Guardian Council and the Ultimate Power

This post analyzes the self-proclaimed power of Iran’s Guardian Council to strike down previously approved laws due to claims of inconsistency with sharīʿa. In order to contextualize this problem, I analyze a recent opinion of the Guardian Council that nullified the results of recent elections, on grounds that a law legalizing membership of religious minorities in City Councils was contrary to sharīʿa.


In another post, I described an excessive focus in Iran with ensuring that every law or judicial decision is consistent with sharīʿa, even after a law enters into force or a decision becomes final. I argued that this focus jeopardizes rule-of-law-values of stability and finality in Iran’s legal system.

In this post, I focus on the self-proclaimed power of the Guardian Council to strike down previously approved laws due to claims of inconsistency with sharīʿa.[1] To contextualize this problem, I analyze a recent opinion issued by the Guardian Council declaring invalid the membership of religious minorities in City Councils. Resulting in the removal of a Zoroastrian member of the City Council of Yazd, this decision very quickly transformed to a constitutional crisis. I will assess the potential effects of that crisis on debates about the Guardian Council’s power to invalidate previously approved laws and will evaluate the feasibility of potential remedies.

On April 15, 2017 Ayatollah Ahmad Jannati, Secretary of the Guardian Council, released a statement declaring that Note 2 of Article 26 of the Law on the Formation, Duties, and Election of National Islamic Councils 1996 is against sharīʿa and thus invalid. Article 26 lays out the qualifications for candidates running for Islamic City Councils across the country. According to this Article, candidates must be Iranian citizens, at least twenty-five years of age, residents of the city or district in which they run for at least one year, believe in and demonstrate their commitment to Islam and wilāyat al-faqīh (the guardianship of the jurist), uphold the Constitution, and be literate. The Guardian Council took aim at Note 2 of this article, which stated religious minorities must “believe and demonstrate their commitment to their own religion” instead of Islam. The opinion, which was released right before the elections for Islamic City Councils across the country, concluded that this article was against sharīʿa.

The Guardian Council drew on two sources to declare this law invalid. First, the Guardian Council invoked Article 4 of the Constitution, which states: “All civic, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle governs all the articles of the constitution, and other laws and regulations. The determination of such compatibility is left to the fuqahā of the Guardian Council.” Second, the Guardian Council also invoked Articles 19 and 21 of its own Bylaws which—based on a specific interpretation of Article 4 of the Constitution—gives unlimited power to the fuqahāʾ (Muslim jurists) of the Guardian Council to invalidate laws beyond the ten-day limit for any situation that concerns questions of sharīʿa.

With this interpretation, the Guardian Council essentially disregarded Article 94 of the Constitution.[2] But  in later interview defending the Guardian Council’s position against criticisms, one Council member invoked Article 201 Note 2 of Parliament’s Bylaws to corroborate the claim that the Guardian Council is bound by the ten-day limit provided in Article 94 of the Constitution to review the legislation except in sharīʿacompatibility questions.  Moreover, the Secretary of the Guardian Council argued that, because the Guardian Council does not have supervisory authority over the decisions of the City Councils (unlike legislative acts), religious minorities could not represent Muslims where the majority of residents are Muslims.

The decision was not well justified. The only justification for this decision was a quick reference to an opinion by Ayatollah Khomeini, the founder of the Islamic Republic, asking candidates of the City Councils to be adherents to Islam.[3] Although the Guardian Council’s opinion does not cite the sharīʿa principle in this case, it is clear that the Council was referring to nafy-i sabil precept, which rejects domination over Muslims by non-Muslims.[4]

Unlike national elections wherein the Guardian Council rigorously vets the candidates, for Islamic City Council elections it is Parliament that has the authority to investigate and approve qualified candidates. Interestingly, at the time the Guardian Council opinion was released, the Speaker of Parliament refused to enforce the Council’s decision and vaguely directed the officials to “follow the law” on the matter.[5] As a result, a number of religious minorities participated in the elections nationwide. Among them a Zoroastrian candidate, Sepanta Niknam, won a seat in on the Islamic City Council of Yazd—home to many Zoroastrians and their historical and religious sites.

