3- The first decade of the Iranian constitution: problems of the least dangerous branch
In the preceding chapters, the relevance of the Shi’i schools of law for the modern constitutional debate, as well as the most direct sources at the origin of the present Iranian Constitution, primarily Muhammad Baqer as-Sadr’s 1979 studies, have been presented. With these contributions in mind, this chapter will analyse some of the constitutional issues which have recently unfolded in the system. Occasionally, a comparative perspective will be introduced to shed more light on the problems that the Iranian institutions face.
In the widest acceptation of government, the quintessential constitutional question is about who ultimately holds the power to say what the law is. In view of tne centrality of the shari’a in the definition of an Islamic state, this issue represents the essential problem of contemporary Islamic law.
A guiding perspective to the analysis of this chapter is offered by the celebrated exchange between Humpty Dumpty and Alice:’"When I use a word," Humpty Dumpty said, in rather a scornful tone, " it means just what I choose it to mean -neither more nor less". "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master -that’s all"
or, as in a sermon preached two centuries ago:’ Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.’
The jurists in the constitution
The Council of Guardians between legislature and executive
The problems related to the institution of Council of Guardians have developed out of the unusual system of separation of powers that regulates the Iranian state. Whereas the division between the executive, legislative and judicial branches would normally engender problems similar to the ones facing such a system in any modern democracy, the complication of the Iranian state arises from the centrality of the Leadership’s position. The marja’iyya, which forms the peculiarity of Shi’i constitutionalism, has already been discussed in some of its forms in the preceding chapters. How it interacts in practice with other powers established in 1979 Iran will be the subject of a more thorough analysis in this section. But this aspect of the double-tiered separation of powers is not the sole distinguishing feature of Iran’s present Constitution. The specificity of the Iranian system is due to the special powers entrusted with the Council of Guardians (shuray-e negahban), which has wielded much authority since the Revolution, and encroached on Parliament’s legislative functions in a way that developed in 1988 into the most serious constitutional crisis of the Islamic Republic since its foundation.
The Council of Guardians has no British equivalent. In France, it is very similar to the Conseil Constitutionnel, which, in the system of the Fifth Republic, mainly looks to the concordance of the laws passed by Parliament with the French Constitution and’Republican principles’.
Many Iranian constitutional bodies resemble institutions fashioned in Gaullist France, and the Council of Guardians, the election of the President in two turns (Iranian Constitution, Art. 117), as well as the President’s prerogatives over the Prime Minister and the Assembly, are very similar in the two systems. But the Council of Guardians bears a specificity which makes it also very different from its French equivalent.
In France, the scrutiny of a law by the Conseil Constitutionnel can take place only if requested by the six persons or bodies specified by Article 61. In Iran, the scrutiny of the Council of Guardians is automatic:
All enactments of the Majlis shall be submitted to the Council of Guardians and the Council shall examine them within ten days after the receipt thereof to see whether or not they reconcile with the tenets of Islam and constitutional law.
If the Council of Guardians finds the enactments contrary to Islamic tenets and constitutional law, it shall return them to the Majlis for reconsideration. (Art. 94)
The main articles on the Council of Guardians form part of chapter 6 of the Iranian Constitution, on’the Legislative Power’, and complement the dispositions dealing with Parliament and its prerogatives. One could presume that, on the surface, the Council of Guardians is no more than a’ corrective’ to possible exaggerations of Parliament, or eventual gross departures from accepted principles of the shari’a. But the reality is different. As appears from Article 94, the Council of Guardians was destined to play a major role in the definition of the functions of Islamic law. But important as that was, this supervision did not constitute the sole significant prerogative of this body. In other texts of the Constitution, the Council of Guardians was entrusted with the scrutiny, not only of Parliament’s acts, but of the other important institutions of the country.
The executive branch in the Iranian system, which is headed by the President of the Republic, comes also under the control of the Council of Guardians. The screening process of candidates to the Presidency is a distinctive characteristic of the Iranian Constitution.
The control of the Presidency is two-fold. As mentioned in the preceding chapter, it is exercised, according to Art. 110, by the Leader, who’ signs the decree [formalising the election] of the President of the Republic after his election by the people’. But the Council of Guardians must also approve of the candidates to the Presidency:’The suitability of candidates for the Presidency of the Republic, with respect to the qualifications specified by the Constitution, must be confirmed before elections take place by the Council of Guardians.’ The Council of Guardians has therefore the effective, automatic prerogative of screening the candidacies to the highest executive position. The screening prerogative is even stronger than the power of the Leader in this respect, for it is difficult to see the Leader, except in very exceptional circumstances, refusing to institute an elected President. The preliminary screening of candidates, in contrast, is a measure far easier to take.
This executive screening by the Council of Guardians is, of course, a feature that distinguishes the Iranian system in a way unparalleled in modern nation-states. The fact that a candidate to the Presidency can be rejected for motives based on political grounds means that the whole devolution of the people’s power is in effect checked by a decision of the Council. The Council of Guardians controls the person of the President, not simply his acts. And if the ratification of an elected President could be conceived as an a posteriori formality akin to the Crown in England calling a newly elected Prime Minister into office, the a priori control given to the Council of Guardians entails a noticeable strengthening of its already vast institutional power.
There is nothing in the Constitution that indicates how the mechanism of the Council of Guardians’ screening of the presidential candidates operates.
One must presume that the decision is based on the qualifications required for the Presidency in Chapter 9 of the Constitution on the executive power.
Article 115 specifies that the President must be Iranian both by origin and nationality, be pious, etc., and that he must have’a convinced belief in the fundamental principles of the Islamic Republic of Iran and the official school of thought in the country’. In other words, the President must be Shi’i, and this appears as another institutional characteristic proper to Iran. Some Arab countries have included in their constitutions a clause requiring the President to be’Muslim’,
but none requires him to be specifically Sunni or Shi’i.
The oath sworn by the President offers other indications of the criterion of his’suitability’ in the eyes of the Council of Guardians. Again, the Shi’i character appears in the text of the required declaration:’ I will guard the official school of thought of the country.’ Also, the President must swear fidelity’to the Islamic Republic and the Constitution of the country’ (Art.
121).
In sum, these texts are too general to limit the screening power of the Council of Guardians. Unchecked, this control of the Presidency furthers the juristic hold (particularly the Council of Guardians) of the Shi’i hierarchy over all branches of the Government. That this power is not mere rhetoric appears in one famous instance of the Council of Guardians’ exercise of his screening of the presidential candidates, when it rejected the candidacy of the first Prime Minister of the Islamic Republic, Mahdi Bazargan, in 1985.
The composition of the Council of Guardians further betrays its hybrid character. Technically, because it comes under Chapter 6 on the legislative power, it could be considered a pure appendix of the legislative branch, which is in principle entrusted with an elected Parliament.
But the composition of the Council of Guardians points out the equal importance of its judicial character. Article 91 states that in order to protect the ordinances of Islam and the Constitution by assuring that legislation passed by the National Consultative Assembly does not conflict with them, a council to be known as the Council of Guardians is to be established with the following composition: (a) six just fuqaha (fuqaha-ye adel va aga be-muqtadayat-e zaman), conscious of current needs and the issues of the day, to be selected by the Leader or the Leadership Council; and (b) six Muslim jurists (huquqedan), specialising in different areas of the law, to be elected by the National Consultative Assembly from among the Muslim jurists presented to it by the Supreme Judicial Council.
It is clear from this text that the Council of Guardians, despite its formal attachment to the legislative branch, is dominated by the Judiciary in its composition. Though there seems to be a difference between the fuqaha chosen by the Leadership and the Muslim jurists appointed by Parliament, the screening operated by the Supreme Judicial Council leaves little doubt that jurists of classical Islamic law, as opposed for instance to lawyers or judges of the Ancien Regime, would be prominent on the Council. The Supreme Judicial Council itself is constitutionally formed of’classical’’ulama. According to Article 158, the Supreme Judicial Council consists of five members,’ three judges possessing the quality of mujtahid, the Head of the Supreme Court, and the Prosecutor-General’, both of whom must also be mujtahids (Art. 162).
The institutionalised juristic quality of the Council of Guardians seems thus inevitable. It is difficult to imagine that the composition of the Council could escape the traditional Shi’i ijtihad structure. Half of its members must by law be fuqaha, and the rest are screened by a body which consists of fuqaha. Therefore, the Council of Guardians appears in its composition to bear all the qualities of a judicial body, and even though its position in the Constitution makes it technically part of the legislative branch, both in its composition and in its prerogatives, its legislative aspect fades before the judicial impact of Shi’i public law.
The dispositions in Art. 94 give an extremely wide role to the Council of Guardians in the legislative process, and these powers are further comforted by Articles 95 to 98, which allow the Council of Guardians, inter alia, to attend the sessions of the Majlis while a draft law is being debated, and for its members to express their views if an urgent bill is on the floor.
