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Islam and Constitutional Democracy in Iran



Foundation for Iranian Studies

Noruz Lecture,
George Washington University

March 17, 2008.
Saïd Amir Arjomand
State/> University/> of New York/> at Stony Brook

Last year was the centennial of Iran/>’s first Constitution, the Fundamental Law of December 30, 1906, and its Supplement of October 7, 1907. At the beginning of the twentieth century, people did not talk about democracy but constitutionalism by which they meant the rule of law and representative government. The idea of constitutionalism had come to Iran/> in the nineteenth century from the West via the Ottoman empire, and had been justified in terms of Islam from the very beginning. In a short tract published in 1871, Yak kalama (One Word), Yusof Khan Mostashār al-Dawla had forcefully argued that representative, constitutional government captured the spirit of Islam. This kind of argument was often heard during the Constitutional Revolution. It was asserted, for example, that constitutional government had been founded by Prophet Muhammad and was first demanded from the rulers of Europe by the returning crusaders, or that was the pristine form of government in Islam that had subsequently been forgotten by Muslims. (Cited in Ājudāni 2003-4, pp. 367-68, 371-72)
The pervasive assertion of the identity of constitutionalism and Islam often involved crude over-simplifications, misleading reductionism and double-entendres, and for many interesting examples I can refer you to a recent book by Māshā’ Allāh Ājudāni, Mashruta-ye irāni (Iranian Constitutionalism). But the illusion of the identity of Islam and constitutionalism was badly shaken as the secularizing implications of constitutional law and parliamentary legislation became clear. It was at this point that all the major issues and problems concerning the place of Islam in a modern constitutional order surfaced in the lively public debate in the new press. The idea of the full compatibility of Islam and constitutionalism was not given up, however, but became more robust in the proposal by Shaykh Fazl Allāh Nuri for ‘shar‘i’ or ‘shari‘a-permissible’ constitutionalism (mashruta mashru‘a). Although few of the problems raised in the debate were solved by it, the idea of shar‘i constitutionalism  became clearly defined and elaborated, and it was written into the Supplementary Fundamental Law as a limiting qualification to constitutional rights, and embodied in its Article 2 as a council of five Islamic jurists (mojtaheds) with veto power over any legislation by Parliament found contrary to the Islamic law.  As distinct from secular constitutionalism, this form of Islamic constitutionalism considered the shari‛a (Islamic law) a firm limitation on government and legislation.
There is one very important fact in Iran/>’s constitutional history that is sorely neglected. The attempt to constitute the council of five mojtaheds in 1911 failed, mainly because the Shiite religious leaders would not cooperate. From 1927 onward, however, we have the codification of important legal sections of the Shi‛ite shari‛a by a handful of Iranian clerical jurists, who had been involved in the Constitutional Revolution and saw their effort as the consolidation its achievements of. The result was
Iran/>’s Civil Code. It was prepared by a committee chaired by the architect of reform of the judiciary system and Minister of Justice, ‛Ali Akbar Dāvar, but consisted many of experts in Islamic law who were asked to recast the substantive norms of Shi‛ite law within the frame of the French Civil Code where these norms mattered and were in force, especially regarding inheritance and personal status law.  The shari‘a was thus made a major source of law in Iran/> with the Civil Code passed by the Majles in 1928 (Pt. 1) and 1935 (Pts 2 and 3). This, needless to say, did not follow the dead letter of the above-mentioned Article 2, but at least to the jurists who prepared it, followed its spirit. It was certainly a reasonable solution to the problem of the place of Islam and Islamic law in a modern constitutional order through the codification of civil law. Instead of being prepared by the Majles and accepted or rejected by any clerical council, it was prepared by those who knew Shi‛ite law and accepted by the Majles to become the law of the Iranian state. It is surely telling that the clerical elite of the new Islamic regime found very little indeed in the civil and other codes of the 1930s to be un-Islamic and in need of changing. The Civil Code survived the revolution virtually unchanged.[1] The Islamic revolutionaries only added the penal code of the shari‘a that had generally not been  in force in Iranian history.
Against this historical background, let us now take the often asked question: “Are Islam and democracy compatible?” In the light of the Iranian experience, the answer is clearly yes, when Islam is discussed as part of the larger issue of constitutional governance and not as the basis of the constitution.[2] This was in fact typical in the first, pre-ideological stage of Middle Eastern constitutional history down to World War II, whenthe shari‘a appeared as a limitation to government and legislation. There was never a presumption that it should be the basis of the constitution itself. The idea of Islam as the basis of constitution did not occur to Nuri or anyone else at the time. That idea was born  later  in the ideological stage of Middle Eastern constitutional history with Islamic political ideologies in Pakistan and Egypt, and their final importation to Iran/> during the Islamic revolution of 1979. As we are about to see, the shift from the idea of Islam as a limitation to that of Islam as the basis of constitution does make Islam and democracy incompatible
A new approach to the reception of constitutionalism in the Muslim world appeared when the Muslims of India decided to have their own modern state and created
