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A Guide to the Legal System of the Islamic Republic of Iran
by Omar Sial
Published March 2006
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Omar Sial is a partner in the law firm of Hasan & Sial, Advocates and Corporate Counselors.
Table of Contents
Administrative divisions (or Provinces)
Constitutional Background
The Judiciary
Iran, also called Persia, is a Middle Eastern country located in Southwest Asia. It borders Armenia, Azerbaijan, and Turkmenistan to the north, Pakistan and Afghanistan to the east, and Turkey and Iraq to the west. In addition, it shares the Persian Gulf waters with Kuwait, Saudi Arabia, Bahrain, Qatar, and the United Arab Emirates. Known as Persia until 1935, Iran became an Islamic republic in 1979 after the ruling shah was overthrown by a popular revolution. The official name of the country is Islamic Republic of Iran and Shi'a Islam is the official state religion.
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Iran is divided into 30 provinces. These are: Ardabil, Azarbaijan-e Gharbi (West Azarbaijan), Azarbaijan-e Sharqi (East Azarbaijan), Bushehr, Chahar Mahaal and Bakhtiari, Esfahan, Fars, Gilan, Golestan, Hamadan, Hormozgan, Ilam, Kerman, Kermanshah, Khorasan-e Jonoubi (South Khorasan), Khorasan-e Razavi (Razavi Khorasan), Khorasan-e Shomali (North Khorasan), Khuzestan, Kohkiluyeh and Buyer Ahmad, Kurdestan, Lorestan, Markazi, Mazandaran, Qazvin, Qom, Semnan, Sistan va Baluchistan, Tehran, Yazd, Zanjan.
Iran is a constitutional Islamic Republic, whose political system is laid out in the 1979 constitution called Qanun-e Asasi. Iran's makeup has several intricately connected governing bodies, some of which are democratically elected and some of which operate by co-opting people based on their religious inclinations. The concept of velayat-e faqih (guardianship of the jurist) plays an influential role in the governmental structure. It is vital to understanding some of the inspiration, basis, and institutions such as the position of the Supreme Leader and the Council of Guardians.
The government is based upon the Constitution that was approved in a national referendum in December 1979. This republican Constitution replaced the 1906 constitution, which, with its provisions for a shah to reign as head of state, was the earliest constitution in the Middle East. Soon after the Revolution, however, on March 30 and 31, 1979, the provisional government of Mehdi Bazargan asked all Iranians sixteen years of age and older to vote in a national referendum on the question of whether they approved of abolishing the monarchy and replacing it with an Islamic republic. Subsequently, the government announced that a 98- percent majority favored abrogating the old constitution and establishing such a republic. On the basis of this popular mandate, the provisional government prepared a draft constitution drawing upon some of the articles of the abolished 1906 constitution and the French constitution written under Charles de Gaulle in 1958. Ironically, the government draft did not allot any special political role to the clergy or even mention the concept of velayat-e faqih.
Although the provisional government initially had advocated a popularly elected assembly to complete the Constitution, Khomeini indicted that this task should be undertaken by experts. Accordingly the electorate was called upon to vote for an Assembly of Experts from a list of names approved by the government. The draft constitution was submitted to this seventy-three member assembly, which was dominated by Shia clergy. The Assembly of Experts convened in August 1979 to write the constitution in final form for approval by popular referendum. The clerical majority was generally dissatisfied with the essentially secular draft constitution and was determined to revise it to make it more Islamic. Produced after three months of deliberation, the final document, which was approved by a two- thirds majority of the Assembly of Experts, differed completely from the original draft. For example, it contained provisions for institutionalizing the office of supreme religious jurist, or faqih, and for establishing a theocratic government.
The first presidential elections took place in January 1980, and elections for the first Majlis were held in March and May of 1980. The Council of Guardians, a body that reviews all legislation to ensure that laws are in conformity with Islamic principles, was appointed during the summer of 1980. Presidential elections were held again in 1981 and 1985. The second Majlis was elected in 1984.
