جستجوی مقالات مرتبط با کلیدواژه « دادرس اساسی » در نشریات گروه « فقه و حقوق »

The constitution is the most superlative legal document in the political systems of the world. With respect to the great importance of the functions of the Constitution in each political system, the role of guardian or the basic judge has a particular importance. The mentioned institution appears so as to protect the constitution’s superiority and also plays role in other duties and functions including the supervison of election and disputing resolution between governmental organs. In this paper, we are going through comparative survey of the guardian council as the basic judge of the Islamic Republic of Iran and the constitutional court of the Republic Croatia as the constitutional guardian of this country. The method of this paper is descriptive-analytic. The main question in the paper is that what are the distinctions and commonalities of the basic judge between Iran and Croatia. The hypothesis is that the constitutional court of Croatia has a far greator, more coherent and desirable discretions than guardian council of Iran and the most important differences between them are the existing European Convention on Human Rights as a significant source for basic Judgement in Republic Croatia and the necessity of confirming president’s accusation in the case of committing a crime in that country, which are not predicted for guardian council of Iran. In this paper, while explaning political structure of the government of the Republic Croatian and introducing the constitutional court’s functions in that country, distinctions and resemblances between the constitutional court of Croatia and the guardian council of Iran as research findings are concidered.

There are two general approaches toward the constitutionalization and  jusiciability of  economic, social and cultural rights. According to the socialist approach economic, social and cultural rights should be constitutionaized and are justiciable. Constitutionalization of  economic, social and cultural rights in one hand saves these rights of temporary political orientation and on the other hand makes justiciability of these rights easier. While in liberal approach civil and political rights are constitutionalized and judicially protected, economic, social and cultural rights are perceived non-justiciable, although constitutional judge can through the welfare interpretation of civil and political rights such as: the right to life, the right to fair trail and non-discrimination, make economic, social and cultural rights justiciable. Social movements also can make alive and enforce constitutional rights. This analytical-descriptive article through the public law point of view, tries to investigate the most important influential factors which makes economic, social and cultural rights as the second generation of human rights as justiciable.

The Iranian legal landscape is intricately interwined with Islamic principles, notably enshrined in article 4 of the Iranian Constitution, which requires all laws and regulations to conform to Islamic standards. The core of this constitutional framework is the concept of Sharia supervision [Nezarat-e-Sharei] exercised by the jurists of the Guardian Council. This paper tries to focus on the crucial issue of the procedural mechanisms and protocols guiding the Sharia supervision of legal norms, including the constitution, ordinary laws, and regulations.

Research Question:

Considering the emphasis of the constitutionon Sharia-based legal norms, this study addresses this basic question: "What procedural arrangements define and illustrate the Sharia supervisory process undertaken by the jurists of the Guardian Council, as mandated by article 4 of the Iranian Constitution?"

Research Hypothesis:

The lack of explicit procedural details in article 4 prompts the hypothesis that there is a need for a more comprehensive framework and protocols for the implementation of Sharia supervision. The evolving legal landscape in Iran, along with the endorsement of overarching legislative policies by the leadership, underscores the importance of formalizing procedural aspects to ensure compliance with Islamic principles.

Methodology & Framework, if Applicable:

This research employs a meticulous approach, using extensive library sources and analyzing the ongoing procedures of the Guardian Council's jurists. In response to the primary question of the research, this paper examines the Sharia supervision mechanisms applied by these jurists regarding various legal norms, spanning the Constitution, pre-revolutionary laws, and post-revolutionary enactments.
     In order to evaluate the Sharia legality of enactments, this research examines the criteria for judicial proceedings and the timeframe within which Sharia opinions are issued. The focal point is the identification of the authority responsible for declaring non-compliance with Sharia standards and elucidating the primary audience for these opinions, particularly with regard to regulations.
     Due to lack of comprehensive studies on the procedural aspects of Sharia supervision, this research tries to contribute a nuanced understanding of the jurists' approach to monitoring legal norms. The innovative aspect lies in the analytical critique and positive suggestions offered for the procedural aspects of Sharia supervision under article 4.
     The article concludes by examining how Sharia’s opinions have been historically applied to diverse legal norms and provides a detailed review of the procedures and practices of Sharia supervision on laws and regulations. This comprehensive analysis aims to fill the gap in the existing literature, offering valuable insights into the evolving dynamics of Sharia supervision within the Iranian legal system. The findings hold significance not only for scholars and legal practitioners interested in Iranian law but also for a broader international audience seeking to comprehend the intricate relationship between Islamic principles and legal governance in Iran.

