of parties, societies, political or professional associations, and religious societies are allowed provided that they do not violate Islamic standards (mavazeen) (Constitution: Art. 26). Freedom of expression and dissemination of thoughts on the radio and television is to be guaranteed with due respect to Islamic standards (Constitution: Art. 175). Human rights of those non-Muslims are respected who refrain from engaging in conspiracy or activity against Islam (Constitution: Art. 14). All citizens enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic standards (Constitution: Art. 20). Public gatherings and marches may be freely held provided that they are not detrimental to the foundations of Islam (Constitution: Art. 27). Everyone has the right to choose any occupation he wishes, if it is not contrary to Islam (Constitution: Art. 28). The judiciary is entrusted with the duty to implement Islam’s criminal law and regulations (Constitution: Art. 156.4). Every person has the duty of intrusion in others’ life, imposed by the Islamic mandate to “enjoin the good and forbid the evil” (Constitution: Art. 8).

[120] Constitution: Art. 4

[121] Constitution: Art. 167

[122] Constitution: Art. 170

[123] Constitution: Art. 154

[124] Constitution: Arts. 2.6, 9, 121

[125] Constitution: Art. 9

[126] Constitution: Art. 3.11

[127] Constitution: Art. 121

[128] Constitution: Art. 143

[129] Constitution: Art. 9

[130] Constitution: Art. 2.6

[131] Constitution: Art. 9

[132] Constitution: Arts. 9, 3.11

[133] Constitution: Art. 146

[134] Constitution: Art. 81

[135] Constitution: Art. 3.13

[136] Constitution: Art. 56

[137] Constitution: Art. 177

[138] Constitution: Art. 57

[139] Constitution: Art. 110

[140] Constitution: Art. 107

[141] Constitution: Art. 111

[142] Constitution: Art. 107

[143] Constitution: Art. 99

[144] Constitution: Art. 6

[145] Constitution: Art. 99

[146] Constitution: Art. 6

[147] Constitution: Art. 99

[148] Constitution: Art. 98

[149] Constitution: Art. 62

[150] Constitution: Art. 58

[151] Constitution: Art. 74

[152] Constitution: Art. 71

[153] Constitution: Art. 95

[154] Constitution: Art. 94

[155] Constitution: Art. 112

[156] Constitution: Art. 123

[157] Constitution: Art. 76

[158] Constitution: Art. 26

[159] Constitution: Art. 83

[160] Constitution: Art. 87

[161] Constitution: Art. 89

[162] Constitution: Art. 114

[163] Constitution: Art. 110.9

[164] Constitution: Art. 113

[165] Constitution: Art. 100

[166] Constitution: Art. 104

[167] Constitution: Art. 69

[168] Constitution: Art. 55

[169] Constitution: Art. 90

[170] Constitution: Art. 165

[171] Constitution: Art. 8

[172] Constitution: Art. 151

[173] Constitution: Art. 112

[174] Constitution: Art. 150

[175] Constitution: Art. 108

[176] Constitution: Art. 127

[177] Constitution: Art. 85

[178] Constitution: Art. 96

[179] Constitution: Art. 58

[180] Constitution: Art. 74

[181] Constitution: Arts. 91, 94, 96, 97

[182] Constitution: Arts. 112, 177

[183] Constitution: Arts. 110, 112

[184] Constitution: Art. 2.6

[185] Constitution: Art. 122.