According to Iran's Constitution, the Supreme Leader of Iran is responsible for the delineation and supervision of "the general policies of the Islamic Republic of Iran." In the absence of a single leader, a council of religious leaders is appointed. The Supreme Leader is commander-in-chief of the armed forces and controls the Islamic Republic's intelligence and security operations; he alone can declare war. He has the power to appoint and dismiss the leaders of the judiciary, the state radio and television networks, and the supreme commander of the Islamic Revolutionary Guard Corps. He also appoints six of the twelve members of the Council of Guardians. He, or the council of religious leaders, are elected by the Assembly of Experts, on the basis of their qualifications and the high popular esteem in which they are held.
After the office of Leadership, the President of Iran is the highest official in the country. His is the responsibility for implementing the Constitution and acting as the head of the executive, except in matters directly concerned with (the office of) the Leadership. According to the law, all presidential candidates must be approved by the Council of Guardians prior to running, after which he is elected by universal suffrage to a 4-year term by an absolute majority of votes. After his election, the president appoints and supervises the Council of Ministers (the cabinet), coordinates government decisions, and selects government policies to be placed before the parliament. Eight vice presidents serve under the president, as well as a cabinet of 21 ministers. The Council of Ministers must be confirmed by Parliament. Unlike many other states, the executive branch in Iran does not control the armed forces.
The unicameral Iranian parliament, the Islamic Consultative Assembly or "Majles-e Shura-ye Eslami", consists of 290 members elected to a 4-year term. The members are elected by direct and secret ballot. It drafts legislation, ratifies international treaties, and approves the country's budget. All legislation from the assembly must be reviewed by the Council of Guardians. Candidates for a seat in the Majles require approval by the Council of Guardians
The Assembly of Experts, which meets for one week every year, consists of 86 "virtuous and learned" clerics elected by the public to eight-year terms. Like presidential and parliamentary elections, the Council of Guardians determines eligibility to run for a seat in this assembly.
Members of the Assembly of Experts in turn elect the Supreme Leader. The assembly has never been known to challenge any of the Supreme Leader's decisions, although according to the Iranian constitution it has the authority to remove the supreme leader from power at any time.
Twelve jurists comprise the Council of Guardians, six of whom are appointed by the Supreme Leader. The head of the judiciary recommends the remaining six, which are officially appointed by Parliament.
The Council of Guardians is vested with the authority to interpret the constitution and determines if the laws passed by Parliament are in line with sharia (Islamic law). Hence the council can exercise veto power over Parliament. If a law passed by Parliament is deemed incompatible with the constitution or sharia, it is referred back to Parliament for revision.
Created by Ayatollah Khomeini in 1988, the Expediency Council has the authority to mediate disputes between Parliament and the Council of Guardians. Presently, according to the constitution, the Expediency Council serves as an advisory body to the Supreme Leader, making it one of the most powerful governing bodies in the country, at least in name. The council also examines presidential and parliamentary candidates to determine their fitness to run for a seat.
The former monarchy and the Constitution of 1906 were abolished by the revolution of February 1979. The 1979 Constitution dates 24 Oct 1979 and is in force since 3 Dec 1979. Significant amendments were adopted on 28 July 1989.
The 270-member Majlis (Islamic Consultative Assembly) can initiate laws, but is subject to a number of restrictions and needs the support of at least fifteen members. The Majlis can hinder the President's policy, veto cabinet appointments, and even impeach ministers. Its speaker is powerful due to his seat on all of the main councils of state.
The Preamble is very long, containing a history of the revolution, a description of the new state, and quotes of Koranic verses. The Preamble states that Economy is a Means, Not an End. It also asserts that the home centered role of Women in Islam is actually a liberation, assigning women special rights. Iran places no belief in Government Control.
Iran has an official religion, some recognized religious minorities, and acknowledges rights of non-Muslims. Iran grants a right to work, extensive welfare rights, and a right to fruits of business. The Constitution requires that the taking of foreign aid be approved by the Parliament. Concessions for foreign businesses are forbidden. The Constitution acknowledges committee legislation and features a religious leader as well as a Head of Judiciary. Public officials are subject to an asset control.
The head of the Judiciary is appointed by the Supreme Leader, who in turn appoints the head of the Supreme Court and the chief public prosecutor. Public courts deal with civil and criminal cases. "Revolutionary" courts try certain categories of offenses, including crimes against national security, narcotics smuggling, and acts that undermine the Islamic Republic. Decisions rendered in revolutionary courts are final and cannot be appealed.
