نشریه دانش حقوق عمومی
سال پنجم شماره 1 (پیاپی 13، بهار 1395)

Explaining and Examining the principles and criteria inferred from the procedure of the Guardian Council regarding the legislative initiative, in addition to theoretical results, can make the legislator familiar with the Council's approach in the matter of legislative initiative and on the other hand, it can provide for reform in the Guardian Council’s procedure. Therefore, this paper seeks to explain and evaluate these criteria with a descriptive-analytic approach.
The study of the Guardian Council’s procedure implies on four categories regarding these principles and criteria: first, ways of legislative initiative are limited to the cases stipulated in the Constitution; Second, according to the recent procedure of the Council, the legislative initiative is correctly considered as a legal privilege and due to this reason is optional, although the Council hasn’t supervised the judicial bills as well; Third, due process of legislative initiative inferred from the Constitution is necessary and should be supervised by the Guardian Council. However the Guardian Council as the supervisory authority of these legal formalities set forth in the code of procedure of the Assembly hasn’t the yet played an active role; Fourth, legislative initiative in specific areas is a professional matter; so, beside this fact that only the determined authority can make this initiative, the scope of this initiative is constrained to the area of jurisdiction.

One of the controversial issues regarding the jurisdiction of the administrative court of justice is to clarify the institutions under its jurisdiction. From the beginning of this court’s formation, there have been posited two approaches in this regard: first: restriction of the defendant to the executive power, and second: inclusiveness of the court’s jurisdiction to all of the institutions with the public power. This article while explaining the concept of government in the administrative claims, strengthens the latter approach as the desirable one. This study with a descriptive-analytical method and scrutiny on law and judicial precedent indicates that the first approach isn’t accepted by law and judicial precedent with the emphasis on the theory regarding the nature of administrative-executive actions of the institutions having public power. The approach of inclusiveness, not completely, but with some exceptions is also accepted by law. Although the defendant isn’t restricted to the executive power from the perspective of judicial precedent, but this viewpoint is also far from the second approach and all the institutions having public power aren’t under the jurisdiction of the court.

There have been various theories suggested regarding the political theory of Islam so as to establish the state. One of these ideas mentioned by some contemporary jurists is council guardianship (Velayat-e-shuraei). The proponents of this view argue that the necessity to consult emphasized in religious texts, the guardianship of all jurists, the probability of despotism in individual guardianship and etc. requires a council of jurists to be made in every era and therefore, state decisions would be taken collectively. Among the reasons adduced for this matter is citing to the importance and necessity of the council in Islam and narratives (Hadiths (. Consideration of the reasons in Shiite jurisprudence indicates that not only there is no lawful evidence to withdraw the individual guardianship, but also there are some reasons in the contrary of the council guardianship; such as confronting with trouble in decision-makings regarding the important issues when the votes are equal in the council or the majority isn’t reached, beside the idling of the affairs of the Islamic society and the wane of the unity between the council and imitators. Since the prediction of the council guardianship in the Constitution of Islamic Republic of Iran, passing the time in addition to the realization of practical problems, confirmed the absence of lawful basis and rationality for this theory and therefore, it was removed from the Constitution after the revision.

“Standing Order of the Assembly” is important in terms of the ruling requirements on the contents of the rules set forth in it. The law of the standing order has various rules in which there are some disagreements regarding their common aspect and determination of their substantive components. The issue is to determine which rules have the nature of standing order and what the substantive components of such rules are. This article seeks to respond this question with a critical-analytic method while using library resources and case study of the Guardian Council’s decisions and that aforesaid law. The results of this study indicate the rules with the nature of standing order are those with direct and reliable connection regarding the procedure of exercising the jurisdiction of the Assembly, like the procedure of ratifying the government bills and proposals (provided in principle 65), election procedure of the speaker and presidential board of the Assembly, competence of internal commissions of the Assembly, issues linked with debates (provided in principle 66), and those with direct and reliable connection to the internal organization of the Assembly such as the number, types and combination of aforesaid internal commissions provided in principle 66. These rules shouldn’t be related to the procedure of exercising the jurisdiction of other institutions like the Guardian Council. This criterion is required-oriented which isn’t completely considered in law of standing order of the Assembly.

Maintenance of the Constitution's supremacy demands its inflexibility and one of its requirement is to predict some difficult procedures for constitutional amendment so as to prevent the Constitution to be changed by personal discretion and tendencies and to preserve the strength of the political system. Hence, most of the constitutions predict a formal constitutional amendment mechanism and determine the method of its revision. But the question is to examine whether it is possible to change the Constitution in other ways other than the formal mechanisms or not; the issue in which this research seeks to answer with an analytic approach and by examination of case studies.
The findings of this research indicate that the legislative, executive and judicial officials intentionally and also as a practical necessity change the Constitution outside the formal amendment mechanisms in order to solve the dilemmas, and in some cases the Constitution is unintentionally changed because of their proceedings and in result, is infringed. In addition, referring to the self-determination right in determining the type and quality of the legal system is a pretext for total revision of the Constitution and therefore, making a new Constitution outside the aforesaid procedure.

Emphasis of scholars on the influence of the council regarding the decisions related to public interests necessitates the determination of the role of such institution in decision-making in a political and social system. As the council has specific reasons and basis in both law and jurisprudence, this study seeks to scrutinize the role of this institution in the management of public affairs with regard to legal and jurisprudential aspects. The ultimate purpose of this research is to answer such question that in making a governmental decision related to public interests would council act as a just consultant for high authorities or it would itself make decisions?
This study with qualitative analysis of data and with a descriptive nature tries to reach the research hypothesis using library research method. It seems that the council from the legal perspective is an institution with general authority of decision-making, policy-making and observation, whereas the council derived from the concept of consultation in Islam has no power except policy-making and it is just a consultant. Therefore, naming many institutions as council in legal and political system of the Islamic Republic of Iran is because of inaccuracy and many of institutions are known as council due to the narrow definition of the council.