[186] Constitution: Art. 84

[187] Constitution: Art. 134

[188] Constitution: Art. 137

[189] Constitution: Art. 174

[190] Constitution: Arts. 54, 55

[191] Constitution: Art. 173

[192] Constitution: Art. 142

[193] Constitution: Art. 171

[194] Constitution: Art. 109

[195] Constitution: Art. 121

[196] Constitution: Art. 157

[197] Constitution: Art. 162

[198] Constitution: Art. 158.3

[199] Constitution: Art. 121

[200] Constitution: Art. 2.4

[201] Constitution: Art. 154

[202] Constitution: Art. 1

[203] Constitution: Art. 61

[204] Constitution: Art. 96

[205] Constitution: Art. 167

[206] Constitution: Arts. 14; 104

[207] Constitution: Art. 20

[208] Constitution: Art. 21

[209] Constitution: Art. 163

[210] Constitution: Art. 14

[211] Constitution: Arts. 15; 19

[212] Constitution: Art. 49

[213] Constitution: Art. 40

[214] Constitution: Art. 107

[215] Constitution: Art. 140

[216] Constitution: Art. 34

[217] Constitution: Art. 159

[218] Constitution: Art. 35

[219] Constitution: Art.  172

[220] Constitution: Art. 173

[221] Constitution: Art. 21

[222] Constitution: Art. 167

[223] Constitution: Art. 165

[224] Constitution: Art. 32

[225] Constitution: Art. 168

[226] Constitution: Art. 166

[227] Constitution: Art. 37

[228] Constitution: Art. 169

[229] Constitution: Art. 39

[230] Constitution: Art. 38

[231] Constitution: Art. 36

[232] Constitution: Art. 164

[233] Constitution: Art. 174

[234] Constitution: Arts. 67; 121

[235] Constitution: Art. 8

[236] Constitution: Art. 2.6.3

[237] Constitution: Art. 3.15

[238] Constitution: Art. 3.16

[239] Constitution: Art. 154

[240] Constitution: Art. 155

[241] Constitution: Art. 43

[242] Constitution: Art. 29

[243] Constitution: Art. 30

[244] Constitution: Art. 31

[245] Constitution: Art. 43.2

[246] Constitution: Art. 147

[247] Constitution: Art. 50

[248] Constitution: Art. 61

[249] Constitution: Art. 20

[250] Constitution: Art. 12

[251] Constitution: Art. 13

[252] Constitution: Art. 64

[253] Constitution: Art. 67

[254] Constitution: Art. 14

[255] Constitution: Art. 15

[256] Constitution: Art. 48

[257] Constitution: Art. 4

[258] Constitution: Art. 112

[259] Constitution: Art. 85

[260] Constitution: Art. 4

[261] Art. 177

[262] Khatami, 2000: 434

[263] Schirazi, 1998: 125-131

[264] Schirazi, 1998: 135

[265] Mehrpur, 2001:313-14

[266] Schirazi, 1998: 136-38

[267] Mehrpur, 2001:109, 172

[268] Schirazi, 1998:138-139

[269] Mehrpur, 2001:110-11, 117-118

[270] Mehrpur, 2001:114

[271] Mehrpur, 2001:127, 130

[272] Schirazi, 1998: 141

[273] Mehrpur, 2001:175

[274] Schirazi, 1998: 141

[275] Mehrpur, 2001:34, 100, 229

[276] Mehrpur, 2001:228

[277] Schirazi, 1998: 138

[278] Mehrpur, 2001:243

[279] Mehrpur, 2001:34-35

[280] Katouzian, 1999: xii-xiii;  Adamiyyat, 1976:196, 198, 202, 481

[281] Khomeini, 1990:39, 137

[282] Mehrpur, 2001:35, 230; Khatami, 2000: 11, 17, 436

[283] Schirazi, 1998: 61-62, 64-66, 74

[284] Adamiyyat, 1976:200, 266-67

[285] Some of Khomeini’s views had been expressed before by religious proponents of absolute  rule of the king (Adamiyyat, 1976: 200-201, 166-67).

[286] Khomeini, 1990:20, 21, 102, 125; Schirazi, 1998: 17

[287] Khomeini, 1990:21, 83

[288] Khomeini, 1990:19

[289] Khomeini, 1990:157; Schirazi, 1998: 55

[290] Khomeini, 1990:157

[291] Mehrpur, 2001:34, 100

[292] Tabari, 2007:122; Sadjadpour, 2008: 1, 28

[293] Schirazi, 1998: 20, note 30

[294] Tabari, 2007:120

[295] Schirazi, 1998: 151

[296] Mehrpur, 2001:49, 64, 65, 108

[297] Schirazi, 1998: 131; Sadjadpour, 2008: 8, 13

[298] Khomeini, 1990:5, 50, 84; Schirazi, 1998: 50; Sadjadpour, 2008: 3

[299] Khameneh’i, 2007: 14-16, 19

[300] Schirazi, 1998: 145

[301] Khatami, 1993: 136-7, 205; 1997: 32; Schirazi, 1998: 146

[302] Schirazi, 1998: 143

[303] Khomeini, 1990:236

[304] Khameneh’i, 2007: 17

[305] Khomeini, 1990:18

[306] Khomeini, 1990:3, 130

[307] Khomeini, 1990:17, 59, 187; Sadjadpour, 2008: 11; Khameneh’i, 2007: 13

[308] Schirazi, 1998: 146; Sadjadpour, 2008: 17-18

[309] Khomeini, 1990:242

[310] Khomeini, 1990:238; Sadjadpour, 2008: 15-16

[311] Khomeini, 1990:238

[312] Sadjadpour, 2008: 13, 14

[313] Khomeini, 1986: 131; Khatami, 2000: 435

[314] Khomeini, 1986: 131; Khatami, 2000: 435

[315] Tait, 2008; Schirazi, 1998: 32, 138-139, 292; Sadjadpour, 2008: 2

[316] Mehrpur, 2001:318

[317] Mehrpur, 2001:40; Matin Daftari, 1970: noon-sin; Matin Daftari, 1969: dibacheh-ye chop-e avval, ghayn-zhe

[318] Schirazi, 1998: 291

[319] Tabari, 2007: 135; Mansurian, 2004; Emami 1967: be; Sadjadpour, 2008: 10; Mehrpur,  2001:319-320;  Adamiyyat, 1976:245, 352-53

