جستجوی مقالات مرتبط با کلیدواژه « قوه مقننه » در نشریات گروه « فقه و حقوق »

The foundational stability of any society is significantly anchored in the presence and enforcement of laws. The enactment of laws, a primary responsibility of governance, ensures that societal relationships are regulated based on fairness and justice, thereby securing societal continuity and stability. The constitution of the Islamic Republic of Iran entrusts the Islamic Consultative Assembly with the authority to enact ordinary laws, emphasizing the legislature's monopoly over legislation. This exclusive right entails not only the privilege to legislate but also the duty to do so, ensuring that the legislative needs of society are met. In instances where the legislative body fails to fulfill its mandate, whether due to internal disagreements or conflicts of interest, it raises a pivotal question about the role of leadership, specifically the Guardianship of the Islamic Jurist [Vali-ye Faqih], in addressing legislative voids and guaranteeing citizens' rights to an efficient legislative system. This paper delves into the constitutional frameworks within Iran that enable leadership intervention in legislative processes, aiming to explore the mechanisms through which leadership can address the absence of necessary legislation and its implications on societal stability.

Research Question:

The central inquiry of this study revolves around the role of leadership, particularly the legal personality of the Guardianship of the Islamic Jurist, in filling the void created by legislative inaction within the Islamic Republic of Iran. Specifically, the research seeks to answer: "How can the leadership institution, under the current constitutional framework of the Islamic Republic of Iran, ensure the right of citizens to benefit from an efficient legislative power, particularly in situations where the legislative body fails to enact necessary legislation, leading to a legal vacuum?"

Research Hypothesis:

The hypothesis posited in this research is that the leadership in Iran, especially embodied by the guardianship, possesses the constitutional authority and mechanisms to effectively address and fill legislative voids. This capability is critical in situations where the legislative body is incapacitated by internal disagreements, conflicts of interest, or procedural inefficiencies. The leadership's intervention, as hypothesized, is not only constitutionally sanctioned but is also a necessary mechanism for safeguarding the citizens' right to an efficient legislative system and maintaining societal stability in the face of legislative inaction.

Methodology & Framework, if Applicable:

The research adopts a descriptive-analytical methodology, drawing upon a thorough review of the constitutional law of Iran and extensive library research. This study focuses on elucidating the constitutional basis that mandates the leadership's involvement in legislative processes, particularly analyzing articles 57 and 110 of the constitution of the Islamic Republic of Iran. Through this analytical framework, the research aims to identify the competencies of the leadership in ensuring the enactment of necessary legislation and securing citizens' rights against legislative inefficiencies. The study's approach is distinguished by its emphasis on the "timeliness" of law enactment, prioritizing the prevention of legal vacuums over the qualitative aspects of the legislation. This methodology facilitates a comprehensive understanding of the leadership's role in crisis resolution and the establishment of a legal mechanism to address legislative voids.

The analysis reveals that the leadership within the Islamic Republic of Iran plays a pivotal role in addressing legislative inefficiencies and ensuring the citizens' right to an effective legislative system. The study highlights that the constitution grants the Guardian Jurist, significant powers to intervene when the legislative assembly fails to meet the legislative needs of society. These powers are rooted in various constitutional provisions, notably Paragraphs 1, 2, 3, 7, and 8 of Article 110, which collectively empower the leadership to supervise the proper execution of policies, issue referenda decrees, resolve disputes between powers, and address systemic problems. This constitutional framework enables the leadership to act decisively in instances of legislative deadlock or legal vacuum, thereby preventing harm to society and ensuring the continuity of governance.
     The research underscores the leadership's authority to issue state decrees [Hokm-e Hukoomati] as an exceptional measure to fill legislative voids. These decrees, while potentially lacking in the quality and technicality of laws enacted through the ordinary legislative process, serve as a necessary intervention to address immediate legislative needs and safeguard public interests.