Thus, on the one hand, the Council of Guardians bears resemblance to some of the constitutional systems of the West, particularly in France and in the United States. With France, it shares the immediate scrutiny of legislation discussed in Parliament. With the United States, a similar scrutiny is carried out by the Judiciary, but it is only after a protracted process that it reaches the Supreme Court.
On the other hand, the Council of Guardians is set apart by the systematic and automatic revision power through which the Constitution empowers it to examine, and possibly undermine, all legislation. Furthermore, the Council of Guardians can allow itself ten extra days if it deems the first period insufficient for its analysis (Art. 95). With such unparalleled power, the Council of Guardians was bound to become a Super-Legislature, and its extraordinary prerogatives have been compounded by the vagueness of its mandate. The’tenets of Islam’ and the’constitutional law’ of the land are vast categories, which encompass virtually any area which the Council deems prone to its intervention, scrutiny, and possible rejection.
This unusually powerful body might have functioned smoothly as long as the divergences of its members and the majority of the deputies in Parliament were not too pronounced. But in the turbulent Iran of the post-revolutionary era, Parliament and the Council of Guardians turned out to hold different views of the law, and their differences have surfaced at several critical moments of the young Republic. Significantly, the most important disputes between the two bodies have emerged in what could generally be described as’economic issues’: foreign trade nationalisation, labour and industrial codes, and most prominently, agrarian reform.
Independently from the substantial dimension of these issues, it is important to describe how, from a formal perspective, the divergences in the interpretation of the law have so critically recurred between Parliament and the Council of Guardians so as to render the institutional crisis of 1988 almost inevitable.
Along with the supremacy of the faqih, the importance of the Council of Guardians is a decisive indication of the juristic hold over society. It is an irony of the constitution that, because the power allocated to the ‘ulama (and more specifically to the jurists qua Shi’i hierarchy) is so extensive, this power was difficult to sustain in practice. The example of the early American constitutional years, when the considerable power of the US Supreme Court was established by Chief Justice John Marshall in Marbury v. Madison
offers an enlightening contrast. It was precisely because the US courts have been careful not to overstep the limits they assigned themselves to respect that they avoided the self-defeating course taken by the Council of Guardians. The error of the Council of Guardians resides in it not respecting the balance suggested by the Iranian constitutional emphasis on the people’s electoral power (e.g. Art. 6:’the affairs of the country must be administered on the basis of public opinion expressed by means of election’, Art. 7ff.).
Yet it is true that the measure beyond which the’government of the judges’ cannot be stretched is unlikely to be established with total precision, and the continuing lively American debate on the Supreme Court is witness to this constitutional predicament. In the Iranian Constitution, there was a fundamental flaw in the phrasing of the texts on the Council of Guardians from the outset. The Council of Guardians has in fact done nothing more than stick to the powers enunciated for it in the Constitution. These powers were, from the beginning, wider than any judicial body could sustain in a Republic. By rendering all legislation automatically deferred to the Council of Guardians, there was no reason for the’ulama who constitute it to avoid looking into these laws according to their own understanding of the constitutional mandate. This abnormal system of separation of powers did not resist the pressure of revolutionary times, and the clash was inevitable.
Before addressing the recent turn of events, another aspect of the singularity of the Iranian institutions should be addressed, which is the role of the supreme faqih and the problems arising from the definition of his powers.
The jurist in the Iranian constitution: comparative perspectives
Chapter 2 emphasised the similarity between the power of the Leader in the Iranian constitution and the stipulations for the marja’ enunciated by Muhammad Baqer as-Sadr. In this section, the Leader is appraised in the logic of the Iranian text against a wider historical and comparative perspective.
To the traditional separation between the Executive, the Legislature and the Judiciary, with the Council of Guardians straddling several government branches, has been juxtaposed the institution of the supreme jurist, the Leader.
Articles 5 and 107ft. specify the most important characteristics of the Leadership. It is helpful to quote them again in full. Article 5 states:’During the absence of the Ruler of the Age (vali-e asr), may the Almighty hasten his advent, the authority to command and lead the people shall vest in an Islamic theologian and canonist, just, virtuous, abreast of the times, organiser and judicious, whom the majority of the people accept as their leader.’ In chapter 7 of the Constitution, on the Leader or Leadership Council, the composition of the Leadership and its powers are further denned. Article 107 states:’Whenever one of the fuqaha possessing the qualifications specified in Article 5 of the Constitution is recognised and accepted as marja’ and leader by a decisive majority of the people -as has been the case with the exalted marjal-i taqlid and leader of the Revolution Ay at Allah al-Uzma imam Khumaini -he is to exercise governance and all responsibilities arising therefrom.’ The necessary qualifications of the leader are therefore both moral and technical.
Morally, the Leader must be just and pious, acquainted with the circumstances of the age (aga be-zaman), etc. Obviously, the justice and piety qualifications cannot be fathomed with any kind of precision. They have probably been included-as in the text of Sadr quoted earlier-in the traditional manner of the Shi’i law textbooks. Ayat Allah al-Khu’i, in al-Masa’el al-Muntakhaba, Ayat Allah Muhsin al-Hakim in Mustamsak al-Urwa al-Wuthqa, Tabataba’i in al-’Urwa al-Wuthqa all introduce their major compendia with similar qualifications for the faqih.
From a technical point of view, the’acquaintance with the circumstances of the age’ is more typical of the novelties in the Iranian Revolution and of its incidence upon Islamic state theory. It represents the political side of the involvement of the tulama. The faqih must not live in an ivory tower of learning, he ought to know about the world he lives in, and prove competent and knowledgeable in all worldly matters.
This qualification for the eligible lalim ox faqih excludes the non-political faqih from the leadership. In the Husayn-Hasan paradigm of Shi’i history,
that is, the paradigm of the interventionist Husayn and the non-interventionist, non-political Hasan, the Husayni aspect is clearly privileged by the Iranian constitution.
A forceful writer against the’alamo’s involvement in worldly matters was Ibn Khaldun. Five centuries ago, he had pondered over some of the problems connected with the jurist’s involvement in running the affairs of a country. In the Muqaddima’s chapter’on the ‘ulama among the people [as those who are] farthest from politics and its parties’, Ibn Khaldun wrote about the logical impossibility for the’ulama to be’abreast of the circumstances of the age’:
The rules and analyses of the’ulama remain in the mind and do not come into application. What is outside [i.e. the outside reality] differs from what is in the mind.
Thus, legal rules are branches of what is left from the arguments of the Book and of the Sunna, and require the alignment of what is outside it. This is contrary to the analyses of rational sciences, which, to be true, require to be aligned with the outside world. So when jurists (because of what they have been used to in generalising rules and comparing things to one another) look into politics, they measure it with the model of their analysis and their type of reasoning, and frequently fall into error. They cannot be trusted.
This view flies in the face of the tradition advocated by Khumaini and Sadr in their Najaf lectures. The logic presented by Ibn Khaldun is interesting in that it lifts the veil over an essential predicament of the jurist’s leadership in the city and the governance of the judges, not only in Iran, but in virtually all the constitutional systems of the world which allow for an independent, protected, and separate power for the Judiciary.
In Ibn Khaldun’s view, the predicament derives from the’ jurists’ habit of indulging in theoretical studies and questioning meanings of words by extracting these meanings from the world of the sensible, and by abstracting them in the mind as general, total, things’.
For modern specialists of constitutional law, similarly, the power to determine the law cannot be the one that directs its effective application. It is because of this essential limitation that, in Hamilton’s celebrated words, the Judiciary constitutes’the least dangerous... and the weakest of the three departments of power...
The courts must declare the sense of the law, and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.’
For the qualifications of the faqih as a specialist of law who needs to know about the circumstances of the age in which he lives, these reflections of Hamilton and Ibn Khaldun are central to their emphasis on the inherent contradictions that cannot be escaped by the jurist who is involved in politics.
Of course, the whole controversy of the juxtaposition of worldly competence and juristic function could be deflated by giving a purely moral dimension to the competence of the supreme faqih. This competence would then be a perfunctory figure of speech, similar to the necessity of piety or justice. But the departure from the received, dominant Shi’i tradition of the noninvolvement of’ulama in politics, as it appears in the leitmotiv of Khumaini’s and Sadr’s works, and in the practice of the Iranian Government since the Revolution, suggests that the expression does not merely yield moral value.
Worldly competence is the constitutional embodiment of the political responsibility of the faqih.
The problem is in part, as in the texts of the Muqaddima and the Federalist, the generality and relative impartiality of the law, in contrast to the turbulent, biased, and specific ambit of daily life. But it is more profound than that.
Indeed, the argument over the generality of the laws and the case-by-case application by the Judiciary does not resist the reality of the power of the courts in any country. In his assessment of the law, Ibn Khaldun was correct about the difficulty for the ‘ulama to say what the law means, and run the affairs of a country at one and the same time. But this argument can be obviated by the fact that it is of the essential nature of a court of law to proceed from the inevitable generality of a law to its application to the narrow case at hand.
