Guardian Council Research Articles

A critical reflection on the procedure of the Court of Administrative Justice and the procedure of the Guardian Council in ensuring Sharia supervision of administrative regulations

A critical reflection on the procedure of the Court of Administrative Justice and the procedure of the Guardian Council in ensuring Sharia supervision of administrative regulations

Examination of the Law on Mandatory Registration of Immovable Property Transactions

The legislator considers transactions with ordinary documents as valid and legitimate, but with respect to immovable property, this validity is conditional upon the formal registration process. Based on this, a bill was passed in the Parliament that mandates the formal registration of immovable property transactions, which remains a subject of dispute between the Parliament and the Guardian Council. One of the challenges associated with this issue is the increase in forgery and fraud related to documents. This study is applied in nature and has been conducted using a documentary method by examining laws and credible sources, with the information analyzed descriptively and analytically. As a result, the bill on mandatory registration of immovable property transactions was introduced in the Parliament on January 2, 2017 and approved on May 20, 2020. However, after the bill was sent to the Guardian Council for approval, it faced objections. Alongside the significance, validity, and evidentiary power that document registration brings, it also has functions such as promoting ethical and social well-being in society, ensuring transaction transparency, and reducing litigation in judicial courts.

Историко-правовые аспекты создания Ассамблеи по определению государственной целесообразности в Исламской Республике Иран

The Islamic Republic of Iran (hereinafter — Iran) is a unique state. It combines the functioning of republican institutions of state power along with religious specifics, due to the fact that in this state there is an official religion — Shia Islam of the Jafarite persuasion. When the Iranian constitution was created after the Islamic revolution of 1979, it fixed the presence of a religious-constitutional control of a body called the Guardian Council over the laws adopted by the parliament, which is one of the main manifestations of the Islamic nature of state power in Iran at the present time. It was this specificity of the state mechanism of Iran that served as the reason for the creation of the Expediency Discernment Council, because the practice of legislative activity has shown that sometimes the Parliament — the Islamic Consultative Assembly — and the Supervisory Board are not able to reach a compromise on about the law being passed. And this, in turn, led to a crisis in public administration, since, on the one hand, the need for legislative regulation of public relations remained, and on the other hand, there were no legal mechanisms for forcing the Parliament and the Guardian Council to make a balanced decision.

FEATURES OF ENSURING AND GUARANTEEING WOMEN’S RIGHTS IN THE ISLAMIC REPUBLIC OF IRAN

The aim of the article is to examine the main problems of ensuring women’s rights in the Islamic Republic of Iran. In particular, the peculiarities of the legal status of Iranian women in the sphere of economy, education and in the reproductive sphere are considered. The legislative guarantee of women’s political rights in the Islamic Republic of Iran is analyzed. It has been proved that the main factor of changes in the gender issue is the normative and legal framework, because it officially establishes in all spheres of society the relevant norms of behavior aimed at respecting the rights of women and men. It was established that the main law in the country, despite the strong influence of the Koran, remains the Constitution (1979), which not only prescribes in detail the basic rights of women, but also defines the degree of government responsibility for ensuring women’s rights in all spheres of public life. However, in other legal documents, women’s rights in Iran are generally considered limited. It was revealed that Iran is still one of the UN member states that has not signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979). Although Iran’s parliament passed a bill to join the convention in May 2003, the bill was rejected after being sent to the Guardian Council, which is responsible for approving new legislation in the country. The above-mentioned Council cites vague religious contradictions, being under pressure from conservatives in government. The country’s national legislation was found to contain many barriers for women to access basic rights in areas such as employment, marriage and citizenship. Although the situation of women’s rights in the Islamic Republic of Iran has improved recently, women continue to experience marginalization, violence and repression. According to the civil code of the country, where the rights of women in marriage and in the family are enshrined, the dominance of the man in the family is recorded. At the same time, the lack of legal instruments for the protection of women’s rights has created an atmosphere of impunity for acts of violence against women committed by men. It has been found that women from national minorities are in an extremely difficult situation in Iran, who often face intersectional discrimination based on gender, ethnicity, language or religion.

