JOURNAL OF PUBLIC LAW KNOWLEDGE
Year:2016 | Volume:4 | Issue:12 |Papers Count:6

The subject of this article is to explain and analyze the viewpoint of the Guardian Council regarding the scope of the Islamic Consultative Assembly’s competence in the position of interpreting the law. The question is to clarify the limitations derived from the viewpoint of the Guardian Council as the interpreter and supervisor of the Constitution, which the Islamic Consultative Assembly as the interpreter of ordinary laws is confronted. The research methodology is descriptive-analytical method. The review of the Guardian Council's decisions indicates that in the viewpoint of this Council, the jurisdiction of the Islamic Consultative Assembly isn’t absolute. The Guardian Council, through its interpretative opinion on 22/1/1/22, declared that new legislation by the Assembly during the interpretation of law is inconsistent with principle 37 of the Constitution while such prohibition isn’t understood from that principle. From the perspective of the Guardian Council, retroactivity of the Assembly's interpretation of laws is restricted to the cases that are not concluded. Respecting to the acquired rights is another limitation for the Assembly in interpreting the law. Besides, Assembly's accurate interpretation of laws, sometimes, contains no new legislation, but due to the Assembly’s interpretation, it is revealed that the primary law has been contrary to the Constitution or Islamic law and therefore, it is declared as inconsistent with the Constitution or Shari’a (Islamic law).

The formation of the legal system and the emergence of the relationship between government and people has caused conflict between private ownership and public interest. Given that the superiority of each of private ownership or public interest over another causes loss and damage to the other, preference of public interest over the rights of private owners and vice versa requires the reason. This article seeks toexplain the approach of the Guardian Council’s jurists and to evaluate the evolution of their attitudes in confronting the acts restricted the private ownership to provide public interest so as to indicate that in some cases the private property has been limited in line with providing public interest despite the protection of the proprietary rights of the individuals by the Guardian Council’s jurists. Through analysis of the collected resources, two criteria of "necessity" and "expediency" are evaluated in which the Guardian Council’s jurists have restricted and deprived the powers of the owners with referring to them in jurisprudential supervision on the acts of the Islamic Consultative Assembly and also in response to inquiries of the Administrative Justice Court. The modified approach in the procedure of the Guardian Council’s jurists in supporting the domination of the owners has promoted the protection of the public interests and attention on it, in which its guarantee requires explanation and stipulation of objective and specific principles and criteria by the Guardian Council’s jurists.

The Penalty of Rajm (Stoning) is one of the specified punishments in which there is a claim of consensus on its legitimacy. However, one of the controversial issues in the scientific circles is whether the Islamic ruler can convert this penalty to another one for a period of time. The answer to this question seems more necessary when we know that today there are serious disputes about mentioning this punishment in the Islamic Penal Code; insofar as although the punishment was mentioned in the submitted judicial bill, but the parliament eliminated it at its first legislation.This paper, through descriptive-analytic approach proposes two points: First, according to the requirement of the initial principle, there is no permission to convert the penalty of Rajm to another one; but if the Islamic ruler necessitates the non-compliance of this penalty in a particular period of time, he can temporarily substitute this penalty with another one until its implementation would be provided. Secondly, despite the insistence of the Guardian Council eventually led the Parliament to stipulate the penalty of Rajm and the possibility of its conversion to another one in Article225 of the Islamic Penal Code, but since the diagnosis of the impossibility of its implementation is exclusively at the disposal of the Islamic ruler, conferring this matter to the judges in this article can be criticized. In this respect, the performance of the Guardian Council in final affirmation of this article can also be criticized.

The General Board of the Administrative Justice Court is one of the pillars of this court with numerous jurisdictions. This Board handles complaints of administrative regulations. If the regulation that has been objected, is contrary to the law or Sharia or is out of its powers, the Board invalidates it. Also, the Board is empowered to issue a uniform judicial precedent and to make precedent in all branches of the Court. The judicial decisions issued by the Board are final and binding; but according to articles 91 and 94 of the Act of Organization and Rules of Procedure of the Administrative Justice Court, the Board’s judicial decisions will be reconsidered on the Board in exceptional cases. Violation of law or Sharia, claim of false and conflict of decisions provide incentives that would lead to the reconsideration of the General Board's judicial decisions. In this article, the author has examined the causes, procedure and effects of reconsideration of the judgments, based on the precedent of the court. The results of this study indicate that although the procedure and effects of implementing the article 91 is determined to a large extent, but there are already some doubts in implementing the article 94.

The management of the judiciary since its independence has had numerous changes. These developments, in addition to the form and method of management (individual management of the Ministry of Justice, council management of the Supreme Judicial Council, centralized management of the head of the judiciary), have also affected the competencies of this position. Although based on the principle 157 of the Constitution, head of the judiciary has different responsibilities such as administrative and executive responsibility of the judiciary, but there are various disagreements and opinions about the jurisdiction of the head of the judiciary. This paper with a descriptive-analytical method and using library resources and documents examines the judicial status of the head of the judiciary in the legal system of Iran.The will of the constitutional legislator, provisions of the Constitution, especially the concept and apparent meaning of the principle 157, ordinary laws and decisions of the Guardian Council indicate the head of the judiciary in the legal system of Iran has also judicial jurisdiction beside administrative and executive competencies. Mentioning no judicial task among the duties of the head of the judiciary in the Constitution doesn’t imply the negation of judicial jurisdiction of this authority.

Principles 77 and 125 of the Constitution of the Islamic Republic of Iran are supposed to clarify the stance of international agreements and to determine the competence of the legislative and executive powers in their conclusion process. Despite written books and numerous articles in the field of the law of treaties and legal competencies of governmental institutions in this area, there are already many ambiguities regarding the competence of the Islamic Consultative Assembly in approving international agreements which are necessary to analyze them from a legal perspective; such as the feasibility of approving them in the form of legal proposals of representatives, the competence of the assembly regarding the voluntary commitments, its competence in approving agreements under the other titles set forth in Principles 77 and 125 and also, the competence of the of Supreme National Security Council in approving international agreements. Hence, the main question of this research is to determine the competencies of the Islamic Consultative Assembly in approving international agreements. This article seeks to answer that question with an analytic approach and using the library method.It seems that the approval authority for all of international agreements having international description and making a commitment to the Islamic Republic of Iran is exclusively at the disposal of the Islamic Consultative Assembly and the title of the treaty and also being voluntary aren’t obstacles for the assembly’s authority. The Islamic Consultative Assembly is also allowed to review the details of the treaties.