Pakistan/>/>. It was the result of pouring the Qur’ān and hadith into the framework of a systematic total ideology like Marxism. Elsewhere, I have defined ‘ideological constitutions’ and dealt with the confusion of categories such as juxtaposing the modern constitutional notion of national sovereignty to scriptural texts to prove the superiority of God over the nation, which results in the declaration of God’s sovereignty, as in the 1956 Constitution of Pakistan, the first ‘Islamic Republic’ in history.  Mawdudi and his Jama’at-i Islami which pushed for the declaration had very limited impact on the content of that constitution but generated a new and ideologically powerful idea that the  state should be an ‘Islamic state” and its constitution should be based on the scriptural sources of Islam. This idea of the embodiment of an Islamist ideology in a shari`a-based constitution became a major goal of the ideologues of the Islamic revolution in 1979.
This made the 1979 Constitution of the Islamic Republic of Iran an ‘ideological constitution’. (Arjomand 1992a: 46): Islam was simply put in the place of the dominant ideology in the constitutional documents, being explicitly conceived as its ideological basis in the Preamble to the Fundamental Law of 1979. The shari`a, which had appeared in Iran’s first (non-ideological) Constitution as a limitation to the Legislative Power now came back with a vengeance to swallow the modernized state and its constitution. An Appendix consisting of a number of Traditions (hadiths) pertaining to its most important Articles demonstrated that the 1979 constitution of the Islamic Republic of Iran was partially derived from the Shi‘ite scriptural sources; and its Article 4 declared that all laws must be based on the ‘Islamic standards’ (mavāzin-e eslāmi) [i.e., norms of the shari‘a], and any found inconsistent with them is null and void, including the constitution itself.[3] (See Arjomand 1992b for further details) The critical function of nullification of all proposed and existing laws found inconsistent with Islamic standards’ was given to the six clerical jurists of the Council of Guardians. The Council of Guardians was thus given the function of protecting the ideological foundations of the Constitution of the Islamic Republic of Iran.[4]
Khomeini’s Constitutional Legacy
Khomeini’s legacy should be considered an additional factor to the ideological character of the Constitution of 1979. He was the charismatic leader of the Islamic revolution, and issued many of the early revolutionary decrees as the ‘Deputy of the [Hidden}Imam’[5] ( and not a jurist), and his manual of jurisprudence, Tahrir al-Wasila, was declared the law of the land. (Schirazi) He did not, however, show much direct interest in constitution-making in 1979, and entrusted the constitutional translation of his idea of the Mandate of the Jurist (velāyat-e faqih), to his clerical lieutenants, Montazeri and Beheshti.[6]  But in last year and a half of his life, Khomeini was forced to deal with the constitutional crisis that resulted from shortcomings of the 1979 Constitutions, and initiated a number of  significant measures to constitutionalize his amplified notion of the ‘Absolute Mandate of the Jurist’.
In January 1988, in a letter to the then President Sayyed `Ali Khāmane'i, Khomeini stated that government in the form of the God-given absolute mandate (velāyat-e motlaq) was "the most important of the divine commandments and has priority over all derivative divine commandments...[It is] one of the primary commandments of Islam and has priority over all derivative commandments, even over prayer, fasting and pilgrimage to Mecca.” (Khomeini, 11:459-60) This ruling was followed by a decree creating the Council for the Determination of the Interest of the Islamic Order (Majma`-e Tashkhis-e Maslahat-e Nezām-e Eslāmi) (hereafter the Maslahat Council) a month later(Khomeini, 11: 465), which was hailed as “the most important of all the achievements of the revolution.”[7]In April 1989, shortly before his death, Khomeini ordered the revision of the Constitution of 1989 with regard to seven specified items, including the issue of Leadership and the constitutional recognition of the new Maslahat Council.[8]
It is worth recalling these details of Khomeini’s final legal revolution because the subsequent constitutional developments in Iran/> are not intelligible without them. The Assembly of Leadership Experts met the day after Khomeini’s death, and elected President Khamana'i as Khomeini's successor, the Leader of the Islamic Republic. Except for "Imam", all of Khomeini's political titles were transferred to Khāmane'i. This was the most remarkably smooth succession in the history of world revolutions. The swift election of Khāmane’i was unconstitutional, however, as he did not have the rank of marja`iyyat as required by Article 107 of the 1979 Constitution which was still in force when he died.
By that as it may, the constitutional framework of post-Khomeini Iran/> is important for the system of collective rule that typically follows the death of the charismatic leader of revolution. I have called the regime that emerged in
Iran/> a system of rule by clerical councils. It has a Leader (rahbar) and three distinctive organs.  The Leader is a theocratic monarch ruling in the name of God with more extensive powers that any constitutional monarch or elected president in the world. In addition to his extensive constitutional powers, which include control of foreign policy through a National Security Council whose members he appoints, the Absolute Mandate of the Jurist entitles him to issue ‘governmental ordinances’ (ahkām-i hokumati), and he has done so at some critical points. The office is generally recognized as being incompatible with democracy. The official line that it is an elective office because the clerics of the Assembly of Experts who elect the Leader are themselves popularly elected would still privilege a very small social group, the Mullahs, over the vast majority of the lay population, thus making democracy or rule by the people questionable. The Council of Guardians remains the most important organ, but the Maslahat Council, and the Assembly of Leadership Experts are also central. Furthermore, the system extends beyond these councils and includes the Judiciary Power, and the Special Court/> for Clerics directly responsible to the Leader.