The findings of the research shed light on the multifaceted procedures employed by the jurists of the Guardian Council in Sharia supervision. Sharia supervision primarily targets legal norms that are perceived as conflicting with Islamic principles, with mechanisms triggered either through self-initiated reviews or in response to specific petitions. Notably, the authority of the jurists is contingent on the submission of a formal request indicating the violation of Sharia principles.
     To increase legal security, this study proposes the establishment of specific time frames for Sharia supervision. Depending on the type of legal norm under review, this timeframe initiates either from the issuance of an inspection request or the approval of the norm, with permissible extensions, up to a maximum of five months. This nuanced approach aims to bring clarity and efficiency to the Sharia supervision process, ensuring a structured and accountable application.
     This research also unveils the dichotomy between self-initiated reviews and reviews prompted by specific petitions. Self-initiated reviews, while contributing to proactive Sharia supervision, demand a strategic balance to prevent an overwhelming caseload for the jurists. Meanwhile, reviews prompted by petitions introduce an element of public engagement, allowing citizens to actively participate in upholding Islamic principles within the legal framework.
     An integral aspect of the discussion revolves around the capacity of the jurists to address diverse legal norms. This study discerns that Sharia supervision is not limited quantitatively; however, it is subject to certain constraints. The possibility of review and the potential for reconsideration and modification are inherent in the Sharia supervision process. This adaptability ensures the ongoing relevance of Sharia supervision in the face of evolving legal dynamics.

In conclusion, this research unravels the complexities of Sharia supervision within the Iranian legal system, offering insights into the procedural arrangements necessary for the effective implementation of article 4 of the Iranian Constitution. By examining the ongoing practices of the Guardian Council's jurists, the study not only contributes to a deeper understanding of the Iranian legal landscape but also proposes enhancements aligning Sharia supervision practices with broader legislative policies.
     The proposed refinements aim to foster transparency and reinforce the principles of Islamic governance within the Iranian legal system. The establishment of specific time frames for Sharia supervision represents a significant stride towards a more structured and accountable approach.

Although it seems that the written document of the constitution regulates and controls the existing constitutional order in the written constitution countries, the reality is that "politics in progress" and existing political transactions are not only not fully under the control of the written document of the constitution, but even in some cases, politics has prevailed over rights and determines the way and direction of the implementation of legal norms. As a result, focusing on the form and format of the Constitution should not prevent the examination of the content and political realities in society. The present article, with a descriptive-analytical method and by studying the opinions of the Guardian Council and other available sources, seeks to answer the question that, does Iran's constitutional law function fully according to the written constitution? This study also tries to discover more about the legal or political nature of the basic order in Iran. The result of the research indicates that in Iran’s system of constitutional rights, unwritten and interpretable components link the written text of the constitution with some unwritten areas. On credit, Iran’s constitution is neither completely legal nor completely political, and has both written and unwritten aspects, and the opinions of the Guardian Council are a window to understand them.

