JOURNAL OF PUBLIC LAW KNOWLEDGE
Year:2015 | Volume:4 | Issue:11 |Papers Count:6

The Constitution due to its role in regulating the relations between individuals and the state is greatly important and therefore, determination of the precise meaning of the concepts set forth in that is significant too. The Islamic norms mentioned in the Constitution are among the concepts playing an important role in this document and although the superficial meaning of them is clear, but their detailed meaning isn’t explicit. Among them, the concept of “Islamic criteria” (Mavaazin-e-Islam), for the various quantitative and qualitative reasons, is much more important. The issue of this paper is the determination of the precise meaning of some of these religious norms based on the concept of “Islamic criteria”. It is proved in this research with different reasons, including comparison of these norms with the common norms of Islamic jurisprudence that the concept of Islamic criteria is semantically different from the concept of “Islamic ordinances” set forth in the Constitution. Accordingly, the meaning of many other of mentioned norms also refers to one of these two norms

The existence of legal gaps is quite usual and conceivable in all statute legal systems and it is the duty of the legislator to find the solutions for these cases. The constitutional legislator has recognized Islamic sources and valid juristic opinions (Fatwas) as referable sources for judges in principle 167.However, there is severe disagreement on the inclusion of this rule in criminal cases, particularly on the important issue of determining the punishments. The reflection of the provisions of the principle 167 in some of the acts passed by the Islamic Consultative Assembly and confirming them by the Guardian Council as the interpreter of the constitution, the manner in which the terms of the principle 167 are expressed and the legislative history of this principle all strengthen the doctrine that try to extend the mentioned rule to the criminal matters, including the issue of penalization.This paper due to the examination of the reasons and with regard to the recent changes taken place in the Islamic penal code believes the executive scope of that aforesaid doctrine doesn’t include the discretionary punishments (Ta`zirat) which by the way constitutes the main criminal punishments.

Explaining the legislative competence of the Assembly in the field of freedom of publications and the press needs to determination of the scope and areas of such authority. For this purpose, it was needed to determine the constraints of this freedom and their meanings. In addition to the constraints stipulated in Principle 24, “prohibition of causing harm to others” set forth in Principle 40 is also introduced as a restriction of the freedom of publications in this research. In this regard, the constraint of “disturbance in foundations of Islam” in Principle 24 means to undermine and irresolute the beliefs of people regarding the essentialities of Islam and therefore, it is different from the Islamic criteria and Islamic ordinances. The constraint of “disturbance in public rights” is also the violation of rights belonging to the whole of the people and society. Hence, the Assembly can just detail these constraints in the scope of such meanings.Regarding the clarification of the areas of legislative competence of the Assembly, it is also determined that in spheres in which the order of society demands to legislate, the Assembly can legislate due to the details of the negotiations of Principle 24 and generality of the Principle 71; In spheres such as: recognizing the new media types, determination of penalties for cases violating this Principle, determining the mechanism of monitoring these instruments and the other relevant fields. Therefore, the legislative competence of the Assembly isn’t restricted to the details of these freedom constraints

Arbitration is an important means of dispute settlement in internal and external lawsuits. The government and its entities, particularly in international contracts enjoy of this means and predict such condition in settlement of possible lawsuits. The distinctive restriction in this regard is the principle 139 of the Constitution. This article with an analytic and descriptive attitude seeks to study the judicial precedent about the public and state-owned properties so as to determine the courts’ views based on the provision of this principle and manifestations of public and state-owned properties and to indicate the ratio of these conceptions with the Guardian Council’s interpretive decisions.The study of the judicial precedent shows that there are different viewpoints in this regard. The essential point is that most of the courts issue the verdicts compatible with the Guardian Council’s decisions and they believe the restrictions laid down in the aforesaid principle focus on public and state-owned properties and the juristic personality of the administrator or the property owner whether governmental or non-governmental public institution is irrelevant.

Charges are one of the most important revenue sources of the government and public institutions which have been the subject of some researches due to their numerous instances in our legal system and issues raised in this regard in recent years. In the meantime, the competence of imposing charges and their governing principles are among the important issues lowly discussed by the experts. The rule of law requires the observance of the legal principles and that only the competent authorities can impose charges. The Constitution of Iran has no stipulation regarding the competence of imposing charges and their governing principles. But the Administrative Justice Court has considered some principles in many decisions issued in this regard; Principles such as the legality, the competence, due process of law, non-retroactivity of laws and administrative decisions, observance of religious criteria, proportionality, prohibition of re-imposing charges and prohibition of restriction and extension of the law. Therefore, this article through an analytic descriptive method and by using the existing laws and regulations and the Administrative Justice Court’s decisions seeks to briefly refer to the competent authorities of imposing charges in the legal system of Iran and to scrutinize the governing principles on this matter in the light of the Administrative Justice Court’s decisions.

Different legal systems have recognized various types of restrictions in the process of constitutional amendment and have tried to guarantee them. In this regard, some Constitutions have provided a specific institution for review of the constitutionality of constitutional amendments and some others have only referred to such restrictions without determining the responsible entity. The main issue of this research is to explain the mechanisms predicted to guarantee this constitutionality and in addition, in the case of non-determination of a specific institution or in the case the Constitution is basically free from limitations in terms of the subject, this article examines the possibility to review the constitutional amendments; The issue this article seeks to answer by using the comparative study and through an analytic approach. It seems that even in the case of predicting no specific institution for review of the constitutionality of constitutional amendments or prediction of no limitation clauses in amending the Constitution, it is possible to review the proposed constitutional amendments based on the doctrine of implicit limitations and on this ground that the basic foundation and structure of alegal system shouldn’t change in this way.