The Constitution of 1979 had given the Council of Guardians the power to supervise the presidential and Majles elections.[9] This incidental feature of its French model, supervision of elections, suggested the Council of Guardians as an instrument of political control to Iran/>’s ruling elite after the death of Khomeini and the end of his charismatic leadership. It is true that the Council of Guardians was used as an instrument of political control during the institutionalization of clerical domination under Khomeini too.[10] Also from the beginning, the Council of Guardians also took its supervisory power to mean the vetting of the candidates for the Majles on whose qualifications the Constitution had been silent. But the proportion of Majles candidates rejected while Khomeini was alive was about 15%; it jumped to over a quarter after his death. (Malekahmadi 1999)  In 1991, the Council exercised its authority to interpret the Constitution according to Article 98 to assert that “the supervision mentioned in Article 99 of the Constitution is approbationary (estesvābi) and applies to all stages of the electoral process, including the approval or rejection of the qualification of the candidates.”[11] (Cited in Madani 1995: 509 and `Alinaqi 1999: 8) The Council of Guardians, under fire from Khātami and the reformists, was forced to restrain its rejection of candidates for the 2000 elections, but in 2004, it again rejected nearly a third of the 8200 candidates, including 88 incumbent Majles deputies! In last week’s elections, I believe some 2,000 out of 7,200, or well over a quarter, including many reformists, were disqualified.[12] With the arbitrary and blatant abuse of the Council’s supervisory power, as one newspaper put it a few years ago, the eligibility to run for elections is “no longer a right but a privilege.” (Cited in Schirazi: 89) Needless to say, this is not consistent with any reasonable definition of democracy.
In the constitutional amendments of 1989 a new gate-keeping function in the selection of the clerical elite itself was given to the clerical jurists of the Council of Guardians: the supervision of the elections for the Assembly of Leadership Experts (Article 99).[13] The Council used these powers to disqualify over one third and one half of the candidates for the Assembly in 1990 and 1998 elections respectively.
The Council has refused to give any reasons for disqualifying candidates for all elected offices, including Presidency, nor any legal arguments for vetoing legislation. Instead, its original function of guarding the ideological foundations of the regime is overburdened by the new gate-keeping function which seriously vitiates its capacity for judicial review.[14] The result has been the Council’s blanket extension of inconsistency with the shari‘a to such items of legislation as the annual government budget! (Arjomand 2001)
The Maslahat Council, the other major clerically dominated organ of the regime, has outgrown the confines of Khomeini’s original terms of institution which stipulated that it “should not become a power alongside the other [three] Powers,” and even its expanded scope in the constitutional amendments of 1989, and have become a new legislative body of some importance. Unlike the Council of Guardians, the Maslahat Council can alter the disputed bills referred to it and is under no obligation to return them to any other organ. Furthermore, it began its independent law-making immediately by changing items of legislation other than those subject to disagreement between the Council of Guardians and the Majles.[15] Nevertheless, according to the Council of Guardian’s constitutional interpretation of October 15, 1993, “no legislative organ has the right to annul or rescind an enactment of the Maslahat Council.”[16] (Hāshemi, 2: 659) In May 2002, the Maslahat Council issued a statement in response to an article in the reformist newspaper, Nawruz, which had cited a number of instances of its legislation as unconstitutional. The Maslahat Council reaffirmed the constitutionality, with the Leader’s permission, of its legislation in matters other than disputes between the Council of Guardians and the Majles. This legislative power was implied in Clause 8 of the amended Article 110 of the Constitution which gave  the Maslahat Council responsibility for “solving the difficulties of the regime that cannot be solved through ordinary channels.” [17]  (Nawruz, 5/29/02) The argument seemed logical, but it could only reinforce the growing conviction among some of the leading reformists by that time that their goal of democracy was not achievable within the framework of the existing Constitution.
The last major clerical council, the Assembly of Leadership Expert, has limited legislative power.[18]. The critical importance of the Assembly of Leadership Experts had been demonstrated by its swift choice of Khomeini’s successor. In its internal regulations passed in 1983 (Articles 1 & 19), the Assembly had set up a seven-man Investigation Committee to supervise the conditions and comportment of the Leader on a continuous basis. This Committee was further given the responsibility of “supervising the administrative organization of Leadership in coordination with the Leader.” (Hāshemi, 2: 59-60; Madani, 2: 99-115) With its enhanced power of dismissal, and the mechanism for continuous vigil in the form of the Investigation Committee, the Assembly of Leadership Experts has become an influential organ in the collective conciliar clerical rule. In 1997, the Commmission advised the Leader,  Ayatollah Khāmana’i, to reconstitute the Maslahat Council under the retiring President Hāshemi Rafsanjāni with the mandate to assume its function of offering advice on major policies of the regime and thus implement the amended Article 110 of the Constitution. (Arjomand 2001: 324) This was just the beginning of a special relationship. When its first President died last summer, the Assembly elected Hāshemi Rafsanjāni its new President.[19]