In Islamic government, legislation is one of the most important examples of application of guardianship [Velayat] to people, their honors and properties. Therefore, recognizing the standard Fatwa in this area is extremely important, since it will be the legitimacy test of the legislative’s actions. Considering that in the Age of Absence [of the Twelfth Imam] the right to apply guardianship has been assigned to a completely qualified jurist and assuming that a government has been formed, the making decision in social and governmental affairs (rulings of the Sultaniyeh [governance]) is the responsibility of the ruling jurist, the present article assumes that the standard Fatwa in legislation, which is the area of interference in social and governmental affairs, is the ruling jurist's Fatwa. With this assumption, this research, by re-investigating this basis in the opinions of constitutional judge, with a descriptive-analytical method and by examining the interpretive, consultative and comparative opinions of the Guardian Council, has come to this conclusion that several opinions from the constitutional judge support and strengthen the said assumption. On the other hand, this view that the Fatwa of Guardian Council’s jurist is the test for measuring the legitimacy of the Parliament’s enactments, can be interpreted as the confirmation of Constitutional Act by the ruling jurist and the assignment of supervision by him. Accepting this view will not only deprive the Guardian Council of the important task of supervising legislation, but also it will be a doubled emphasis on the necessity of satisfying some characteristics such as "justice", "awareness of the requirements of the time", "being a Muslim" and finally "expertise in various legal fields" which are mentioned in Principle 91 of the Constitutional Act in selecting jurists and lawyers of the Guardian Council.

Necessity of protecting the Constitution, as the supreme law at the top of the legal principles pyramid, stresses the need for establishment of the constitutional courts to ensure this order. Due to the differences between the legal systems in the world, their types of proceedings are different as well. Ensuring compliance of the ordinary laws with the constitution and supporting the basic rights and freedoms of the people are the main duties of this organization. The present article studies verdicts of the constitutional courts in a number of countries in order to explain role of the constitutional magistrates in development of the people’s basic rights. Accordingly, the people’s right of complaining about violation of their personal rights to the constitutional magistrate, the magistrates’ interpretation, a priory control, and publishing the decisions play an essential role in this regard. In other words, the constitutional magistrate is like a switchman that keeps the train of constitutional laws in its real track and does not let the public authorities to deviate it.

The existence of a supervisory entity with an impartial mechanism in the election plays a decisive role in realization of a desirable governance. Today, the complexity of the election makes the "supervision" hard and responsibility of "fundamental proceeding" heavier. Supervision over election is a two-bladed sword, which can guarantee and protect the rights on one hand, and threatens and restricts it on the other hand. Therefore, this research studies the foundation and examples of this kind of supervision in Iran and France using descriptive-analytical method, and seeks to answer the question of what mechanism the fundamental proceeding benefits from to safeguard the people's choice in France and Iran in order to protect the people’s rights in the best way? In response, it became clear that the Guardian Council has a broader role than the French Constitutional Council in some powers. However, both of them have the effectiveness, efficiency, and coherence due to the dispersion, ambiguity, and inconsistency of behaviour and lack of transparency exists in most of jurisdiction and conduct of their agents. In addition, this has led to a high legitimacy today, despite the fact that the activities of these entities are somewhat distant from theoretical foundations and main protection thoughts.

Guardian Councill as the Switchman of the Constitution Ali Akbar Gorji Azandariani (Associate Professor of Law, Shahid Behsti University)   Abstract In comparative public law, the Guardian Council is placed among the institutions of constitutional justice. It is a notion derived from democratic motivations, guarantee of the rights and liberties, restriction of power and in a summery, the protection of normative privilege of constitutional law in the legal hierarchy order. While Guardian Council has followed France constitutional law council formally, it has serious differences in the contents, jurisdiction and practices. The main functional difference between Guardian Council and other justice institutions in the modern governments is that it acts according to the Sharia’. Thus the judge whether intentionally or not, cannot be impartial and make the balance. This kind of functions may lead to the creation of some practices which is against the philosophy of constitutional law courts i.e protection of constitutional government foundations. The authority of the guardian council is not independent and its legitimacy depends on its loyalty to the political power and not entering to the territory of the founder. The result of constitutional judge and founder power’s struggle is the reproduction of inefficient cycle, invalidity and illegitimacy of political and legal system. The perception of Guardian Council as a switchman of the constitution seeks to protect the democratic systems from the constitutional judges’ dictatorship and the development of illegitimacy toward political structure. This article is an analysis on the theory of Guardian Council as a switchman of the constitution and its features in Iran’s constitutional justice.