The Special Clerical Court handles crimes allegedly committed by clerics, although it has also taken on cases involving lay people. The rulings of the Special Clerical Court, which functions independently of the regular judicial framework and is accountable only to the Supreme Leader, are also final and cannot be appealed.
Article 156 of the Constitution provides for an independent judiciary. According to Articles 157 and 158, the highest judicial office is the High Council of Justice, which consists of five members who serve five-year, renewable terms. The High Council of Justice consists of the chief justice of the Supreme Court and the attorney general (also seen as State Prosecutor General), both of whom must be Shia mujtahids (members of the clergy whose demonstrated erudition in religious law has earned them the privilege of interpreting laws), and three other clergy chosen by religious jurists. The responsibilities of the High Council of Justice include establishing appropriate departments within the Ministry of Justice to deal with civil and criminal offenses, preparing draft bills related to the judiciary, and supervising the appointment of judges. Article 160 also stipulates that the minister of justice is to be chosen by the prime minister from among candidates who have been recommended by the High Council of Justice. The minister of justice is responsible for all courts throughout the country.
Article 161 provides for the Supreme Court, whose composition is based upon laws drafted by the High Council of Justice. The Supreme Court is an appellate court that reviews decisions of the lower courts to ensure their conformity with the laws of the country and to ensure uniformity in judicial policy. Article 162 stipulates that the chief justice of the Supreme Court must be a mujtahid with expertise in judicial matters. The faqih, in consultation with the justices of the Supreme Court, appoints the chief justice for a term of five years.
In 1980 Ayatollah Mohammad Beheshti was appointed by Khomeini as the first chief justice. Beheshti established judicial committees that were charged with drafting new civil and criminal codes derived from Shia Islamic laws. One of the most significant new codes was the Law of Qisas, which was submitted to and passed by the Majlis in 1982, one year after Beheshti's death in a bomb explosion. The Law of Qisas provided that in cases of victims of violent crime, families could demand retribution, up to and including death. Other laws established penalties for various moral offenses, such as consumption of alcohol, failure to observe hejab, adultery, prostitution, and illicit sexual relations. Punishments prescribed in these laws included public floggings, amputations, and execution by stoning for adulterers.
The entire judicial system of the country has been desecularized. The attorney general, like the chief justice, must be a mujtahid and is appointed to office for a five-year term by the faqih (Article 162). The judges of all the courts must be knowledgeable in Shia jurisprudence; they must meet other qualifications determined by rules established by the High Council of Justice. Since there were insufficient numbers of qualified senior clergy to fill the judicial positions in the country, some former civil court judges who demonstrated their expertise in Islamic law and were willing to undergo religious training were permitted to retain their posts. In practice, however, the Islamization of the judiciary forced half of the former civil court judges out of their positions. To emphasize the independence of judges from the government, Article 170 stipulates that they are "duty bound to refrain from executing governmental decisions that are contrary to Islamic laws."
The courts are functionally classified according to their area of jurisdiction, civil or criminal, and according to the seriousness of the crime or the litigation, e.g., value of property under dispute or the level of punitive action involved. There are four civil courts: first level civil courts, second level civil courts, independent civil courts, and special civil courts. The latter attend to matters related to family laws and have jurisdiction over divorce and child custody. Criminal courts fall into two categories: first and second level criminal courts. The first level courts have jurisdiction over prosecution for felony charges, while the second level courts try cases that involve lighter punitive action.
In addition to the regular courts, which hear criminal and civil suits, the judiciary encompasses clerical tribunals, revolutionary tribunals, and the Court of Administrative justice. Clerical courts are entrusted with the task of trying and punishing misdeeds by the clergy. Revolutionary tribunals are charged with the responsibility of hearing and trying charges of terrorism and offenses against national security. The Court of Administrative Justice under the supervision of the head of the judicial branch is authorized to investigate any complaints or objections by people with respect to government officials, organs, and statues. The Constitution also requires the establishment of a Supreme Court with the task of supervising the implementation of laws by the courts and ensuring uniformity in judicial procedures. The head of the judiciary, in consultation with the judges of the Supreme Court, nominates the Chief of the Supreme Court and the Attorney-General who, among other qualifications, must be specialists in Islamic Law.
The Constitution requires all trials to be open to the public unless the court determines that an open trial would be detrimental to public morality or public order, or in case of private disputes, if both parties request that open hearings not be held.
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