Pathology of the competence of the president in drafting the Charter of Citizen law

Document Type : Research Paper

Authors

1 Associate Professor in Law Faculty of Tehran University (Pardis Farabi)

2 MA. in International Trade Law, Islamic Azad University Tehran University Central Organization

Abstract

The fundamental rights and freedoms enjoyed by members of society are essentially interpretations of the broader concept of "human rights" at the international level. These rights are enshrined and updated in the constitutions of various countries, reflecting different historical contexts and governing principles.
Human rights encompass a set of privileges and entitlements that people inherently possess simply by virtue of being human. To clarify, a right can be understood as a "guaranteed individual preference" mandated and protected by a higher political authority. This guarantee and obligation remain constant regardless of the social status of the individual claiming the right or the moral implications of exercising it. This understanding of rights rests on two fundamental elements: "moral agency" or "being a person," and consequently, "inherent dignity." This necessitates the existence of legal institutions to uphold both the personhood of individuals as conscious agents and the inherent dignity or ultimate value of human beings.
According to the key principle of moral actuality, humans, as rational beings, possess the capacity to make valuable decisions and govern their own lives. Consequently, all individuals, regardless of external circumstances like cultural, social, economic, or political conditions, possess equal dignity, value, and rights. Furthermore, based on the principle of individual moral agency and self-regulation, people should have the freedom to determine their own destinies and manage their lives without obstacles to implementing their decisions. Since the concept and institution of rights were created to protect these fundamental aspects of human life, they necessarily possess an "organic and instrumental" character.
However, as "individual" preferences, rights can sometimes compete with other normative claims. They are balanced with other value demands, such as public interest and collective existence, by adhering to supporting theories of justice. Consequently, rights constitute a "minimum" domain belonging to justice and cover only a limited part of it. Furthermore, rights are designed to support individuals' sovereignty over their destinies and are "morally neutral," meaning they support individuals' decisions without moral judgment. Human rights view the human moral agent as one who governs their destiny, making choices that should be respected regardless of their moral content. This discussion aims not to impose moral options but to support individuals' chosen options.
Hence, rights, in the theory of preference, lack objectives under any condition, solely serving fundamental values like inherent dignity and moral effectiveness. Therefore, if fundamental values could be maintained without the aid of legal institutions throughout the development of collective human life, there would be no need for the concept of rights. This necessitates a continuous process of diagnosing and redefining the concept of rights while considering social transformations and addressing specific societal needs, always within the framework of fundamental values.
It's worth mentioning that human rights have many aspects and manifestations, categorizable under different patterns. Accordingly, the Islamic Republic of Iran has enumerated and recognized numerous examples of human rights in the third chapter of its constitution, advancing fundamental rights and freedoms. Furthermore, in addition to strong constitutional provisions, the drafting of the Law on Respect for Legitimate Freedoms and Protection of Citizen Rights, ratified on May 15, 2013, by the Islamic Council, aims to ensure the people's fundamental rights and freedoms.  Despite the emphasis in these laws, debates about protecting fundamental rights and freedoms often arise due to reliance on special methods, potentially conflicting with established legal standards. Ensuring the aforementioned rights and freedoms faces ambiguities, as seen in discussions around drafting a "Citizenship Rights Charter" by the presidency. Here, we will explore the case of the "Citizenship Rights Charter" to illustrate the challenges in upholding fundamental principles like the rule of law, separation of powers, supervision, and accountability. 