Perhaps the most intriguing recent constitutional developments are those concerning the Judiciary. One of the aims of the constitutional revision of 1989 was to centralize Judiciary Power, and to that end, it replaced the Supreme Judiciary Council with a single Head of the Judiciary Power, a mojtahed to be appointed by the Leader for five-year terms (amended Article 157) in order, among other things, to reorganize the judiciary and implement the functions enumerated in Article 156 (amended Article 158), which included “supervision over the proper execution of laws.” I do not have time to survey the Islamicization of the judiciary system under Khomeini, or under the first Head of the Judiciary, Ayatollah Mohammad Yazdi (1989-99). Yazdi’s most important Islamicization measure was the June 4, 1994 Law of General and Revolutionary Courts which abolished the position of prosecutors and the appeal system. The resulting chaos was generally acknowledged, and his successor, Ayatollah Sayyed Mahmud Hāshemi Shāhrudi, declared the Judiciary he was taking over to be a wreck (virāneh), seventy years behind other institutions, and promised major reforms and reorganization.[20] (Ettelā`āt, 11/23/1999) Shāhrudi sought direct support of the Maslahat Council  for dealing with the situation (Ettelā`āt, 7/10/2000), and reintroduce the division of courts into criminal (keyfari), family and personal status (madani) civil and commercial (hoquqi), the differentiation of the offices of judge and prosecutor, specialized courts and an appellate system. (Manshur-e tawse`a, 3: 52) The law reestablishing the lower (dādsarā) and appellate courts passed the Majles in the spring of 2002. (Ettelā`āt, 4/26/02)
Shāhrudi, born in Iraq and a disciple of the martyred reformist jurist, Mohammad Bāqir al-Sadr (d. 1980), wasted no time in asserting himself as Head of Judiciary Power against the reformist President Khātami as Head of the Executive, by claiming that the reform was the concern of all the three Powers and he had as good a claim as the President for supervising the rule of law and observance of the Constitution. He is also a chief opponents of President Ahmadinejād’s economic populism, and the latter has instigated demonstrations against his as for shielding economic corruption and protecting capitalist exploiters. (The Economist ?) An interesting feature of the program for “judiciary development” (tawse`a-ye qazā’i), which he launched a year or two after his appointment, is Shāhrudi’s insistence that “development means empowerment” (Manshur-e tawse`a, 2:22), taken to mean the growth of judicial power to the fullest extent allowed by his somewhat expansive interpretation of the Constitution. He accordingly maintains that the Judiciary Power has not one but two constitutional axes: the obvious administration of justice and the not-so-obvious supervision of proper rule of law. This latter supervisory function is taken to mean the power of constitutional interpretation and judicial review to assure the constitutionality of laws and of administrative regulations. (Manshur-e tawse`a, 2: 15-16)  Shāhrudi’s hitherto uninstitutionalized claim to judicial review is unprecedented in Iran’s civil-law system.[21] He has also hinted at plans to set up a constitutional court with power of impeachment to keep the President as Head of the (rival) Executive Power in check.
It is interesting to note that in his statement on judiciary empowerment, Shāhrudi does not fail to note that the Head of Judiciary is responsible only to the theocratic monarch (vali-ye amr), and not to the Majles or the President, and that the Majles has no power of interpellation over him or any judge of official or the Judiciary. (Manshur-e tawse`a, 2: 35) But just here is the rub. The Leader used the judiciary to fight the reformers in the Majles and the press, promoting intelligence officers and torturers asspecial judges, and the Special Court for the Clergy, for disciplining the privileged social stratum of the Islamic Republic. The trials of the Interior Minister, ‘Abd Allāh Nuri and Hojjat al-Islam Mohsen Kadivar in the 1990s were particularly spectacular, but the Courts continued to operate and has put thousands of dissident clerics behind bars.[22]
The growth of the post-Khomeini clerical, conciliar rule has been directly at the expense of the one clearly democratic organ of the regime, namely the Majles. It has been systematically weakened by the Council of Guardians, harassed by the politicized judiciary, and at decisive moments, neutered by the Leader. This was the case when he defeated the reformist sixth Majles just as it was beginning, by ordering it to stop debating the press law, and the Majles Speaker obeyed his order as the Leader’s hokm-e hokumati.
The Khātami Presidency (1997-2005) and its Constitutional Impact
            It is suggestive to think of Khātami’s attempt to reform the Islamic Republic of Iran from within the regime in comparison to Gorbachev’s attempt to reforms the Soviet regime. He was relative successful in his glasnost (opening), but failed, with one notable exception, in his perestroika (restructuring). It may be recalled that Sayyed Mohammad Khātami had been forced to resign as Hāshemi-Rafsanjāni’s Minister of Islamic Culture and Guidance for his liberalism and relaxation of press censorship. After his landslide 1997 victory, he appointed Ata’ollāh Mohājerāni Minister of Culture and Islamic Guidance, and through him removed many of the restrictions on the press, and a popular pro-Khātami press immediately flourished. Before long, a number of these newspapers were closed down by the clerical judges seriatim, while their editorial staffs were given licenses by the Ministry of Culture to start new ones. This press spread Khātami’s new political discourse and neologisms such as “civil society” (jāme`a-ye madani), “legality” (qānun-mandi), and “citizens” (shahrvandān) used in his inaugural speech. To these were soon added others: “pluralism”(plurālizm, takkathur-garā’i, chand sedā’i) as opposed to “monopolism,”  “law-orientedness” (qānun-gerā’i), and finally, “reading” (qerā’at) [of Islam].  The success of the glasnost was not long-lived, however. The Leader used his power through the judiciary to muffle the press already under Khātami, and more ruthlessly under Ahmadinejād. The latter, it should be noted, also undid much of Khātami’s gains in promoting the rule of law by appointing two intelligence officers deeply involved in the notorious 1998 chain murders (qatlhā-ye zanjira’i) stopped by Khātami to the key Ministries of Interior and Information.
