Hasib - The Iranian Constitution: An Exercise in Contradictions

8/12/2019 Hasib - The Iranian Constitution: An Exercise in Contradictions

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The Fletcher School Online Journal for issues related to Southwest Asia and Islamic Civilization Spring 2004, Article 1

TheIranianConstitution:AnExerciseinContradictionsS.WaqarHasibI. Introduction

Since the overthrow of Shah Mohammed

RezaPahlevi

in

1979,

Iran

can

best

be

described

as

a nation of contradictions. Iranians are often

shownonU.S. televisionburningAmerican flags

and chanting death toAmerica,whilebehind

thecameratheylistentoMadonna,wearTommy

Hilfigerjeans andwatch the latest Los Angeles

Lakers games on satellite dishes.1 Iran ranks at

the top of the U.S. State Departments list of

nations that sponsor terrorism,2 yet Iranians lit

candles and heldmass impromptu vigils in the

streetsofTehranforthevictimsoftheSeptember

11attacks.3

Often a nations externally visible

characteristicsarea resultof its internalpolitical

structures.Mygoalinthispaperistoidentifyand

analyzetheinternalcontradictionsinherentinthe

Iranian constitution thatmaybe contributing to

Iransexternallyvisibleinconsistencies.Thisisan

important exercise for two reasons. First, from a

microscopic level, it offers an excellent

opportunity to apply the concepts of

constitutionalismthatwehavedevelopedinclass

toareallifesituation.Second,fromamacroscopic

level,forbetterorworsetheU.S.inrecentmonthshasadoptedanewproactiveapproachtopromote

democracy inSouthwestAsia.U.S.policymakers

must have a keen understanding of the

complexities of Irans political structure if this

newpolicyistosucceed.

II. The History Behind the Iranian Constitution

Aconstitutionisnotmerelyadocument,nor

asetoflaws.Rather,inmanywaysaconstitution

isanexpressionofthevalues,needs,anddesires

ofaparticular

community.

Thus

it

is

important

to

examine not only the actual content of a

constitution, but also the particular historical

context inwhich itwas created.One could not

properly study theU.S. constitutionwith out at

least abasicunderstanding of thehistory of the

British Empire inNorthAmerica, theAmerican

Revolution, and the Articles of Confederation.

Likewise, one cannotproperly study the Iranian

constitutionwithout firstexamining the chainof

eventsthatledtoitscreation.

A. From the Qajars to Reza Khan 1826 to 1941

Therootsof thecurrent Iranianconstitution

ratifiedin1980canbetracedbackoveracentury

earlier to 1826,whenRussia invaded Iran.Until

that point, Iran had largely remained free of

foreign influences since 1220A.D.,whenGengis

Khan and theMongols invadedwhatwas then

knownasPersia.Inthe19thcentury,theRussian

Empire sought to expand its territory and gain

access toa southern seaport in thePersianGulf,

thus becoming the first of several nations to

intervene in Iranian domestic affairs to advancetheir own geopolitical and strategic interests.5

Soonthereafter,theBritishEmpire,whichalready

controlled Afghanistan in the north and the

Indiansubcontinenttotheeast,tookadvantageof

Irans military weakness to exact a number of

economic concessions and trading privileges.

Most importantly, theQajar family,which then

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ruledIran,grantedtotheBritishtherighttobuild

communications and rail links from Turkey

throughout all of Iran, thus connecting Britains

EuropeanandMiddleEasternpossessions to the

jewelofitscolonialcrowninIndia.

Iran remained neutralduringWorldWar I,

thoughitwasusedasabattlefieldby theBritish,

the Turks, theGermans, and theRussians,with

devastatingresultsontheIranianpeople.By1918

the Britishwere able to turn it into a de facto

protectorate or colony. Iranian opposition to the

Britishpresenceintensified,supportedinnosmall

partbytheUnitedStatesandPresidentWoodrow

Wilsons policy of promoting ethnic self

determination. Reza Khan, a young but

charismatic general in the Iranian army, seized

controlofthisnationalistsentimenttoreformthe

Iranianarmedforcesandleadthemonaseriesofmilitary victories against Iranian tribal groups

andethnicminorities,eventuallybuildingenough

momentumtoousttheQajarsandcrownhimself

astheShahofIranin1925.

But Reza Khan was no less immune to

foreign pressures than his predecessors.Though

heembarkedonanambitiousplanof socialand

economicreformmodeledafterasimilarattempt

in neighboring Turkey to jumpstart the

industrialization process, he was forced out of

powerat

the

height

of

World

War

II,

when

he

refused to grant the British and the Russians

access to the TransIranian railway. The British

invadedin1941andinstalledhisson,Mohammed

RezaPahlevi,asthenewShah.

B. The Reign of Mohammed Reza Pahlevi 1941 to1978

Pahlevi allowed the British a great deal of

autonomyboth during and afterWorldWar II.