Keywords

Main Subjects

References

Amirarjmand, A. (1997). A reflection on the guarantees of constitutional rights and the theory of interpretation, Judiciary Law Journal, 1(10), 19-41. [In Persian].
Anderson, P. (1974), States, War and Capitalism; Studies in Political Society, London: Blackwell Publishing.
Alamolhoda, H. & Asl Zaeem, A.H. (2013). Examination of the legal dimensions of the president's responsibility in the implementation of the constitution according to Article 113 of the constitution, Journal of Legal Studies of the Islamic Government, 4 (2), 79-120. [In Persian]
Ashraf, A. (1980). Historical times of the growth of capitalism in Iran during the Qajar period, Tehran: Payam Publications. [In Persian]
Ashuri, D. (2008). Political encyclopedia, Tehran, Marvarid Publications. [In Persian]
Ashuri, D. (2009). We and modernity, Tehran: Serat Publications. [In Persian]
Askarzadeh, R. (2016). Examining the role of the police force in the protection of citizen's rights, M.Sc. Thesis of Public Law under the supervision of Mehdi Balavi, Islamic Azad University, Central Tehran Branch, Faculty of Law. [In Persian]
Badie, B. (1997). Culture and politics, translated by Naqibzadeh, A., Tehran: Dadgostar Publishing. [In Persian]
Badie, B. & Piren B. (2000). Government sociology, translated by Naqibzadeh A., Tehran, Baz Publications. [In Persian]
Badie, B. & Piren B. (2001). Two governments of power and society in the West and in Islamic lands, translated by Naqibzadeh, A., Tehran: Baz Publications. [In Persian]
Balavi, M. & Bayat Komitaki, M. (2017). The government of the right foundation, a three-volume course: The first book, meaning analysis, interpretation of Mina, Tehran: Majd Scientific and Cultural Forum Publications. [In Persian]
Balavi, M. & Bayat Komitaki, M. (2017). The government of the right foundation, a three-volume course: the second book, application in the Iranian society of Tehran, Majd Scientific and Cultural Forum Publications. [In Persian]
Balavi, M. & Bayat Komitaki, M. (2017). The government of the right foundation, a three-volume course: the third book, legal and extra-legal requirements of Tehran, Majd Scientific and Cultural Forum Publications. [In Persian]
Balavi, M. & Saeed, Z. (2016). Examining the lack of competence of the president to enact regulations in the legal system of the Islamic Republic of Iran, Public Law Knowledge Quarterly, 16, (5), 41-60. [In Persian]
Bandura, A. (2002), Selective Moral Disengagement in the Exercise of Moral Agency, Journal of Moral Education, 31 (2), 101-119.
Bentham, J. (1987), Anarchical Fallacies; Bing an Examination of the Declarations of Rights Issued during the French Revolution, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, (ed.) J. Waldron, London: Methuen Press.
Berlin, I. (1984), Two Concepts of Liberty, Four Essays of Liberty, Oxford: Oxford University Press.
Berman, M. (2008). The experience of modernity, translated by Farhadpour, M., Tehran: Tarh-e No Publishing. [In Persian]
Bina (2017). Charter of Citizen Rights of Tehran: Vice President's Office of Legal Affairs for Compilation, Revision and Publication of Laws and Regulations Publishing. [In Persian]
Donnelly, J. (1989). Universal Human Rights in Theory and Practice, Ithaca, New York: Cornell University Press.
Dworkin, R. (1987). Libralism, Public and Private Morality, (ed.) S. Hampshire, Cambridge: Cambridge University Press.
Falahzadeh, A.M. (2007). The ratio of citizenship rights and human rights, Judiciary Law Journal, 71(58),  47-64. [In Persian]
Gandsman, A. & Burnier, D. (2014), Can’t you at least die with a little dignity? The right to die debates and normative dignity, Bioethique online. ca/3/8.
Gewirth, A. (1982), Human Rights: Essays on Justification and Applications, Chicago: Chicago University Press.
Ghorbania, N. (2008). Human rights and humanitarian rights in Tehran, Ministry of Culture and Islamic Guidance Publishing. [In Persian]
Golding, M. P. (2008). The concept of right (1), the historical introduction of right and expediency, essays in the philosophy of law, philosophy of right and philosophy of value, translated and preface by Rasekh, M., Tehran: Tarh-e No Publishing. [In Persian]