There remains however the more important Hamiltonian distinction between’will’ and’judgment’, or, in the Khaldunian equivalent, the difference between the normative nature of the law and the constrictive running of governmental business.
The aga be-zaman requirement of Article 5 suggests, as an essential corollary, a fundamental choice made in the constitutional practices of Iran, and this choice is an important departure from the received theory of the state. This dimension is common to the Iranian system and to the system which is probably closest to it among the constitutions of the modern age, that of the United States. This resemblance is rooted in the similarity, on the most abstract level, between the American Supreme Court and the Iranian Judiciary, understood to encompass the faqih-leader and the Council of Guardians of the Iranian Constitution. John Hart Ely, a most prominent constitutional specialist in the United States, puts the predicament in the following way:
When a court invalidates an act of the political branches on constitutional grounds..., it is overruling their judgment, and normally doing so in a way that is not subject to’correction’ by the ordinary lawmaking process. Thus the central function, and it is at the same time the central problem of judicial review: a body that is not elected or otherwise politically responsible in any significant way is telling the people’s elected representatives that they cannot govern as they’d like.
That problem of judicial review, in the sense of the review by jurists (be they the Council of Guardians or the supreme faqih), of acts of the legislative or executive branches, appears in Iran on two levels: first, as a classical separation of powers problem, when the Council of Guardians declares an act of Parliament unconstitutional, or when it censures the candidates to the Head of the executive branch. This is one aspect of the aforementioned double-tiered separation of powers. But there is a second dimension which is proper to Shi’ism and, on a state level, unique to Iran. It appears in the disproportionate role accorded to the supreme faqih, who is at one and the same time, the Leader of the state and the number one jurist of the Shi’i hierarchy.
In this perspective, the worldly qualifications required for the Leader reflect the political difficulties that he is bound to face. Following Articles 5 and 107, the powers of the supreme jurist, which effectively derive from the institutionalisation of this supremacy, are enumerated in detail by the Constitution. According to Article no, the Leader is in charge of’the supreme command of the armed forces, exercised in the following manner:
(i) appointment and dismissal of the Chief of the general staff; (ii) appointment and dismissal of the Commander-in-Chief of the Corps of Guards of the Islamic Revolution; (iii) the formation of a Supreme National Defence Council;... (iv) appointment of the Supreme Commander of the branches of the armed forces; (v) the declaration of war and peace’.
The control by the Leader of the armed forces in the country, which is generally under the competence of the Head of the executive branch,
indicates how the position of Leadership in Iran impinges on executive branch grounds, which are specified in Chapter 9 of the Constitution. It is true that the President of the Republic is awarded in the Iranian Constitution the responsibility of’heading the executive power’ (Art. 113). However, expressly excepted are’matters pertaining directly to the Leadership’ (id.), and these include the sensitive control of the military. Under the Constitution, the President has neither direct nor indirect control over the Armed Corps. To a large extent, such limitations render executive power hollow.
The supremacy of the faqih appears also in its power over the appointment and the dismissal of the President. As mentioned earlier, the Leader has a say in the nomination of the President, in that, according to Article 1 iod, he can block his accession to his post after the election. The Leader also decides ultimately on the dismissal of a President.’The Leader dismisses the President of the Republic, with due regard for the interests of the country, after the pronouncement of a judgment by the Supreme Court convicting him of failure to fulfill his legal duties, or a vote of the National Consultative Assembly testifying to his political incompetence.’ In this way, although the power of the Leadership in the appointment and dismissal of the President is limited, it is clear that the juristic-theological importance of the Leadership, in the supervision of the’conformity’ of the President with the spirit of the Iranian Constitution, is paramount. He has the final say in both processes. Considering that the screening power over Presidents and candidates to the Presidency (‘ who must announce their candidacy officially’, Art. 116) is shared with the Council of Guardians, the juristic-theological hold over society, as opposed to government officials acceding to power through the voting process, seems almost complete.
From a comparative perspective, examples might suggest some temperance to this conclusion. In several systems, control over the voting process is often entrusted to judicial bodies, and the activities of the Head of the Executive never go completely unchecked, as he/she is as bound by the law as any other citizen. Constitutions also suggest ways to impeach elected officials, and impeachment, although rare, is not impossible.
But presidential impeachment usually requires an arduous and protracted process, as well as a lengthy mobilisation to reach results and achieve constitutional dismissal.
Iran can be said to share this tradition, in that the President, once in power, cannot be easily impeached. It is true that in the short span of its life, the Iranian Constitution has already witnessed the impeachment of its first President, and it is noteworthy that the dismissal of Bani-Sadr was carefully clothed in a relatively lengthy constitutional procedure, despite the obfuscating quasi coup-de-force that accompanied the ousting.
In the normal course of events, however -and it could even be argued in the case of Bani-Sadr -presidential impeachment is not an easy task. But the ousting of Bani-Sadr has revealed some peculiarities of the Iranian system as to procedure, and indicated the decisive role of the Leadership even in this instance.
In the chapters of the Constitution related to the two bodies in charge of presidential impeachment, the Supreme Court (Ch. n ) and the Parliament (Ch. 6), there is no mention of the exact steps to be taken to carry out the impeachment procedure. Only in Article noe in the chapter on the Leadership, are the competence of the Supreme Court and the Majlis mentioned in this regard. The ultimate decision on the dismissal of the President is considered to be a prerogative of the Leadership,’ with due regard for the interests of the country’.
The way to dismissal is not specified further, but one can assume, as in the case of Bani-Sadr, that the Majlis exercised the very general right mentioned in Article 76,’to investigate and examine all the affairs of the country’. No less vague is the task of the Supreme Court in convicting a President who has’failed to fulfill his legal duties’. Thus, it is only by gathering general rules related to the Supreme Court in the Constitution that one reaches the unusual conclusion that the grounds on which a President can be impeached in Iran are not different from the conviction of any other citizen (vide Arts.
161, 165, 166, 167, 168, 173, etc.). These general rules can be supplemented in the case of the President by Article 140:’Accusations of common crime against the President of the Republic, the Prime Minister, and the ministers will be investigated in common courts of justice after the approval of the National Consultative Assembly has been obtained.’ This vote, when juxtaposed with the vote of the Majlis on the President’s’political incompetence’ (Art. no), clearly shows the shortcomings of the Iranian Constitution on the impeachment issue. The President lacks the protection needed when political tension increases in the country, since the Majlis seems strong enough to impeach him by a mere majority vote. This is probably the reason why President Bani-Sadr was so easily evicted, and why the Presidency has since seemed particularly vulnerable.
These remarks, however, are more strictly concerned with the problems stemming from the separation of powers between the Executive and the Legislature. It is true that in the case of presidential impeachment, the legislative branch is stronger than the executive branch, especially since, out of concern for the dangers of a repetition of the old policies of the Shah, there is no provision in the Iranian Constitution allowing the president to dismiss Parliament. In this respect, the system is closer to the strict separation of powers as practised in the United States, in contrast to France where the President has the right to dissolve the National Assembly.
But there is in Iran, in all these processes, an overseer who is the Leader.
The Leader, or the Leadership Council, acts as ultimate referee, even in the relations between Parliament and the Executive, as appears in the impeachment procedure of the President. In this, the normal structure of the separation of powers is different from any other model, but the drawbacks are also significant, because there is no constitutional model that could allow for a regulatory comparison. Nor can the system of the Islamic Republic rely on historical examples in the country’s past for comfort. This, of course, is not necessarily negative, and it is normal that the text of a constitution be sufficient in itself for the regulation of the country’s powers. The problem in Iran stems from the fact that, in the early turbulent years of the Republic, force has more than once dictated the meaning of imprecise constitutional dispositions.
The January debate and its aftermath
With no established precedent in history to guide it, the Iranian system quickly found its practice riddled with constitutional ambiguities deriving from the text, and from the complexities of the double-tiered separation of powers on which the Constitution is based. The major problem stemmed from the difficulties surrounding the two most original bodies instituted in 1979, the Leadership (with, in the background, the Assembly of Experts) and the Council of Guardians.
In early 1988, the uneasy balance between the various powers exploded.
But the debate started tangentially, over the definition oiwilaya in the theory oiwilayat al-faqih. The controversy, as earlier indicated, had simmered for a while, mostly in the debate over agrarian laws. With Khumaini’s direct intervention on 6 January 1988, the controversy turned immediately into the most critical constitutional problem in the system.
At the origins of this intervention was a declaration made on Friday 1 January, at the prayer sermon, by the President of the Republic’Ali Khamene’i. In this sermon, Khamene’i defended an interpretation of wilayat al-faqih which rendered the Executive and the Legislature in an Islamic state bound by a law that was superior to them. In reality, there were more nuances in the Iranian President’s text, and the general thrust was, as could be expected, an insistence on the faqih’s importance. Khamene’i divided legal matters into those that operated on a personal, individual (masa’el-e shakhsi vafardi) level, and those that were of a total, national type (masa’el kully-e keshvar). The first could be decided by the usual taqlid method, and’ the fatwas of other faqihs [than the supreme faqih] are evidence to follow’.