             Participation had been a major component of his Khātami’s perestroika or restructuring project for political development. He argued that “the most evident channel for participation is the election of the Councils,” meaning the village, town and provincial Councils envisioned in the Constitution of 1979.  The law of the organization and elections of the councils had eventually been passed in December 1996, and Khātami promised to have them elected. The elections took place in February 1999, as Khātami had promised, and gave his supporters another landslide victory with over 4/5 of the popular vote.  On the first anniversary of his now epic presidential victory, May 23/Khordād 2, Khātami  addressed the gathering of some 107,000 elected members of the village and town councils in Tehran, again emphasizing the importance of political development and the need to struggle for “the consolidation of Islamic democracy and popular government (mardom-sālāri).” He noted that sacred terms such as ‘revolution,’ ‘freedom,’ Islam’ and “leadership’ are not the monopoly of any group.”  The Leader was pointedly absent, and his message was read by the director of this bureau. In the course of the year, the councils elected some 718 mayors and are slowly defining their functions in relation to central government. (Arjomand 2005: ?? )
            In retrospect, the creation of the councils must be considered his single, most remarkable achievement in democratization. Its elections are relatively free, as the central government has neither the interest nor the knowledge to vet the candidates, except in Khuzestan, where Arab ethnic separatists gained control of the councils, and possibly other provinces where ethnic separatists present a threat. The councils have injected great vitality into local politics, and have become centers of local lobbying with connections to the  Ministry of the Interior and the Majles. One can go further and assert that the local councils have had a major impact on the Majles and have turned it into a platform for the promotion of local interests.[23] They reinforced the trend toward increasing provincial autonomy. Following the creation of the province of Ardabil, the large province of Khorasan was split into three, and the lobbying through the councils in Bojnurd, new capital of Northern Khorasan and other new capitals played a major role in this. (Ehsani ) The Municipal Council of Tehran soon became a training ground for national politicians. It was from the Tehran Municipal Council that Sa‛id Hajjāriān engineered the landslide victory of the reformists in the sixth Majles in 2000, and where he was tragically and almost fatally shot on the eve of Nawruz, almost exactly eight years ago. The Council served as the springboard for President Ahmadinejād in 2005, and will probably do so for the present Mayor of Tehran, Qalibāf, in the 2009 presidential election. (Shambayati)
            President Khatami and the reformists were, however, not adequately organized to take advantage of this achievement. In fact, the second Councils elections in February 2003 demonstrated the spectacular failure of Khātami and the reformists to maintain their control and was the first unmistakable signal of complete popular disenchantment with them. The turnout outside of the major cities was not low (about 50 percent for all of Iran), partly because the Ministry of the Interior had stood its ground and the candidates were not vetted by the Council of Guardians, and quite a few reformists seem to have been elected in smaller places. But the drop in participation in the big cities was sharp, and the Municipal Council of Tehran went entirely to the pro-Khāmene’i hardliners, with Mahmud Ahmadinejād being elected Mayor.[24] It cannot be said that the reformists have looked after the Councils.[25] Given his background, it is not surprising that President Ahmadinejād  has done much more for the local and municipal councils by massively channeling government expenditure away from Tehran and toward the provinces.
At the level of constitutional politics, by contrast, Khātami had no success. He appointed a Commission for the Implementation of the Constitution and constitutional supervision, citing Article 113 of the Constitution in 1998 Article 113 was one of the few unchanged from the original draft modeled on 1958 constitution of the French Fifth Republic, which makes the protection of the Constitution one of his main duties. The Commission did not display much energy. It avoided confronting the Council of Guardians and the judiciary, which under a more assertive head, Ayatollah Hāshemi-Shāhrudi, was putting forward its own claim to constitutional interpretation. In September 2002, Khātami finally introduced the bill to increase the powers of the President as the guardian of the Constitution, announced in his second inaugural speech a year earlier. The bill was passed by the Majles but, needless to say, promptly rejected by the Council of Guardians. It was in any case ill-conceived and too timid to make a significant difference. It missed the opportunity to make the first step toward introducing a form of judicial review under the aegis of the President, which was technically possible,[26] by couching the bill in administrative rather than judicial terms. The proposed presidential commission was given the power of "inspection" to determine violations of the Constitution, and it was not explicitly given jurisdiction to hear cases of human rights violations. Obliquely and at the end, the President was given the power to provide a budget for compensating victims of human rights violations!
Post-Ideological Advocacy of Islamic Constitutional Democracy
As the reform bills of the sixth Majles were being constantly blocked by the Council of Guardians and the failure of Khātami’s reform project becoming more evident, the conviction grew that meaningful democracy was not attainable within the existing constitutional framework and the theocratic constitution had to be discarded. Akbar Ganji, Hāshem Āghājari, ‘Ezzat Allāh Sahābi and a few others said so publicly. Meanwhile, with the Council of Guardians as the organ of constitutional review overwhelmed by the unexpected function of political control, new constitutionalist writings had been taken up by dissident clerics in the 1990s; and it had been taking a firmly anti-ideological turn in opposition to the theocratic regime.