Angered by Pahlevis submission, Mohammed

Mossadegh, the democraticallyelected prime

minister and leader of Irans Nationalist Front

party, led a movement to nationalize Irans

lucrativeoilindustryin1951.Thiscausedagreat

dealof concernboth toBritain,whichcontrolled

most of Irans oilfields, and the United States,

whichwaslookingtoexpanditssupplyofenergy

resources to sustain its burgeoning postwar

economy. Before Mossadegh could succeed in

nationalizing the oil industry, however, Britain

and the United States successfully conducted a

covert operation in 1953, and, with Pahlevis

assistance, dissolved Parliament, overthrew

Mossadegh,and installedaproPahleviandpro

Westerngovernment(seeAppendixA).6

As a result of the 1953 coup, Iran under

Pahlevibecame an increasingly totalitarian, anti

democratic state. To prevent another unruly,

Mossadeghlike Parliament from being elected,

Pahlevi cancelled most popular elections, and

rigged the few thathe allowed.Tomonitor and

suppressanysignificantpoliticaloppositionfrom

developing,hecreatedasecretpoliceforceknown

as SAVAK. SAVAK personnelwere trained in

theUnitedStates and Israel,where they learned

scientificmethods to prevent unwanted deaths

from brute force [including] sleepdeprivation, extensive solitary confinement, and

anelectricchairwithalargemetalmasktomuffle

screamswhile amplifying them for thevictim.7

Thus, SAVAK was synonymous not only with

foreign intervention inIran,butwith tortureand

oppression as well. Moreover, during Pahlevis

reign,mostmajor decisions regarding Irans oil

outputweremadebyaconsortiumofWesternoil

companiesknownastheSevenSisters.Pahlevi

increasedmilitaryspendingsubstantially,thereby

furtheringIrans

reliance

on

Western

military

exporting nations such as the United States,

Britain,andFrance.

In 1962, Jalal aleAhmad, a prominent

Iranian philosopher, published Gharbzadegi, a

booksomebelievewasasimportanttotheIranian

Revolution as the CommunistManifestowas to

Marxism. Loosely translated as westoxication,

aleAhmad criticized Iranian leaders and

intellectuals for succumbing to the empty

promises offered by Westernstyle

industrialization

and

capitalism,

losing

any

sense

of their Iranian identity in the process.

Summarizing the frustration thatmany Iranians

felt afterdecadesof foreign intervention in their

country,aleAhmadwrote

[a]westoxicatedmanwho isamember

oftherulingestablishment[inIran]has

no place to stand. He is like a dust

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Spring 2004, Article 1 3

particle floating in space, or a straw

floating on water. He has severed his

tieswith theessenceofsociety,culture,

and custom.He isnotabondbetween

antiquity and modernity. He is not a

dividing linebetween the old and the

new.He is something unrelated to the

past and someone with no

understandingofthefuture.Heisnota

pointona line,butan imaginarypoint

on a plane or in space just like that

dustparticle.

Thewestoxicatedman never takes his eyes

off theWest.Hedoesnot carewhathappens in

hiscozy littlepartof theworld, in thiscornerof

theEast. Ifby chancehe is interested inpolitics,

heisawareoftheslightestshifttotherightorleft

on the part of the English Labour Party and heknows the names of American Senators better

thanheknowsthenamesofministersinhisown

countrysgovernment.Heknowsmoreaboutthe

commentators in Time and theNews Chronicle

thanhedoesabouthiscousininKhorasan.8

Around the same time as Ahmad and

gharbzadegi, another figure in Iranian politics

wasbeginningtogaininfluence.Startingin1960,

Ayatollah Ruhollah Khomeini, a Shii Islamic

cleric, led protests and resistance against the

Pahleviregime,

appealing

not

only

to

religious

conservativesandscholarsbutalsotoawidebase

of Iranians who felt disenchanted by the

governments proWestern policies and the vast

wealth of the political elite. Though exiled by

Pahlevi in 1964 for leading antigovernment

protests, Khomeini remained an immensely

popular figure in Iranian politics, even from

France,ashis followersdistributedaudiotapesof

hisspeechesadvocatingtheoverthrowofPahlevi

and the creation of a popularly chosen, Islamic

oriented

regime.

His

book,

Iranian

Government,covered threemain topics.First, it

was a radical condemnation of the Pahlevi

regime;second,itsaidthatIslamgavemanallthe

lawsheneededforhishappiness;third,following

along the lines of gharbzadegi to some degree,

Khomeini wrote that Islam is in danger, under

attack fromWestern and other regimes that are

dilutingitsvalues.

Meanwhile, as Khomeini and gharbzadegi

attracted more and more followers, Pahlevis

social and economic policies had driven the

country to thebrink ofdisaster.By 1978, on the

eve of the Iranian Revolution, an economic

recession, inflation, urban overcrowding,

governmentpolicies thathurt thebazaar classes,

glaring income gaps, and conspicuousWestern

style consumption by the elite and the lack of

politicalfreedomorparticipationwereallwidely

felt andbelied the numerous officialpredictions

that the GreatCivilization wasjust around the

corner.9

C. The Revolution, the Drafting, and the Redraftingof the Iranian Constitution1978 to 1980

At the end of 1978,Pahlevis regime finally

began to crumble. Thoughmany of the protestsand demonstrations that took place had strong

proIslamist elements, criticism of Pahlevi

emanated from all quarters of the population,

from the working class to professionals to

students, from Marxists to socialists to

industrialists. InJanuaryof1979,Pahlevi left for

the United States, ostensibly to obtain medical

treatmentbutpresumablyunder the assumption

thatcallsforhisousterwouldnotcease.Pahlevis

appointed primeminister coulddo little to stop

thestrikes

and

demonstrations

that

Khomeini

had

called for fromFrance,andbyFebruary 1, 1979,

Khomeiniwas able to return to Iran to a heros

welcome, with thousands of Iranians lining the

streetsontheroadtotheairport.OnFebruary11,

1979,Khomeiniandhis followers tookcontrolof

thegovernment.

