Constitution of Iran

The assembly members were voted on in the summer of 1979. Out of the "72 delegates whose election was officially recognized, 55 were clerics", almost all of them following "the line of the Imam", i.e. Khomeini loyalists.[16] (Other delegates were from different minorities of religions, scientists, Athletes.)

Schirazi writes that Khomeini then announced that the job of "determining whether or not" the constitution was "in conformity with Islamic requirements" was "exclusively reserved for revered jurists",[17] to the surprise of those outside his network. Also at odds with previous statements was that instead of quickly approving the draft, the Assembly for the Final Review of the Constitution (dominated by Khomeini supporters) rewrote it, adding a Guardian Jurist (wali-e faqih) leader with powers over other branches of government, and significantly increasing the power of the Council of Guardians.[18] (The offices of the President and the Prime Minister were retained for the executive branch of government from the French model.)[19]

A different version of events comes from Shaul Bakhash, who writes that Khomeini and his supporters accepted the preliminary draft but were provoked by an "opposition determined to establish a secular state".[14] A secularist group calling itself a "Seminar on the People's Expectations from the Constitution", called for changes in the draft: "a ceremonial president, supremacy of parliament, independent judiciary, individual rights, and equal rights for women, proposed making the universal declaration of Human Rights part of the constitution, more decentralization, and `democratization` of the army".[20] This led "Khomeini to spur the Islamic groups to counterattack', telling his supporters that the determination of whether articles of the constitution meet Islamic criteria `lies within the exclusive jurisdiction of the leading Islamic jurists,` and non-jurists should not get involved. "It quickly became clear to Khomeini and his lieutenants that there existed considerable support and no mass opposition to the doctrine and that the constitution could serve to institutionalize both the supremacy of the faqih and clerical rule."[21] The idea that Khomeini "should be entrusted with supreme authority under the constitution" was brought up by provincial clerics in the Assembly and was quickly embraced by the Assembly.[21]

The assembly worked for sixty-seven sessions and in four rounds. The first round was considered with a preliminary evaluating of principles. The second round considered with providing principles in groups. The third round dealt with approbation of principles and the fourth round with investigation of all collection of principles.

According to a legal bill of council of revolution, the draft was put to a vote through a referendum, with voters given the option of voting yes or no. On 2–3 December 1979 Iranians voted, and the official result was over 99% in favor. (The vote was boycotted by some secular, leftist and Kurdish groups; and total of 15,578,956 votes was almost 5 million less than the earlier referendum for an Islamic Republic.)[22]

On 24 April 1989, Ayatollah Khomeini issued a decree convening an Assembly for Revising the Constitution. It made several changes in the constitution, in Articles 5, 107, 109, 111, eliminating the need for the Supreme Leader to be a Marja' chosen by popular acclaim.[23] It made permanent the Expediency Discernment Council to work out disagreements between the Parliament and Council of Guardians, and eliminated the post of Prime Minister. The amendment concerning qualifications for the Supreme Leader is thought to have been introduced and approved because no marja' had given strong support for Khomeini's policies.[24] The amendments were approved by the voting public on 28 July 1989 (in same election as Akbar Hashemi Rafsanjani was elected to the first of two terms as President of Iran).[25]

While liberal and leftist values are present in the constitution, the overriding both are "the values, principles and institutions of an ideal Islamic society",[26] The Ayatollah Khomeini's concept of Velayat-e Faqih, i.e. Guardianship or rule of the Islamic Jurist, is enshrined in several places in the constitution.[26] One example is the section "Method of Governance in Islam" in the preamble, where it is stated

in creating the political infrastructures and institutions which make the foundation of society on the basis of an ideological outlook, the righteous assume the responsibility of governing and administering the country with the Qur’anic verse (verily, my righteous servants shall inherit the earth Q.21:105)

In case the term ‘righteous’ is ambiguous, a later section of the Preamble (Guardianship of the

Jurist) states

On the basis of continuous Guardianship and Leadership (Imamate) the Constitution provides for leadership under all conditions, (by a person) recognized by the people as lender, so that there shall be security against deviation by various organizations ("The course of affairs is in the hands of those who know God and who are trustworthy in matters having to do with what he permits and forbids")[8][26]