One of the candidates who lost the election, citing the Guardian Council’s opinion, filed a complaint in the Court of Administrative Justice asking for the removal of Niknam from the City Council of Yazd. On September 4, 2017, the Court of Administrative Justice issued a temporary restraining order and suspended Niknam’s membership in the City Council solely based on the Guardian Council ruling.[6]

The suspension caused significant backlash among even the most conservative parts of the government and their base. The Speaker of Parliament, a conservative politician, declared the Council decision “illegal.”[7] Some called the decision a violation of the rights of religious minorities that are recognized under the Constitution.[8] The representative of Zoroastrians in Parliament pointed out that this decision violates the equality provision of the Constitution embodied in Article 3.[9]

More importantly, many politicians and scholars have challenged the power of the Guardian Council to unilaterally invalidate previously scrutinized and approved laws at any time it wishes. In this case, not only has the law been in effect for nearly 20 years, but the suspended member has, in fact, previously served a four-year term! Understandably, everyone is asking why the Guardian Council was silent on the matter during the last 20 years or even during the last 4 years when Niknam served on his City Council. Ali Motahari, a prominent member of Parliament, criticized the decision this way: “if the Guardian Council thinks a law is against sharīʿa, it must ask the executive or Parliament to draft a new bill. Striking down laws unilaterally and through statements will disrupt the political, economic and cultural stability of the country. It means no law is stable and it can be invalidated at any moment. This is inconsistent with the very nature of law”.[10]

The Guardian Council’s response in defending its authority was fierce. Several members of the Council in separate interviews warned against any opposition to their opinion. Ayatollah Mohammad Yazdi, one of the jurist-members of the Council, said that any opposition to this decision is “opposition against the very essence of the regime.”[11] He once again reiterated that the decision of the Council is “legal, according to sharīʿa, final and irreversible.”[12]

Another member of the Guardian Council pointed out that invalidating a previously approved law by the Council is not unprecedented. In fact, the Guardian Council has struck down 130 laws after their adoption, based on the Article 4 power.[13]

Although the Court of Administrative Justice has not yet heard the merits of the case, it is unlikely for it to make a decision contrary to that of the Guardian Council. Thus one must look elsewhere for a solution.

The solution rests outside the Court and is contingent on a broader discussion on the virtually unlimited power of the Guardian Council. This controversy and the extreme circumstances that it represents, for the first time, has brought the issue of unlimited and unregulated power of the Guardian Council to the forefront and to the eyes of public. Whether the specific circumstances of this case (involving a religious minority and a 20-year-old law) will result in renegotiation of this broad power remains to be seen.

One consequence of the Council’s unilateral power to strike down laws on sharīʿa–compliance grounds, it deprives Parliament from referring the issue to the Expediency Council. The 1989 Constitutional Amendments created the Expediency Council to serve as a referee between Parliament and the Guardian Council in cases where the Parliament believes a law is necessary for the interest of the country but where the Guardian Council finds that law to be against sharīʿa.[14] In situations where, as here, the Guardian Council declares a law invalid after 20 years, it takes away Parliament’s power to invoke the procedure for Expediency Council review.

Probably because of this problem, the Speaker of Parliament’s latest reaction was to state that, even if the Guardian Council wanted to invalidate a law, it must ask Parliament to revise the previous law.[15] He also suggested referring the case to a special Council assigned to resolve the conflicts among the three powers (executive, legislative, judiciary), which was established by the Supreme Leader in 2011[16] based on his Article 110 powers.[17]

It might also be the case that the Supreme Leader, himself, intervenes and issues a government decree designed to deescalate the situation. Governmental decrees are an extension of the Supreme Leader’s authority outlined in Article 110 of the Constitution, which allows him to have the final say on any matter that he deems necessary. Despite the ad hoc nature and negative impact of governmental decrees on the rule of law, the Supreme Leader has used his power in the past to equalize diyah (blood money) of non-Muslims and Muslims.[18]