But in the second category,’only are acceptable the fatzvas of the Imam’.
There was little in Khamene’i’s sermon that warranted the impassioned intervention of Khumaini. The President’s text was within the received notion oiwilayat al-faqih, and though the categories alluded to in the sermon did not necessarily fit within the usual amalgamation of devotional and nondevotional legal matters in the same operation of taqlid, they did not constitute such an important departure of the theory advocated by Khumaini in Najaf, and later institutionalised in the Iranian Constitution. None the less, Khumaini, who had so far remained silent over many of the problems related to Islamic law and its application, chose to break the controversy open, by taking a strong stand against Khamene’i. But his criticism, rather than weakening the President, completely worked to the Presidency’s advantage.
Khumaini’s important letter is worth quoting at length:
It appears, [Khumaini writes to Khamene’i] from Your Excellency’s remarks at the Friday prayer meeting that you do not recognise government as a supreme deputyship bestowed by God upon the Holy Prophet (S) and that it is among the most important of divine laws and has priority over all peripheral divine orders. Your interpretation of my remarks that’the government exercises power only within the bounds of divine statutes’ is completely contrary to what I have said. If the government exercises power only within the framework of peripheral divine laws, then the entrustment of divine rules and absolute deputyship to the Prophet of Islam... would be hollow and meaningless.
Whatever Khumaini’s claim to the contrary, these remarks are an important variation on the accepted version oiwilayat al-faqih. For the first time, Khumaini was suggesting that the faqih was not in charge of making certain that the shari’a is the ultimate legal reference in the country.
Formally, of course, the shari’a remains the source from which all laws are derived. What ultimately matters, however, is the recognition that divine law needs to be interpreted, and in fact -though this is never stated so bluntly -altered. Khamene’i’s remarks, as they were received and rejected by Khumaini, suggested that divine laws could not be interpreted, and that whatever the interpretation, there remained a consensus over a core meaning (total, national in Khamene’i’s parlance) which was unalterable. In this, he was certainly in tune with the received interpretation oiwilayat al-faqih: the basic principle is that the jurist-governor in his governance, in his wilayat, is bound by the shari’a. Khumaini demurred, and his remarks acquired a dynamism of their own.
The rest of his letter to the President only strengthened the Leader’s departure from the received version of wilayat al-faqih. Khumaini followed up his arguments with’ the consequences that would make wilayat al-faqih inoperative’ if Khamene’i’s interpretation were to prevail:
For instance, the construction of roads which may entail requisition of houses or their environs is not within the framework of peripheral injunctions. Conscription, compulsory dispatch to the front, prevention of entry or exodus of any commodity, the ban on hoarding except in two or three cases, customs duty, taxes, prevention of profiteering, price-fixing, prevention of the distribution of narcotics, ban on addiction of any kind except in the case of alcoholic drinks, the carrying of all kinds of weapons, and hundreds of similar cases which are within the prerogative of the government would be inadmissible according to your interpretation.
Khumaini’s letter constitutes a major turning point in the history of the Iranian Republic, not only in terms of the political struggles that it had reinforced -for instance, by the heavy criticism of the President by the Leader -but on two central constitutional grounds: (i) the role of Islamic law in the society with regard to its interpretation and the power to bind governmental actions; and (2) the structure of the institutions in Iran and the functioning or misfunctioning of the double-tiered separation of powers.
Islamic law constrained
Two ambiguities appear in Khumaini’s letter: the differentiation between what he calls divine peripheral injunctions as opposed to central injunctions, and the association between government and the power of jurists.
Khamene’i had expressed in his Friday prayer the impossibility for government to contradict divine statutes, and in the quote mentioned earlier, the President seemed to differentiate between two categories of law, one of which, public law, was definitive and unchangeable by government, because it belonged to the interpretative realm of the faqih. The thesis was read by Khamene’i to mean that there is a superior, central Islamic law, the injunctions of which are clear (e.g. not to eat pork or drink alcohol, fasting), and that the government can in no way act against this category of the law.
However, in peripheral or secondary issues (which could be presumed to be represented by personal devotional matters or, what is more important, areas of the law where no clear injunction has been stated, such as labour law, industrial nationalisation, or even areas where there is no received single interpretation such as the absoluteness of the right to property) the faqih must have the last word.
Khumaini shifted the terrain of the debate. Part of the letter asserts that there is no such distinction as central or peripheral law, and he uses several examples from the register of received’central’ injunctions only to discard them as pliable to governmental injunctions:’ The government is empowered to unilaterally revoke any shari’a agreements which it has concluded with the people when these agreements are contrary to the interests of the country or Islam.’ The argument is stated even more strongly:’ The Government can also prevent any devotional [‘ibadi, from libadat] or non-devotional affair if it is opposed to the interests of Islam and for so long as it is so. The government can prevent hajj, which is one of the important divine obligations, on a temporary basis, in cases when it is contrary to the interests of the Islamic country.’ In this text, Khumaini seems to draw no distinction between primary, central, and secondary, peripheral spheres of law, since, in any case, the government in the theory of wilayat al-faqih is authorised to supersede the most central of injunctions.
But there is another passage in the letter which suggests that Khumaini had not completely abandoned the distinction between different categories of the law:’I should state’, he writes to Khamene’i,’that the government, which is part of the absolute deputy ship of the Prophet, is one of the primary injunctions of Islam and has priority over all other secondary injunctions, even prayers, fasting and hajj.’ Thus, the distinction between central and peripheral remains to some extent pertinent, although the classification of prayers and hajj as’ secondary’ appears unusual. But the contradiction is not necessarily total. What Khumaini seems to advocate is that such central precepts as prayers or hajj are secondary to the one and only central injunction, the establishment of wilayat al-faqih. But wilayat al-faqih in this case does not mean the governance of the jurist, i.e. the governance of the Leader as head of the mujtahids’ hierarchy, but a government understood under its most general and abstract acceptation. Government is supreme because it has priority in setting directives, and this priority derives from the paramountcy of’the country or Islam’.
From the text of Khumaini’s letter, there follows that the distinction between categories of law is not pertinent, since all laws are superseded by the choice of government. If any such distinction exists, it must be understood as a differentiation between one central injunction to the effect of empowering the government to make any law, and the rest of the legal field, with various devotional and non-devotional matters, all of which are secondary. This probably is the crux of Khumaini’s criticism of Khamene’i.
On the distinction between central laws and peripheral laws, the debate that followed indicates that, at least in one major instance, this taxonomy could not so easily be discarded. Ayat Allah Muntazeri, successor of Khumaini to the Leadership until his demise in March 1989, commented on the 6 January letter with an emphasis, at least from the formal point of view of their promulgation, on the existence of laws with different regimes.
Muntazeri develops a three-stage theory in law-making:
The first stage is to elucidate the general issues which have been revealed through inspiration to the Prophet by God. All laws and ordinances, even the important laws regarding the absolute wilayat of the Prophet and the pure Imams and the fully qualified faqihs, have been revealed by God. Regarding the absolute wilayat of the Holy Prophet (S), the Qur’an clearly states:’The Prophet is closer to the Believers than their own selves.’ After himself, the Prophet of Islam conferred this position on the holy Imams, and the immaculate Imams passed it on to the fully qualified faqihs, and the necessary conditions for it are based on the Book and on the Sunna. If the [leading] faqih, who enjoys the position of vice-regent on behalf of the immaculate Imams, issues a decree or an order, it is incumbent upon all individuals and strata, even other faqihs, to obey it.
Muntazeri repeats here the same arguments that were presented in Sadr’s Lamha Fiqhiyya and in Khilafat al-Insan, and ascribes the absolute power of the faqih to his succeeding the Prophet and the Imams. Thus is specified the first stage of the laws, which are the decrees and opinions of the Leader, and which, because of this chain of authority, are as binding as the Qur’an and the Sunna.
‘The second stage’, continues Muntazeri,’is the proper understanding of the divine laws by the faqihs and the mujtahids who express their opinion regarding peripheral laws, on the basis of the generalities which have been revealed to the Source of Revelation [i.e. the Prophet].’ Here, the distinction between important or central laws (i.e. those promulgated by the Leader and supreme mujtahid on the basis of their being revealed in the Qur’an and the Sunna), and’peripheral laws’, is clearly established. The distinction seems however specious, since Muntazeri, unlike Khumaini, does not specify what these peripheral laws are from a substantial point of view. One can only infer, a contrario, that they neither belong to a sphere that is’supreme’ (the Leader’s competence), nor to the’ third stage’, which is defined by Muntazeri as the stage of implementation and deciding on appropriateness, which is performed by the Islamic Consultative Assembly [Parliament] and the Council of Guardians. It is at this stage that the needs and requirements of each time and each region should be investigated and the appropriateness of the laws which have been legislated will be decided upon and clarified. The needs and requirements of various times and places have been registered in different books of jurisprudence and opinions of the faqihs, such as Jawahir and Tahrir.