رانه سیاست جوان‌سازی جمعیت ایران چیست؟

In spring/summer of 2022, amid backbreaking crises and sanctions, the Islamic Republic pushed a ‘population rejuvenation policy’ with a ‘double-urgent’ legislative priority through Parliament, the Guardian Council, and readied it for quick implementation, despite extensive public opposition to its debatable mechanisms. This article argues that the Islamic Republic is less concerned with the future graying of Iran’s population, and more worried about rebuilding its eroding political base. It has realized that its supporters have become outnumbered by secular-minded Iranians. Under the bland term of “population rejuvenation”, the regime is putting in place incentives that are more acceptable to its conservative and compliant followers and rejected by more progressive citizens. The mechanisms include inter alia such disputed institutions as child marriage, temporary unions, or legal polygamy, and are promoted through generous financial incentives. By contrast, family planning services are considerably reduced and are at high cost to poorer women. In this manner, the regime hopes to bring about a differential fertility rate between its dependents and its detractors, which will over time increase the share of the former over the latter group, and keep political representation in its favor. This ideological approach is not new. In fact, the methods of the Islamic Republic are akin to the “great replacement theory”– a term used by white supremacists, Christian nationalists, and rightwing Western groups to represent the view that their demographic share is dwindling relative to their more secular opponents. In the West, too, under euphemistic slogans such as “family values “or “saving the unborn,” these groups have pushed for decades pro-natalist policies that target women’s reproductive rights and limit access to contraception and abortion – essentially limiting women’s choices to plan their lives. Behind the crowning moment of the Dobbs case – the overturning of the right to abortion in Roe v Wade by the U.S. Supreme Court – lies the belief that reproductive rights have facilitated “white replacement”. And, by taking away these rights, white women will have more children and thus increase the white population’s share vis-à-vis non-whites, particularly since the latter has gained consistently more political power and representation.

The role of the law approvers in its interpretation

Law is seen to have several qualities, including conflict, conflict-freeness, clarity, directness, and absence of ambiguity. Such a measure is also anticipated to receive legislative approval. However, the legislation must be construed without the aforementioned qualities. The courts, the Parliament, and the Guardian Council are, respectively, the competent authorities for interpretation in settling litigation, ordinary legislation, and the constitution in Iran's legal system. Many standards have been laid down on how laws should be interpreted. However, in the interpretation provided by the approvers, the standard is to ascertain the meaning of the legislation since the approvers are more cognizant of their objectives than judges and inexperienced new members of parliament. Every researcher wonders why the members of the legal commission of the parliament, who are not present in the parliament, do not have the right to interpret the regular legislation in light of the regulation above. The previous query is posed in the disciplines of criminal law, civil law, and public law.

The Relationship between Jurists of Guardian Council and Administrative Court of Justice: A Review of 40 Years procedure for Announcing Contradiction of Regulations with Islam

The Relationship between Jurists of Guardian Council and Administrative Court of Justice: A Review of 40 Years procedure for Announcing Contradiction of Regulations with Islam

A critique of the Guardian Council's view on the development of the authorities mentioned in Article 142 of the Constitution

A critique of the Guardian Council's view on the development of the authorities mentioned in Article 142 of the Constitution

The Origins of the Reformist Faction in Iran: the Political Isolation and Ideological Transformation of the Islamic Left in the 1990s

This article attempts to comprehend the process of moderation of the Islamic Left – the progenitor-faction of the Reformists. In the changed global context and socio-political landscape of the Islamic Republic of Iran in the 1990s, the Islamic Left could not rapidly adapt to the new environment which diminished their appeal among the constituency. The erosion of public trust enabled the Right to push their rivals aside using the Guardian Council as a political filter, and soon the Left found themselves on the margins of mainstream politics. However, during this enforced isolation, they managed to reassess their post-revolutionary experience, and their political platform underwent a significant transformation. The new think-tanks and intellectual circles, most notably the Center for Strategic Studies and the “Keyan” circle, played an instrumental role in this process. Within this intellectual infrastructure, a new religious and political discourse emerged, providing argumentation for a rethinking of R. Khomeini's legacy from the standpoint of republicanism. Then the elitist language and vague ideas of this discourse were politicized and disseminated through the network of like-minded media. The slogans of the “New Left” gained wide support among the youth and the urban middle class, who advocated the development of political pluralism and the continuation of the course of economic liberalization and detente, which had begun during the tenure of the President A.A. Hashemi-Rafsanjani (1989–1997). These strata formed the core social forces that ensured the victory of Mohammad Khatami in the 1997 presidential elections, and then supported the Reformist “May 23rd Front”.