The study concludes that the leadership in the Islamic Republic of Iran, by virtue of its constitutional mandate, possesses the necessary competencies to address legislative inefficiencies and ensure the protection of citizens' rights to an efficient legislative system. The constitution provides a robust framework for leadership intervention in cases where the legislative assembly fails to fulfill its legislative duties, offering various mechanisms for resolving legal vacuums and preventing societal harm. The leadership's role, as defined by the Constitution, is essential in maintaining the stability and continuity of the legal system, particularly in ensuring that the legislative needs of society are met in a timely and effective manner.
     The unique competencies granted to the leadership, including the authority to issue state decrees [Hokm-e Hukoomati] and direct legislative action, highlight the Iranian legal system's innovative approach to safeguarding public rights and addressing legislative voids. This extraordinary framework ensures that the risk of infringing citizens' fundamental rights due to legislative inefficiency is minimized. The leadership institution, with its comprehensive constitutional powers, emerges as a critical mechanism for guaranteeing public rights and facilitating effective governance, thereby affirming its unique position within the Iranian legal and constitutional order.

Legislative initiation, in the sense of presenting a proposal for a new law or amending existing laws, is considered the first stage in the legislative process in any legal system. Based on the theory of separation of powers, the exercise of legislation power belongs to the legislative branch. However, nowadays it is accepted in parliamentary and semi-parliamentary systems that the executive branch can also play a role in initiating legislation. The legal systems of Iraq and Egypt are among the systems that have recognized the joint competence of the legislative and executive powers in the process of initiating legislation. In this context, Article 74 of the Iranian Constitution is worthy of attention as it is devoted to the issue of legislative initiative and the joint role of the legislative and executive powers in presenting draft laws. Using a descriptive-analytical method, this paper has tried to evaluate the evolution of the constitutional laws of Iraq and Egypt on this issue. The Paper aims to draw lessons from the Iraqi and Egyptian systems in terms of reforming the process of legislative initiative in Iran.

Legislative transparency is one of the main elements of the rule of law, which is considered the main factor in preventing and fighting corruption. The purpose of this research is to examine this concept in the framework of Iran's legal system and international law. This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles. The findings of the present research show that the mechanisms of legislative transparency in international documents have not been defined in a coherent and precise manner, but to determine its examples and scope, it is necessary to refer to the internal procedures of the states that are customary in the international law space. It has been recognized internationally.Ethical Considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed. Transparency in the framework of the international law system is closely related to fundamental human rights, therefore, some examples of legislative transparency mechanisms in the space of international law are authoritative. But in the internal law system, the mentioned mechanisms are under normal laws and at the base of the pyramid of normative hierarchy.

Prevention of corruption in political-legal systems is one of the important issues that has been the attention of writers and thinkers for a long time. One of the important solutions that has been noticed in recent years is moving towards a good governance model. Clarification of opinions and negotiations of legislative bodies, including the Islamic Council, the Council of Ministers, experts, the Supreme Council of the Cultural Revolution, etc., are among the indicators of good governance; Therefore, in the present study, the investigation of transparency in the legislative process will be discussed. This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles. The issue of the acceptability of laws in a society by its audience is one of the results and consequences of transparency in the legislative system. The more transparency is applied in the legislative process, the more the public will understand the concerns of the legislator.Ethical Considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed. In fact, the common point of the aspects of transparency goes back to "prevention of corruption in the legal system". No matter how clear the text of the law is, there is practically no room for abuse of the law in the implementation phase. On the other hand, transparency in the process of approving laws and the actions of the representatives makes the aforementioned people exposed to public opinion and the resulting evaluations. As a result, practically, both aspects of transparency provide the means of strengthening each other's final goal.

Legal supervision of the acts of the executive and legislative branches of the Guardian Council sole responsibility based on the principle quarter constitution. One of the ways to achieve this principle, contrary to the Act petition the court to excuse the executive branch with the guardians of the basic principles of Islam Act. the Guardian Council responding to inquiries court, in conformity with the essential form of entry is refused cases referred to. While the law has explicitly specify the jurisdiction of each entity, but remaining so vague and clear Nyst. shvray guard correspondence with the Court over the years has done, fill the vacuum and historical Ast. Hence it is facing the correct information from the form will pave the way for fair justice

The National Assembly was the first legislative and at the same time the founding power in 1285, when the Constitutional Revolution took place, which was established in the history of this land. With the occurrence and crystallization of the Islamic Revolution in 1979, the legislature was retained by its constitutional and supervisory powers by constitutional experts, and after some time was renamed the Islamic Consultative Assembly by the National Assembly and then the Constitutional Review Council in 1989. Based on these principles, it is very important for the authors to know the views of the experts of the 1979 Constitution on the legislature, its legislative and supervisory functions, as well as members of parliament. The main question of the authors is what are the perceptions and perceptions of the experts of the 1979 constitution of the legislature of the country, which was an institution inferior to its legislative institution? Attempts have been made to rely on the descriptive-analytical method after explaining the theoretical foundations of the legislature to examine and evaluate the various views of constitutional experts on ten issues and perceptions in the plant. The result of the present study is that the constitutional legislators, despite accepting the legislature and approving its structural and functional principles along with the restriction of parliamentary legislation by the Guardian Council of the Constitution, did not have the same understanding of the concept and functions of the legislature. This was evident in the final review of the constitution.

