جستجوی مقالات مرتبط با کلیدواژه « نظارت پیشینی » در نشریات گروه « فقه و حقوق »

The Constitution of the Islamic Republic of Iran, particularly Principle (4), puts the emphasis on upholding Islamic standards in all legal norms. However, a priori sharia supervision over parliamentary approvals shall be exercised by the faqihs (Islamic jurists) of the Guardian Council concerning the specific laws outlined in Principles (94), (95), and (96) of the Constitution. Other approvals, notably the regulations specified in Principle (4), lack constitutional provision. To ensure optimal implementation of Principle (4), there is a need for an effective mechanism that can guarantee adherence to Sharia standards in regulations. The current Sharia-based supervision mechanism is executed through the Court of Administrative Justice, but this approach has several shortcomings. First, it does not ensure Sharia compliance for all regulations since it is not comprehensive, only addressing the contested aspect of regulations. Moreover, regulations may possess significant importance based on inclusion, hierarchy of legal norms, authority level, and their impact on citizens’ rights and duties, leading to prolonged violations of citizens’ rights even when there are no complaints. In this respect, the present research aimed to examine the feasibility of establishing a mechanism for a priori Sharia supervision over key regulations, addressing the challenges associated with its implementation. The study is based on the hypothesis that there are factors favoring  a priori Sharia supervision over other types of monitoring when it comes to some aspects of regulations. Although most challenges are manageable, certain challenges make it both desirable and achievable to implement such a mechanism.

The literature has offered solutions, suggesting the mandatory submission of government regulations and approvals from the Supreme Council of Cultural Revolution to the Guardian Council before their implementation—which can ensure supervision over regulations from both a Sharia and constitutional perspective (e.g., Amjadian, 2012; Haji Ali Khamseh et al., 2021). Another proposed solution involves the establishment of boards specialized in Islamic jurisprudence and legal matters, overseen by the Guardian Council faqihs tasked with proactive monitoring subsequent to the enactment of regulations (Fe’li, 2020). The novelty of the present study lies in its detailed analysis of the feasibility and challenges associated with a priori Sharia supervision over regulations.

The study relied on a descriptive–analytical method, using library research to collect and analyze the data.

A priori Sharia supervision over regulations can viably be applied after the regulations are approved and before they take effect—similar to the supervision over Majlis approvals. A priori Sharia supervision is more aligned with the objective of Principle (4) of the Constitution, so it is favored over other forms of supervision, especially retrospective supervision. Furthermore, it is essential that Sharia-based supervision be applied in advance or a priori to the implementation, at least for critical regulations that are not subject to appeal in the Court of Administrative Justice. Moreover, for the sake of legal security of citizens and the prevention of rights violations, a priori supervision is preferable over alternative types of monitoring because it is difficult to claim and restore the rights of citizens that might have been infringed upon in the past, especially if regulations are retroactively annulled long after their implementation.

The challenges related to the principles of continuity and acceleration in delivering public services do not pose a significant obstacle to a priori Sharia supervision because it is feasible to set a deadline for expressing opinions and the Guardian Council faqihs have opinions aimed at guaranteeing these principles. Furthermore, certain regulations that are not allowed to be delayed in their approval and implementation can exceptionally be subjected to Sharia supervision outside a priori Sharia supervision mechanism. It is plausible that the structure and organization of the Guardian Council may not be entirely conducive or equipped to implement such a mechanism, given the unique responsibilities of the faqihs. However, it can be limited to a priori Sharia supervision of critical regulations, and it is not challenging as such, given the reforms aimed at reducing the Court of Administrative Justice’s inquiries from the Council (e.g., the ability to refer to the procedure of the Council’s faqihs in similar cases), and a comprehensive revision of the Council’s organization to lay the ground for a priori Sharia supervision. Additionally, the Head of the Judiciary and the President of the Court can notify the Guardian Council faqihs of cases conflicting with Sharia in order to eliminate the structural defects of the Guardian Council that render it incompatible with supervising important regulations. It is worth noting that Note (1) of Article (87) of the Law of the Court of Administrative Justice (1402/2023) also lays the groundwork for establishing a suitable structure for Sharia supervision over regulations.

One of the goals of the Islamic Republic of Iran is to assure compliance of the legal norms with the religious Criteria. In line with this, non-contradiction of all legislations and regulations with Islamic criteria is reviewed by the Jurists of the Guardian Council, based on the Article 4 of the Constitution. On the other hand, the Supreme Council of the Cultural Revolution is one of the legal normative bodies that has not yet provided a specific mechanism for assessing its enactments by religious Criteria. Accordingly the main question of this study is to examine the desirable mechanism for Religious Review of the Supreme Council of Cultural Revolution's Enactments by the Jurists of the Guardian Council in the legal system of Iran? In this research, using the descriptive-analytical method, this hypothesis was proved that the desirable mechanism to ensure the conformity with Islam for typical enactments of the Supreme Council of the Cultural Revolution is to exercise the “a priori” and “active” review of the Jurists of the Guardian Council. One of the most important benefits of this model is to ensure the maximum Islamic conformity of these enactments.

The principle of legal security informs citizens about the framework of their legal relations and gives them a kind of peace of mind and a sense of security. The realization of this principle is due to the existence of the rule of law, in which principles such as: transparency, coherence, ease of access, etc. protect the rights and freedoms of citizens, and in a deeper dimension realizes their legal security. In the present study, using library studies and through a descriptive- analytical approach, in response to the role of expurgation in creating legal security, ‌ while stating the accepted concept of expurgation, it was concluded that expurgation makes citizens aware of their rights. Expurgation is the recognition of the applicable and enforced law, where the inflation of laws, the conflict of several laws, the complexity of the laws ‌ and ... make it difficult to distinguish the ruling law. The expurgation makes it possible for an organized system of law to be created so that rights can be seen more and better away from turmoil, because facilitating public awareness of legal rules and regulations and recognizing individual and social rights and obligations, creates legal security.

Since political power in the Islamic vision is merely a trustee in the hands of government agents to serve the servants of God and to seek right and reject the wrong, and not a prey for rulers for wealth gathering and bullying, it is imperative to monitor the behavior of agents and rulers to ensure that governance is exercised in the right way. Our main purpose in this research is to express the philosophy, aims and methods of monitoring government officials in legal literature in a descriptive-analytical way, with emphasis on Imam Ali's view.