In daring attempts to find an alternative to the official theocracy enshrined in the Constitution of the Islamic Republic of Iran, a number of dissident clerics have been striving for a different kind of constitutional democracy consistent with the shari‘a. Politically the most consequential of these was the radical modification of the Mandate of the Jurist into a purely supervisory one by one of its chief architects in 1979, Ayatollah Hasan-‘Ali Montazeri, Khomeini’s successor-designate until 1988 who had published a treatise in Islamic jurisprudence justifying the Mandate of the Jurist. (Montazeri 1988) The young jurist who followed Montazeri’s hint and developed a full-fledged critique of Khomeini’s constitutionally enshrined theory of Mandate of the Jurist was one of his students, Hojjat al-Islam Mohsen Kadivar. This critique unfolded in two stages. The first was implicit, and consisted of the relativization of Khomeini’s theory by presenting it as one among many recognized Shi`ite views of the state. (Kadivar 1997) Kadivar took the second and final step a year later with the publication of Hokumat-e velā’i  (Mandate-based government ) (1998), or government based on the “absolute appointive mandate of the jurists.” He now offered an explicit critique of Khomeini’s theory and a refutation of the legal arguments for the validity of the official doctrine of theocratic government. (Kadivar 1998, p. 13)
 Kadivar’s theory remains strictly within the bounds of Shi‘ite jurisprudence, and offers no hermeneutic questioning of the Shi‘ite jurisprudence itself as a historically contingent discipline.[27] The more radical epistemic break with Khomeini’s theocratic theory was made in a series of lectures and articles which were later published as two books by Mohammad Mojtahed-Shabestari. Undermining the premises of the constitution and official ideology of the Islamic Republic of Iran, he forcefully denied the key premise of the ideological era—namely that the shari‘a should be the basis of an Islamic constitution. (Mojtahed-Shabestari 1996, pp. 46-66) He argued that no political regime was ever founded on the basis of the science of Islamic jurisprudence (fiqh) in the past, and none could be so founded in the future. Rather, the science of jurisprudence, following Mohammad’s own example of solving contingent legal problems, can only offer answers to certain questions that arise within the institutional framework of existing political regimes.[28]
 Mojtahed-Shabestari’s ideas were very influential in the reform movement under President Khātami, who propounded the idea of ‘religious democracy’ together with the leading reformist intellectual, ‘Abdol-Karim Sorush. Sorush had denounced the characterization of Islam as an ‘ideology’ in the 1990s and moved on to argue that Islam was essentially secular, and consistent with democratic form of government which a fortiori are also secular. However, as democracy is majoritarian and the majority of Iranians are religious, for Sorush as for Khātami, democracy in Iran would naturally assume the form of a religious democracy. Sorush (2000a, pp. 215, 220) juxtaposed this underspecified idea of religious democracy to the view of the ruling clerical elite as “the fascist reading of religion,” and spoke of them as the “bearers of religious despotism,” affirming that “the new generation that has now arisen in Iran does not see the jewel of religion in jurisprudence and ideology.” Last but not least, in a major departure from his earlier purely instrumental, “managerial” view of democracy as a rational method of management of society, Sorush (2000a, pp. 376–77) now offers a normative definition of democracy as resting on three pillars: rationality, pluralism, and human rights. This last position, however, amounts to a recognition of the non-Islamic character of constitutional democracy, which needless to say, does not make it un-Islamic and even less ant-Islamic. Kadivar’s critiques have the same negative implication, namely that democracy is neither Islamic nor un-Islamic, and has allowed him to espouse democracy more recently.
To summarize the post-ideological trend among the dissident reformists, Montazeri’s idea may be considered a theory of ‘[Islamically] guided democracy’, and the Sorush-Khatami notion of  ‘religious democracy’ (mardom-sālāri-ye dini) an uncritical variant of majoritarian democracy, which appears increasingly at odds with what is called ‘new constitutionalism’ and an amplified conception of rule of law based on human rights in the current global political culture. (Arjomand 2007b)
Conclusion
Democracy is a Greek political concept, and its reception in Christianity Hinduism, Judaism and Islam has varied through different historical eras.  What my survey of the constitutional experience of Iran/> shows is that the relation between Islam and constitutional democracy is variable, as are forms of Islamic constitutionalism and conceptions of democracy in different historical periods. I have talked about three modes in which Islam and democracy are related in markedly differently ways. In the first mode, Islam appears as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second, Islam is considered the basis of the constitution and the state rather than a limitation to them. The first position allows the reconciliation of Islam and democracy, while the second renders the two incompatible. The second mode is typical of the ideological phase in Middle Eastern history, and it shaped the Constitution of the Islamic Republic of Iran, which remains in force in theory and in practice. The pendulum has globally swung back from ideology to the rule of law, however, and there are signs of an incipient new phase of post-ideological Islamic constitutionalism in the Muslim world. We are witnessing a return to the idea of limited government-- this time as the rule of law according to a constitution not based on but inclusive of the principles of Islam as the established religion. In the first two stages of constitutional history, Iran/> was the recipient of a broader global wave washing through the Muslim world.  The notion of Islamic democracy put forward by Kadivar, Sorush and Khātami  may well be part of  the global wave of post-ideological constitutionalism. It remains to be seen, however, when and if they become embodied in constitutional law of Iran/>. One would expect this to be the case in the long run. Let me leave you with this hope but also remind you of the saying by J.M. Keynes to the effect that in the long run we are all dead. Thank for your patience.