The theory of "separation of powers" is one of the most important theories and concepts in public law. Many authors have called this theory one of the most important means of restraining power. The basis of this theory is that each power system must have a specific task and not interfere with other powers’ particular affairs. Some have considered Montesquieu, the philosopher and the famous French lawyer of the eighteenth century, as the creator of the theory of separation of powers, but scholars such as Plato, Aristotle, Hugo Grotius, Pufendorf, and Jean Bodin are among the scholars who have spoken before about this. This theory is also reflected in the thought of Ibn Khaldun, who lived centuries before Montesquieu. Although Ibn Khaldun has not discussed the colloquial concept of “separation of powers”, he has spoken clearly about the necessity of separating the triple tasks and the limitation of power. After looking at the notion of "separation of powers", the author has made a comparative study of this subject in Ibn Khaldun and Montesquieu's thought, having a documentary and comparative approach. The novelty of this study is that it has corrected the common mistake made by Ibn Khaldun in his acceptance of the theory of "separation of powers" and proposed his correct theoretical form (acceptance of division of labor and distribution of duties) by citing his written works.

The Supreme Council of Cultural Revolution as one of the institutions that has been created in the first years of the revolution, has always posed challenges in the Iranian legal system. One of the most important issues related to the activities of the institution is violating the jurisdiction of legal institutions of the country and in particular three branches of government. In the field of entry into legislative competence, we can say about the legislation, policymaking, demarcation of freedom of the press, ratification of international treaties and interpretation of the constitution. And among the violation of executive competence, entering into budgeting and violating the qualifications of ministries are more important. Finally, regarding the violation of the judiciary's independence, violation of the right to fair procedure, the jurisdiction of the administrative justice court and the general inspection organization have been struck by this council and also council enacted provisions in the field of judicial formation, bills and prisons which led to the limitation of the legislative competence. The most prominent consequences of violation of these qualifications are spending founds, parallelism, bureaucracy, government authority, deprivation of individual initiatives, preventing citizens from participation in decision-making and denial of representation theory. In this article, we intend to provide necessary grounds in order to amend the current situation by reviewing council's regulations, and identify social pathologies regarding council's activities.

Legal expressions and concepts are abundant in the numerous fundamental texts of the modern political thought. The language of law has been one of the main means within which discussions about political thought has been taken place. Therefore, when these texts are translated into other languages, the meaning and the content of the legal expressions and concepts in terms of their scope and connotations shall be considered. Only in this situation one can rely on these translations and they deserve to be cited. So the revision and reconsideration of these texts from the legal concepts point of view seem very useful and necessary. In this paper, focus has been on the public law expressions and concepts of the Persian translation of the Leviathan and their precision and accuracy is evaluated.

Analysis of the parliament’s structure in the Islamic Republic of Iran from the perspective of shar’i legislation   is the goal and concern that the founders of the Islamic Republic have sought to achieve. Manifestations of this importance can be seen everywhere in the constitution Given the past experiences, especially the achievements of Persian constitutional revolution, as well as the use of the experiences of countries with a history of democracy, the constitution has created a structure for the legislature through which to achieve its ultimate goal. Now, after several decades of experience in the legislative structure of the Islamic Republic, it is time to evaluate it according to the fundamental values of the Constitution. To what extent have the three structures of the Islamic Consultative Assembly, the Guardian Council, and the Expediency Council been successful in drafting laws derived from sharia? Is there another way to empower the legislature? This article seeks to explain the shortcomings of the current structure of legislation in the Islamic Republic and believes that this process needs to be changed and improved.