An example is then offered to show the difference between’ general law’ and’peripheral application’(!):
For example, the fact that one cannot confiscate the land of somebody else is a general law, and it is recorded in Risalas [risala’amaliyya], and there is no need for the Majlis and the Council of Guardians to act regarding that law. What concerns the Majlis and the Council of Guardians are particular examples of its application, because a great part of the land is part of anfal.
This example contradicts the theory that Khumaini expounded in his letter to Khamene’i. Then, Khumaini had precisely said that the prohibition of land nationalisation, which is arguably a received precept of the shari’a, could in no way prevent the government from proceeding to confiscate land, and there was no mention of any anfal justification. It is not, as is the case with Muntazeri (and possibly Khamene’i, whom Khumaini was disputing), that Khumaini was creating an exception to a legal precept, or applying the law in a peripheral matter. For Khumaini, the only general rule is that government is free to apply any law it deems fit for the circumstances. For Muntazeri, in contrast, it is up to the Majlis and the Council of Guardians to decide whether a peripheral matter could be an exception to the’general law’.
This position is surprising. The amalgamation, if not the confusion of Muntazeri between the stages of law-making process (framework, understanding, application) and the classification of laws as general and peripheral, is reminiscent of the Khaldunian mistrust of the jurists dealing with the affairs of the city. Muntazeri brings together in the same final stage the Council of Guardians and the Majlis, adding a dimension which, in the exchanges between the Leader and the President, was not even mentioned.
But the clue to the whole debate, as it unfolded in Iran, was precisely the problems of legislation between the two conflicting bodies of chapter 6 of the Iranian Constitution. Khumaini would not have had to intervene, were it not for the crippling institutional deadlock between the Council of Guardians on the one hand, and the Legislature and Executive, on the other. Perhaps there is ambiguity in Khumaini’s wording of his edict. As argued earlier, he did not altogether abandon the potential distinction between central and peripheral.
But the confusion rests primarily in the absence from the wording of the debate between Khumaini and Khamene’i of the underlying cause of their constitutional feud: the Council of Guardians.
What Khumaini had written on 6 January suggested that in his view, the government (small g), which includes the Executive and the Legislature, could do whatever it pleaseth without heeding the other powers of Governance (capital G) of the faqih in the theory of wilayat al-faqih. The consequence of the edict was immediately clear to all the protagonists on the Iranian scene, and the Council of Guardians, without even being named in the exchange, was eventually neutralised by foes who capitalised on Khumaini’s admonition of Khamene’i. The most flabbergasting twist in the affair came from the fact that the apparent victim of the Leader’s edict, Khamene’i, was the head of the institution which mostly benefited from the constitutional row.
To the credit of Muntazeri, one should add that his intervention, at least, did not obfuscate the real debate, the one between the Council of Guardians and the Executive-Legislature. In the quote mentioned, he does not differentiate between the two bodies, and they are brought together into the third stage of law-making. But in another passage of the same comment, he admonishes the blocking postures of the Council of Guardians:’ It should not be the case that the law adds a problem to other problems. The Council of Guardians should also have a wide vision and should take completely into account all the realities of the country and of the Revolution and the various requirements before rejecting or approving a law. It should not be the case that its practice is always to negate or reject.’ Since the Council of Guardians has only the power to negate or reject, Muntazeri’s message was clear: the supervisory power should supervise less.
Whatever the carefulness -to the point of confusion -of Muntazeri in avoiding meddling between the Council of Guardians and Parliament, and his encouragement, in the same letter, for the two bodies to hold joint sessions in order to break the deadlock, there is little by way of rapprochement that he could have done. In the first place, this suggestion is redundant, because joint sessions, in the sense of meetings over legislation in which members of the two Assemblies would attend, had already been held. The Constitution itself, in Article 97, specifies that the members of the Council of Guardians could attend parliamentary sessions, and, in the case of urgent drafts, they were even allowed to intervene in the debate. It is generally after a long process of discussions and arguments that the deadlock intervenes.
Nor is this surprising, considering that the power of the Council of Guardians in the supervision of the laws, being automatic, is so large. It is a legitimate question to wonder what in these circumstances remains of the power of a parliament under permanent, immediate and total scrutiny, and what is left of the legislative power of the Legislature. With Article 96ff., Article 4 of the Iranian Constitution gives the Council of Guardians a quasi-absolute legislative mandate:
All civil, penal, financial, economic, administrative, military and political laws, shall be based on the Islamic standards. This article shall generally govern all the articles of the Constitutional law and also other laws and regulations and this shall be at the discretion of the religious jurists who are members of the Council of Guardians.
This is indeed a very wide range, which gives the Council of Guardians the ability to destroy all legislation it deems to be outside’Islamic standards’.
Only by a tremendous exercise of self-restraint could a limit to those overwhelming prerogatives be found. The Council of Guardians could not avoid exercising this power. Had it restrained its sway, the Council of Guardians might have retained its influence; but in view of the clear dispositions of the constitutional text, it would have thereby failed to fulfil its duties under the Constitution.
Fortunately for the Majlis and for the executive branch, the separation of powers that accorded the Council of Guardians so much influence was not exclusive. It covered only one of the two tiers of the whole system, and solace was to be found in the powers of the Leader. By enlisting the Leader’s support, the Council of Guardians’ opponents were ultimately able to deflect the constitutional provisions.
Paradoxically, the curtailing of the Council of Guardians’ power to the advantage of government came in the wake of a legal dispute between the Leader and the Head of the Executive branch. Why Khumaini chose to take sides with the President of the Republic at this particular moment is not clear, and the extraordinary positive result of what was intended to be a mere admonition, suggests that Khumaini was unaware of the full institutional consequences of his intervention. Other factors also contributed to the blowing up of the letter into a major institutional crisis. This was the time of grave setbacks for the regime, with the relative defeat on the Iran-Iraq front and economic hardships inside, and an aging leader humiliated by the constraints and violence exercised against Iranian pilgrims in Saudi Arabia (hence his explicit reference to the hajj in his letter). In this atmosphere of unease, the way to the weakening of the Council of Guardians was now wide open. The deadlock in Parliament and the frustration before the repeatedly quashed legislative work could at last be broken. The new interpretation of wilayat al-faqih offered the long awaited backdoor opportunity. The person of the President, Khamene’i, was weakened in the process, but the position he fills at the Head of the Executive, as well as the Legislature, came out victorious.
Ambiguities remained, precisely because the controversy emerged over the definition of wilayat al-faqih and the position of the government in relation to the Leadership. But Islamic law was further constrained, in that the apparatus of its control was taken out of the hands of the fuqaha of the Council of Guardians, and devolved totally to the Executive and the Legislature. In’ the interest of Islam’, and -more forcefully -’ in the interest of the country’, Parliament and the Cabinet could, in the logic of Ay at Allah Khumaini’s letter, regulate any field without the threat of the Council of Guardians’ sword of Damocles.
As a consequence, the central constitutional issue shifted to the relationship between Parliament and the Council of Guardians, but the whole institutional theory underlying the Iranian system was rendered more complicated by the tangentiality of the process. In Khumaini’s letter to Khamene’i, the Council of Guardians was not even mentioned.
Immediately after Khumaini’s declaration, the debate gripped the country at all possible levels, and pressure mounted over the Council of Guardians.
The arguments and the process that built up towards its demise are analysed in the following section.
Towards the demise of the Council of Guardians
As previously argued some of the confusion in the debate over who can ultimately interpret the law, and how far government is bound by the shari’a, came from the paradoxical circumstances which arose between the Leader and the President. It is worth noting again how the circumstances that ultimately led to the demise of the Council of Guardians bear close resemblance to that other famous instance of constitutional theory in the history of modern nation-states, the US case of Marbury v. Madison. This case is relevant for the Iranian developments because both in the circumstances in which it took place, and in the legal arguments that were brought up, the parallels are significant.
Marbury v. Madison was argued in the early days of the US Supreme Court, when judicial review was still not an all encompassing accepted practice. The supremacy of the Court is not acknowledged by the Constitution, and if there is an Act of Congress the constitutionality of which is perceived to be doubtful, there is in the written American text no indication that the Court could deem it so, and that it could challenge the constitutionality of an action that the Government might have taken.
It is against this background that the jurisprudential skills of Chief Justice John Marshall were exercised in 1803 to render the Court the most powerful institution in the judiciaries of the world. By a series of arguments, John Marshall was able to introduce the notion that the best way to protect the system was to let the judiciary make certain that no other power or person in the country can impinge on rights protected by the Constitution. The Court, since Marshall’s judgment, considers it should intervene to redress the situation to the advantage of the constitutional text:
So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conforming to the law, disregarding the constitution; or conforming to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary acts, must govern the case to which they both apply.