In short, the most critical question here is whether this controversy will impact the unlimited power of the Guardian Council by channeling it through specific procedures. It is unlikely, however, for the Supreme Leader to weigh in on the broader question of limits on the authority of the Guardian Council. Moreover, the Guardian Council possesses the sole power to interpret the Constitution. And it is unlikely for them—at least for the fuqahāʾ and perhaps for the legal scholars serving on the Council as well—to relinquish their own power by declaring the Guardian Council or Parliament’s bylaws that ignore the ten-day limit unconstitutional. Although for questions of constitutional interpretation all members of the Guardian Council and not just fuqahāʾ must vote, the super-majority requirement necessary for making such decisions makes it impossible to pass any decision without the support of the fuqahāʾ who comprise half of the Council.[19] In the end, it is thus left to the public and other officials to push for reforms of the scope of authority of the Guardian Council in the wake of this crisis.

 


 

[1] Qānūn-I Asāsi Jumhūri-yi Islāmī-yi IRĀN [The constitution of the islamic republic of iran] of 1979, as amended in 1989 [hereinafter Iranian Const.], Art. 91: “With a view to safeguard the Islamic ordinances and the Constitution, in order to examine the compatibility of the legislations passed by the Islamic Consultative Assembly with Islam, a council to be known as the Guardian Council is to be constituted with the following composition: 1. six ‘adil fuqaha’, conscious of the present needs and the issues of the day, to be selected by the Leader and 2. six jurists, specializing in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by the Head of the Judicial Power”.

[2] Iranian Const., Art. 94: “All legislation of the Islamic Consultative Assembly must be sent to the Guardian Council, which must evaluate it within ten days to assure its compatibility with the constitution and the Islamic criteria. The Council must return the legislation to the Assembly for reconsideration if it is incompatible; otherwise, the legislation can be executed”.

[3] Although the Guardian Council used this quote to reject the membership of religious minorities, critics argued that this statement was taken out of context and that, in fact, Ayatollah Khomeini at the time was warning against the candidacy of communists and Mujāhidin, not religious minorities. See: Ali Motahari’s Letter to the Guardian Council with regard to Sepanta Niknam (Oct. 4, 2017),

http://www.entekhab.ir/fa/news/373241/نامه-علی-مطهری-به-فقهای-شورای-نگهبان-درباره-سپنتا-نیکنام-نگرانی-امام-از-ورود-کمونیست%E2%80%8Cها-و-منافقین-در-شوراها-بود-نه-اقلیت-های-مذهبی-حضور-یک-شهروند-زرتشتی-در-شورای-شهر-مصداق-قاعده-نفی-سبیل-نیست. Moreover, the Guardian Council is not legally bound by the opinions of Ayatollah Khomeini.

[4] This precept has origins in Qurʾān 4:141 : “…God will not grant the disbelievers a way over the beliers.” According to this precept, any contract that results in domination of non-Muslims over Muslims is invalid. It has also used in the political realm to reject the government of non-Muslims over Muslims. Abbasali Amid Zanjani, Qawaid Fiqh Section On Public Law 25, 36 (1390/[2011]).

[5] Parliament’s Reaction to the Guardian Council’s Statement on Religious Minorities (Apr. 19, 2017),

http://www.dw.com/fa-ir/واکنش-رئیس-مجلس-به-ابلاغیه-جنتی-درباره-اقلیتهای-مذهبی/a-38502165.

[6] Fereshteh Ghazi, Ambiguities around the Membership of Sepanta Niknam in the Yazd City Council, BBC Persian (Oct. 11, 2017), http://www.bbc.com/persian/iran-features-41582287.

[7] Speaker of the Parliament Called the Suspension of the Zoroastrian Member of Yazd City Council Illegal, BBC Persian (Oct. 18, 2017), http://www.bbc.com/persian/iran-41668586.