Amnesty is one of the causes of the fall or punishment of punishment, as well as the indulgence and affection for the convicted by the highest authority of the country or the legislative authority. Amnesty granted through the highest authority in the country is called amnesty and other general amnesty. Public amnestry is applied more often after the revolutions, political seizure, or as a result of adverse social events, or as a result of accidental events, or warfare and bloodshed. The crimes committed were the most common of those perturbations, and it created the specific environment, causes, and causes of the crime. The exceptional and critical situation raises the people's thoughts and spirits and people have a desire for peace and tranquility. Pursuit and escapes lead to the continuation of a critical situation, but ignoring many of the crimes committed in those circumstances and neglecting them, which is the general amnesty, can bring society back to normal in a better and faster way. The quality of amnesty was foreseen in the pre-revolutionary laws. But after the victory of the Islamic Revolution, it has been neglected in the penal code, and it can only be seen from the general interpretation of Article 71 of the Constitution of the Islamic Republic of Iran that the appearance of general amnesty in the jurisdiction of the Islamic Consultative Assembly.

In this paper, the role and impact of the interest groups particularly protective internal one upon public policy making for business environment is studied through analytical comparative method. Firstly, definition and different types of the interest groups are introduced in brief. Interest groups in this articles refer to those kinds of groups which try to influence upon public resources allocations without taking political power directly. Also, it was mentioned that in general, there are two major types of interest groups: internal interest groups and external one. First types of interest groups have close relationships with government and they are recognized by that. The second one does not have direct connections with government and government has no tendency to recognize them. Then, the mechanism of protective interest groups influence upon public policies in different organs of government also is mentioned by using descriptive and comparative methods. Interest groups’ role and impact upon three branches of government during the formulating, assessment and implementation of public policies is reviewed. It was mentioned that in recent centuries’ governments have taken very major responsibilities in substantial public policy areas such as providing health services, educations, welfare of individual citizens, controlling and regulation of money, business and economy and so on. Because of that governments have become more powerful than before. At the same time, democratic sentiments were risen and ideal of bottom-up approach to governance encouraged political parties and interest groups to participate in governance. Nowadays, governments are not the only policy makers and political parties along with different types of interest groups that take part. In this paper, public policy making cycle is divided to five stages. First, formation of policies or legislative proposals. Second, formulation of policies or legislative proposal in the form of bill or representative proposal. Third, deliberation and enactment of public policies. Fourth, implementation stage, and the last one is called impact assessment stage. It is emphasized on the advantages of interest groups participation in all stages of public policy making and stressed that government and interest groups interactions in the course of policy making process is essential. Interest groups attempt to influence public policies through lobbying political official in executive power or parliamentarians during the deliberation and enactment process in parliament, respectively. If they failed to achieve their wishes through aforementioned stages, i.e., formation, formulation, deliberation and enactment stages in executive power and parliament, they try to do so by influencing courts. However, impact upon policies in courts are expensive and difficult and it depends on the extent of judiciary independence in a given country. Despite many advantages of interest groups’ participation in public policy making, there are some cautions here; hyper active interest groups which have better access to policy makers in different branches of government may produce inequality amongst citizens. Apart from that, interest groups may mislead public policy makers through providing incorrect information or false data. They may do it in favor of themselves against public interest. The most dangerous of all, if powerful interest groups dominate main public policy maker institutions, particularly parliament, they may disappoint citizens and eventually undermine legitimacy of political system as a whole. This paper shows that if some requirements and standards be satisfied, participation of interest groups could enrich the content of public policies and prevent the hasty decision making and therefore, avoid harmful policy decisions. Interest groups participation is desirable in cost and benefit analysis. They are very rich sources of information and data. Usually they seek to provide the required data and information during policy making process free of charge. They also have many experts which can help policy maker to assess the impact of decisions and policy before and after implementation of them. It is claimed that in this circumstances the transaction cost would in part be diminished. Lastly, the necessity of interest groups participation in policy making process in Iran is studied and some recommendations are provided on the basis of the foreign countries experiences. Unfortunately, due to weak participation of different entities such as political parties and interest groups, public policies’ quality, especially in business environment area in Iran, are not high enough. Encouraging citizens to engage in public policy making process in different phases of policy making process may stop this trend and help policy makers to make better decision. Participation of interest groups not only can promote government’s policy making functions, but also, can improve legitimacy of political system which has damaged recently because of economic crisis which has deep root in weak policy making in business environment in last decades. This paper takes preliminary steps toward better policy making through encouraging participation of interest groups as one of main actors in public policy making process.