The Constitution of Iran
Asghar Schirazi
I.B.Tauris
A milestone in our understanding of the ideology and practice of an Islamic state, this book chronicles and analyses political life in Iran since the revolution showing the gradual transformation of the state from intended theocracy and republic to a hierocracy in which Islam and the shari‘a play a subordinate role. Asghar Schirazi takes as his starting point the major contradictions inherent in the constitution - between its legalistic and democratic components and between the alleged potential of a legally and ideologically interpreted Islam as a means of solving social problems, and the growing evidence that this Islam is an inadequate legal and political basis for government in present-day Iran. Through a detailed examination of the genesis of the constitution, its content and its actual development since the inception of the Islamic Republic to the present day, this study charts the elimination in practice of the constitution’s democratic elements and the gradual replacement of Islamic legalism with the interest of the state as the key criterion for dealing with problems. Schirazi argues that in this manner a separation of state and religion is taking place. In the last chapters, he points to a growing crisis of the shar Shari‘a and the religious seminaries as the self-appointed guardians of the shari‘a. This has opened the way for criticism coming from religious circles outside the seminaries hinting at possible developments in the Islam of the future.
Asghar Schirazi is research associate in the Department of Political Science, Middle East Studies Section at the Free University of Berlin.
Contents
Introduction / 1
Part I
Contradictions in the Constitution of the Islamic Republic
1 The Composition of the Constitution / 8
Islamic Legalist Elements / 8
Democratic Elements / 14
Secular Elements / 17
2 The Genesis of the Constitution / 22
The Preliminary Draft / 22
Uncertainties before the First Referendum / 24
A Constituent Assembly or an Assembly of Experts? / 27
The Public Propagation of velayat-e faqib 'kUf-i'u / 5°
Engineering Elections to the Assembly of Experts / 31
The Inclusion of velayat-e faqib in the Constitution / 3 3
3 The Clash over velayat-e faqih / 45
Criticism in the Assembly of Experts / 45
Opposition outside the Assembly of Experts / 47
The Exponents of Absolute velayat-e faqih / 52
Part 2
The Suppression of the Democratic Elements
4 The Power of the Leader / 61
Khomeini’s Power before the Advent of Parliament / 61
Khomeini’s Supremacy over the Constitution / 63
Khomeini’s Legislative Powers / 65
Khomeini’s Supremacy over the Executive / 68
The Representatives of the Imam / 73
The Veneration of velayat-e faqih / 74
Khamene’i’s Power as Leader / 76
The Limits of Obedience to Khomeini / 80
5 The Impotence of the People / 86
The Erosion of Parliament’s Representative Function / 86
Other Restrictions on the Sovereignty of the People / 104
The System of Councils and its Suspension / 111
6 The Suppression of Fundamental Rights / 124
The Ban on Political Parties / 124
Suppression of the Opposition Press / 135
The Violation of other Fundamental and Human Rights / 138
Ideological Justifications / 142
7 The Power of the Clergy / 150
The Clergy as Government Officials / 150
The Institutions of Clergy Power / 15 x
Part 3
The Fate of the Constitution’s Islamic Legalist Elements
8 The Unavoidable Acceptance of Laws Alien to the sharia / 161
The Attempt to Enforce the Islamic Ordinances / 161
The Preservation of Ancien Regime Laws / 162
The Promulgation of Laws Alien to the shari'a / 166
Legislation without an Islamic Content / 171
9 Circumventing the shari'a through the Rule of Emergency / 175
The Law on Urban Land / 176
Land Reform and the Rule of Emergency / 184
The Rule of Emergency and the Rent Law / 188
The Emergency in Domestic Trade / 192
The Emergency in Foreign Trade / 194
The Punishment of Speculators / 197
The Limitations of the Rule of Emergency / 198
10 Circumventing the shari'a through Secondary Contractual Conditions / 206
The Labour Law as a Secondary Contractual Condition / 206
The Marriage and Divorce Law / 215
The Problem of Secondary Contractual Conditions / 219
11 State Ordinances / 223
The Discretionary Punishments in Shi'i Law / 223
The Introduction of State Discretionary Punishments / 224
The Guardian Council and the State / 227
The Supremacy of State Ordinances over sharia Ordinances / 229
12 The Interests of the Ruling System as a Standard for Legislation / 233
‘Interest’ (maslahat) in Shi I Law / 233
The Council for Assessing the Interests of the Ruling System / 234
Precedents for the Rule of maslahat / 237
13 A Problematic Criterion of Legitimacy / 248
Part 4
The Crisis of the shari'a
14 An Awareness of Crisis / 257
The Shortcomings of Traditional Jurisprudence / 258
The Defects of the Religious Academies / 260
The Causes of the Crisis / 261
Who is to Blame? / 264
15 The Search for Solutions / 267
The Demand for Reform of the Academies / 267
Dynamic Versus Traditional Jurisprudence / 270
The Absence of Reform / 272
16 Criticism from Outside / 277
Mohammad Mojtahed Shabestari / 278
‘Abdolkarim Sorush / 281
The Reaction to Shabestari and Sorush / 287
Conclusions / 291
The Constitution in Historical Perspective / 291
The Real Distribution of Power / 295
The Impotence of the People / 300
The Separation of the State and Religion / 301
The Hierocracy / 304
Bibliography / 309
Index / 316
INTRODUCTION
The Constitution of the Islamic Republic of Iran is full of contradictions which, viewed in their totality, reflect the extraordinary range of political forces involved in the Iranian revolution and the particular constellation of power that existed between these forces from the time the first preliminary draft of the document was produced in Paris between January and June 1978 until 15 November 1979 when, after much debate and revision, a final version was approved by an Assembly of Experts.