The Role of the Guardian Council in Ensuring Compatibility between Persian and Non-Persian Texts of International Treaties

The Role of the Guardian Council in Ensuring Compatibility between Persian and Non-Persian Texts of International Treaties

Religious supervision requirements of the Guardian Council jurists In Islamic Republic of Iran Legal System

Religious supervision requirements of the Guardian Council jurists In Islamic Republic of Iran Legal System

Iran Under Raisi’s Presidency

Following the Islamic Revolution, a number of leaders have served as the highest elected official of Iran, with the winner of the last presidential election being Ebrahim Raisi, who does not have much experience in the political area, but received the support of all influential groups in the country, particularly the Islamic Revolutionary Guard Corps and the ulama. The attitude of the Guardian Council, which has the primary responsibility for the survival of the system, in determining the presidential candidates affects the voter turnout and enables the forecast of election results to some degree, as in this election. In this context, the rejection of the candidacy of some names is essential in terms of showing the rivalry between the various power groups in the system and giving clues about the new era, which is characterized as the second phase of the Revolution. Raisi, who has been seen as the Supreme Leader’s possible successor, is expected to make an impression as an embracive leader. However, he also faces significant challenges in domestic policy such as the economy, aridification, power and water crises, and ethnic problems, to which there are no simple and short-term solutions. In foreign policy, although it is expected that Raisi would prioritize the relations with neighboring countries instead of the great powers, the relations of Tehran with these countries will, to a great extent, depend on its policies towards the U.S. in the new era.

Transformacija države i prava u Iranu nakon Iranske revolucije 1979. godine

With the overthrow of the regime of Reza Pahlavi in 1979, the Iranian revolution ended the existence of the 2,500-year-old Persian Empire and built the Islamic Republic of Iran on its foundations. The revolution was the product of three independent social structures that merged at one point. One was the structure of constitutionalism that grew out of a century-long struggle for democracy supported by modernists; the second was Islamism as a movement to set Sharia law as the primary law supported by rural elements in society in response to Western urban elites and accepted by merchants; and the third is the nationalist structure, driven by rage fueled by Iran's long subordination to European powers. The basic principle of the Islamic Republic of Iran, proclaimed by the new constitution from 1979, is the positioning of God as the supreme bearer of people's sovereignty and people who are only marginal representatives of his power on Earth. Ayatollah Homenini, the supreme leader of the Islamic Revolution and the Iranian state, in this regard created a thesis about the Islamic State as a political representation, created on the basis of the people's will, in order to enforce God's laws. In practice, such system meant setting up Sharia (religious) laws as the only source of law in regulating social, legal and other relations within the community. A dichotomy has been created in the management of the state, so there are two groups of authorities. The first, the conciliar, consists of the Supreme leader, the Council of Guardians (Shora-ye Negahban-e Qanun-e assassi), the Council of Experts (Majles-e Khobragan Rahbari) and the Judgment Council. The task of these councils is to oversee the activities of all levels of government in order to preserve the unity, sovereignty and integrity of the Iranian political system. The conciliar government supervises and advises the republican part of the government, ie. its legislative, executive and judicial aspects. In addition to conciliar government, there is a republican government that creates laws and political decisions in accordance with religious teachings and under the supervision of theocratic political institutions. All laws and court decisions must be based on the principles of the Qur'an, and their proper interpretation requires an understanding of religious principles. On the basis of the constitution, a special High Judicial Council was established, which amended the pre-revolutionary laws (criminal, commercial, civil and procedural), thus creating the so-called “Transitional law”. The biggest changes affected the area of criminal law, where the principle of talion revenge was introduced (“an eye for an eye, a tooth for a tooth”) and the strict punishment of extramarital relations and same-sex relationships. In the domain of marital and family law, a man is given a number of rights, thus putting the woman, as a marital partner, in a more unequal position. Husbands were facilitated in divorce, temporary marriages with more than one woman were allowed, while on the other hand women were allowed the right to divorce only if it was explicitly allowed by her husband during the marriage. The revolution also introduced new sources in the regulation of legal relations. Thus, by an order of the Supreme Judicial Council of 23 August 1982, judges were ordered to use direct authoritative Islamic texts or sources on which to base their judgments in resolving disputes. Judges are required by this Order to address the Council of Guardians of the Constitution if they cannot determine with certainty whether a regulation is in accordance with Sharia law or not. If the judge does not know which law to apply, he must contact the Office of Ayatollah Khomeini for further instructions. In addition to the internal one, the revolution caused radical changes in the foreign policy field, positioning Iran as an important participant in numerous international processes at the regional and global level.