Initialproposalsofaconstitutionhadalready

beencirculatedpriortoKhomeinisreturn,andby

early 1979 a commissionof Islamic scholars and

civiljuristshadapreliminaryofficialdraftready

for approval. This official draft contained a

numberofnotablefeatures:

ApopularlyelectedParliamentwhich

hadexclusivepowertopasslaws

No supreme leaders or any other

typeofsupraconstitutionalbody



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Adherence to sharia law, but no

suggestion that shariawas infallibleor

immutable

A Guardian Council of six civil

scholars and five Islamic scholars,who

would exercise only appellate

jurisdiction to examine whether laws

passed by Parliament conformed with

sharia10

Khomeini initially supported this

constitution.Hedeclared to reporterson several

occasions thathehadno intention toparticipate

ingoverningIran,butinsteadsoughttobeakind

ofspiritualadvisortothenation.Accordingtohis

representatives, the clergy neither deserved nor

sought any role in the new constitution.

Moreover, itwas tobe one of theworldsmost

progressive constitutions. As therepresentativeofGod,whoisthetrueleader,the

public will govern the state the freedom of

individualsandgroupswillbeguaranteed.11A

leading Iranian newspaper concurred that the

new constitution would take into account of

thosefreedomsthatarebasedontheU.N.Charter

ofHumanRightswomencanhold thehighest

governmenttheycanevenbecomePresident.In

this respect the IslamicRepublicwill in noway

resemble SaudiArabia. If the Republic is called

Islamicthat

is

simply

because

the

official

religion

ofthecountryisShiism.12

Over the course of the next two years,

though, it became increasingly obvious that

Khomeinis support for this preliminary

constitutionwaspurely superficialandbasedon

political expediency. Just two months after

ousting Pahlevi, Khomeini organized a popular

referendumaskingvoters todecideon thesingle

questionofwhether the formof the futurestate

wouldbetheIslamicRepublicornot.13Turnout

was

extremely

high

and

the

referendum

was

approved by 98.2 percent of the electorate.

Thoughthatnumberseemsartificiallyhigh,given

thewidespread disgustwith the former regime

andKhomeinisimmensepopularityatthetime,it

seems highly probable at the very least that the

referendumwouldhavepassedbyawidemargin,

eveninthemosttransparentofelections.

Regardless of the validity of the vote tally,

though, Khomeini used the passage of the

referendumasakindofmandatetooverhaulthe

proposed constitution, centralizing political

power in the hands of the clergy and, most

importantly, himself. First he and his followers

withdrew their support for the Constituent

Assembly, a kind of constitutional convention

whose purpose was to ratify the proposed

constitution.Khomeini attacked themembers of

thisassemblyasenemiesof Islam,declaring that

wewish to create an Islamic constitution, for

which no Westernisedjurists [are] neededbut

only noble members of the clergy and other

knowers of Islam.14 Given the appeal of

gharbzadegi, this kind of antiWestern rhetoric

provedtobeextremelypopular.

Instead of the nowdefunct ConstituentAssembly,Khomeinipushedforthecreationofan

AssemblyofExpertsinitsplace.Thisassembly,

thoughpopularlyelected,wasmuchsmallerthan

the Constituent Assembly, and Khomeini was

able to impose much stricter requirements for

candidacy.Notsurprisingly,whenelectionswere

held on August 3, 1979, 55 of the 72 delegates

werereligiousclericswho,with fewexceptions,

followed the socalled line of the Imam.

Moreover, unlike the referendum held a few

monthsearlier,

this

time

there

were

widespread

allegationsofvoterintimidation,ballotfraud,and

election rigging.Nevertheless, thenew assembly

immediately set to work discrediting the

proposed constitution, recommending instead a

new version that called for much greater

consolidationofpowerinthehandsofKhomeini

andtheclergy.

Armed now with at least a cursory

understanding of the historical genesis of the

Iranianconstitution, I turnnow to the textof the

Assembly

of

Experts

constitution,

ultimately

implementedin1980.4

III. The Iranian Constitution and its InherentContradictions

The1980constitution isadocumentofboth

massivescopeandminutedetail,declaringbroad

ideological visions for the nation as a whole,



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while delegating powers to branches of

government and describing specific procedures

forthosebranchestocarryouttheirfunctions.Itis

divided into 15 sections: the first section is a

lengthy preamble explaining the roots of the

IranianRevolutionanditsoverallgoals,whilethe

latter14sectionscontain145articlesthatdelegate

specific powers to various branches of

government, provide individual citizens with

various freedoms,andallow thegovernment the

ability to infringe on those freedoms in certain

situations. In the interest of brevity, the basic

structure of government is depicted in an

organizational chart in Appendix B.15 Below,

however, I discuss how some of the most

fundamental features of this constitution

contradicteachother.

A. Vel ayat -i-Faqih versus Separat ion o f Powers1. Dominance of the Leader over the PoliticalInstitutions

Perhaps themost importantcontradiction in

the Iranian Constitution lies in the concept of

velayatifaqih,roughlytranslatedasrulebyan

Islamicjurist.16KhomeiniurgedtheAssemblyof

Expertstoadoptvelayatifaqihasthebasisforall

other distributions of power under the

Constitution.They obliged inChapterV,Article

57,entitled

Separation

of

Powers,

which

states

that the Islamic Republic consists of three

branches of government, a legislature,judiciary,

andexecutivebranch,butthatallthreefunction

under the supervision of the absolute religious

Leader.17(Thereadermaybemorefamiliarwith

theArabicandPersiantermImam,ratherthan

its English translation as leader.) Clearly, no

onebranchcanbeseparatefromtheothertwo,as

thetitleofthearticlesuggests,whenallthreeare

subjecttoabsolutesupervisionbytheLeader.