It is with Marbury that the establishment of a judicial body to be the ultimate interpreter of the higher law of the state has come to apply in the contemporary world. Under similar terms, the question was posed again in the Iranian Constitution.
The circumstances of Marbury v. Madison are also relevant to the Iranian case, because it is by an apparent defeat that such power was ultimately conceded to the Supreme Court. Chief Justice Marshall was in a difficult position. As a former member of the Federalist party, which had just lost the elections, his Court was the target of the recently elected President, Thomas Jefferson, the leader of the New Democratic party. Jefferson resented the fact that the Federalists had taken refuge in the Judiciary by making a number of’midnight’ appointments to several judicial positions in the country.
One such last minute appointment was John Marbury’s, whose nomination had not been formally completed. Marbury sought confirmation of his job by the Supreme Court. His request was rejected on a minor procedural point.
The Court, Marshall argued, could not satisfy the demand of Marbury, because it did not have authority’to issue writs of mandamus to public officers’,
and Marbury’s appointment failed to be confirmed. But this did not mean for Marshall that the Court would be incompetent in other cases where the question of interpreting the Constitution was at hand. The US Chief Justice, on the contrary, used the case of Marbury to assert that it was the courts’ primary task to look into the conformity of all rights protected by the Constitution, and make certain that these rights were respected in text and spirit.
There is a noteworthy parallel between Marbury v. Madison and the recent Iranian controversy. It is true that in terms of result, the American case was diametrically opposed to the present Iranian case, as the Supreme Court was granted absolute right to judicial review of constitutional matters, whilst the Council of Guardians was stripped of its power of judicial review under the Iranian Constitution. But the parameters of the debate were exactly the same, both in terms of the underlying theme, judicial review of legislative and executive measures, and in terms of process, the irony of defeat through apparent victory. Not only is the theme behind the Marbury v. Madison controversy, in terms of precedence of the Constitution over ordinary laws, and in terms of the jurist’s responsibility to assess the conflict, similar to the Iranian January debate, but it was through the apparent defeat of Marshall and the Federalists, when the court denied its competence in the case at hand, that its overall competence as an institution was acknowledged and confirmed. In Iran, it is the apparent defeat of Khamene’i that acknowledged and confirmed the overall competence of the Presidency in matters related to executive and legislative power, and its freedom from the scrutiny of the Council of Guardians. The separation of powers, and the Humpty Dumpty question on who ultimately’gives meaning to the word’, was equally at the heart of both quarrels. Only in America, the judiciary was entrusted to ultimately determine the law. In Iran, the Council of Guardians was stripped of this power originally vested in it by the 1979 Constitution.
The circumvolutions of the Iranian debate continued, and this section will dwell on the most important developments that took place in Iran since January 1988, and on the arguments which developed into the demise of the Council of Guardians and, further, prompted the qualitative change in Sadr and Khumaini’s theory of wilayat al-faqih.
In his letter, Khumaini had criticised Khamene’i’s views in an unusually strong manner. Coming from the Leader of the Revolution, and being so ad hominem, the criticism was serious. Khamene’i reeled before the humiliation.
A letter to Khumaini shortly followed, in which he defended himself from any misunderstanding:
A point that I deem necessary to mention is this: on the basis of Your Holiness’s religious jurisprudence opinions -which I learnt from Your Holiness many years ago, and have accepted and acted accordingly -the points and instruction raised in Your Holiness’s letter are part of the certainties, and I, as your servant, accept them all.
What I meant by discussing the religious limits in the Friday prayer sermon is something that I can explain in detail if necessary.
There was no need for these details, as the logic of the arguments had opened the door to the shift in the debate from a discussion between the Leader and the President to engulf the Council of Guardians. But Khumaini, perhaps realising the personal blow dealt to Khamene’i, wrote back immediately to reassure his former student of the esteem in which he held him personally, and his respect before his jurisprudential competence:
Your kind letter was received with pleasure. I was in close contact with Your Excellency in the years before the Revolution and, thanks to God, this contact has continued. I believe that Your Excellency is one of the capable arms of the Islamic Republic and I regard you as a brother familiar with issues of jurisprudence, committed to it and a serious supporter of religious principles related to absolute velayat-e faqih. Among the friends and those committed to Islam and Islamic laws, you are one of the rare individuals who radiate like the sun.
The psychology of Khumaini’s relation to Khamene’i may appear to be of little interest in terms of constitutional law, but the use of flowery language -or scathing criticism -hides a more significant legal problem. As suggested earlier in the exchange between Muhammad Baqer as-Sadr and Khumaini, and in the structure of the Shi’i schools of law,’ reputation’ and’ jurisprudential ability’ are vital to the hierarchical assignment of the Shi’i jurists, and are directly echoed in the institutional structure in Iran. The acknowledgment of Khamene’i as’a brother familiar with issues of jurisprudence’ came to counterbalance’the ignorance’ lashed in the first intervention, and its repercussion on the future of Hujjat al-Islam’Ali Khamene’i.
But this was marginal to the extent that the actual problem had more to do with the Council of Guardians and its obstructions than to Khamene’i the jurist.
In the debate over the exact rules of the separation of powers in the Islamic Republic, the conflict between Khamene’i and Khumaini served, as in the appointment of John Marbury in Marbury v. Madison, to mask the more acute problems between the Council of Guardians and government.
Khumaini’s edict paved the way to the institutional strengthening of the Legislative and Executive vis-a-vis other powers. But there was a further dimension, encapsulated in the Leadership’s new position in the doubletiered separation of powers.
The proper reading of the debate between Khamene’i and Khumaini quickly surfaced in Iran, and although the name of the Council of Guardians was not mentioned in the exchange, the real object of the newly flared controversy was clear to all. On 13 January, the Secretary of the Council of Guardians, which was probably worried by the consequences of its prerogatives of Khumaini’s’ new’ reading of wilayat al-faqih, paid him a visit and reported that the Leader had reassured him that’the Council of Guardians... has not been, nor will be weakened in any way’. Despite this reassurance, the blow was recognised, as’ Ay at Allah" Lutfallah as-Safi also declared:’The Council of Guardians fully accepts what Your Eminence [Khumaini] has said as regards velayat-e faqih and governmental decrees: it is in no doubt about the matters and considers itself subordinate to government decrees.
Acknowledgment by the Council of Guardians of its subordination to government decrees was the first step towards the effective demise of this body. Safi’s utterance, however, was not an’official’ declaration, and did not constitute the necessary long-term formalisation sought by the forces energised and emboldened by Khumaini’s unusual assertiveness in these separation of power matters. Nothing could prove that once the storm was over, and the words of the Leader a matter of the past, the clear constitutional wording of the Council of Guardians’ extensive powers would not reinstate the Council into its past glory. The forces opposed to the Council of Guardians were seeking the institutionalisation of the Leader’s decree, in a way that would neutralise the power of the Council of Guardians as spelled out in the 1979 Constitution.
Who were these forces, what were the arguments they used to develop Khumaini’s logic to its fullest, and to what extent did they succeed in curtailing the constitutional power of the Council of Guardians ?
As mentioned earlier, Muntazeri was amongst the many important’ulama who took part in the controversy. The case of Muntazeri is peculiar, because of his position then as the successor of Khumaini to the Leadership. He was hesitant to read Khumaini’s words as a complete blow to the Council of Guardians, and this hesitation is understandable in view of his position at the periphery of the debate. But these hesitations also revealed the quandary he faced on a different account, which is yet another side of the entangled scheme of separation of powers in the Iranian Constitution.
The direct parties to the controversy were therefore the Council of Guardians on the one hand, and the two branches on the other.
Traditionally, the separation of powers functions as a check and balance system between three institutions, the Legislature, the Executive and the Judiciary. In the controversy triggered by Khumaini’s 6 January letter, the problems have pitted the Council of Guardians, which generally corresponds to the judicial branch, and the Government, understood in the present Iranian terminology as a combination of the Legislature and the Executive.
The other’branches’ of the Judiciary, the Supreme Court, the Prosecutor-General and the courts in general have remained on the margin, and rather unconcerned, for the essential problem derives from the’ legislative’ strength of the Council of Guardians, its power to render a law initiated by government inapplicable as contrary to the Constitution or the tenets of Islamic law.
The major actors were quick to take position after the issuing of Khumaini’s opinion. As we have seen, Khamene’i immediately did this, as he was directly concerned because his understanding of wilayat al-faqih had been faulted by the Leader. Another important voice was’Ali Rafsanjani’s, the Parliament’s Speaker. On 7 January, he saluted Khumaini’s intervention as an issue that requires to be paid’ great attention’,’ so that no longer do we assume the right in future to impose something on Islam by raising vague and ambiguous issues’.
