Feasibility of Sharia Supervision on the Approvals of the Head of the Judiciary

Document Type : Research Paper

Authors

1 Student in Public Law, Imam Sadiq University, Tehran, Iran.

2 Ph.D. in Public Law, Public and International Law Department, Law and Political Sciences Faculty, Tehran University, Tehran, Iran.

10.22099/jls.2024.46701.4906

Abstract

The Law of the Islamic Republic of Iran emphasizes the necessity of aligning all legal norms with Sharia standards within the hierarchy of legal norms. The Islamic nature of Iran's legal system is fundamental, rooted in the fourth principle of the Constitution, which stipulates that all laws and regulations must be based on Islamic standards. This principle empowers the jurists of the Guardian Council to assess the Islamic nature of all legislation.
Mechanisms for this assessment include:

Monitoring the approvals of the Islamic Council (Principles 91, 94, 95, and 96 of the Constitution).
Provisions in accordance with Principles 170 and 173 of the Constitution.
The Guardian Council's interpretation authority, which allows for:

Complaints filed with the Court of Administrative Justice on Sharia grounds.



Opinions issued by the Guardian Council's jurists in response to court inquiries (as outlined in Articles 84 and 87 of the Law on Organizations and Procedures of the Court of Administrative Justice).
Article 87 of the 2012 Law on Organizations and Procedures of the Court of Administrative Justice mandates that general and specialized boards of the court adhere to the opinions of the Guardian Council's jurists. Furthermore, Article 87 of the 2023 amendment to this law limits the court's jurisdiction in cases of Sharia-contravening decrees to declaring them invalid, not annulling them.
The Head of the Judiciary possesses the authority to issue administrative approvals. These approvals constitute "laws and regulations" and are therefore subject to the requirements of the fourth principle of the Constitution. However, note (1) of Article 12 of the Act of the Court of Administrative Justice exempts the Head of the Judiciary's approvals from the General Board's jurisdiction, bypassing both legal and Sharia review.
Article 157 of the Constitution states that the Head of the Judiciary must be "just, knowledgeable about judicial affairs, and a capable manager." While this suggests the Head of the Judiciary possesses some level of independent judgment, the fourth principle of the Constitution unequivocally establishes the Guardian Council's jurists as the ultimate arbiters of Sharia compliance for all laws and regulations.
The amendment to Article 87 of the Court of Administrative Justice differentiates between approvals subject to Sharia-only complaints and those subject to complaints on both Sharia and other grounds. In both cases, the opinions of the Guardian Council's jurists are mandatory. The new law also explicitly grants the Guardian Council the authority to declare provisions contrary to Sharia invalid. These reforms enhance the Guardian Council's jurisdiction in cases of Sharia complaints against the Head of the Judiciary's approvals.
The new law also empowers the creation of a suitable structure for handling the Guardian Council's jurisprudence. This raises the crucial question of whether and how the Guardian Council can directly exercise Sharia supervision over regulations approved by the Head of the Judiciary.
Is it feasible for the jurists of the Guardian Council to exercise Sharia supervision over regulations approved by the Head of the Judiciary, either through the Court of Administrative Justice or through independent means?

Does the requirement for the Head of the Judiciary to possess independent judgment preclude Sharia supervision by the Guardian Council's jurists?
Does Sharia supervision of the Head of the Judiciary by the Guardian Council create a conflict of authority?
If Sharia supervision through the Court of Administrative Justice is possible, are there any obstacles to Sharia supervision through other means?

The jurists of the Guardian  Council have the authority to supervise the approvals of the Head of the Judiciary. The new Act of the Court of Administrative Justice establishes the Guardian Council's jurisdiction as a criterion for assessing the ability to file a complaint against regulations, including those issued by the Head of the Judiciary. The creation of an appropriate structure is essential to facilitate this supervision by the Council's jurists. This research employed a descriptive and analytical research method. Data was analyzed using documents and library resources.
The findings of this research indicate that Sharia supervision of the Head of the Judiciary's approvals falls within the jurisdiction of the Guardian Council's jurists. Article 87 of the new Law of the Court of Administrative Justice allows for Sharia complaints against these decisions to be filed with the Court. Furthermore, the Guardian Council's jurists can directly declare the contradiction of these approvals with Sharia to the Court of Administrative Justice.

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References

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Documents
Research Institute of the Guardian Council, (2022). Argumentative Opinions of the Guardian Council Regarding the Approvals of the Islamic Parliament; The Bill to Amend the Act of Organizations and Procedures of the Court of Administrative Justice, report code: 14010510, Guardian Council opinion date: 4/25/1401, published in the comprehensive system of Guardian Council opinions, (View date: 2023/12/8), in: http://nazarat.shora-rc.ir/Forms/FileLoad.aspx?id=EvCykO7z17w=&TN=l7tLyhyOobhXEiNsIbmkjlOk8YWV9+S/vM+MWZPvDew=&NF=bHiIRfspeW0= [In Persian]
Comprehensive System of Guardian Council Opinions, (1401). Claim that circulars No. 2790/84/1 dated 7/3/1384 and 19464/85/1 dated 11/25/1385 are against Sharia (accessed 8/11/1401) in: http://nazarat.shora-rc.ir/Forms/frmShenasname.aspx?id=JLTwLUAMNjc=&TN=+YmQoBqiDl6cn/yWjaVTxg==&MN=6jTFS9m7fHAHJDIrli7XBIUM87XiQSrcnbPz0Ip/baA= [In Persian]
Comprehensive System of Guardian Council Opinions, (1401). Inquiry regarding Article 170 of the Constitution, (viewed on 8/11/1401) at: http://nazarat.shora-rc.ir/Forms/frmShenasname.aspx?id=d+GvcRJZ3iU=&TN=/XG7FYxY/yd2hSO3SoFiUBDhmJI8yPJ0&MN=90WuMnA6SiShoL7WdiopyRFSjiB6ewIrOmHAV//RyMkNasPMH8NhMLPnttbdWmrQ2Qn+2wWakY9yxqqm38X06g== [In Persian]
Comprehensive System of Guardian Council Opinions, (1401). Inquiry regarding Article 170 of the Constitution, (viewed on 7/11/1401) at: http://nazarat.shora-rc.ir/Forms/frmShenasname.aspx?id=1ujzbemDeig=&TN=/XG7FYxY/yd2hSO3SoFiUBDhmJI8yPJ0&MN=DQVQxnNWKe5/tEXz1DixSZ+f50vHZQjX1bW9q649vD6yrc3EYupepjqJtCJ5qErxEM9/K55p5uRdTohu0IilBA== [In Persian]

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