[1]  The revolutionary attempt to Islamicize the judiciary procedure by abolishing the procuracy and collapsing the functions of prosecutor, investigator and judge into a single judge has been abandoned and the procuracy restored. We can therefore say that the lasting effect of codifications of the 1920-30s was the replacement of Islamic jurisprudence by legislation, and the Islamic revolution of 1979 did not change this substantially. Through the veto power of the jurists of the Council of Guardians, Islamic jurisprudence itself has been converted to ‘negative legislation’ (to use Kelsen’s term). On the positive side, however, Article 167 of the Constitution of the Islamic Republic makes Shi‘ite jurisprudence only a residual source of law in the absence of statutory law.

[2]  This is not really surprising. No modern democratic constitution was ever based on Christianity in the West or Hinduism in India. The presumption that the constitution of Islamic countries should be based on Islam arises out of confusion of categories. (Arjomand, 2007; 2008)

[3]  The Appendix has, however, not been reprinted with any of the subsequent editions of the Constitution of the Islamic Republic that I have seen. Can we therefore conclude that it is no longer considered part of the constitutional law o Iran?

[4]  This was not accidental but the result of following the conseil constitutionnel of the 1958 French Constitution which was in turn influenced by Hans Kelsen’s idea of a constitutional court as  ‘the Guardian of the Constitution’ in the late 1920s.

