نشریه دانش حقوق عمومی
سال پنجم شماره 2 (پیاپی 14، تابستان 1395)

The principle 75 of the Constitution of Islamic Republic of Iran is one of the functional principles of this law which restricts the legislative competence of the Assembly and prevents the representatives of the Islamic Consultative Assembly to introduce proposals and suggestions which lead to reduction in public income or increase in public expenditure without determining a specific resource to compensate that reduction or increase.
Although this principle seems obvious, there are practically numerous ambiguities in this regard and during the years of its implementation, many questions have been raised regarding the scope of the Assembly’s performance in implementing this principle. This issue has always led to some conflicts between the Assembly and the Guardian Council on the one hand, and the Assembly and the executive power on the other hand. Therefore, to answer the fundamental question of this article, namely the determination of the scope of the Islamic Consultative Assembly’s competence in implementing the principle 75 of the Constitution, it is strived with the emphasis on legal documents and by using the content analysis instrument to examine the limits of the principle 75 and the Assembly’s performance on its implementation. As the consequents indicate, the Assembly can’t introduce suggestions and pass proposals in contradiction with the principle 75. Nevertheless, given the existing legal vacuum, in case of passing such proposal and the objection of the Guardian Council regarding that, it can’t be referred to the State Exigency Council pursuant to the interpretive comment of the Guardian Council.

The interpretation of laws, especially the Constitution is necessary and inevitable in any legal system to settle the problems and ambiguities occurred during the implementation of the laws. But interpretive authorities have not followed a singular approach in their interpretive lives. The interpretive approach that competent authority does take in interpreting laws is very important. Because in each interpretive approach, interpretive instruments and interpretive results will be different. According to principle 98 of the Constitution of Islamic Republic of Iran, the Guardian Council is the authority for presenting official and binding interpretation of the Constitution.
The noteworthy question regarding this authority of the Guardian Council is to determine the Council's interpretive approach in interpreting the Constitution. The forthcoming article through a descriptive-analytical method in order to answer this question has concentrated on the first period of the Council's activity. The findings show that although this institution in this period, has not been influenced by one particular approach in relation to constitutional interpretation, but the Guardian Council, in comparison to the other approaches, has been more affected by textual interpretation and interpreting within the words and the text of Constitution.

The proper functioning of the hierarchical system of legal norms requires a detailed understanding of their ranking priority and non-priority in the legal system. The official interpretation of the constitution is one of the most important legal norms. The position of such constitutional interpretation is beyond the ordinary laws and other regulations under them. Nevertheless, the important question remained neglected is to determine the legal status of the official interpretation of the Constitution in comparison with the Constitution itself. The binding and validity of the official interpretations of the Constitution often cause to consider them in an equal status with the text of the Constitution. Accordingly, some features of such interpretation are compared with the corresponding characteristics in the Constitution with an analytical and discursive approach. This comparison indicates the main and obvious differences between the official interpretation of the Constitution and its text and consequently proves a lower status for that interpretation in comparison with the text in the hierarchy of legal norms.

Economic, social and cultural rights today constitute an important part of legal human and citizenship rights which their instances may be observed in the most professional international treaty, namely the International Covenant on Economic, Social and Cultural Rights. These rights are inserted in the Constitutions of many countries, including the Islamic of Republic of Iran and have obliged the states against such claims of the citizens. These rights and the state commitments toward them are always against the civil and political rights and in different ways are compared with them. But unlike the civil and political rights, identifying and guarantee of these rights are criticized in different ideological, philosophical and legal approaches and the commitments of the states against them are doubted in various forms.
The issue of this paper is to determine the nature of the state commitments against these rights and to clarify the legal regime governing them in the International Covenant on Economic, Social and Cultural Rights and the Constitution of the Islamic Republic of Iran. The research method used in this paper is descriptive and analytic. As a result, although the natural features of these commitments make them weak obligations, it is possible to strengthen their guarantee by constructing a firm legal regime to apply them. Although many substantive characteristics of these commitments can be identified in the Constitution of the Islamic Republic of Iran, the legal regime governing them is less considered in comparison with the related Covenant.

The “Sharia Stipulated Tazir” which was established in the Islamic Penal Code Act of 2014 in consequence of the Guardian Council’s objections, has been so far confronted with different interpretations due to the absence of its definition by the legislator. Since the Guardian Council has led such institution to be legislated so as to eliminate some Sharia objections and also considering its purpose cause to introduce the proper interpretation in this regard, the correct interpretation, namely the decision of the Guardian Council is clarified in this research after examination, description and analysis of the documents, resources, relevant researches and also the detailed negotiations of the Guardian Council. Besides these, the necessity of such establishment is evaluated comparing with the penal policy of Islam in this regard. The results of these examinations indicate that the concept of “Sharia Stipulated Tazir” is cases in which the “Ta’zir” is made in Islamic traditions; whether its sentence is precisely determined or it is generally ruled. In addition, the study of penal policy of Islam in this regard shows that with the absence of such Tazir in the Islamic Penal Code Act, the relevant articles weren’t faced with objections. In return, the inclusiveness of the predicted institutions of this law over the all of Ta’zirs was in line with the penal policy of Islam in this regard.

Determining the necessary conditions for tenuring the Parliamentary Representation is in every legal system based on a series of foundations. Also, monitoring and evaluating the presence or absence of these conditions are realized based on some principles and criteria. The sovereignty right of the righteous people over the society and the social self-determination right are as the most important ruling foundations on ascertaining the representation’s candidate competency considered in the Constitution of the Islamic Republic of Iran. The legislator regarding these foundations has anticipated some conditions in the Election Law of the Islamic Consultative Assembly. Some of these conditions have qualitative and substantive aspect which can’t be ascertained just by using objective and typical instruments and some of them have formal aspect in which it is sufficient to ascertain them by objective and typical instruments. Preserving such foundations requires the evaluation of the conditions and adapting them to the representation candidates of the Islamic Consultative Assembly to be realized according to some particular principles and criteria especially regarding the qualitative and substantive conditions. The principles of the rule of law, being documented and reasonable, observance of the right to be heard, incompetency (disqualification), the necessity to ascertain the competency and being the objective instrument necessary and sufficient to ascertain the formal conditions are as the principles should be considered in this regard.