Gorji Aztadrisani, A.A. & Fathi, Y. (2012). Comparative study of monitoring the application of selective qalifications, Judiciary Legal Journal, 76 (78),  211-246. [In Persian]
Habibnejad, A. Rajabi, M. & Mirzani, Z. (2016). Criminal protection of the fundamental rights of citizens in Iran's legal system, Criminal Law and Criminal Policy Quarterly,  1 (1),  1-24. [In Persian]
Hart, H. (2009). Freedom, ethics of law, an introduction on the philosophy of criminal and public law, translated and preface by Rasekh, M., Tehran: Tarh-e No Publishing. [In Persian]
Hamiti Waqif, A.A. (2008). Introduction to the science of law, Tehran: Hoqoqdan Publishing. [In Persian]
Hashemi, M. (2005). Human rights and basic freedoms, Tehran: Mizan Publishing. [In Persian]
Held, D. (2007). The formation of the modern government, translated by Mokhber, A.,Tehran: Agah Publications. [In Persian]
Ismaili, M. (2004). The role of the president in the implementation of the constitution, Journal of Communication and Religion,  3(24),  7-32 [In Persian]
Jafari Langarudi, M.J. (2008). General introduction to the science of law, Tehran: Ganj-e Danesh Publications. [In Persian]
Javid, M.J. & Ebrahimi, M. (2013). Citizenship duties in the Constitution of the Islamic Republic of Iran, Public Law Knowledge Quarterly, 4 (2), 25-46. [In Persian]
Kant, E. (2004). Ma Bada al-tabiah Akhlaq Mabani ma Bada al-tabiah Talim Fazilat, translated by Sanei Darehbidi, M., Tehran: Naqsh and Negar publications. [In Persian]
Kant, E. (2005). Lessons in moral philosophy, translated by Sanei Darehbidi, M., Tehran:Naqsh and Negar publications. [In Persian]
Kant, I. (1993), Grounding for the Metaphysics of Morals, (trans.) J. Ellington, USA: Hackle Publishing Company.
Katouzian, N. (1998). Philosophy of law, second volume of law sorces, Tehran: Sahami Enteshar Company Publishing. [In Persian]
Katouzian, N. (2013). Introduction to the science of law and the study of Iran's legal system, Tehran: Sahami Enteshar Company Publishing. [In Persian]
Kelly, J. (2009). A brief history of legal theory in the West, translated by Rasekh, M., Tehran: Tarh-e No Publishing. [In Persian]
Lotfi, H. & Dolatkhah, F. (2009). Urban management and its place in improving the rights of citizens, Human Geography Quarterly,  3 (2), 94-119. [In Persian]
Madani, J. (2006). Constitution and president's biography, Zamaneh Monthly, 33(4), 42-64. [In Persian]
Madani, J. (2007). Fundamentals and generalities of legal science, Tehran: Padeyar Publications. [In Persian]
Madhok, S. (2005), Autonomy and human rights, The Essentials of Human Rights, (eds.) K. M. R. Smith and Ch. Van den Anker, London: Hodder Arnold. Rawls, J. (1999), A Theory of Justice, Oxford: Oxford University Press, chap. 2.
Mahmoudi, A. (2007). Kant's political philosophy, political thought in the scope of Kant's theoretical philosophy and moral philosophy, Tehran, Negah Moaser Publications. [In Persian]
Mashhadi, A. & Jalili Morad, A. (2013). Doctrine of discretionary jurisdiction in Iranian and French law, thoughts on administrative law: a collection of articles donated to Dr. Manouchehr Motameni Tabatabai by the efforts of Jalali, M., & Vijeh, M.R., and House of Humanities Thinkers, Tehran: Majd Publications. [In Persian]
Mehrpour, H. (2001). The President and the responsibility for the implementation of the Constitution: a collection of discussions of the conferences of the Board of Follow-up and Monitoring of the Implementation of the Constitution of Tehran, Enteshar Ettelaat Publications. [In Persian]
Mohammadrezaei, M. (2000). The explanation and critique of Kant's moral philosophy, Tehran: Islamic Propaganda Office Publications. [In Persian]
Mousavi Bojnordi, M. & Mehrizi Thani, M. (2013). Citizen's rights from Imam Khomeini's (RA), Matin Research Journal, 61(15), 1-24. [In Persian]
Nabilo, H. (2008). Historical contexts and legal requirements of the formation of a modern government with an emphasis on the case of Iran, M.Sc. thesis in public law under the supervision of Mohammad Rasekh, Tehran: Shahid Beheshti University, Faculty of Law.
Navabakhsh, M. (2006). Study of the concept of city and citizen from the perspective of sociology, Journal of Sociology, 5 (3), 11-30. [In Persian]