In fact,whencomparing thespecificpowers

delegated to each of the separatebranches to

the broad powers granted to the Leader, one

wonderswhytheAssemblyofExpertsfoundany

need for the three inferior branches at all. For

instance, according to Chapter VI, Section 2,

Article 71, the legislature can establish laws on

allmatters as long as those laws comportwith

Islamic law.18However, this lawmakingpower

seems todirectly conflictwith thepowersof the

Leader, enumerated inChapterVII,Article 110,

which direct the Leader to delineate the

general policies of the Islamic Republic,

supervise[] over the proper execution of the

generalpolicies,andissue[]decreesfornational

referenda.19AccordingtoonescholaronIranian

constitutionallaw,whileKhomeiniwasLeaderhe

issued fatwas, or religious decrees, that were

treated as legislation on issues ranging from the

outlawingofwarrantlesssearchesandseizuresto

theestablishmentofdomesticconsumptionlevels

for caviar, among many other topics.20 Similar

contradictionsexistbetween theLeaderspowers

and those granted to the executivebranch. For

example, the powers to raise armies are listed

under Chapter X, along with the rest of the

executives power. But Chapter VII, Article 110states that theLeader is supreme commanderof

thearmedforces,andhealoneholdsthepowerto

mobilizeforwar.

Perhaps the most striking example of the

incompatibility of velayatifaqih and the notion

ofseparationofpowersoccurredduringtheIran

ContraAffair in 1986.At theheight of the Iran

Iraq War, Khomeini purchased arms from the

U.S., even though it appears that most of the

powers to conduct foreignaffairsaregrantedby

theConstitution

to

the

executive

branch.

When

detailsof the scandal surfaced in Iran,ahandful

of members of Parliament demanded an

explanation. Khomeini vented his anger

againstthemandcondemnedtheirdemandasan

act thatwouldonlyserve Iransenemies.21The

MPsquicklyapologizedinalettertothepresident

ofparliament,statingthatthequestionwhichwe

puttotheministerofforeignaffairswasbasedon

5 thebelief thatdiscussion of these problems in

parliament would be in the interest of the

Revolution

and

would

meet

with

the

approval

of

the Imam.Now thatwehave learned thewishes

oftheImamandbeeninstructedastotheinterests

ofthenation,weareawarethatthereisnolonger

anyreasonforourquestion.22

2.ThePoliticalInstitutionsStrikeBackDespite the authoritarian rule ofKhomeini,

therehavebeensomepromisingsignsinthepast



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fewyearsthatthebranchesofgovernmentmayin

factbeable toexercisepower independentlyand

separately of each other, andmore importantly,

independently and separately from the Leader.

Khomeini died in 1989 and was replaced as

Leader by Ali Khameini, who wields far less

personal charm and popularity. More recently,

Mohammed Khatami, a liberal cleric who

promisedpoliticalandsocialreforms,waselected

Presidentinregularlyscheduledpopularelections

in1997andagainin2001.Thatsuchelectionstook

placeatallsuggests thatvelayatifaqih isnotas

powerful a tool for Khameini as it was for

Khomeini.Moreover,sincetakingpowerKhatami

has engaged in a number of policies that have

irked the clergy and Khameini, policies that

would have been virtually unthinkable under

Khomeini. For instance, in 1998 in a globallytelevised interview with CNNs Christiane

Amanpour he declared his respect and

admiration for the American civilization, and

offered to open at the very least an unofficial

dialogue between the two countries.23 He has

also taken steps, albeit limited ones, to promote

greater freedom of the press, even though the

constitution specifically delegates ultimate

authority over radio and television to the

Leader.24ElaineSciolino,whocoversIranforthe

NewYork

Times,

said

of

Khatami,

[h]e

didn

t

just charmme, he charmed thewhole country

andthatswhyhewaselectedin1997Thisisa

manwhowentonpublicbuses.Hes thekindof

babykissingpoliticianwereused tohere in the

United States.He rolled up his sleeves publicly

andgaveblood.Hetriestostraddletheworldof

IslamandIslamicclericalism,andtheworldofthe

people.25

Alongwith the riseof the executivebranch

under Khatami, the legislativebranch in recent

years

also

exhibited

an

increasing

power

to

question the concept of velayatifaqih and a

willingness toactas itsown independentbranch

of government. In February of 2000, reformists

alignedwithPresidentKhatamiwonamajorityof

seatsinParliament,including27of30seatsinthe

capital, Tehran.26 Like Khatami, many of the

reformist candidates relied on savvy electoral

tactics one sees in liberal democracies. Their

campaignswere completewith catchy placards

and slogans. They mastered the art of making

whirlwindstopsaroundthecountryandpressing

the fleshwith the voters. They even learned to

flatter the packs of western journalists who

descendedonTehran:alavishpressbreakfastwas

held in honour of the foreign guests.27

Economist. Once in power, they displayed no

qualms questioning the power ofKhameini and

the clergy. For example, in June of 2001 they

openedapublicinvestigationintothestatemedia

company,which falls squarelyunder the control

oftheLeader.Perhapsevenmoresurprising,and

indicativeof thechangingbalanceofpowerafter

the death of Khomeini, Khameini acquiesced to

the investigation and even commended the

Parliament for protecting the health of the

institutionsunderhiscontrol.28

B. Power to the People Except, Not Really.

Closelyrelatedtotheissueofvelayatifaqih

is the question of who ultimately holds power

under the constitution. If themostbasic formof

power inanyconstitutional state is thepower to

create a constitution, then whoever holds that

power could be described as the constitutions

ultimate sovereign. In the U.S., for example,

ultimate sovereignty over the constitution

emanates6from

the

people.