Article 109, stipulates that the Leader must possess the "scholarship, as required for performing the functions of mufti in different fields of fiqh", i.e. only a high level cleric of Islamic law may be the Leader. Article 113 states the Leader is the highest public official in Islamic Republic of Iran.[26] The Head of Judiciary, who has considerable power (Establishing the organizational structure of the Judiciary, Drafting judiciary bills for parliament, hiring, dismissing, transferring judges) must be an Islamic legal cleric (mujtahid); as must be the President of the Supreme Court, the Attorney General (Article 162), and six out of the twelve members of the Guardian Council who are appointed by the Leader (Article 91) and have the power to veto legislation from the parliament that they believe does not conform to sharia (Article 96).[26]

Hassan Vakilian cites Article 4:

civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations…

as evidence "Sharia laws and principles" ("Islamic criteria" in the article above) "must be considered as a main source of the legal order" in the constitution.[26] Sharia is referred to numerous times in the constitution but often by another terms (as it is above):

• In the Preamble: "Islamic principles", "Islamic rules", "Islamic standards", "Islamic program", "Rules of Islamic codes", "Islamic ordinances and regulations";[26]
• In articles 110, 147, 151, 167, 171, 175 and 177 "Islamic criteria".[26]
• Other terms used are "Islamic law" (Article 45), "Islamic ordinances" (Article 91), "Islamic regulations" (Article 107), "Norms and principles of Islamic justice" (Article 14), "Principles and commandments of official religion" (Article 85), "Principles of Sharia" (Article 112), "Criteria of Fiqh" (Article 163), "Islamic sources and authentic fatwa" (Article 167).[26]

The form of Government in Iran is that of an Islamic Republic following the Islamic revolution led by Grand Ayatollah Khomeini, affirmed by the referendum of Farvardin 9 and 10.

The Islamic Republic is a system based on the belief in:[28]

1. One God (as stated in the phrase "There is no god except Allah"), who has exclusive sovereignty and right to legislate, and whose commands must be submitted to;
2. the fundamental role of divine revelation in setting forth the laws;
3. the return to Allah after death and resurrection, and the constructive role of this belief has in the course of man's ascent towards Allah;
4. the justice of Allah in creation and legislation;
5. continuous leadership and perpetual guidance, and its fundamental role in ensuring the uninterrupted process of the revolution of Islam;
6. the exalted dignity and value of man, and his freedom coupled with responsibility before God; in which equity, justice, political, economic, social, and cultural independence, and national solidarity are secured by recourse to:

• continuous Ijtihad of Islamic jurists possessing necessary qualifications, exercised on the basis of the Quran and the Sunnah of the prophet Muhammad;
• sciences and arts and the most advanced results of human experience, together with the effort to advance them further;
• negation of all forms of oppression, both the infliction of and the submission to it, and of dominance, both its imposition and its acceptance.

The duty of the Islamic Republic is to direct all of its resources to a number of goals.

• Support of faith and piety and struggle against vice and corruption
• Raising of public awareness through the proper use of the mass media and press
• Free education
• Free physical training
• Strengthening advanced scientific research
• The elimination of imperialism and foreign influence
• The elimination of despotism, autocracy and monopoly
• Ensure social and political freedoms within the law
• The end to all forms of undesirable discrimination
• elimination of unnecessary governmental organizations
• Universal military training

These goals were designed to emphasize positive liberty.

Some of the goals are put in context of the requirements of Islam. For example:

• The planning of a correct and just economic system
• expansion of Islamic brotherhood among all peoples
• The creation of the government's foreign policy

All laws and regulations "absolutely and generally" must be based on Islamic criteria. Enforcing this will be the Islamic jurists (fuqaha') and the Council of Guardians.

Olivier Roy points out that traditionally sharia was the "sole foundation for the judicial norm", not constitutions which were secular. Khomeini himself specifically affirmed the preeminence of the Islamic state over sharia in January 1989 when he publicly dressed down the future Supreme Leader Ali Khamanei, pronouncing the opposite.