[5]  The term derived from the traditional notion of ‘general deputyship’ (niyābat-e ‛āmma) of the Hidden Imam has not made its way, and has been replaced in the discourse of the Islamic Republic of Iran by near-equivalent terms, val-yi amr, or vali-ye faqih, which I have rendered as ‘theocratic monarch’.

[6]  The concept had traditionally been defined narrowly as the authority in matters of hisba devolving on the jurist by default—that is, in cases where the principal was lacking or deficient. Khomeini expanded it into a theory of theocratic government based on the mandate of the jurist to rule (Arjomand 1988)

[7]  By Ayatollah `Abdol-Karim Musavi-Ardabili, the President of the Supreme Judiciary Council. (Schirazi: 236)

[8]  The Council for the Revision of the Constitution (shurā-ye bāznegari-ye qānun-e asāsi), thus constituted, was given two months to complete its task. It did not assume any general constituent powers, but rather saw its scope limited strictly to these items according to Khomeini’s authorization. (1989 Proceedings, 1: 164)

[9]  This was the result of the assimilation, in the original draft constitution of 1979, of the Council of Guardians to the French Conseil Constitutionnel as defined in the 1958 French Constitution.

[10]  During the first presidential elections took place a month after the ratification of Constitution, and, with no clear guidelines for the supervision of elections, the Council of Guardians approved the candidacy of 106 and rejected only 18, mostly Leftists. The Guardian jurists must have regretted this lenience, which allowed  Bani-Sadr to become the first Iran’s President. In the next presidential elections in July 1981, they were more strict in determining when a candidate was among “the religious and political figures (rejāl)” and a “believer in the bases of the Islamic Republic of Iran,” with such vaguely defined qualities as management capability, trustworthiness and piety. (Article 115) From then on in each presidential elections, only a handful of men would meet the Council of Guardians unspecified criteria: 4 out of  the 238 in 1997, 10 out of over 800 in 2001 and 7 out of 3010 in 2005.


[11]  The formula was adopted by an amendment to the electoral law in July 1995.(Hāshemi, 2: 315)

[12]  I have not checked the final figures after the last minute back-and-forts.

[13]  A law passed by the Assembly pursuant to the amendment transferred the examination of the candidates’ to determine the requisite level of ejtehād to it.[13](Hāshemi, 2: 53-54)

[14]  It can be stated categorically that the Council of Guardians has made no contribution to institution-building in the Islamic Republic of Iran. The main reason for this failure is the absence of a written jurisprudence remotely comparable to the jurisprudence of other constitutional courts (or the Supreme Court in the US).

[15]  In fact, the latter group of items only amounted to less than a third of its enactments in the first four years of its existence.

[16]  Notable instances of legislation by the Maslahat Council include an April 1991 law establishing a High Disciplinary Courts for Judges, the introduction of alimony and appointment of female judges in November 1992, which paved the way for the amendment, in April 1995, of the law of judiciary appointment to allow appointment of women as judges, the July 1994 law of military courts and the May 1995 law of governmental punishments concerning smuggling and foreign currency. (Hāshemi, 2: 467, 648-59) The legislative power of the Maslahat Council came under reformist attack after their victory in the parliamentary elections of 2000.

[17]  It should be noted that the Maslahat Council includes the six clerical jurists of the Council of Guardians are mojtaheds. It should be pointed out that the creation of the Maslahat Council has in fact increased the power of these jurists who have been included among its member from the very beginning. The jurists of the Council of Guardians now wear two hats.As one of them once boasted, “I have one responsibility in the morning, another in the evening. My responsibility in the morning is to speak according to the shari`a [in the Council of Guardians], my responsibility in the evening is to see the public interest [in the Maslahat Council]!”  (Cited in Arjomand 2001: 3??)

[18]  However, as Ayatollah Javādi Āmoli (1998: 12) rightly point out, it can exercise independently of the Leader, unlike the Maslahat Council.

[19]  Ayatollah ‘Ali Meshkini died on 30 July 2007/8 Mordād 1386.

[20]  The chronic shortage of judges with the requisite training in Shi`ite jurisprudence, however, made any further Islamicization unlikely. There were only 5,000 judges for 10,000 positions, while recognized institutions produced only 600 graduates a year. (Ettelā`āt, 11/30/1999) Only a small proportion of these come from the madrasas or can become mojtaheds.


[21]  It is based on an expansive interpretation of Articles 156, 161, 167 and 170, concerning the legality of Islamic standards and uniform judicial process, and finally, of Articles 173 and 174, which set up, respectively, a High Administrative Court and a National Inspectorate under the supervision of the Head of the Judiciary.

[22]  Unverified figures by a London-based organization of dissident clerics claimed there were 3,000 clerics in the Courts prisons in 1998. (Buchta, p. 98)

[23]  This has been the result of the fractured nature of parliamentary representation in the absence of political parties, which would presumably have national rather than local platforms, and the severe weakening of the Majles as national legislature by the Council of Guardians and the Maslahat Council.

[24]  In Tehran, less than a third of voters turning out (a historic low, even though the official breakdown of Tehran vote has apparently never been made public) As several people told a researcher, “what can we expect from local councilors, when even the President of the country is stymied from pursuing his agenda?” (Tajbakhsh 2003: 2) In the December 2006 local elections, the turnout for Tehran reverted to about 35% (Tajbakh, unpublished paper)

[25]  In fact, in their typical inattention and disarray, the reformist Majles has passed the 2003 Tax Amalgamation Law, which removed what little financial autonomy the Councils have had. (Tajbakhsh 2003: 2)

[26] I had urged the Office of the President, through Vice-President Abtahi and a number of reformist members of the Majles, to do so.

[27]  The clerical establishment felt threatened by Kadivar and sentenced him to eighteen months in prison by the Special Court for Clerics in April 1999.

[28]  Furthermore, Mojtahed-Shabestari (2000, p. 12) explicitly refutes the two cardinal tenets of the official clericalist reading of Islam, namely that “Islam as a religion has political, economic and legal regimes based on the science of jurisprudence” suitable for all ages, and that “the function of government among the Muslims is the execution of the commandments of Islam.”