راهگشایی هاشمی در تبیین حاکمیت در قانون اساسی جمهوری اسلامی ایران

The study of the constitutional law of the Islamic Republic of Iran is fraught with skepticism and denial. Skeptics highlight the dual implications of the Constitution's text regarding popular sovereignty and divine sovereignty. Deniers, based on a peculiar understanding of the theory of the Absolute Authority of the Jurist, attribute the powers derived from this theory to a single individual. Articles Fifty-Six and Fifty-Seven of the Constitution are the source of theoretical doubts about the possibility of studying the constitutional law of the Islamic Republic of Iran.
According to skeptics and deniers, Article Fifty-Six signifies the supremacy of divine sovereignty over popular sovereignty. Similarly, since the manifestation of divine will resides in the leader, his opinion supersedes other articles of the Iranian Constitution. Skeptics and deniers interpret the final phrase of Article Fifty-Seven, "the absolute authority over the order and the Imamate of the Ummah," as the legal expression of this interpretation of Article Fifty-Six. Contrary to the assertion that the Constitution holds no value against the divine will manifested in the absolute authority of the jurist, the authors believe it is possible to study the constitutional law of the Islamic Republic of Iran. Seyyed Mohammad Hashemi paves the way for such a study with his interpretation of absolute authority as state authority.
The arguments of the skeptics and deniers are as follows: Iran is a modern state and therefore has integrated sources of authority. As a result, among the popular and divine sovereignties expressed in Article Fifty-Six, one is more dominant and unifies the sources of authority. Since divine will is the reference for good and evil, and the divine command is manifested in the absolute authority of the jurist, divine sovereignty should be considered superior to popular sovereignty in Article Fifty-Six. Consequently, sovereignty in Iran is based on divine will and the will of the people—not as the framers but as the framed. According to these interpreters of Article Fifty-Seven, the implementation of divine will and sovereignty is at the discretion of the leadership. They also believe that the leader's powers are not limited to those mentioned in the Constitution, and no other authority has independent power in this regard.
Unlike skeptics and deniers, Hashemi considers the people to be the ultimate source of sovereignty. Although he does not explain how he arrived at this interpretation, his understanding of the theory of the Absolute Authority of the Jurist opens the way for such a view. Even a commentator like Mehrpour, who believes in popular sovereignty and has reported on the struggle between proponents of limiting and not limiting leadership powers in the Revision Council, could not explicitly make such a choice.
On one hand, Mehrpour seeks to understand and explain the Constitution from a constitutional perspective. On the other hand, he continually prompts the reader to question whether it is possible to ignore the implementation of Article Fifty-Seven and the powers in Article One Hundred and Ten. Mohsen Khalili refers to the absolute authority of the jurist as a state theory, addressing those who do not understand the necessity of the absoluteness of state power. Khalili views the jurist as being bound by the Constitution, though this isn't necessarily written. Therefore, he justifies the restriction in the form of a contract, even though constitutional principles govern every contract.
Mohammad Javad Arasta argues that even if there is some benefit, the jurist must remain bound by the law because the least harm of such a decision is the destruction of the law's general value and credibility—except in cases of clear benefit. Although Arasta theorizes Mehrpour's position in a constitutional way and displays more legal accuracy than Khalili, he did not fully embrace Khalili's conclusion that the absolute authority of the jurist is a theory of the state. He conflates the leader's position as one of the government's components, titled "Vali Faqih," with the absolute authority of the jurist as the theory of the state in the Islamic Republic of Iran. To a large extent, this interpretation is rational. Arasta is bound to the text of the Constitution, and the text is somewhat ambiguous, but he remains faithful to the spirit of the theory of the absolute authority of the jurist in the Constitution when formulating the limitations of the leader's power.
Hashemi, based on Imam Khomeini's 1988 letter, explains absolute authority as a theory of the state. According to him, since the powers listed in this letter are among the diverse functions of the government, they belong to the Islamic state. The difference between this letter and Imam Khomeini's earlier explanations, during his jurisprudence courses before the Revolution, lies in the context. At the time of the letter, the separation of powers and the legal regime had been established, and Imam Khomeini explained his theory with practical adherence to the written Constitution. His effort was to show that Sharia rules are not inherently restrictive to the exercise of government authority. According to Hashemi, "this absolute authority cannot be considered a hindrance to the rational division of the functions of governance among multiple branches." On this basis, divine sovereignty in social affairs has been transferred to the nation, and all the powers of the Islamic Republic must operate within the framework set by the "other articles." Hashemi has presented a more complete theory than other commentators and has advanced beyond them.
According to this interpretation, it should be understood that Article Fifty-Six is political rhetoric, not a legal framework. Article Fifty-Six serves to dispel accusations against a Shiite government during the Age of Absence, in line with certain hadiths such as the "Flag Hadith" and the prohibition of litigation before non-Masum. Its function is to show that this system is not satanic but divine, and that the sovereignty of the people is based on divine delegation. The authors of the Constitution have sought to demonstrate how they can establish a secular government while remaining religious believers. The legitimacy of this political system, according to Article Fifty-Six, derives from the belief and commitment of the Iranian people to the Constitution, regardless of religion, creed, or belief, as they determine their own social destiny.
Skeptics and deniers, citing the expression "apparent violation of the Constitution" in one of Imam Khomeini's letters, challenge this interpretation of the Constitution. Kadivar considers this phrase proof that the authority of the Faqih is not bound by "human laws, including the Constitution." However, Imam Khomeini attributed occasional non-adherence to the written text to the necessities of the Iran-Iraq War and called the war's end a suitable opportunity for strict adherence to the Constitution. The context in question is a clear defense of the need for all political actors to adhere to the Constitution. The apparent violation of the Constitution is not praiseworthy but preferable to a deadlock that disrupts balance, as the Constitution itself is a means to achieve this balance. Imam Khomeini does not regard the violation of the Constitution as commendable or normal; he sees it as the result of the irresponsibility of powerful political actors. Less than a year after the end of the war, Imam Khomeini initiated the process of revising the Constitution with the aim of ensuring "everyone operates according to the Constitution."
Efforts to study the Constitution of the Islamic Republic are not fruitless due to occasional violations. Without a constitutionalist reading, there is no agreed-upon normative framework for criticizing and evaluating the actions of rulers. Efforts that demonstrate how the existing texts can be read through a constitutionalist lens can elevate legal analysis beyond mere attention to regime and texts, encompassing the fundamental relationships that shape any idealistic text.