نشریه دانش حقوق عمومی
سال سوم شماره 3 (پیاپی 9، پاییز 1393)

The Guardian Council, as the sole competent authority to jurisprudential review on the legislations of Majlis, plays an unique role in the preservation of Islamic criteria in the field of legislation. In this paper, through a case study, studying the process of the Guardian Council’s jurisprudential review on the Islamic Penal Act, as the most prominent criminal legislation, from the perspective of authenticating the compatibility with the Sharia’s criteria, is tried. In this regard, through investigating the comments of The Guardian Council in examining the Penal Law, it is Tried, while clarifying the Dominant Fatwā, Which is the criterion of this Evaluation, to analyze the manner of this review with a critical approach, So that a step in order to express the way of realizing this aspect of the supervision is carried out. This study shows that the enacted text of The Judicial and Legal Commission of the Islamic Consultative Assembly (Majlis) have contained several defects with respect to Islamic criteria, which The Guardian Council in its monitoring process, has warned many of Them, and sometimes in an innovative way By providing the solutions to remove the incompatibility, has guided the Commission to amend the enacted text correctly.In spite of the great merits of The Council’s performance in reviewing on the act, some controversial cases are evident in the process. On the one hand, the Dominant Fatwā with which the enacted text is evaluated isn’t the same at all stages of supervision; And in some cases, mentioned jurisprudential defects are not justified. The examination of the very critical phase of authenticating the Debugging the enacted text by the Council shows that sometimes the reforms applied by the Commission are not controlled precisely.

In any political system, recognition of constitutional keywords is an important pathway for understanding constitutional system desirably. The recognition matters increasingly, when a keyword is rooted in constitutional system's ideological bases and its underlying political theory. Ummah, a term with religious and Islamic theme, has come from religious literature into the constitution of Islamic Republic of Iran.Studying dimensions of constitutional system of Islamic Republic implies/indicates that this term, while keeping its religious originality, has come into literature of the constitution with some evolutions in concept and scope of inclusiveness in some uses. In this paper through a descriptive and analytical method, we have considered the question that how Ummah is understood in religious thought and the constitutional system of Islamic Republic and what range it has, and have concluded that this keyword in its different applications in the constitution, despite some similarities, has not been applied in the same meaning, but endures various meanings and subsequently includes different demographic groups.

The statutes of three major subsidiary companies of petroleum ministry (National Oil, Gas and Petrochemical companies) were ratified by then parliament or its commissions in 1977. Nevertheless since 2004, considering that the companies’ statutes has not been approved by Islamic assembly(Majlis), the validity of the aforementioned statutes and consequently their very existence was questioned by the Guardian Council and therefore any legislation of the Majlis that points to the title of mentioned companies, were questioned by the Guardian Council. So this question is arisen that whether they are valid. This paper is trying to find an answer by using analytical method. Since the main reasons which are provided for the invalidity of the mentioned statutes are not acceptable, and there is no justified reason to consider them null and void, so those statutes are still valid, unless later laws and regulations abrogate them or contain contrary rules to the contents of the statutes.

Institutions under the supervision of the leader, is a phrase that is used in many laws and has been a cause for considering some exclusions in laws. Definition and examples of this phrase is ambiguous and often it is interpreted extensively. However, it is appropriate, firstly, to adopt specific criteria to define these institutions so as to its examples become countable and secondly excluding these institutions from the inclusion of some laws have a specific mechanism. The criterion of Majlis in determining these institutions is “executive institution” that seems there is no need to exclude them from the laws, due to being under the supervision of the leader. While the challenges of the Guardian Council, has been the cause of adoption of this approach by the ordinary legislator. The criterion that this article emphasize in determining these institutions, is that an institution that all its decisions is affirmed by the Leader, is named Institutions under the supervision of the leader. Based on this criterion, excluding these Institutions From some laws would be justifiable.

Except for Imam Khomeini’s approaches and position as constituer of country political system, his novel and varied jurisprudential views about government, Vilayah (to rule) and competences of Islamic governor, can be used as a source of inferring his principles of political economy, and with regard to importance of the most central legal document of country (the constitution), its reflection on this law can be surveyed.Therefore it should be analyzed that what are the Imam Khomeini’s principles and goals of political economy? How these principles should be studied so as to not to conflict? This writing, through systemic approach and content analysis, has inferred from speeches and views of Imam’s political jurisprudence, some principles such as “the originality of public ownership”, “minimized state enterprise” and “maximized Sovereign roles”, and considered the conflicts resolvable by “restricting the public ownership effect to management” and “the criterion of the economic system’s benefits” and finally compared this principles with the constitution and guardian council interpretative views.

Monitoring by the Court of Administrative Justice and the Majlis Chairman are the common ways to control the government regulations in the legal system of the Islamic Republic of Iran under the supervision of a judicial authority and a political official respectively.Strengthening oversight of Majlis Chairman and placing it in a same status as the Court, And consequently restriction of the Court’s judicial supervision, regarding the regulations that their legal effect has been revoked (Mulghal-Asar) because of Majlis Chairman’s declaration of inconsistency, has created some problems According to the general principles of law, the Constitution and current statutes. The purpose of this article is to examine this matter.The results show that efforts to highlight the supervisory role of Majlis Chairman to the extent that ends in restriction of general supervision of the Administrative Justice Court violate the principle of separation of powers and authority of the judiciary in safeguarding the rule of law. This approach, in addition, has lead to limitation of the citizens’ right to petition before the judicial authorities, (stipulateded in Article 34 of the Constitution) specifically Administrative Justice Court. On the other hand, according to the features and benefits of each of these two methods, it has been proposed that considering the Court as the competent authority to deal with the complaints of individuals regarding the “Mulghal-Asar (inapplicable) regulations” by Majlis Chairman, In addition to providing the possibility of revising the views of Majlis Chairman by a judicial authority, the possibility of compensation because of the regulations will also be provided.