[8] Iranian Const., Art. 13: “Zoroastrian, Jewish, and Christian Iranians are considered the only recognized religious minorities. They may exercise their religious ceremonies within the limits of the law. They are free to exercise matters of personal status and religious education and they follow their own rituals;”. Article 14: “… the government of the Islamic Republic of Iran and Muslims are required to treat the non-Muslim individuals with good conduct, in fairness and Islamic justice, and must respect their human rights. This principle is valid for those persons who have not conspired or acted against Islam and the Islamic Republic of Iran.

[9] Refusing to Admit Religious Minorities to City Councils Is a Constitutional Violation (Apr. 19, 2017), ISNA,

http://www.isna.ir/news/96013013574/جلوگیری-از-ورود-پیروان-ادیان-الهی-به-شورای-شهر-خلاف-قانون-اساسی

See Iranian Const., Art. 3: “In order to achieve the objectives mentioned in Article 2, the Islamic Republic government of Iran is obliged to use all of its resources in the following areas: ….7. The securing of political and social freedoms within the limits of law; 8. The participation of the general public in determining its own political, economic, social, and cultural destiny; 9. The elimination of all unjust forms of discrimination and the creation of just opportunities for everyone, in all spiritual and material areas;.. 14. The securing of all-inclusive rights for everyone, man and woman, and the creation of judicial security for everyone, equality for all before the law.”

[10] Ali Motahari’s Letter to the Guardian Council with regard to Sepanta Niknam (Oct. 4, 2017), Entekhab

http://www.entekhab.ir/fa/news/373241/نامه-علی-مطهری-به-فقهای-شورای-نگهبان-درباره-سپنتا-نیکنام-نگرانی-امام-از-ورود-کمونیست%E2%80%8Cها-و-منافقین-در-شوراها-بود-نه-اقلیت-های-مذهبی-حضور-یک-شهروند-زرتشتی-در-شورای-شهر-مصداق-قاعده-نفی-سبیل-نیست

[11] Yazdi: Opposition to the Suspension of the Zoroastrian Member of the Yazd City Council Is the Opposition Against the Government, BBC Persian (Oct. 24, 2017), http://www.bbc.com/persian/iran-41738808.

[12] Id.

[13] The Guardian Council Weighed in Prior to the Election (Oct. 26, 2017),

http://www.shora-gc.ir/Portal/home/?news/11390/10993/235366/شورای-نگهبان-قبل-از-انتخابات-نظر-داد

[14] Iranian Const., Art. 112: “The leadership orders the Expediency Council to meet in order to attend to cases where the Guardian Council finds legislation made by the Islamic Consultative Assembly in violation of the Shariat or the constitution; the Assembly, with regard to the welfare of the system, does not sustain the opinion of the Guardian Council; or for consulting on affairs that the leadership will refer to the Expediency Council; or other duties that are mentioned in the constitution. The leadership designates both the permanent and the transitional members of this council. Regulations that are pertinent to the Council are prepared and approved by its members themselves and approved by the leadership.”

[15] The Speaker of the Parliament Criticizes the Guardian Council for the Suspension of Sepanta Niknam (Oct. 29, 2017), BBC Persian, http://www.bbc.com/persian/iran-41796049.

[16] The Supreme Leader Appoints the Members of the High Council for Resolving Disagreements among the Three Powers (Jul. 25, 2011),

http://www.leader.ir/fa/content/8392/انتصاب-رئيس-و-اعضاي-هيأت-عالي-حل-اختلاف-و-تنظيم-روابط-قواي-سه-گانه

[17] Iranian Const., Art. 110: “The authorities and responsibilities of the leader:.. 7: coordinating the relationship among the three branches of the government and resolving any conflict among them….”

[18] Iranian Islamic Penal Code (2013), Art. 554.

[19] Iranian Const., Art. 98: “The interpretation of the constitution is the responsibility of the Guardian Council. This is determined with the approval of three-fourths of its members.”

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