On key questions Iranian law remains fairly un-Islamic. The constitution grants equal rights among men and women (article 20). The discretionary law of repudiation was not recognized for men. There is no legal discrimination on the basis of personal status against Christians, Jews, Zoroastrians, all of whom perform military service, pay no special taxes and hold full citizenship; nevertheless they are prohibited from assuming leadership posts and vote in separate colleges. Similarly, a Muslim foreigner has the same status as a Christian foreigner. In short Iranian citizenship is not an Islamic notion. Finally, Iran has kept the solar calendar and celebrates the new year on March 21.[29]

During the occultation of the Twelfth Imam, the Ummah (Islamic community) must be led by a just and pious, courageous, resourceful faqih (Islamic jurist) knowledgeable about affairs of the day, in accordance with Article 107.

"The official religion of Iran is Islam"—specifically of the Twelver Shi'ism in Usul al-Dîn and of the Ja'farî school in fiqh, -- "and this principle will remain eternally immutable."

"Zoroastrian, Jewish, and Christian Iranians are the only recognized religious minorities", who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education.

"The government ... and all Muslims are duty-bound to treat non-Muslims" with "Islamic justice and equity", provided those non-Muslims "refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran."

The "Official language and writing script (of Iran)... is Persian. In addition "regional and tribal languages" are allowed "in the press and mass media, as well as for teaching of their literature in schools"

"Since the language of the Qur'an and Islamic texts ... is Arabic", Arabic "must be taught ... in school from elementary grades until the end of high school."

The official calendar of Iran is the Solar Hijri calendar, which combines a year zero from the Islamic Hijri calendar, and organization of months according to the Iranian solar calendar. "The official weekly holiday is Friday. Both the solar and lunar Islamic calendars are recognized".

Use of the Solar Hijri Calendar started in Iran in 1925 CE but was interrupted in 1976 CE when the (Iranian) year was changed from 1355 to 2535 by Shah Mohammad Reza Pahlavi who maintained that the origin of the calendar (its first year) was the beginning of Cyrus the Great's reign. This lasted only until the Iranian Revolution when the calendar reverted to Solar Hijri.

The official flag of Iran is composed of green, white and red colours with the special emblem of the Islamic Republic, together with the motto (Allahu Akbar).

Women will enjoy equal legal, "human, political, economic, social, and cultural rights", when "in conformity with Islamic criteria".

"The dignity, life, property, rights," etc. "of the individual are inviolate", "except in cases sanctioned by law".

The Iranian constitution holds that “the investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task simply for holding a certain belief.”

"Publications and the press are free to discuss issues" unless it is "deemed harmful to the principles of Islam or the rights of the public."[30]

Assembly is allowed, "provided arms are not carried" and the assemblies "are not detrimental to the fundamental principles of Islam".

"Innocence is to be presumed, ... unless his or her guilt has been established by a competent court."

It is a "universal right" of all to enjoy social insurance or other forms of security for "retirement, unemployment, old-age disability", lack of guardianship, being a wayfarer, accident and the need for health and treatment services and medical care. The government, in accordance with the laws and by drawing on national revenues, is required to provide such insurance and economic protection to each and every citizen of the country.

"All forms of torture for the purpose of extracting confession or acquiring information are forbidden. Compulsion of individuals to testify, confess, or take an oath is not permissible; and any testimony, confession, or oath obtained under duress is devoid of value and credence. Violation of this article is liable to punishment in accordance with the law."[8]

Videotaped confessions and "ideological recantations" by opponents of the regime are very common on Iranian broadcast television. The government denies using torture (shekanjeh) to elicit these statements, but Human Rights Watch calls torture and other ill-treatment "widespread and systematic" in Iran. Historian Ervand Abrahamian[31] describes on way the government has found to skirt the explicit ban on torture and coerced confessions in the Constitution,[32] by using Ta'zir or "Discretionary Punishment" of up to 74 lashes for lying to authorities.

The prisoners are asked questions. If their answers are not satisfactory, they can be lawfully whipped for `lying`. In theory, this punishment should come after a proper law court has found them guilty of perjury. But the line between interrogation and trial is hazy as the same clerics wear three different turbans - prosecutor, judge, and interrogator.[33]

"The new regime has often told UN delegations that ta'zir should not be equated with torture because it is sanctioned by the sharia and administered by qualified magistrates."[32]

"The economy of Iran is to consist of three sectors: state, cooperative, and private; and is to be based on systematic and sound planning." "All large-scale and mother industries, foreign trade, major minerals, banking, insurance, power generation, dams, and large-scale irrigation networks, radio and television, post, telegraph and telephone services, aviation, shipping, roads, railroads and the like" are to be entirely owned by the government. This article was amended in 2004 to allow for privatization.[34][35][36]