In

contrast,

in

Iran

ultimate sovereigntyappears toemanate fromat

least fourdistinct sources: thepeople,Khomeini,

otherLeadersafterKhomeini,andGod.

1.SovereigntyofthepeopleUltimate sovereignty of the people is

recognized in the lengthy preamble of the

constitution. In a section entitled TheWrath of

the People, the preamble stresses the popular

roots of the revolution. Efforts by Pahlevi to

maintain power caused an outburst of popular

outrageacrossthecountry.Theregimeattempted

to quiet the heat of the peoples anger by

drowning theprotest anduprising inblood,but

thebloodshed only quickened the pulse rate of

the Revolution. In the course of this popular

movement, the employees of all government

establishments took an active part The

widespread solidarity ofmen andwomen of all



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segments of society and of all political and

religious factions, played a clearly determining

roleinthestruggle.29Furtheralong,inasection

entitledThePricetheNationPaid,thepreamble

recognizesthatitsexistenceisbasedonthefinal

andfirmdecisionoftheIranianpeopletobring

about anewpolitical system, that of the Islamic

Republic.Amajorityof98.2percentofthepeople

voted for this system.30 Thus, although the

language might be more ornate than We the

People of the United States do ordain and

establish this Constitution, the end result

appears to establish popular sovereignty as the

basisfortheconstitutionjustthesame.

2.SovereigntyofKhomeiniThe same preamble also seems to suggest

that ultimate responsibility for creating theconstitution lay with Khomeini, and that the

people merely followed his lead. For instance,

describing the roots of the concept of Islamic

government, the preamble states [t]he

planproposedby [Khomeini] at the height of

the period of repression and strangulation

practicedbythedespoticregime,producedanew

specific, and streamlinedmotive for theMuslim

people,openingupbefore them the truepathof

Islamic ideological struggle. Later, the people,

aroused,conscious,

and

resolute

under

the

decisiveandunfalteringleadershipof[Khomeini],

embarked on a triumphant, unified,

comprehensive and countrywide uprising,

(emphasisadded).31

3.SovereigntyoftheLeaderYet another potential source of ultimate

sovereignty under the constitution lies not in

Khomeini personally, but in the office of the

Leaderingeneral.ChapterII,Article5establishes

thisoffice anddeclares that exclusive leadership

over the ummah, or community, falls upon this

justandpiousperson,theLeader.32Moreover,

asdescribedabove,theconceptofvelayatifaqih

grants theLeader supervisory authority over all

theotherbranchesofgovernment,suggestingthat

it is the office, not Khomeini in particular, that

possessesultimateconstitutionalauthority.

4.SovereigntyofGodFinally,thereliesthepossibilitythatultimate

constitutionalauthoritymayliedirectlywithGod,

rather than in the hands of anymortalbeings.

Naturally, placing ultimate sovereignty in a

supernaturalbeingcreatesahostofpracticaland

theoreticalproblems.CanGodamendHis (Her?)

ownconstitution,orwoulddoingsoacknowledge

fallibility? If the constitution comes from God,

why did the Iranian people need to vote on

whethertheywantedanIslamicRepublicornot?

And, at the risk of sounding flippant,doesGod

have judicial review, and if so, how is it

exercised?

The Iranian constitution attempts to resolve

someof thesedilemmas.Article56,entitledThe

Divine Right of Sovereignty, states that

[a]bsolute sovereignty over theworld andmanbelongs toGod,and itisHeWhohasmademan

master of his own social destiny. No one can

deprivemanofthisdivineright,norsubordinate

ittothevestedinterestsofaparticularindividual

or group. The people are to exercise this divine

right in the manner specified in the following

articles.337

Butrather thanresolvedilemmas,Article56

onlycreatesmorecontradictions.Forexample, if

the people are the terrestrial representatives of

Godsconstitutional

sovereignty,

then

neither

the

Leadernorvelayatifaqihshouldbenecessary.In

fact,sincethereisvirtuallynoroleforthepeople

in selecting the Leader, the entire notion of

velayatifaqihquitepossiblyviolatesArticle56.

C. Substantive Rights That Lack Substance

The Iranian Constitution contains an

impressivelistofindividualrights,muchbroader

in scope anddetail thanour ownBill ofRights.