An Analysis on the Feasibility Study of the Comparison Between Article 68 of the Constitution of the Islamic Republic of Iran and Article 5 of the Election Law on the Suspension of Presidential Elections

The ultimate goal of this analytical study is to assess the analogy between Article 68 of the Constitution of the Islamic Republic of Iran and Article 5 of the Election Law on the suspension of presidential elections. The reason for the ruling in Article 68 of the Constitution of the Islamic Republic of Iran cannot be extended to Article 5 of the Presidential Law to use the analogy. First, because the reason for the ruling in Article 68 of the Constitution of the Islamic Republic of Iran is the suspension of the Islamic Consultative Assembly elections during the war and military occupation with the President's proposal and the Guardian Council's approval. Secondly, there is no such necessity for holding presidential elections in force majeure time, and the Constitution has provided for the sponsorship of the presidency if the presidential election is not held. Thirdly, assuming that impossibly to cite it, one of its basic conditions, the president's proposal, is missing because his term is over. On the other hand, in Article 5 of the Islamic Republic of iran Law and Article 7 of the Guardian Council; according to Article 68 of the Constitution, the election is suspended and annulled with the approval of the Guardian Council. These two articles do not have any conflict with each other and each of them is applicable in its place, but the approval of the Guardian Council to stop the presidential election in case of force majeure has priority under certain conditions.

ИТОГИ ПРЕЗИДЕНТСКИХ ВЫБОРОВ 2021 В ИРАНЕ

This article analyzes the situation in Iran on the eve of the presidential elections of 2021. Preparations for the election campaign took place in the context of the deepening economic crisis caused by the US sanctions after their withdrawal from the JCPOA, as well as the pandemic of coronavirus. The deterioration of the material situation of the population led to a denial of confidence in liberal forces, an increase in the mood of hopelessness and their political indifference. The difficult situation was taken advantage of by conservative forces, which have managed to strengthen their position in power in recent years. The Guardian Council, having prevented a number of well-known politicians to participate in the elections, actually ensured the victory of the Head of the Judiciary, E. Raisi. The unprecedented low turnout indicates an increase in Iranians’ dissatisfaction with the Islamic regime, which has ignored the democratic foundations laid down by the constitution and strengthened theocratic principles.

The Obligation of carrying out Sharia Law Prior to Legislation or Drafting and its Relation to the Principle of the Rule of Law

The principle of the rule of law and the principle of the legality of crime and punishment are considered to be among the fundamental principles of law and are of great importance in public law. The problem is, given the existence of the following holy verse, “no rulership except by Allah alone”, and principles such as the rule of law and the legality of crime and punishment, how can the obligation of certain Muslim precepts be assessed both jurisprudentially and legally before the law is legislated? This paper explicitly states that the Sharia laws taken into account in this study are ones that jurisprudents unanimously agree on and so are not subject to the ruling of the jurist's fatwa and there is no need to compare the applicability of the rulings (unconditional judgments). In this research, we analyzed the aforementioned problem from a jurisprudential and legal perspective. The obligation to carry out these types of sentences prior to their legislation or compilation based on the jurisprudential point of view, the constitutional principles of the Islamic Republic of Iran, the practices of the Guardian Council, some ordinary laws, and the views of the Assembly of Experts is what this paper proves.

A atuação do psicólogo nos conselhos tutelares de Campos dos Goytacazes / RJ

O artigo tem como proposta apresentar o discurso dos psicólogos e dos conselheiros tutelares sobre o papel e a importância dos psicólogos dentro do Conselho Tutelar. Foram utilizados a pesquisa bibliográfica e entrevistas semiestruturadas direcionada aos profissionais da psicologia e aos conselheiros tutelares atuantes nos Conselhos Tutelares de Campos dos Goytacazes/RJ. Apesar da atuação do psicólogo ser recente e não obrigatória no Conselho Tutelar, foi possível afirmar a grande importância do profissional da psicologia no atendimento de crianças e adolescentes vítimas de violência e suas respectivas famílias. O psicólogo por ser um agente de transformação, deve direcionar o seu trabalho em prol dos direitos humanos, contribuindo para que os conselheiros tutelares em sua atuação, desjudicialize as práticas de garantia de direitos. É necessário enfatizar que as atribuições do psicólogo no Conselho Tutelar estão em construção, logo, não podendo definir a atuação deste profissional tão somente ao atendimento humanizado do público alvo e a devida orientação aos conselheiros, devendo estar atento a inovadoras atividades que podem ser significativas a saúde do colegiado.