"The government has the responsibility of confiscating all wealth accumulated through usury, usurpation, bribery, embezzlement, theft, gambling, misuse of endowments, misuse of government contracts and transactions, the sale of uncultivated lands and other resources subject to public ownership, the operation of centers of corruption, and other illicit means and sources, and restoring it to its legitimate owner; and if no such owner can be identified, it must be entrusted to the public treasury. This rule must be executed by the government with due care, after investigation and furnishing necessary evidence in accordance with the law of Islam."

Protecting the environment is "a public duty" and. Economic activity that degrades or causes irreversible harm to the environment is forbidden.

Multinational corporations are forbidden from taking over certain businesses in Iran: "concessions to foreigners or the formation of companies" in Iran is forbidden.

A "Guardian Council" is to "examine the compatibility of the legislations passed by the Islamic Consultative Assembly with Islam". The council is to be made up of:

1. six 'adil fuqaha' (just Islamic jurists), "conscious of the present needs and the issues of the day, to be selected by the Leader", and
2. six jurists, "specializing in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by the Head of the Judicial Power".

The Guardian Council has the responsibility of supervising the elections of the Assembly of Experts for Leadership, the President of the Republic, the Islamic Consultative Assembly, and the direct recourse to popular opinion and referenda.

"Each village, division, city, municipality, and province will be supervised by a council" to "expedite social, economic, development, public health, cultural, and educational programmes" etc. "according to local needs". Members of these councils "will be elected by the people of the locality".

In order to prevent discrimination and secure the cooperation, and arrange for the supervision, a Supreme Council of, the Provinces will be formed, composed of representatives of the Provincial Councils.

The Supreme Council of the Provinces may draft bills and submit them to the Islamic Consultative Assembly,

Provincial governors, city governors, divisional governors, and other officials appointed by the government must abide by all decisions taken by the councils within their jurisdiction.

In order to ensure Islamic equity and cooperation, councils consisting of the representatives of the workers, peasants, other employees, and managers, will be formed in educational, administrative, industrial and other units, composed of representatives of the members of those units.

Decisions taken by the councils must not be contrary to the criteria of Islam and the laws of the country.

The councils may not be dissolved unless they deviate from their legal duties.

After the death of Grand Ayatollah Khomeini, the Experts shall choose a new leader from among the fuqaha possessing qualities specified in articles 5 & 105

Before the 1989 amendments to the constitution, Article 107 called for the leader to be someone who was "accepted as a marja' and Leader by a decisive majority of the people", and if such a person could not be found, to appoint a "leadership council" made up of marja'[37] In his book Islamic Government: Guardianship of the Jurist, Khomeini had argued that "only the most senior religious jurists -- not just any cleric -- had the scholastic expertise and the educational training to fully comprehend the intricacies of Islamic jurisprudence."[38] According to historian Ervand Abrahamian, the original constitution also declared that "the leadership clauses, especially those stipulating that ultimate authority resides in the senior religious jurists [marja'], were to endure until the Mahdi, the Lord of the Age, reappears on earth."[39]

They were amended nonetheless because the Assembly of Experts that would choose the next leader knew "well that the senior jurists distrusted their version of Islam", i.e. Khomeini and his supporters interpretation of Islam.[40] Abrahamian argues that this "unwittingly undermined the intellectual foundations" of the jurist's roll as guardian.[38] Another scholar (Olivier Roy) called the change "an end to the logic of the Islamic revolution" for the same reason.[41]

The constitution accords many powers to the Leadership. Following are the duties and powers of the Leadership:

1. Delineation of the general policies of the Islamic Republic of Iran after consultation with the Nation's Exigency Council.
2. Supervision over the proper execution of the general policies of the system.
3. Issuing decrees for national referenda.
4. Assuming supreme command of the armed forces.
5. Declaration of war and peace, and the mobilization of the armed forces.
6. Appointment, dismissal, and acceptance of resignation of:
   1. the fuqaha' on the Guardian Council.
   2. the supreme judicial authority of the country.
   3. the head of the radio and television network of the Islamic Republic of Iran.
   4. the chief of the joint staff.
   5. the chief commander of the Islamic Revolution Guards Corps.
   6. the supreme commanders of the armed forces.
7. Resolving differences between the three wings of the armed forces and regulation of their relations.
8. Resolving the problems, which cannot be solved by conventional methods, through the Nation's Exigency Council.
9. Signing the decree formalizing the election of the President of the Republic by the people. The suitability of candidates for the Presidency of the Republic, with respect to the qualifications specified in the Constitution, must be confirmed before elections take place by the Guardian Council, and, in the case of the first term [of the Presidency], by the Leadership;
10. Dismissal of the President of the Republic, with due regard for the interests of the country, after the Supreme Court holds him guilty of the violation of his constitutional duties, or after a vote of the Islamic Consultative Assembly testifying to his incompetence on the basis of Article 89 of the Constitution.
11. Pardoning or reducing the sentences of convicts, within the framework of Islamic criteria, on a recommendation [to that effect] from the Head of judicial power. The Leader may delegate part of his duties and powers to another person.

Human rights groups have argued that the Supreme Leader's powers extend beyond those specifically enumerated in the Constitution because he can use "Islamic issues for justification."[42]

Under some circumstances arrangements may be made for dismissing the leader, replacing the leader, stepping in for a temporarily incapacitated leader.

If a proposed bill of Majles is "against the principles of Shariah or the Constitution," then the Guardian Council should meet with the Expediency Council to resolve the legislative deadlock.

"...[F]oreign military bases in Iran, even for peaceful purposes, is forbidden."

The foreign policy of the Islamic Republic of Iran is based upon the rejection of all forms of domination, both the exertion of it and submission to it, the preservation of the independence of the country in all respects and its territorial integrity, the defence of the rights of all Muslims, non-alignment with respect to the hegemonic superpowers, and the maintenance of mutually peaceful relations with all non-belligerent States.[43][44]

Any form of agreement resulting in foreign control over the natural resources, economy, army, or culture of the country, as well as other aspects of the national life, is forbidden.[43][44]

The ideal of the Islamic Republic of Iran is independence, justice, truth, and felicity among all people of the world. Accordingly, it supports the just struggles of the Mustad'afun (oppressed) against the Mustakbirun (oppressors) in every corner of the globe.[43][44]

The government of the Islamic Republic of Iran may grant political asylum to those who seek it and are worthy of it.[43][44]

Duties of the Judiciary:

1. investigating and resolving grievances, violations of rights, and complaints;
2. promoting justice and freedom;
3. supervising law enforcement;
4. investigating, prosecuting, and punishing, crimes;
5. crime prevention and reforming criminals

The Leader shall appoint the head of the judiciary

The head of the judiciary shall be responsible for the: Establishing the structure for the administration of justice; draft bills on the judiciary; appointing, dismissing, transferring judges (Article 158),

Grievances and complaints will be referred to the courts

The Supreme Court will "supervise the correct implementation of the laws by the courts", ensure "uniformity of judicial procedure";

The chief of the Supreme Court and the Prosecutor-General must both be just mujtahids (Islamic jurisprudents). They will be nominated by the head of the judiciary branch for a period of five years, in consultation with the judges of the Supreme Court;

Judges cannot be removed from office except by trial and conviction, or by being dismissed in consequence of a violation;

Trials are to be open to the public; unless detrimental to public morality or discipline, or in case of private disputes;

Verdicts of courts must be well reasoned out and documented (Article 166),
Judges must make use of "Islamic sources and...verdicts " in matters where the Iranian law books are silent;

"Political and press offences will be tried openly ... in accordance with the Islamic criteria";

"No act or omission may be regarded as a crime with retrospective effect on the basis of a law framed subsequently";

Judges may not execute statutes and regulations that conflict with the laws or the norms of Islam;

When there is a moral or material loss as the result of an incorrect ruling of a judge the defaulting judge must stand surety for the reparation of that loss in accordance with the Islamic criteria;

Military courts will be established to investigate crimes committed in connection with military or security duties by members of the military or security;

The National General Inspectorate will "supervise the proper conducting of affairs and the correct implementation of laws by the administrative organs of the government".

This article itself was a revision to the Constitution, so the constitution was amended in 1989 without this chapter allowing amendments being a part of the constitution.[47]