For example, the constitution at least nominally

grantsfullequalprotectiontowomen,obligesthe

government to provide every citizen the

opportunitytowork,providesforfreeeducation,

guaranteeshousing,andprotectstherightsofthe

accused to be represented by counsel in all

circumstances.Yet anumber of theseprovisions

areselfcontradictory.Forexample,publications

andthepresshavefreedomofexpression,except

when it is detrimental to the fundamental



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principlesof Islamor therightsof thepublic,34

leavingone towonderwhatexactlyfreedomof

expression entails under Iranian constitutional

law.Similarly,theConstitutionguaranteesaright

to freedom of association, where parties,

societies, and professional associations are

permitted, provided they do not violate the

principles of independence, freedom, national

unity, the criteria of Islam, or the basis of the

IslamicRepublic.35

Other individualrightsdirectlyconflictwith

articles elsewhere in the Constitution. For

instance,Article19saysthat[a]llpeopleofIran,

whatever theethnicgroupor tribe towhich they

belong, enjoy equal rights.36At the same time,

according to Article 64, Zoroastrians,Jews, and

Armenian Christians are each allowed only one

representative in the legislature,whileAssyrianand Chaldean Christians are allowed only one

between them, which hardly seems compatible

withtheconceptofequalrights.

Thelimitsonfreedomsenumerated inthe

constitution extend also to the economic sphere.

For example, Articles 46 and 47 declare that

everyone is the owner of the fruits of his

legitimatebusinessandlaborandthat[p]rivate

ownership, legitimately acquired, is to be

respected.37 At the same time, Article 43

declaresthat

one

of

the

overall

goals

of

the

national economy is the the prohibition of

extravagance and wastefulness in all matters

related to the economy, including consumption,

investment, production, distribution, and

services.38Clearly,aconflictinevitablyarisesifa

person consumes the fruits of his legitimate

businessandlaborinanextravagantmanner.

IV. Constitutionalism and the IranianConstitution

What

impact

do

these

contradictions

have

on

Iran as a constitutionalist state? Below I apply

someof the theoriesofconstitutionalism thatwe

havediscussedinclasstotheIranianconstitution.

A. Is the Iranian Consti tu tion a shamconstitution?

Walter Murphy writes that some

constitutions are shams, intended to deceive

their subjects that some form of political order

exists,whenin factpower isexercisedarbitrarily

to suit the particular needs of a political elite.

MurphycitesconstitutionsunderStalinandMao

as typical sham constitutions.39 Certainly,

underKhomeinionecouldmakethecasethatthe

Iranian constitution was little more than a

symbolic piece of paper, and that any power it

purported todistribute to individualbranchesof

government was completely neutralized by

Khomeinis centralized, autocratic regime. But

Khomeinihasbeendead fornearly15years,yet

Iranian politics continues to function in

accordancewiththeconstitution.Forexample,as

described above President Khatami and the

members reformist Parliament both came to

power through constitutionally mandated

elections. Voter turnout was very high in bothelections,highereven8 thanmostU.S.elections,

suggesting that the average Iranian citizen

believes that the constitution offers a real and

meaningfulframeworkforIranspoliticalculture.

Indeed,theEconomistdescribesKhataminotasa

Gorbachev,amanwhowouldmakepossiblethe

end of a system, let alone aYeltsin, amanwho

might precipitate that end, but rather a

reformer, one who can improve and thereby

safeguard the systembybringing about limited

change,not

one

who

would

tear

it

down.40

At

the very least, that a reformer such as Khatami

could come to power in Iran through

constitutional means suggests that Irans

constitutionismorethanameresham.

Thework of Iranian lawyer Shireen Ebadi,

who recently won the Nobel Peace Prize, also

suggeststhattheIranianconstitutionismorethan

justasham.ThecornerstoneofEbadiseffortsis

to use Iranian laws and Iranian institutions to

advance Iranian human rights. She believes in

piecemeal

legal

reform,

underpinned

by

an

enlightened approach to Shiajurisprudence, [to]

solve womens problems in Iran.41

Commentators describe her in sharp contrast to

otherreformersinIranwhotakeissuelesswith

lawsthanwiththewholelegalsuperstructure.42

Clearly, if the Iranian constitutionwere a sham,

women like Ebadi would not employ it to

advancetheircauses.



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B. Is the Iranian Constituti on an Expression of thePeople?

Oneschoolofthoughtsuggeststhatinorder

to be legitimate, a constitution requires at a

minimumsomesortofauthorizationforatransfer

ofpowerfromthecitizensitseekstogoverninto

the governing institutions it seeks to establish.

Under this theory, the Iranian constitution was

clearly flawed from its inception. Though there

can be no doubt that Khomeini enjoyed broad

popular support throughout the Revolution, the

manner inwhich he disbanded the Constituent

Assembly and replaced itwith theAssembly of

Experts substantially restricted the opportunities

foranynonreligioussectorsofthepopulationto

commentonorcontributetothenewconstitution.

Certainly,thereferendumontheIslamicRepublic

that passedwith a 98.2%majority suggests thatmany Iranians might have supported the

constitution had theybeen given a chance. But

suchspeculationismoot,anddoesnotchangethe

fact that Khomeini largely engineered the

ratificationoftheconstitutionbytheAssemblyof

Experts. Under this theory, the Iranian

constitution is about as legitimate as the U.S

constitution would be had Madison, Hamilton,

andJayhandpickedthemajorityofconstitutional

delegatesandthenratifieditthemselves,without

anyinput

from

the

states.