[320] Tabari, 2007:117; Mehrpur, 2001: 320; Schirazi, 1998: 101

[321] Akhavi, 1996: 262-6; Mehrpur, 2001:229

[322] Schirazi, 1998: 141-42

[323] Sadjadpour, 2008: 11, 22; Khameneh’i 2007, 17-18

[324] Schirazi, 1998: 135

[325] Mehrpur, 2001:32

[326] Tabari, 2007:134-135

[327] Khomeini, 1990: 242, 245; Sadjadpour, 2008: 1, 9

[328] Mehrpur, 2001:104-105

[329] Khomeini, 1986: 23, 63-64, 260

[330] Mehrpur, 2001:104-105

[331] Ebadi, 2004: 135-327

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References

Adamiyyat. F. (1976) Ideologie-e nehzat-e mashrutiayyat-e iran [The Ideology of Iranian Constitutional Movement]. Tehran: Entesharat-e Payam

Akhavi, S. (1996) ‘Contending Discourses in Shi’ah Law on the Doctrine of Wilayat al-Faqih’, Iranian Studies 29 (3-4): 229-68.

Constitution of the Islamic Republic of Iran (1979) the translation available (on April 14, 2008) at: http://www.iranonline.com/iran/iran-info/Government/constitution.html

Ebadi, S. (2004) Hogug-e bashar dar iran [Human Rights in Iran]. Tehran: Roshangaran va Motaleat-e Zanan.

Emami, H. (1346/1967) Hoquq-e madani [Civil Law] Vol. VI. Tehran: Abu-reyhan.

Kadivar, M. (1999) Hokumat-e vela’i [The Guardianship Government]. Tehran: Nashr-e Nay.

Katouzian, H. (1999) Musaddiq and the Struggle for Power in Iran. London: I.B. Tauris.

Katuzian, N. (1385/2006) Qanoon-e madani dar nazm hoqooqi-ye konooni [Civil Law in Current Legal System]. Tehran: Mizan.

Khameneh’i, A. (2007) ‘Leader’s Speech at the Commemorative Ceremony Marking the 18th Departure Anniversary of Imam Khomeini’; available (on December 6, 2007) at: 

http://www.leader.ir/langs/en

Khatami, M. (1993) Bim-e mowj [Fear of the Wave]. Tehran: Simay-e Javan.

Khatami, M. (1997) ‘The Interview’, trans, M. Buffington and M. Buffington, Meet Mr. Khatami, The Fifth President of the Islamic Republic, pp. 1–52. Washington, DC: Middle East Insight.

Khatami, M. (2000) A’in-o andisheh dar dam-e khodkamegi [Religion and Thought Trapped in Tyranny]. Tehran: Tarh-e No.

Khomeini, R. (1986) Sahifeh-ye nur [The Book of Light], Vol. 18. Tehran: Sazman-e Madarek-e Farhangi-ye Islami.

Khomeini, R. (1990) Sahifeh-ye nur [The Book of Light], Vol. 20. Tehran: Sazman-e Madarek-e Farhangi-ye Islami.

Mansurian, N. (2004) ‘Goftogoy-e enteghadi-e daneshjooyan fa rais-e jomhour [Critical Dialogue of Students and the President],’ Rooznameh Shargh, 7 December; available (on January 7, 2006) at: www.sharghnewspaper.com/830917/html/index.htm

Matin Daftari, A. (1348/1969) A’in-e dadresi-ye madani va bazargani [Civil and Business Judicial Procedure], Vol. II. Tehran: Daneshgah-e Tehran.

Matin Daftari, A. (1349/1970) A’in-e dadresi-ye madani va bazargani [Civil and Business Judicial Procedure], Vol. I. Tehran.

Mehrpur, H. (2001) Rais-e jumhur va mas’uliat-e ejray-e qanun-e asassi [The President and the Responsibility of Implementing the Constitution]. Tehran: Entesharat-e Ettela`at.

Qanun-e asasi jumhur-ye islami-ye iran [Constitution of the Islamic Republic of Iran] (1979); available (on January 18, 2008)  at: http://www.gozaar.org/template.php?id=423

Sadjadpour, K. (2008) Reading Khamenei: The World View of Iran’s Most Powerful Leader. Washington: Carnegie Endowment.

Schirazi, A. (1998) The Constitution of Iran; Politics and the State in the Islamic

Republic. New York: I. B. Tauris.

Tabari, K. (2007) ‘The Rule of Law and the Politics of Reform in Post-Revolution Iran’, in S.A. Amirarjomand (ed.) Constitutionalism and Political Reconstructions, pp. 115-137. Leiden: Brill.

Tabari, K. (2006) ‘Musaddiq’s Conception of Constitutionalism -Based on his Arguments before the Court that tried him in 1953,’ available on April 14, 2008 at: http://www.iranian.com/Tabari/2006/September/Constitutionalism/index.html

Tait, R.  (2008) ‘As the regime Cracks down, life goes on behind closed curtains’ The Guardian, 7 January; available (on April 13, 2008) at: http://www.guardian.co.uk/world/2008/jan/07/iran.pressandpublishing

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This paper was submitted as a contribution to a comparative study of constitutional values in selected nations based on a template discussed by the authors in a four day meeting in the fall of 2008 at the Rockefeller Institute in Bellagio, Italy.

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