نشریه دانش حقوق عمومی
سال هفتم شماره 1 (پیاپی 19، بهار 1397)

Necessary for every legal system is to predict complex, difficult and lengthy formalities in regard to revision of the Constitution to prevent frequent Constitutional alterations. The Constitution of Iran besides predicting such mechanism in Article 177 has considered some revision restrictions in the Articles 177 and 132 which necessitate the analysis of its aspects for possible future Constitutional revisions. This Research through an analytic approach seeks to examine the basis, nature and the manner to guarantee the restrictions in the Constitutional law of Iran. In this respect, the Article 132 set forth some time limits due to lack of stability of the legal system, and the Article 177 stipulates the unchangeability of the basic structure and foundation of the legal system of the Islamic Republic of Iran. The Supreme Leader is in charge of guaranteeing the Constitutional restrictions.

Cognition of the systems of the governmental interests in Islam better determines the alteration mechanisms in compliance of Islamic legitimacy based on the state constraints. The presentation of the solutions for discovery and implementation of expediency in the analysis of the legitimacy rate in Islamic government requires the recognition of the prioritization of the state purposes, the basis of the analysis of the expediency, review of the discovery methodology and the implementation of expediency. The main issue of this research is to clarify the relationship between the temporary suspension of the Sharia rules and the prioritization of government purposes in the Islamic sovereignty. Hence, the criteria for prioritization of the government purposes and the indicators of prioritization of Islamic secondary and state titles over primary titles should be determined in a new framework. This research through an analytic-descriptive method is sought to substantiate the legitimacy of contemporary suspension of the Islamic rules in case of realization of the more important purposes of implementing the Islamic rules like maintenance of social and political order of Islam and the more basic rules.

Central for management is planning which is performed in a specific framework in governmental management known as the planning system. This system includes the pillars and relationships between them. The first pillar is the enforceable legal instruments and at the top is the Constitution. In addition to defining the objectives, ideals and general strategies directing the content of the programs, the Constitution also fulfils a significant role in determining the other elements of this system. This research through a descriptive-analytic method seeks to examine the quiddity and quality of these two aspects in the Constitution of the Islamic Republic of Iran. The constitution seems sufficiently rich in terms of determining the objectives and the general strategies but vague regarding the regulation of other elements of the planning system despite mentioning the word “plan” or reference to its concept or planning requirement in most of the Articles of the Constitution. That’s while this issue isn’t devolved to the legislature and solely the president is in charge of the planning and budget affairs which may devolve its administration to someone else. Difficult to construe, hence, is the coherent planning system and its main pillars from the Constitution of the Islamic Republic of Iran. Besides, inappropriate use of the relevant terms and the separation of planning affairs from the plan of the government has enhanced the ambiguity of the issue.

Necessary is to determine the ratio among the various norms with different validity in every legal system. The necessity for conformity of the downstream norms with upstream ones is the consequence of such ranking which guarantees the stance and validity of the norms. The statutes in the legal system of Iran are known as the downstream norms in comparison with the General Policies of the System and therefore they should be in conforminty with the latter. This conformity would be done in two ways: “compliance” and “non-contradiction”. The main question of this research is to determine whether the competent entity for this responsibility is to examine the compliance of the statutes with the General Policies or solely their non-contradiction. The findings through an analytic research method indicate two assumptions regarding legislation of the Majlis; First is the existence of the enacted Policies in that specific field and second is non-existence of them. The legislator is on the basis of the first assumption ought to ensure the compatibility of the statues with the Policies and to ensure their non-contradiction in the second one.

The Iran Electricity Organization Act of 1967 is one of the most important governing statutes in the electricity field which determines some duties for the actors of this regard. Due to the enactment of this act before the Islamic revolution, the validity of its contents and their reasons is under question. Therefore, through an analytic-critical method, the Act is analyzed based on Sharia criteria, the Constitution and the precedent of the Guardian Council, as this council is the official entity for Constitutional interpretation and responsible for the conformity of the enactments of the Majlis with Sharia and the Constitution. This article indicates that the criterion mentioned by the Council in the interpretive decision of 1986 doesn't invalidate the content of the Act; as many ministerial instructions are actually issued on the basis of such contents.

The theory of legislation as planning for the implementation of divine laws is founded on this basis that among the competences of the Holy Legislator is legislation and the function of the parliament is to plan in the form of statutes so as to implement the divine rules. This conception is originated from the Islamic foundation which is obvious in the viewpoint of the founder of the Islamic Republic of Iran and some Islamic jurists of the constituent assembly of the Constitution. “The assignment of legislation to God” and “the fundamental role of revelation in the expression of the law” are explicitly stipulated in the Constitution. This research through a descriptive-analytic method seeks to examine the compatibility of the legislation process with the aforesaid theory. This ambiguity arises from the fact that the legislative initiative of the parliament is in a way which has turned the competence of legislation of the Holy Legislator into an ineffective issue; as Ijtehad is prior to legislation in an ideal system whereas it is subsequent in the existing legal system of Iran. No mechanism is predicted on this basis which the parliament legislates based on the results of the Ijtehad and in the implementation of the Islamic laws, rather the parliament generally legislates according to the needs of society. In this way, Figh is subsequent of legislation and solely the non-contradiction of the enactments with the Islamic criteria is examined. This distinction may cause some deficiencies in the legislation system based on the holy Sharia.