Qari Seyyed Fatemi, M. (2004). Human rights in the contemporary world, book 2, analysis of rights and freedoms, Tehran: Shahr Danesh Institute of Legal Studies and Research. [In Persian]
Qari Seyyed Fatemi, M. (2007). What and why citizenship rights from theory to law, Judiciary Law Journal,  4(58), 24-46. [In Persian]
Qari Seyyed Fatemi, M. (2009). Human rights in the contemporary world, book 1, an introduction to the theoretical issues of concepts, the foundations of the territory and the subject, Tehran: Shahr Danesh Institute of Legal Studies and Research. [In Persian]
Qazi Shariat Panahi, A. (2012). Fundamental rights requirements, Tehran, Mizan Publishing. [In Persian]
Rahmatollahi, H. & Maleki, V. (2011). Legal nature and scope of responsibility for the implementation of the constitution by the president, Constitutional Law Journal, 15(8),32-48. [In Persian]
Rasekh, M. (2005). Theory of law and International human rights, Journal of Legal Research,  8 (41),  1-24. [In Persian]
Rasekh, M. (2006). Intrinsic and transverse characteristics of law, Tehran, Majlis and Research: Quarterly of the Research Center of the Islamic Legislative Assembly, 51)13), 43-68. [In Persian]
Rasekh, M. (2008). Freedom as a value, right and expediency, essays in philosophy of law, philosophy of right and philosophy of value, translated and preface by Rasekh, M., Tehran: Tarh-e No Publishing. [In Persian]
Rasekh, M. (2009). Theory of right, human rights in the contemporary world, Tehran: Islamic Human Rights Commission. [In Persian]
Razzaq Pour, Y. (2011). A look at citizenship rights, Kanon Monthly, 2(123), 87-98. [In Persian]
Rezaipour, A. (1999). A complete set of rules and regulations of citizenship rights, Tehran: Arian Publishing. [In Persian]
Rorty, R. (1993), Human Rights, Rationality and Sentimentality, On Human Rights, (eds.) S. Shute and S. Hurley, New York: Oxford Amnesty lectures.
Sadr Afshar, Gh. H. (1996). Persian culture today, Tehran: Kalameh Publishing. [In Persian]
Saeed, Z. (2015). Examining the President's legislation jurisdiction in the light of drafting the charter of citizen rights, M.Sc. Thesis of Public Law under the supervision of Mehdi Balavi, Qom: Farabi Campus, Tehran University, Faculty of Law. [In Persian]
Singer, P. (1996), Kant’s Ethics of Duty, Ethics, (ed.) P. Singer, Oxford: Oxford University Press.
Soltani, N. (2006). Social rights with citizenship rights, an example of the confusion of concepts in Iran's legal system, Majlis and Research, Quarterly of the Research Center of the Islamic Legislative Assembly, 13)51), 101-117. [In Persian]
Tabatabai Motameni, M. (2015). Review and analysis of citizenship rights and human rights, public freedoms and human rights in Tehran, Tehran University Publications. [In Persian]
Taghizadeh, J. & Ali Karmi, M., (2012). The concept of responsibility for the implementation of the Constitution of the Islamic Republic of Iran, Journal of Legal Studies, 6 (1), 93-118. [In Persian]
Vijeh, M. R. (2004). The principle of equality in modern public law, Basic Laws Journal, 1(2), 213-252. [In Persian]
Vijeh, M. R. (2005). The characteristics of the law in the legal system, a review of the law of legitimate freedoms and protection of the rights of citizens of Tehran, Dadgostar Publishing. [In Persian]
Vijeh, M.R.  (2011). Advanced course of public law (1), theoretical foundations and structure of the legal government, Tehran: Jangal Publications. [In Persian]
Vijeh, M.R. (2013). A reflection on the concept of jurisdiction and its application in administrative law, thoughts on administrative law, a collection of articles donated to Dr. Manouchehr Motameni Tabatabai by the efforts of Jalali, M., & Vijeh, M.R., and House of Humanities Thinkers, Tehran: Majd Publications. [In Persian]
Waldron, J. (1995). Introduction, Theories of Rights, (ed.) J. Waldron, Oxford: Oxford University Press.
Wellman, K. (2008). The concept of right (2), Sahem Hova Falad, right and expediency,essays in philosophy of law, philosophy of right and philosophy of value, translated and preface by Rasekh, M., Tehran: Tarh-e No Publishing. [In Persian]
 
 

Files

Share

How to cite

Statistics