The Guardian Council: the switchman or guardianship of the constitution

Guardian Councill as the Switchman of the Constitution Ali Akbar Gorji Azandariani (Associate Professor of Law, Shahid Behsti University)   Abstract In comparative public law, the Guardian Council is placed among the institutions of constitutional justice. It is a notion derived from democratic motivations, guarantee of the rights and liberties, restriction of power and in a summery, the protection of normative privilege of constitutional law in the legal hierarchy order. While Guardian Council has followed France constitutional law council formally, it has serious differences in the contents, jurisdiction and practices. The main functional difference between Guardian Council and other justice institutions in the modern governments is that it acts according to the Sharia’. Thus the judge whether intentionally or not, cannot be impartial and make the balance. This kind of functions may lead to the creation of some practices which is against the philosophy of constitutional law courts i.e protection of constitutional government foundations. The authority of the guardian council is not independent and its legitimacy depends on its loyalty to the political power and not entering to the territory of the founder. The result of constitutional judge and founder power’s struggle is the reproduction of inefficient cycle, invalidity and illegitimacy of political and legal system. The perception of Guardian Council as a switchman of the constitution seeks to protect the democratic systems from the constitutional judges’ dictatorship and the development of illegitimacy toward political structure. This article is an analysis on the theory of Guardian Council as a switchman of the constitution and its features in Iran’s constitutional justice.