Among the many contradictions to emerge from this process two are fundamental and have had a decisive impact on the development of the Iranian state since the revolution. The first is the contradiction between the constitution’s Islamic legalist and non-Islamic secular dements which flows largely from the claim that a state set up on the basis of Shu law and ruled by Islamic jurists (foqaba) is capable of offering solutions to all problems, not only in Iran, but throughout the world even though the constitution itself incorporates many non-Islamic and non-legalist elements. The second is the contradiction between its democratic and anti-democratic elements, arising chiefly from the conflict between the two notions of sovereignty embodied in the document: the sovereignty of the people on the one hand and of the Islamic jurists on the other, a sovereignty the jurists exercise as God’s deputies. There is a third contradiction between those Islamic legalist elements in the constitution which support a hierocracy1 and its Islamic anti-hierocratic elements. However, since the latter are based on a conception of Islam which has assimilated significantly greater democratic and secular attitudes, this contradiction can be seen as corresponding for the most part to the contradiction between the legalist and the democratic, secular elements.
These two major contradictions provide the central theme of this book which will examine the way they have found their way into the constitution and how, in a lengthy process of resolution, they have been eradicated under the Islamic Republic. The subject is of importance for two reasons. Firstly because, in revealing the inconsistency of a document which was meant to establish the principles of a model Islamic state and an exemplary Islamic society, the very existence of such contradictory elements raises questions about the external form of the constitution. And secondly because the process of resolution they necessarily set in motion from the moment the preliminary draft of the constitution was completed, before the revolution itself, has since been a key dynamic of political life in the Islamic Republic.
Part I of the book delineates the major contradictions of the constitution and examines the process that led to their incorporation into the document. The first chapter presents a detailed analysis of the text itself and makes it clear that, despite its commitment to establishing a legalist state, the constitution has been forced to incorporate many elements that are not in harmony with this goal. These elements appear alongside one another in the text, awaiting a resolution of the tension between them in everyday practice. The second and third chapters adopt a historical approach. They give an indication of the ideas and attitudes developed and articulated by strategic social and political forces during the debate that took place when the constitution was framed, provide a comparison of the constitution’s final content from the point of view of what would have been required for it to be based on, or indeed to have fostered, consensus and help to explain why some ideas were, and others were not, incorporated into the final document.
The importance of the social forces considered in these chapters stems from their significance within Iran’s socioeconomic structure, their preponderance in the intellectual-political movement which gathered force before and immediately after the revolution, and the part they played in bringing together the disparate groups that participated in the revolution. The influence such groups eventually exercised, for the most part as an opposition, in determining the political processes after the ratification of the constitution was an additional factor.
Parts II and III deal with the practical resolution of the contradictions of the constitution in the process of legislation and government — a process which has, in its turn, led to a form of Islamic state which was not thought possible even by many of the legalists. Part IV depicts some of the ways different Islamic circles have reacted to their experience of a ‘real’ Islamic state. While these reactions have occasionally taken the form of clinging to the existing system, they have also resulted, in some quarters, in doubts about the claim that Islamic law can solve all problems, and a rejection of outright Islamic legalism. The concluding section discusses the transformation that has taken place in Iran since the establishment of the Islamic Republic and the implications of that transformation. The constitution of 1979 was revised in 1989 and this revision and its consequences are discussed in various places in Parts II and III, as well as in the Conclusion.2
In Pan 1 the forces that participated in the debate over the framing of the constitution are initially divided along general lines into secularists and Islamicists. But during the debates over the constitution the various secularist groupings did not behave in a uniform or consistent way, nor (often) in a way their political label would lead one to expect. Many gave their approval to the constitution out of tactical or strategic considerations. The divisions between the Islamicists, who were similarly represented by numerous political organisations or religious authorities, were also, at this point, shifting, varied and frequently obscure.