C. Does the Iranian Constitution entrench anyvalues?

Cass Sunstein writes that one of the most

basic functions ofa constitution is to entrench

certain basic rights and arrangements. In other

words, some issues are so important to the

viability of anation that theymustbe taken off

theordinarypoliticalagendaandentrenched

in a constitution.43 Constitutions create rights

and institutions that follow from some

independenttheoryofwhatindividualsareowedby government.44 Here one could argue that

Iranian constitution has been a resounding

success. After nearly 200 years of foreign

intervention, punctuatedby thebrutal tactics of

the foreignsupported Pahlevi regime, the single

mostimportant issueto theIranianpeople in the

wake of theRevolutionwas the right tobe free

fromforeigninfluence.Thisrightisentrenchedin

numerous provisions of the Iranian constitution,

including:

Preamble: Our nation, in the course of its

revolutionarydevelopments,hascleanseditselfof

thedustand impurities thataccumulatedduring

the past and purged itself of foreign ideological

influences

Article 3(5) (State Goals): [t]he

government of the Islamic Republic of Iran has

thedutyofdirectingall itsresources to (5) the

complete elimination of imperialism and the

preventionofforeigninfluence.9

Article 43(8) (Economic Principles): The

economy of the Islamic Republic of Iran is

basedonthefollowingcriteria(8)preventionof

foreign economic domination over the countrys

economy.Article 153 (Foreign Control): Any form of

agreement resulting in foreign control over the

natural resources, economy, army, or culture of

the country, as well as other aspects of the

nationallife,isforbidden.

Oddly, perhaps the best indicator of the

successof the Iranianconstitution inentrenching

the right tobe free from foreign influence is the

factthat,apartfromafewisolatedincidents,Iran

hashadvirtuallynocontactwiththeU.S.sinceits

constitutionwas

implemented.

D. Is the Iranian Constitution autochthonous?

H.W.O. OkothOgendo writes that many

African nations have constitutions, but lack

constitutionalism. He explains that many such

nationsarestrugglingtofindanautochthonous

constitution. This search for autochthony

involves not only the rejection of external

(specifically western) institutions and

constitutionaldevices,butalsoadistributionof

power that reflects the needs and goals of

underdeveloped, recently decolonized African

nations.45 Applying OkothOgendos definition

of autochthony to Iranyieldsmixed results. It

seems clear that Iran has rejected western

institutionsby creating an Islamic Republic and

placing broad supervisory authority over the

threebranchesofgovernmentinthehandsofthe

Leader and the clergy.But it isnot as clear that



10/12

Al Nakhlah10

Iran thisdistributionofpoweraccuratelyreflects

the needs and goals of the nation.Rather,more

thananythingelse thecentralizationofpower in

the hands of the clergy reflects Khomeinis

immensepopularity after the revolution and his

ability to impose the concept of velayatifaqih

into thenewconstitution.Thus, Iranseems tobe

strugglingwiththesamedilemmaasmanyofthe

nationsOkothOgendodescribes:howtocreatea

constitutionalist state without creating a

westernstyleofgovernment.

V. ConclusionWhat do Contradictions in theConstitution Mean to Iran Today?

The Iranian constitution is full of

contradictions. It purports to allocate power in

three separate branches, but then unifies those

branches under the supervisory authority of the

Leader and the concept of velayatifaqih.

Ultimate sovereignty under the constitution

emanates from at least fourdistinct sources that

conflictwitheachother:thepeople,Khomeini,the

office of the Leader, and God. The constitution

grantsindividualsbroadfreedomsbutthenlimits

those freedoms tovalues thatareconsistentwith

Islam, leaving one to wonder what freedom

reallymeansinIran.Theconstitutionhasallowed

forpopularreformers tocome topower through

regularly scheduleddemocraticelections,yet theconstitution itself was forged largely under the

direction of Khomeini in a most undemocratic

manner. The Economist summarized the effects

that these paradoxes are having on Iranian

politicallifetoday:

Not far to the southwest of Tehran stands

theholy shrineof ImamRuhollahKhomeini, the

ayatollahwho inspired, led and largely created

the modern worlds only theocracy. The site is

wellchosen.To thenorth isTehran, thecity that

swept

the

ayatollah

to

power

in

the

revolution

of

1979. To the south is Qom, the sunbaked

seminary townwhere he had studied, preached

andchallengedtheruleofShahMohammadReza

Pahlevi,andwhichisnowthetheologicalheartof

Shia Islam. Next door is Beheshte Zahra, the

main cemetery forTehran and the restingplace,

too,forabout30,000Iraniansoldierskilledinthe

198088warwithIraq.Soon,ifallgoestoplan,a

new international airport will open nearby,

bearingtheayatollahsname.Here,ifanywhere,it

seems, you can appreciate the transformation of

Iran fromanAmericanmanipulateddependency

toaproud,selfsufficientIslamicrepublic.10

Atadistance the shrine,avastedificewith

huge courtyards, towering minarets and blue

tileddomes,iscertainlyimpressive.Butoncloser

inspection this is not abuilding throbbingwith

life,orevenquietcontemplation.True,onofficial

mourning days, and especially onJune 4th, the

anniversary of the ayatollahs death, the

multitudesappear.Butusually thebuildingsare

quiet, the pilgrims few and, in the cavernous,

alabasterfloored hall where a greenbulbed

chandelier shinesdown on the ayatollahs tomb,

only a trickle of devotees come to pay theirrespects.Most of the shops are unlet, the snack

bars unpatronised, and the travertine steps are

beginning tobreakup.Evenbefore it is finished,

the shrine isbecomingdilapidated.So it iswith

theIslamicrepublicitself.