Rafsanjani also spoke of the role of the Leadership, to which he reserved a special constitutional domain. For the Speaker, the Leadership must intervene at critical instances in the life of the Islamic Republic:
That is, the leadership should respond to the call of the people, the revolution, society and Islam at necessary moments and junctures, when a sensitive issue might create a vacuum or discord in society, and divide the people and create sedition. Otherwise, it is no duty of the leadership to supervise routine matters of life. We, the functionaries, should see to routine matters, and the leader who looks at society with a wider view, should take charge of sensitive junctures.
Now, Rafsanjani continued, in reference to the general reluctance for Khumaini to intervene in the Iranian controversies, it is possible to understand the meaning and reason of Khumaini’s’silences’.
But it is mostly the role of the Council of Guardians in relation to legislation that Rafsanjani discussed in his parliamentary intervention. The arguments are raised in an indirect way, as the Council of Guardians was not officially party to the discussion between the Leader and the President. Also, Rafsanjani was careful not to reach a point of no return with any institution:
I beg the esteemed Council of Guardians, the gentlemen who were appointed by His Holiness the Imam, to pay serious heed to the Imam’s guidance and not to make their own views or those of others an obstacle to implementation of the Imam’s guidelines Of course, in my opinion, the issues were clear from the start. The day that the Imam graciously said:’ If the majority of the Majlis approves something Rafsanjani did not complete his sentence. But the rest of the speech clearly indicates that he meant his disagreement, and Khumaini’s support to him in this, with the Council of Guardians’ overstretching its role when it repetitively strikes down laws decided by the Majlis.’The day that the Imam granted this permission’, Rafsanjani continues,’the issue should have become clear to everyone. However, there was some talk that His Holiness had mentioned two thirds [i.e. a majority of two thirds in the Majlis for passing a bill]. Later they raised the issue of primary and secondary injunctions and created this talk. There is no need for such talk. As the Imam has graciously said, the government’s prerogative applies absolutely to most of the matters the gentlemen are talking about.’
What were the issues about which the’gentlemen’ of the Council of Guardians are talking?’For instance, some individuals might raise a particular idea, by saying for instance that "you should not touch such a large economic or social sector, because there is a saying against it somewhere ", or other such issues.’’Aye, there is the rub’:
the substantial issues involved in most of the disagreements between the Council of Guardians and the Government were the latter’s’radical’ intervention in the economy.
Rafsanjani had other occasions to comment on the Leader’s remarks. On 15 January 1988, his Friday sermon was devoted again to the subject of the new interpretation of wilay at al-faqih. After criticising the’ orientalist’ approach, which in the Speaker’s opinion will be set on reading into Khumaini’s letter yet another sign of power struggle and factionalism in Iran, he addressed the edict’s impact on’the definition of the reality of velayat-e faqih and Islamic government’. Factions are not important, he continued, and it is a healthy sign of the republic that all the institutions play their role to the fullest:
In the midst of all this, the Majlis is a huge social base, it is a respected institution which should remain popular and respected. The Council of Guardians is a respected institution, which is a watchdog over the process of the Legislature, the preserver of Islamic law and of religious law, and it should be popular and respected so that it may IOI be able to carry out its duties... The Government is responsible for implementing regulations and shoulders the most difficult responsibilities in a state of war, and the most difficult task falls on the shoulders of the Cabinet and the Prime Minister.
The Prime Minister and the Cabinet had also an important say in the matter, and they did not lose any time in drawing the favourable consequences of Khumaini’s letter. In an interview on 10 January, Prime Minister Hussain Musavi acknowledged the importance of the Leader’s intervention, which he qualified as’one of Khumaini’s most important decrees and guidances’, enabling’the holy system of the Islamic Republic to deal with the complexities and problems it is facing all over the world, due to superpower plots and also ambiguities imposed on society by the present century’.
In answer to a question over the rumoured resignation of ministers (which had been going on since before Khumaini’s letter), the Prime Minister indicated that’ the message of the Imam was a boost to the brothers who were uncertain about whether they will stay at their posts’. This was a further indication of the paralysis of the Government before the Council of Guardians’s attitude, and the Iranian Prime Minister also confirmed the hope brought to the Government in an end to the deadlock reached with the Council of Guardians:’The bills and proposals at the Majlis could be reviewed and solutions found, using this decree [of Khumaini], especially the decree in connection with the Labour Act.’
The Government did not waste any time over the revival of the bills held pending by the Council of Guardians. On 12 January 1988, the Cabinet discussed’the bills and proposals held in abeyance in the Majlis, as well as the bills withdrawn by the Government and which now can be reviewed and resubmitted [to ratification] following the categorical opinion given by his eminence the Imam regarding the prerogatives of velayat-e faqih’ More specifically, the Cabinet discussed a report by cabinet committees dealing with economic and educational bills, as well as a series of proposed regulations on the formation of social councils by the Government, importexport laws, etc.
The final stage
The institutional problems of the first decade of the Islamic Revolution were two-pronged. As an instance of conflicts arising from the separation of powers, was expressed the clash between the’ legislative-executive’ branch of government grouping the Ministers and the majority of Members of Parliament on the one hand, and the’judiciary’ in its Council of Guardians’ manifestation on the other. This was the formal dimension of the debate. The legislators, the President of the Republic and his Cabinet moved immediately forward to carry Khumaini’s edict to its logical end. This meant and necessitated a constitutional Amendment.
The other dimension of the controversy was substantial. The conflict between the Council of Guardians and the majority of Parliamentarians and Ministers had been running for years over the’ social’ significance of the Revolution. The debate was anchored in the most delicate issues of economic freedom and the social balance which the State should or shouldn’t establish.
To that extent, the problems between the Council of Guardians and its critics was eminently social.
The importance of social issues for the determination of the nature of the Islamic Revolution carries the investigation away from the formal-constitutional domain in which it expressed itself, to the deeper background relating to complex themes like social justice, the state role in the economy, freedom of contract, property rights and duties, and land and labour reform.
How the substantial debate over land reform developed in the history of the Islamic Renaissance will be examined more closely in the following chapter, from the ideological context initiated by Muhammad Baqer as-Sadr’s Iqtisaduna through to the stifling of land reform in the last decade of Iranian revolutionary history.
The articulation of’ social justice’ themes on the constitutional controversy must be made clear, for the issue was generally muted in the formal debate. In itself, the constitutional controversy was a major event in Iranian history, and led to fundamental institutional changes. The deadlock reached in 1988 was broken by the redrafting of the 1979 Iranian Constitution.
Those persons in the system who were reeling from the extraordinary powers of the Council of Guardians -the President, the Speaker, the Prime Minister, and the members of Cabinet -were eager to read into Khumaini’s letter the important’ clarification’ needed to break the ties imposed by the Council of Guardians as an institution. One way to achieve their means with the new Khumainist theory would possibly have been to push forward with the bills held in abeyance until then, and pass them immediately, while the effects of the new theory had not yet dissipated. As mentioned earlier, this course was started, but it was not deemed sufficient in the long run from an institutional point of view, probably because nothing prevented the Council of Guardians from regaining its former power under other circumstances.
But the choice of a more drastic measure against the constitutional review was rooted also, no doubt, in the twisted way in which the weakening of the Council of Guardians had taken place.
A formal decision was needed to do away, for good, with the potential threat that the Council of Guardians represented.
On 6 February 1988, a month after Khumaini’s letter and the subsequent national debate, a letter was sent to the Leader by a high-powered group comprising the President of the Republic, the Speaker, the Prime Minister, the Head of the Supreme Judicial Council, and Khumaini’s son Ahmad. The full grievances of the signatories appear in this text, which reads as a legal summary of the problems of separation of powers between the Council of Guardians and the Government. In it, Khumaini is asked to solve’the problem which remains, [i.e.] the method of implementation of the Islamic sovereign right with regard to Government ruling’.
The signatories then complained about the operation of the separation of powers in the legislative field:
At present, government bills are discussed in the relevant cabinet committees and then in the cabinet itself. After being read in the Majlis, they are usually examined twice in the specialised committees. These examinations are carried out in the presence of government experts and the views of the experts are also taken into account. These views are usually communicated to the committees after having been stated and published. Usually, a single government bill is examined in several committees depending on its content. Then it has two readings in plenary session, in which all the Majlis deputies and cabinet ministers, or deputy ministers in the relevant ministries, participate. They will explain their views in line with their specialisation; in the same manner they also make amendment proposals.
If it [a piece of legislation] originates as a private member’s bill, although initially it does not benefit from the expert view of the Government, in committee and in plenary session it is discussed like a government bill, and the relevant experts express their views on it. And after final ratification, the Council of Guardians announces its views in the framework of theological rulings or the Constitution. In some cases the Majlis accords with its view, but in others it cannot do so. In such a case the Majlis and the Council of Guardians fail to come to an understanding.