The committed hierocratic legalists are defined as those who advocated the mandate of the jurist (velayat-e faqih), in particular as understood by Khomeini. They supported the adoption of the shari'a as the juridical basis for the state, and held various orthodox positions on the adaption of this system to ‘the demands of the times’. Many non-legalists also advocated the adoption of the shari'a, though with greater or lesser degrees of moderation. They are distinguished from the committed hierocratic legalists chiefly by their rejection of the concept of velayat-e faqih and in this somewhat arbitrary sense are categorised as non-legalists. A third group has rejected legalism in Khomeini’s sense but on the question of applying the shari'a represents a position that is as, if not more orthodox, as that of the radical legalists. Further differentiation is certainly possible and would be an essential requirement in a more comprehensive study of this subject.
These divisions are valid for the period directly after the revolution when the struggle over the form the new constitution would take was at the centre of politics. For the period after the constitution was adopted, the book deals with those groupings and political organisations that were destroyed or reduced to opposition only to the extent that the elimination of the democratic elements of the constitution affected them. Its primary focus is on the forces and political divisions which manifested themselves within the jurist-dominated regime. Here a rough distinction is made between a conservative and a radical-populist grouping, to which is added a moderate element that began to manifest itself more obviously after the death of Khomeini.
The main sources used in Part 1 of the book are as follows:
1. The preliminary draft of the constitution as it was presented to the Assembly of Experts and the final text ratified by the Assembly of Experts.
2. More than 4,000 recorded statements on individual points of both the preliminary outline of the constitution and its final text.
3. Discussion and criticism that has appeared in the press or in books and brochures.
4. The minutes of the Assembly of Experts or Majles-e Khobregan (cited in the notes as MK).
These sources are not of equal importance and particular use has been made of those
documents which express the opinions of powerful political organisations and influential individuals. Special attention has been given to a comparison of the constitution’s preliminary outline with its final text, 3 since the preliminary outline not only represents the views of the nonlegalist Islamicists but was also a version of the constitution which might have found approval with many liberal secularists. Had it been ratified, a constitution would have been adopted within whose framework a broader and a more stable social consensus might have been achieved.4 The minutes of the Assembly of Experts provide an important contribution to understanding specific points in the constitution and to revealing the controversies that emerged amongst the members of the assembly during their debates. Unfortunately, they only document the assembly’s plenary sessions. This is an important point because many enlightening discussions and crucial compromises took place during sessions of the subcommittees.
These documents are supplemented in Part 1 by accounts of events that throw light on the political context in which the constitution was framed, and which contribute to a better understanding of particular questions with which it deals. Great attention is given to the process which led to the emergence of the preliminary outline of the constitution, as well as to the factors and arguments that shaped the Assembly of Experts’ formulation of its final version. Close attention is also paid to the methods the clerical leadership of the revolution, which was by no means confident of achieving its ends, used to ensure that its particular conception of the constitution was victorious.
An important source used in Parts II and III is the press which, besides the general news, carried special reports, interviews, leaders, articles by outside contributors, and numerous discussions of policy and resolutions. Further documentation comes from the following sources:
1. The collections of laws, decrees, decisions of the Council of Ministers and recommendations issued by the Guardian Council, which were published each year by the Ministry of justice (cited in the notes as LB).
2. The views of the Guardian Council which were collected, arranged and published first by J. Madani, and then by H. Mehrpur.
3. The minutes of parliamentary debates (Surat-e Mozakerat-e Majles-e Showra-ye Islamt) published at regular intervals by the Publicity Department of Parliament (cited in the notes as MM).
4. The minutes of the Assembly for the Revision of the Constitution (Majles-e Baznegari-ye Qanun-e Asasi), also published by the Publicity Department of parliament (cited in the notes as MR).
5. Other documents published by the Publicity Department of parliament, such as the yearly activity reports of parliament.
6. Periodicals such as Hoiwzeh, Kayhan-e Andisheh, Kayhan-e Farhangi., Rahnamun and Kiyan, in which members of the clergy and Islamic intellectuals have expressed their views on the reform of Islamic law, the present-day interpretation of Islam, etc. Articles on these topics were also published in the daily press, often in the form of ongoing series as in the case of Ayatollah Azari Qomi’s articles in Resalat.
