JOURNAL OF PUBLIC LAW KNOWLEDGE
Year:2018 | Volume:6 | Issue:18 |Papers Count:6

Principally the guardian of the Constitution protects the Constitution by means of reviewing the Constitutionality of the Enactments of the Islamic Consultative Assembly as the traditional task of this entity. Nevertheless, examining the practical precedents indicate that both the Constitutional Council of France and the Guardian Council of Iran have in some cases gone beyond the scope of this inherent task by reviewing the quality of the acts. According to this, the main research question is that how and by what criteria the Guardian Council reviews the quality of the acts? This article through a descriptive- analytic method indicates that this entity while examining the enactments of the Islamic Consultative Assembly based on the Islamic criteria and the Articles of the Constitution, has in some cases reviewed these enactments based on normativity, transparency, stability, enforceability, justiciabilty, coherence, and etc. The result of this research is that despite the presence of signs of the quality review approach by the Guardian Council, there is still no comprehensive analysis regarding the above theories and therefore, it seems that the precedent of the organ of Constitutional review in the Islamic Republic of Iran should provide the qualitative standards in this regard.

The term "System's Dilemmas Settlement" is used in the Article 110 (8) of the Constitution as one of the duties and powers of the Supreme Leader. There are some uncertainties regarding this clause, such as the official body and the criterion for declaring and identifying the dilemma, as well as the final entity to provide the solution in respect of that dilemma. These ambiguities will be examined with a descriptive- analytic method in this article. In this regard, due to the detailed deliberations of the Revision Council of the Constitution, it becomes apparent that any dilemma unresolvable through ordinary ways, will be solved by the Leader through the State Expediency Council. Besides, in accordance with the standing order of the State Expediency Council and its practical precedent, in case the Supreme Leader identifies an issue as a dilemma, it will be referred to the State Expediency Council. Hence, the Council cannot directly interfere in a subject as a dilemma settlement, unless the subject is referred to it. The State Expediency Council based on the standing order is recognized as a supreme advisory council for the Leader in solving the dilemmas. Furthermore, the practical precedent indicates the Supreme Leader acts in the manner in which the State Expediency Council presents; although, in some cases, he may conditionally enforce it.

Territorial decentralization as one of the most important techniques for the administration of unitary states and people's participation in local affairs consists of recognizing for local and geographical authorities with legal personality and general competence of decision- making for their elected councils in local affairs. The importance of this principle is to the extent that some Constitutions as the France emphasize on it. This isn’t referred in the Constitution of Iran. Examining the Constitution of Iran with comparison with that of France indicate that although the city and village councils are directly elected by the people, territorial units such as city, departments and province lack legal personality and general competence of decision-making in local affairs. Thus, two components of territorial decentralization are not accepted in the legal system of Iran. Therefore, it seems that the Islamic councils are the manifestation of the principle of Islamic consultation and not of the territorial decentralization as it exists in the administrative law of France. The research method is analytic- comparative.

Is it possible to dismiss a Member of Parliament? This question should be answered cautiously, especially as representation and representative are the main concepts and elements of democracy and at the forefront of power constraint by the rulers. Nevertheless, this importance cannot hinder the theories regarding the dismissal of the parliamentary deputies. This article seeks to examine the feasibility of such issue in the framework of the legal system of the Islamic Republic of Iran and besides, to consider the experiences of other countries in this respect. It seems that although dismissal of a representative is theoretically possible, its implementation needs a legal, transparent and rational process far from any political interference. Perhaps, the absence or lack of confidence regarding the executive mechanism has led the prudent mind of the legal scholars to recognize parliamentary deputies irremovable.

Perusing the text of the Constitution is not sufficient for understanding the performance of the political system. One of the cases the Constitution and other regulations haven’t broached anything on it is the present precedent for nominating the Minister of Intelligence. The current precedents aren’t based on the text of the Constitution. The purpose of this study is to question the discrepancy between the body of the written Constitution and the real performance of the legal institutions. Such an approach is indeed an answer to those who consider the Constitution as indicated in its body which restrict the Constitutional law issue subject to the text of the Constitution and the decisions and comments of the Guardian Council. This approach inadequately and incompletely delineates the Constitution. The Constitutional institutions broadly or narrowly interpret their jurisdiction with respect to the balance of the political powers. This article aims to point out these issues in the studies of Iran Constitutional law. We’ll attempt in one hand to indicate whether the Constitutional law theory of Iran would provide a basis for acceptance of such rules and in the other hand to present the sovereign criteria on these rules.

The theory of separation of powers is accepted in the Islamic Republic of Iran, inferred from the statutes and the Guardian Council's opinions. Nevertheless, implementation of this theory is faced with some ambiguities and the boundary among the scope of tasks of the triple powers is not obvious. Hence, the Guardian Council as the formal Constitutional interpreter as well as the institution for reviewing the Constitutionality of the enactments of the Islamic Consultative Assembly resolves the disputes among the triple powers. The subject of this article is to study the essence of the theory of separation of powers and to analyze some of the most important seeming interference of the tasks of the triple powers, and the Guardian Council's opinions in this regard. As the result, the Guardian Council resolves the disputes of the triple powers as the interpreter of the Constitution in cases there exists the possibility of seeming interference in the tasks of triple powers. The principle of separation of powers based on the political structure of the Islamic Republic of Iran is used to make compatible the triple powers. Therefore, regarding the governmental structure of Iran and the existence of Velayat-e-Faqih (the Supreme Leadership) and its full authority on all pillars of power, the modern approach of the theory of separation of powers could not be accepted and the traditional approach should be considered in this respect. Besides, the separation of powers based on the Constitution of Iran is a relative issue.This article is a descriptive- analytic research.