نشریه دانش حقوق عمومی
سال دوازدهم شماره 2 (پیاپی 40، تابستان 1402)

The constitution of many Islamic countries, including Iran, requires that all laws be based on Islamic rules. To comply with Islamic rules, religious sources and fatwa [religious decree] of religious scholars should be followed. The question, therefore, is which fatwa is the criterion by which legislative compliance with Sharia [Islamic law] can be achieved? Several theories have been expressed, such as the most knowledgeable scholar’s fatwa, the most famous fatwa, valiye amr [supreme leader]’s fatwa, and the most effective fatwa. This paper presents an alternative view, namely the theory of choice of fatwa for legislation. According to this theory, compliance with Sharia can be achieved by using any fatwa so long as it is issued by Shi'a jurists. Thus, enacting laws according to the fatwas of the mujtahids [Islamic jurists] will secure compliance with the Sharia. Based on this thesis, it is not necessary to enact laws according to the fatwa of the most knowledgeable scholar, or the most efficient or famous fatwa. Supporters of this theory are such prominent figures as Muhaqiq Naraqi and Sahib Javahir. In this research, the arguments for this theory have been stated and its problems have been resolved as much as possible. The adoption of this theory will offer a choice of fatwa in the legislative process, as well as a choice of fatwa by the judge in cases of non liquet. A law or judicial decision is considered to be contrary to Sharia when it is inconsistent with the consensus opinion of Shia scholars. The research method in this study is descriptive-analytical.

Lack of sanctions for the efficient fulfillment of cultural obligations of the government in policy, legislative, executive and judicial terms has created  shortcomings as regards legal provisions such as article 3 of the [Iranian]Constitution. It has also led to the violation of individuals cultural rights. In addition, article 11 of the Civil Liability Act exempts the government from liability in all governance matters, regardless of the importance and vulnerability of the victim. This has created a large gap in compensating damages caused by the actions or omissions of natural and legal persons in respect of cultural rights. If legal challenges such as how to prove faut in cultural affairs are not resolved in a timely manner, beside affecting public order and security, it will further increase the violation of rights and cause human, material and moral damage to individuals. The question that arises is, what is the way to demand such damages, especially from the sovereign institutions such as the Supreme Council of the Cultural Revolution and the Ministry of Culture and Islamic Guidance? In this descriptive-analytical study, while explaining some principles of administrative law and good governance such as responsibility and accountability, it will be argued that due to the high importance and particular features of cultural rights, damages caused by government institutions to such rights should not remain without compensation.

One of the problems encountered by the theory of Velayat-e-Faqih (Supreme Leader) is the extension of religious legitimacy and justification to the three powers and the main organs of the state. Absolute sovereignty is the right of God, the owner of the universe, and on this basis, sovereignty must be authorized by him and implement his will in all matters. Based on these principles, as well as jurisprudential-theological principles, the constitutional legislator must adhere to an integrated form of legitimacy. However, what is important is the positive and argumentative dimensions of this procedure. Accordingly, the main question of this article is how the sovereignty and religious rule of the three powers emanating from the supreme leader are justified?Research approach: In this study, using library resources, the theory of integrated legitimacy has been described and analyzed based on jurisprudential arguments and opinions of jurists. Moreover, the religious legitimacy of the ruling powers of the Islamic Republic of Iran has been explained based on concepts such as appointment, legal permission, representation and guardianship

Legislation is one of the most important matters of governance. In democratic societies the responsibility usually lies with the legislative assembly composed of elected representatives of the people. Because of the complexity and importance of legislation jurists have enumerated certain principles for improving the quality of laws. Among these principles is the maximum participation of citizens in the legislative process. One of the issues faced by the legislative system of Iran is facing, due to its disregard for the quality of laws, is the desuetude of laws and citizens' disobedience to them. This will eventually lead to the weakening of the rule of law. Solving this problem depends on the examination of ways to improve the quality of laws. This issue makes research on public participation in the legislative process necessary. This paper, using library sources, and with a descriptive-analytical method, seeks to investigate the place of public participation in legislation and its and goals. The findings of the research indicate that public participation in the drafting of laws is a right of the nation. As such, the legislator is required to take the opinions of the people, stakeholders and experts into account when drafting laws. One of the basics and goals of public participation in legislation is to improve the quality and acceptability of laws.