To these sources should be added books and pamphlets that deal with questions of Islamic law and politics. Extensive use has also been made of the author’s interviews or conversations with politicians, academics and intellectuals. I must take this opportunity to express my warmest thanks to ‘Abolhasan Bani-Sadr, Hasan Nazih, ‘Abdolkarim Lahiji, Ahmad Salamatian, Naser Pakdaman, ‘Ali Asghar Sadr Hajj Seyyed Javadi, Hasan Shari'at-madari and Ahmad ‘Ali Baba’i. Others with whom I have had fruitful conversations reside in Iran.
Research for the book was undertaken with the support of the DFG (Deutsche Forschungsgemeinschaft) within the framework of the research project entitled: ‘The Development of the Constitution of the Islamic Republic of Iran’, directed by Professor Friedemann Buttner and Professor Baber Johansen. I wish here to thank the DFG for their generous support, and to express my gratitude to Professors Buttner and Johansen for the responsibility they have assumed in directing this project. I would also like to thank the FNK (Kommission fur Forschung und Wissenschaftlichen Nachwuchs der Freien Universitat Berlin) for meeting the costs of translating my book from German. Finally, I am especially indebted to Use Itscherenska, Houchang Chehabi and my editor, Anna Enayat, for their meticulous reading of my original typescript and the suggestions they have made for its revision.
Notes
1 The term hierocracy is used here to mean the rule of a particular social class, the clergy. I will argue in the following chapters that in such a situation real religious issues recede into the background and serve almost exclusively as a means of legitimising political power,
2 On this subject see Pakdarnan (1990); Tellenbach (1990); Schirazi (1991); and Milani (1992).
3 The texts of both these documents have been translated into German by S. Tellenbach (1985). A second translation of the constitution was commissioned by the Embassy of the Islamic Republic of Iran in Bonn. An English by I-Iamed Algar was published in 1980. For a commentary on the two German texts, particularly from a juridical point of view, see S. Tellenbach (1985) and F. Gisbert (1980).
4 It is noteworthy, for instance, that in an extensive criticism of the constitution’s preliminar outline published by the Jebheh-e Melli (National Front), those stipulations which place legislation under the control of the sbari'a were not rejected. See Ayandegan, 2/ 8/79. The same is true of the ‘analytical’ and ‘critical’ position adopted by the equally liberal Hezb-e Iran (Party of Iran) see: Hezb-e Iran, i979. We will see in the next chapter that some secular left-wing organisations also abstained from criticising the Islamic character of the constitution.
Part One
Contradictions in the Constitution of the Islamic Republic
One
The Composition of the Constitution
This chapter sets out, and analyses, the points of conflict between the three major elements — Islamic legalist, secular and democratic — of the 1979 Constitution leaving the question of how and why they became such uncomfortable bedfellows to the next, which takes a close look at the historical and political dynamics that shaped the document.
Islamic Legalist Elements
Islamic elements appear throughout the constitution, in the preamble as well as its 175 articles.1 Generally speaking, they present the following characteristics:
1. They establish that the state and the revolution leading to the creation of that state are Islamic.
2. They define the tasks and the goals of the state in accordance with its Islamic character.
3. They bind legislation to the sharia.
4. They ensure that positions of leadership will be reserved for Islamic jurists.
5. They place Islamically defined restrictions on the democratic rights of individuals, of the nation and of ethnic groups.
6. They set up institutions whose task it is to ensure the Islamic character of the state.
The Islamic Definition of the State
The clauses of the constitution that define the state as Islamic begin in the preamble which brushes aside the multiple economic, social, cultural and political motives and goals which provided the driving force of the revolution and attributes a purely Islamic character to the event. ‘The Islamic nature of the great Islamic revolution’ expressed the will ‘of the Islamic people’ to establish the constitution ‘on the basis of Islamic principles and guidelines’. ‘The distinctive peculiarity of this revolution’ lay in its ‘ideological and Islamic character’. Indeed, it was this characteristic that guaranteed its victory, in contrast previous revolutions [In Iran] which, despite the clergy’s participation in the leadership, had ultimately failed because they departed from ‘noble Islamic positions’. ‘The outline of an Islamic state based on the mandate ...
Asghar Schirazi
The Constitution of Iran
Politics and the State in the Islamic Republic
I.B.Tauris
I.B.Tauris Publishers
The Constitution of Iran
Politics and the State in the Islamic Republic
Asghar Schirazi
Translated by John O'Kane
I.B.Tauhs Publishers
London & New York
Published in 1997 by
I.B.Tauris & Co Ltd
Victoria House
Bloomsbury Square
London wcib 4DZ
Copyright © 1997 by Asghar Schirazi
All rights reserved. Except for brief quotations in a review,
this book, or any part thereof, may not be reproduced in
any form without permission in writing from the publisher.
A full cip record for this book is available from the
British Library
ISBN 1 86064 046 X
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