Themoststrikingaspectof thisdecay is the

virtualparalysisofgovernment,aconsequenceat

onelevelofthepowerstrugglethatconvulsesthe

country. At a deeper level, though, it is a

consequenceof the contradiction embedded in a

constitutionthat

stipulates

for

Iran

both

religious

and democratic rule. After nearly 24 post

revolutionaryyears,ithasbecomeapparent,ifnot

admitted, that a government cannot be

satisfactorily run both by the elected

representativesofthepeopleandbytheunelected

representativesofGod.46

Iconcurwith theEconomistsbleakoutlook

for Iran. True, the Iranian constitution allows

reformers such as Mohammed Khatami and

Shireen Ebadi to encourage Iranian political

progress

from

within,

and

not

outside

of,

its

institutions.But the same constitution couldjust

aseasilygiverisetoanotherautocraticregimelike

Khomeinis. In the end, I believe that this

constitutionwillnotbeabletowithstanditsown

internalconsistencies.

The views and opinions expressed in articles arestrictly the authors own, and do not necessarily



11/12


represent those of Al Nakhlah, its Advisory andEditorial Boards, or the Program on SouthwestAsia

and Islamic Civilization (SWAIC) at The FletcherSchool.

1 See,e.g.,Ingwerson,Martin.IransNextRevolution?NotbyZealAlone,ChristianSci.

Monitor,pg.unavailableonline(August28,1997)(availableat

http://search.csmonitor.com/durable/1997/08/28/intl/intl.7.html).

2Wolfe,Richard.U.S.NamesIranasChiefSponsorofTerror,Fin.Times,pg.unavailableonline(May21,2002)(availableat2002WL19893785).

3 Barzegar,Jamshid.September11,OneYearON:IranMistrustRemains.BBCnews.com

(September2,2002)(availableat

http://news.bbc.co.uk/1/hi/in_depth/world/2002/september_11_one_year_on/2233280.stm

).

4 IreliedheavilyinthissectiononanexcellenthistoryofIranbyNikkieKeddie,aleading

scholaronIranianpolitics.SeeKeddie,Nikkie.ModernIran:RootsandResultsof

Revolution, pgs1104.NewHaven:YaleUniversityPress,2003.

5 Foreshadowingeventsthatwouldoccurover150yearslater,IraniansreactedtoRussian

interferenceintheirdomesticaffairsbystormingtheRussianEmbassyandtaking

hostages.

6 DocumentsrecentlydeclassifiedbytheU.S.governmentconfirmtheCIAsinstrumentalrolein

overthrowingMossadegh.AvailableatGeorgeWashingtonUniversityNationalSecurity

Archiveathttp://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB28/index.html#documents

7Marouf,Fatima.ReviewofTorturedConfessions,byAbrahmian,Ervand,Berkeley:

UniversityofCaliforniaPress,1999,inHarvardHumanRightsJ.,Vol.13,Spring2000.

8 aleAhmad,Jalal.TranslatedbySprachman,Paul.PlaguedbytheWest,pgs.6775,New

York:CaravanBooks,1981.11

9 ModernIran:RootsandResultsofRevolution,pg.96,supra.n.4.

10 Schirazi,Ashghar.TranslatedbyOKane,John.TheConstitutionofIran:Politicsandthe

StateintheIslamicRepublic,pgs.2235,London:I.B.Tauris&Co.,Ltd.,1997.

11Id.atpg27.

12Id.atpg26.

13Id.atpg24

14Id.atpg30.

15 TheSurrealWorldofIranianPolitics:AnatomyofaPowerStruggle.Economist,pg.

unavailableonline(January16,2003).

16 Schirazi,supra.n.9,atpg.12.

17 IranianConst.,ChapterV.,Art.57.

18Id.,ChapterVI,Sec.2,Art.71.

19Id.,ChapterVII,Art.110.

20 Schirazi,supra.n.9,atpg.68.

21Id.atpg.70.

22Id.23 InterviewwithPres.MohammedKhatamibyChristianeAmanpour(January7,1998)

(availableathttp://edition.cnn.com/WORLD/9801/07/iran/interview).

24 GodsRule,orMans?Economist,pg.unavailableonline(January16,2003).

25 Profile:MohammedKhatami,BBCNews.com(June6,2001)(availableat

http://news.bbc.co.uk/1/hi/world/middle_east/1373476.stm).

26 IransReformersVaulttoVictory,Economist,pg.unavailableonline(February24,2000).

27Id.



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Al Nakhlah12

28 IransParliament:Reforms,butonlyasLargesse,Economist,pg.unavailableonline(June

21,2001).

29 IranianConst.,ChapterI.

30Id.

31Id.

32Id.,ChapterII,Art.5.

33Id.,ChapterV,Art.56.12

34Id.,ChapterII,Art.24





39Murphy,Walter,Constitutions,Constitutionalism,andDemocracyinJackson,Vickieand

Tushnet,Mark.ComparativeConstitutionalLaw,pg.197,NewYork:Foundation

Press,1999.

40 GodsRule,orMans?supra.,n.22

41 ShornofDignityandEquality,Economist,pg.Unavailableonline(October16,2003)

42Id.43 Sunstein,Cass,ConstitutionalismandSecessioninJackson,VickiandTushnet,Mark.

ComparativeConstitutionalLaw,pg.190,NewYork:FoundationPress,1999.

44Id.

45 OkothOgendo,H.W.O.,ConstitutionswithoutConstitutionalism:ReflectionsonanAfrican

PoliticalParadox,inJackson,VickiandTushnet,Mark.ComparativeConstitutional

Law,pg.190,NewYork:FoundationPress,1999.

46 GodsRule,orMans?supra.,n.2213


Hasib - The Iranian Constitution: An Exercise in Contradictions

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