The clear manifestation of the country's treaty system is reflected in the opinions and decisions of the Islamic Consultative Assembly or the Guardian Council in accepting or rejecting international agreements. In this perspective, several ambiguities in the issue of constitutional law can be seen as a threat to the national security of the Iran. On one hand, international treaties can forcefully impose their effects on Iran's transnational obligations without being considered by the parliament and the Guardian Council, while on the other hand, due to the lack of a monitoring mechanism, it is possible to change the approved internal and external documents. What was discussed in this study is the need to formulate a system of claim and counterclaim in the international practice of Iran and also to prepare a special mechanism to inform the competent institutions about the post-ratification process of treaties

Article 256 of the [Iranian] Tax Code is an important article, which deals with the competence of the Supreme Tax Council regarding "quasi-judicial proceedings". In this respect, this article is the central article regarding the status of the quasi-judicial Supreme Tax Council. The present paper, realizing such importance, seeks to answer the question: under Article 256 what are the criteria for the appellate jurisdiction of the Supreme Tax Council? In response to this question, using a descriptive-analytical method, some results have been obtained. Firstly, Article 256 contains some important criteria of the principles of fair trial and fundamental rights, which doubles the need to pay attention to this article. Secondly, the criteria and rules related to the proceedings in the Supreme Tax Council can be divided into the preliminary, review and issuance of judgment stages. Thirdly, the criteria set forth in Article 256 are the most important indicators that have played a role in drawing the legal boundaries and scope related to the competence of the Council’s branches and the rights of the parties to the case. Fourthly, the text and content of this article with regard to appealing from the decisions of the tax dispute-resolution boards is different from other provsions related to appealing decisions of the said boards. This situation can be a source of confusion for the council.

The separation of powers based on the natural equality of human beings is an essential organizational feature of constitutional government. The clarification of this doctrine - which is the mission of this paper - depends on its pursuit to the concept of equality in freedom. By examining the works of Filmer and Locke, an attempt has been made to draw the direction of movement towards the separation of powers after the impeachment of this foundation. The results of this study are as follows: natural equality in disobeying the individual will of others, promotes the law as a non-individual will and the level of unity of the society of equals. Such plan of the law requires all people and ruling institutions to obey the law. In the rule of law system, no absolute will has the legitimacy to impose itself on others; therefore, the legitimacy of the actions of law enforcers and drafters is "conditional" to the legal framework. Since the government is considered the executive power, it is not possible to guarantee compliance with the law except by creating a structural conflict between its independent parts. Therefore, the separation of powers with the separation of institutions that perform various functions of the government provides an institutional solution to protect the constitutional government. Based on these results, in addition to clarifying the relationship between the separation of powers and constitutionalism, the conditions for the fundamental entry into the discussion of the usefulness of this doctrine for the current situation and its comparison with the Iranian-Islamic tradition are provided

One of the pillars of the governing system in the executive branch are the administrative councils. These councils have been developed and increased in a way that has created challenges and problems for the system of public law. Given the fact that the legislature established these councils in the Iranian legal system in [the Persian year of] 1300, the question arises whether this action was in accordance with the standards of public law and the principles of the constitution. Therefore, this paper will examine this issue and a mechanism will be suggested to resolve the problems related thereto. The findings of this study, using legal documents and adopting an analytical-descriptive approach, suggest that the establishment of a council within the executive branch is against the principles of the [Iranian] constitution regarding the structure of the executive, namely articles 60, 57 and 138, and that the only council body within the executive branch recognized by the constitution is the cabinet. However, under article 138 of the constitution, the formation of a commission composed of several ministers is foreseen.  This is subject to the will of the cabinet, not the parliament