CONSELHO TUTELAR NO MUNICÍPIO DE APODI – RN: PRINCIPAIS DESAFIOS PARA SUA ATUAÇÃO

O presente trabalho pretende refletir sobre a atuação do Conselho Tutelar no município de Apodi-RN. Buscando uma relação com a realidade nacional faz uma análise sobre o processo histórico das lutas pela assistência à criança e ao adolescente focando desde as primeiras iniciativas de enfrentamento a essa realidade até a materialização do Estatuto da Criança e do Adolescente. Para tanto, além de proceder à revisão da literatura, estamos ancorados nos dados produzidos mediante realização de entrevistas semiestruturadas com a finalidade de conhecer os limites e desafios que os conselheiros enfrentam para desenvolver o seu trabalho. Conclui-se que há falta de estrutura e infraestrutura, política de capacitação dos conselheiros tutelares, assim como uma ausência de política de assistência integral que atue nas demandas postas pela condição de vitimadas e seus familiares, fatores primordiais para um bom desempenho e para a seguridade da garantia dos direitos das crianças e adolescentes.

Constitutional Economics under an Official Thought to be Divinely Guided: Implication on Islamic Republic of Iran

Constitutional economics is an interdisciplinary subject of constitutionalism and economics where political government tries to constitutionalize the economic activities within the state. Although, every political government tries to deal with all the economic aspects during constitutional engineering but, in theocratic states, the supreme religious institution performs the respective task because of having an official thought to be divinely guided. This study comprehensively describes the concept of Vilayat-e-Faqih (introduced by the Imam Khomeni) in Iran, by which, the entire political system including the economic and financial affairs of Iran has become the subjects of Supreme Leader and his Guardian Council. Similarly, articles 20, 21, 26, 27, 28, 29 and 31 of the Iranian constitution emphasize upon economic rights of the nation in general. On the other hand, articles 43, 44, 45, 46, 47 and 48 of the constitution define Iranian economic infrastructure, which is comprised of state, corporate and private sectors.At the same time, articles from 100 to 106 of the constitution focus on the power and authorities of“the councils” at the town, city, district and provincial levels. Moreover,this study also provides constitutional economic analysis of article 05, articles 107 to 112, article 150,and article 176 that exhibits hegemony of Supreme Leader (in consultation with Guardian Council and Revolutionary Guards)regarding looking after, controlling and directing all the economic activities within the state. Furthermore, the study also investigates how and why each constitutional provision is the subject of the post of Supreme Leader (also called Vilayat-e-Faqīh; considered to be divinely guided).

LEGISLATIVE RESTRICTIONS OF THE ISLAMIC CONSULTATIVE ASSEMBLY DUE TO THE LEGISLATIVE JURISDICTION OF OTHER AUTHORITIES IN THE PROCEDURE OF THE GUARDIAN COUNCIL

Purposes: In the Constitution of the Islamic Republic of Iran, in accordance with Article 71, legislation is the responsibility of the Islamic Consultative Assembly and has general jurisdiction which does not mean that the Islamic Consultative Assembly has no restrictions on legislation, but has limitations in terms of the various Constitutional principles including, the exclusive and particular jurisdiction of other authorities to legislate the law. The Islamic Consultative Assembly cannot legislate in the jurisdiction of these institutions. In the Constitution, a series of authorities have got the right to legislate.
 Methodology: Using an analytical descriptive method, the present article seeks to examine the question of what are the legislative constraints of the Islamic Republic Consultative Assembly in the Guardian Council's procedure.
 Results: In the procedure of the Guardian Council, other authorities, such as the Assembly of Experts of the Leadership, the Expediency Discernment Council of the system, the Supreme National Security Council, the Supreme Council of the Cultural Revolution, etc. have found the right to legislate. In other words, this general jurisdiction has been assigned in a way.
 Implications/Applications: The application of this study is to introduce the laws of the Islamic Republic of Iran. The exercise of this jurisdiction by the Islamic Consultative Assembly has a framework that cannot be explained except by referring to the Constitutional principles
 Novelty/Originality: In the Constitution of the Islamic Republic of Iran, due to the nature and type of government and the particular aspirations pursued, other legislative authorities include the Assembly of Experts, the Expediency Council, the Supreme National Security Council. It is accepted that by referring to the views of the Guardian Council as the Constitutional body, they have protected them in cases where the jurisdiction of these authorities has been invaded.