The deadlock, the signatories suggest, is then complete:’ It is here that the need arises for intervention by thefaqih to clarify the subject matter of the government ruling. Though many of these examples are due to differences of view among experts, they concern the issue of Islamic rulings and the generalities of the Constitution.’
The problem of the confrontation between the Council of Guardians and the other branches could not be explained in a clearer way. For the personalities who signed the letter, the question can be summarised in the following manner: what is the point of a Majlis and a Cabinet that spend years preparing bills to have them repeatedly destroyed by the Council of Guardians over generalities of the Constitution ? The underlying resentment of the letter’s drafters was similar to John Hart Ely’s query for the American constitutional system: why should members of parliament in Iran, who are elected by the people, and who claim no less expertise and Islamic truthfulness than the Council of Guardians’ members, bow to that unelected body’s decisions?
Yet, Khumaini was hesitant to take the final step, and tip the balance clearly against the Council of Guardians. So the signatories tried to force the game by insisting on the urgency of breaking the deadlock. They wrote that they were’ informed that [Khumaimj has decided to appoint an authority to state the decision of the sovereign body in case of failure to solve the differences between the Majlis and the Council of Guardians’. They urged him’ speed of action... since at present numerous issues of importance to society are left undecided’.
The answer of Khumaini can be considered to have led to the most important constitutional development since the 1979 Constitution. Along with his letter of 6 January, to which it is an almost inescapable conclusion, Khumaini’s edict of 6 February represents a significant contribution to the whole theory underlying the Iranian Constitution, wilayat al-faqih, and to its effective weakening. Much of the undermining of the supremacy of the jurist in the Islamic republic was channelled through the neutralisation of the Council of Guardians.
The letter however indicates that the agreement of Khumaini was far from wholehearted, and the Leader’s reluctance suggests that this aspect of the separation of powers had been significantly, but not decisively, solved.
Khumaini’s letter starts with an important proviso:’Though in my view there is no need for this phase since these matters have already been through all the phases under the supervision of experts who are an authority on them...’
It is clear that Khumaini was not satisfied with the creation of a new body, or the institutionalisation of a’superior’ ultimate phase. But he reluctantly assented to the signatories’ suggestion:
In case the Majlis and the Council of Guardians should fail to come to an understanding on theological and legal points, then a council must be set up consisting of the honourable theologians of the Council of Guardians and holders of the title Hujjat al-hlam Messrs Khamene’i, Hashemi [Rafsanjani], Ardebili, Tavasoli, Musavi, Khoiniha and His Excellency Mir Hoseyn Musavi and the relevant minister.
The council is to discuss the interests of the Islamic regime. In case of need, other experts can also be invited. After the necessary consultations, the decision of the majority of those present in the Council must be complied with.
Thus was born a new institution in the Islamic Republic of Iran, which came to be known as’Majma’-e Tashkhis-e Maslahat’ (Council for the discernment of [the Republic’s] interest). The structure of the original dejure members is such that the majority’government’ members can override the decisions of the six members belonging to the Council of Guardians, to whose detriment the deadlock was broken.
But the texts lack precision in a number of major instances. Khumaini’s introductory proviso, in the first place, indicates his reluctance in principle to the advent of such a new constitutional institution. The fact that the newly established council was not given an official name of its own by the Leader, as well as the designation of the government members personally rather than under their official positions, increases the sense that Khumaini’s wish was not to see the new Council perpetuated as an institution. Furthermore, the Council is considered to meet on the condition that an unbridgeable dispute between the Majlis and the Council of Guardians has emerged. Thus, in theory, it is only after a repeated deadlock between Parliament and the Council of Guardians that the Council meets. Thirdly, the Council cannot be considered as a fixed institution in so far as some members can be ad hoc experts who are invited for one specific bill. Finally, a strong personal -as opposed to the institutional -sense appears in Khumaini appointing his son as a rapporteur in the Council:
Ahmad [Khumaini’s son] will take part in this council so that reports of the meeting can be brought to me faster. The gentlemen must be aware that the interest of the regime is an important issue. Sometimes negligence towards it will lead to the defeat of dear Islam. Today the world of Islam regards the regime of the Islamic Republic of Iran as a fully reflective tableau [Khumaini used the French word] for the solution of their problems.
The reluctance of Khumaini might also be understood against a more delicate constitutional background, which is the absence in the Iranian fundamental law of 1979 of a mechanism for constitutional change. This is a bizarre feature of the 1979 text, which was eventually remedied by the introduction of the new Article 177 in the 1989 constitutional revision.
Khumaini had, according to the original Iranian text, no power to proceed to such a drastic change as the creation of a constitutional body in general, less so of a constitutional body with such an important competence as to regulate the problems of separation of powers between the Council of Guardians and the Government. Nowhere in the prerogatives of the faqih is there an acknowledgment of his right to modify the constitution, and less so to create a new constitutional body.
Could it then be argued that the Majma’ was unconstitutional ? And if the creation of this council by Khumaini were considered legal, where does its constitutionality rest? In other words, could such an appointment survive the person of the present Leader, and be considered a permanent emanation of the powers of the Leadership ?
Epilogue: the opening of a new constitutional decade
All these questions were overtaken by events.
In 1989, the first decade of a rich Iranian constitutional debate came to an end. A new decade was starting with two major developments.
On 4 June 1989, Ruhullah al-Khumaini died. On 28 July, forty-six amended articles of the Iranian Constitution which had been prepared by an ad hoc revision committee, in addition to two new articles, were approved by referendum. On the same day, the new President,’Ali Hashemi Rafsanjani, was voted in power. The absence of a formal process of constitutional revision was remedied in the new Article 177.’Majma’-e Tashkhis-e Maslahat-e Nazam’ was formally introduced to the institutions of the Islamic Republic, to’discern the interest in matters arising between Parliament and the Council of Guardians’ and not solved at the end of the various’legal stages’. The’fixed and temporary’ members of the Majma’ were to be appointed by the Leader, and report to him.
The fixed members of the Majma’ are the six fuqaha of the Council of Guardians, the President, the Head of the Judiciary (Yazdi), the Majles Speaker (Karrubi), Ay at Allah Mahdavi-Kani, Ay at Allah Yusuf Sane’i (former Prosecutor-General), Ahmad Khumaini, Ayat Allah Kho’eniha (also previously Prosecutor-General), Ayat Allah Movahedi Kermani, Hasan Sane’i (Yusuf Sane’i’s brother), Mohammed Reza Tavasoli and Ayat Allah Abdallah Nuri (both from the office of the late Ayat Allah Khumaini) and Mir Hosein Musavi (former Prime Minister). They were appointed for three years in October 1989 by the new Leader,’Ali Khamene’i. To them must be added the two’temporary members’: the relevant minister and the Chairman of the relevant Parliamentary committee.
The Majma’ took its task to heart immediately. Under the leadership of the new President of the Republic and Head of the Majma’,’Ali Rafsanjani (who succeeded Khamene’i in this position), a number of deadlocks were solved.
This was true in particular of the legislation on agrarian reform,
and of Labour law. Labour legislation, which had been a major area of contention between the Council of Guardians and the Executive and Legislative branches for ten years, was finally settled. The 203 Articles of the Code were perused by the Majma’,’in several sessions’, and disputes concerning half of the Articles laid to rest. The latest version of the Bill (2/7/1368, 24 September 1989) was finally approved into law by the Majma’ on 28/11/1369 (17 February 1991).
The second decade of the Iranian Constitution starts with an amended text and a new leader. By introducing the Majma’-e Tashkhis-e Masalahat, the recurring problems between the Council of Guardians, on one hand, and Parliament and the Presidency on the other, were solved to the advantage of the latter. Similarly, the revision did away with the position of Prime Minister in an effort to simplify the mechanisms of executive authority.
Other complications of the 1979 text were reduced. This was particularly true of the Leadership Council of Articles 5 and 107, which was suppressed in the revised text to the benefit of a sole Leader. The Leader does not need anymore, like in the case of Khumaini under the original Article 5, to’be accepted by the majority of the people’. The deletion of this requirement vests the Assembly of Experts with a straightforward choice of the Leader. In the process, the historical specificity of the choice (or election, in Muhammad Taqi Faqih’s words) of the Shi’i marja1 is relegated outside the sphere of government. But the position of the marja1 as Leader continues in competition for the overall support of the population with those other marja’s of Shi’i civil society, inside and outside Iran. The complex tiers of separation of powers arising from the legacy of the Shi’i colleges remain. But the Council of Guardians’ role as supreme constitutional watchdog seems to have ended, as its hold is now diluted by the new non-Council majority on the bench of the Majma’.
The dilemmas which have recurred in Shi’i constitutionalism since the Usuli-Akhbari controversy will persist: what is the exact role of the jurist in the implementation of the sharfa and where does the extent of his leadership in the Islamic city end? The next decade of constitutionalism in Iran should provide more original separation of powers’ conflicts and schemes to the analyst.
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Author: CHIBLI MALLAT
