نشریه دانش حقوق عمومی
سال ششم شماره 1 (پیاپی 17، بهار و تابستان 1396)

Non-Restrictiveness of the stipulated discretions of the Supreme Leader in the Constitution is the approach of the Guardian Council proved by the decisions and precedents of this Council. This approach hasn’t also changed before and after the amendment of the Constitution, and with the addition of the “absolute” clause to the Article 57 of the Constitution. This research seeks to besides proving the non-restrictiveness of the Supreme Leader discretions in the view of the Guardian Council, explain and analyze this approach. Based on the studies conducted, in cases where the Guardian Council positively and preliminarily considers some non-stipulated issues under the competence of the Supreme Leader and legislation regarding these issues are subject to its permission, the foundation of the Council’s views are the jurisprudential competence of Vali-e-Faqih in administering the Hesbe affairs (Special Velayat). In these exceptional cases based on the Constitution and prevailing precedent of the Guardian Council, the Islamic Consultative Assembly has the authority to legislate regarding the Hesbe affairs. However, in cases where the Guardian Council has prohibited the Islamic Consultative Assembly to legislate in a specific area due to the authority of the Supreme Leader, the basis of such approach is the acceptance of the Absolute Guardianship of the Jurist (absolute Velayat-e-Faqih) which empowers the Supreme Leader to issue a governmental order. Based on legal principles, the Constitution and some decisions of the Guardian Council, the Islamic Consultative Assembly has the authority to legislate in these areas in the framework of the Supreme Leader orders.

The National Human Rights Institution is a government-institution establishment, but with a non-governmental structure and the mission to monitor the state which is established in some countries to protect the Human Rights at the national level. The Islamic Republic of Iran is also obliged to establish such institution in accordance with the principles of the Paris Declaration. This article seeks to determine the basis and the strategy for the establishment of this institution in the legal system of Iran. The results of this article, using the descriptive-analytic method and based on the Constitution, the Islamic Human Rights declaration and the experiences of the other countries, indicate firstly, “enjoining what is right and forbidding what is wrong” set forth in the Article 8 of the Constitution guarantees the compliance of Human Rights in the Islamic society and introduce an appropriate basis for establishing a national institution; Secondly, some of the existing entities also with the mission of the National Human Rights Institution are compatible with the principles of the Paris Declaration in case of legal structural alteration or interpretation of the Guardian Council; and thirdly, the initiative of the founding law of the new entity is possible through the presentation of a judicial bill or a bill of the parliament or the resolution of the Supreme National Security Council (temporarily).

To safeguard itself and the ruling political system, the Constitution declares some principles unchangeable and unamendable which their content is formulated in accordance with cultural and political conditions, historical events, customs, norms, social relations and religious beliefs in every country. These inalienable principles serve as an assurance of maintaining the ruling system in power and securing the spirit and essence of the Constitution. Nearly all the Constitutions of the world declare these principles as red lines considering them as the creator of the Constitution. The content of these principles which fall into different categories, better delineates the conditions governing any country. Some of these principles have a religious content while some others are based on secularism or laicism; some emphasize on the ruling system to be a republic, while others accentuate on its kingdomship. But from a long time ago, there’s been an argument over legal validity or invalidity of the principles among western legal scholarships. Important for Constitutional Revision is the explanation of the theories regarding legal validity or invalidity of these principles. In this article, in addition to broaching the unchangeability theory of these principles and their foundation beside the categorization of their content, the views of the scholarships and their reasons for and against the legal validity or invalidity of these principles are clarified. Furthermore, the alteration and transformation of generations and the compliance or noncompliance of the national sovereignty right with these principles are analyzed.

The Competence of the head of the judiciary for drafting judicial bills has been mentioned in paragraph 2 of the Article 158 of the Constitution of the Islamic Republic of Iran. Nevertheless, the content of the Articles 74 and 102 of the Constitution, as well as the detailed negotiations of the Assembly for Final Review of the Constitution in 1979, indicate that the head of the judiciary has no jurisdiction to provide and directly send judicial bills to the Islamic Consultative Assembly. Thus, this paper seeks to answer this question: What is the scope of the competence of the executive and judiciary powers in preparing and presenting judicial bills to the Assembly, and what are the solutions regarding the challenges between the two branches of government?. The necessity of the principle of convergence among the governmental powers and their special considerations in providing and sending judicial bills to the Assembly demands both branches provide an adaptive joint bill, and in case of disagreement, the opinions of each branch would be sent to the Assembly independently. Reaching this goal requires attention in the General Policies of Legislation.

Of the few rules set forth in the Constitution is the dual office holding rule which its subject coverage and also its exceptions are explicitly delineated. The importance of this rule in the Constitution of Iran makes us examine the compliance of those exceptions by the legislator. Thus, this article seeks to explain the manner in which the legislator has confronted with the exceptions of the aforesaid rule. The limitation of the exceptions of the above-mentioned rule in the final section of Article 141 along with the stance of the Constitution in the legal order brings up the idea that this subject is legislated in compliance with the Constitution. The results of this study with a descriptive-analytic method indicate that due to the new aspects of this issue in the statutes, not only the legislator and the Constitutional review institution are to revise their precedent regarding this rule, but also it’s necessary for proper implementing of the final section of Article 41 to regulate the acceptance of the new employments from individuals with teaching positions as well as the acceptance of teaching positions from the other governmental officers.

One of the most important economic and financial principles of the budgeting process is the principle of non-allocation which reflects rejecting the forecast of dedicated income for various governmental institutions. This principle is rooted in the Article 53 of the Constitution of the Islamic Republic of Iran. The present research is concerned with a descriptive-analytic method to clarify the stance of the non-allocation principle in the Constitutional law system of Iran with a view to the decisions and precedent of the Guardian Council as well as explaining the manner in which this principle is reflected in the Constitutional law resources of Iran. This study indicates that this principle has never been fully implemented in Iran. Despite the emphasis of the Article 53 of the Constitution on the necessity of concentrating all government receipts in the central treasury accounts with no exceptions, as well as the non-acceptance of specific expenditures for resources before the beginning of the fiscal year and outside the annual budgets pursuant to Article 52 of the Constitution, some violations of the above Article in the General Policies of the System are seen. Besides, the examination of the Guardian Council's precedent implies in some cases the non-compliance of the philosophy of ratifying the Article 53 of the Constitution.