JOURNAL OF PUBLIC LAW KNOWLEDGE
Year:2019 | Volume:8 | Issue:24|Papers Count:6

Combating criminal phenomenon and trends that threaten the interests of the individual and society are inevitable issues for governments. The Article 159 of the Constitution of the Islamic Republic of Iran considers crime prevention as one of the tasks of the judiciary. It is inferred from absoluteness of this term, the broad concept of crime prevention, which includes both criminal and non-criminal measures to counteract the factors of crime. However, the judiciary has failed to fulfill its duty regarding the non-criminal crime prevention, including the preparing bills on economic and cultural factors affecting the commission of the crime yet; but in fact, crime prevention can not only be regarded as the duty of the judiciary and other governmental and non-governmental institutions should be involved. Because crime as a social phenomenon occurs under the influence of many economic and cultural factors and prevention is possible by influencing such factors. For instance, in the implementation of the principles of the Constitution related to the rights of the nation, the executive power has been assigned tasks that can be used for non-criminal prevention but they have so far been neglected.

Natural in human societies and important in population sociology is generation renewal. On the other hand, the continuation of the Constitutional validity in society is inevitable and defensible due to the supreme status of the Constitution, Formally and substantially, and its important function in the political legal system. Renewal of the Constitution and continuity of its validity raises various questions; if trans-generational, it would be valid and constant during different generations by any basis of legitimacy. At the same time, some scholars believe in the generational validity of the Constitution and have put forward different arguments generally with the focus on the right to self-determination and national sovereignty. Using a descriptive-analytic approach, this paper, while designing and evaluating the foundations of the theory of generativity, explores the legal justification of trans-generational validity of the Constitution. The "continuity of generational identity" and "substantive continuity of the Constitution" along with citation to "positive legal jurisprudence rules, " are findings of the present study which explain the trans-generational validity of the constitution as appropriate. Obviously, the dynamism and strengthening of the Constitution as a legitimate and reasonable issue is beyond the scope of this article.

Different theories in governmental management knowledge like principle-agent theory, agency theory and balance of power theory, protect the competence of the people’ s representatives in legislation. According to the Constitution of the Islamic Republic of Iran, the legislative power is considered as the main policy-making institution in the Islamic Republic of Iran. Though the legislature’ s authorities set forth in the Constitution are in practice experiencing some challenges in comparison with the authorities of other powers especially the executive. The present study seeks to explain some of the relevant challenges by applying Meta synthesis method based on CATWOE theoretical framework as one of the valid models within the fundamental theory of systems. The findings of the research indicate that the challenges of the legislative power can be classified into six conceptual categories: “ interaction with stakeholders, especially the executive power” (such as the imbalance of authorities with responsibilities, “ challenges related to parliamentarians” (such as expertise and field of education), “ challenges in the structure and internal process of parliament” (such as the incomprehensiveness of some parts of the Constitution and lack of mechanisms for its implementation), “ the worldview challenges and the attitude of actors” (such as misinterpretation of law and national interests), “ challenges related to peoples behavior” (such as the lack of a proper supervisory structure), and finally “ contextual challenges” (such as moving the role of commissions and fractions).

Constitutional review, as a mechanism to guarantee the supremacy of the Constitution in the hierarchy of legal norms, has two principal functions: to review the legislative enactments in terms of non-compliance with Constitution and Sharia, and to settle the conflicts among public entities. Nevertheless, due to lack of institutional structure regarding the second function, this subject has not been so much discussed by the Iranian public law scholars. But, it seems, after the establishment of a relatively newfound entity in the legal system of the Islamic Republic of Iran, namely the High Committee for Resolving Disputes and Coordinating Relations among Triple Powers according to Article 110 (7) of the Constitution, it is time to much more focus on such function. Since, the foresaid Committee has no function except to settle the conflicts regarding the competences, this article, through an analytic and comparative method, recognizes the function of the Committee in the position of Constitutional review. Besides, this article examines the evolution of the dispute resolution mechanism in the Islamic Republic of Iran and compares legal nature and current competences of the Committee with similar entities in other countries. Finally, transforming such Committee to a Constitutional entity is considered in the revision of the Constitution.

Every country faces serious challenges after undergoing a revolution to transition to a stable state and institutionalizing the Constitutional goals. The Constitution of the Islamic Republic of Iran determines the political, economic, social, and cultural institutions of the country and specifies their competence. There are mechanisms in the Iranian Constitution that ensure unity and convergence between institutions and provide the basis for political participation among the people. The present article, while explaining the concept of political sovereignty in the fifth chapter of the Constitution of the Islamic Republic of Iran, addresses the role of the leadership in balancing and monitoring inter-state power as well as consolidating national unity and identity in order to pave the way for religious democracy. In this paper, using qualitative data collection method through library and documentary method, as well as utilizing empirical data and analyzing them with positive-interpretive approach, it is concluded that Chapter 5 of the Constitution of the Islamic Republic of Iran, considering the role and position of the leadership in adapting, coherence and supervision of government powers, as well as in ensuring national unity and solidarity and in expanding political participation, facilitates the process of achieving the goals of the revolution and its subsequent transition to religious democracy.

The Article 4 of the Constitution is one of the fundamental principles of the constitution which forms the legislative foundation of the Islamic Republic of Iran. The inclusion scope of the second clause of this Article, in addition to various laws and regulations, encompasses other Articles of the Constitution and proves the Rule of Islamic criteria on absoluteness and generality of the Articles of the Constitution. The study of existing legal documents indicates that during the forty-year history of the Constitution, such capacity is used regarding 3 Articles of the Constitution (Articles 13, 69 and 121) by the jurists of the Guardian Council. This paper, through procedural analysis of these three cases, is to assess and evaluate the capacity of this clause of the Article 4. The results of this study indicate that two of these announced Shar’ i opinions are compatible with the originalist interpretive approach and one is the product of the different juridical interpretation of the Guardian Council jurists. Implementation of the existing capacities in Article 4 in such cases may lead to transformability of the Constitution, which in a conception, in line with aims, aspirations and concerns of the main owners of the Constitution are justifiable. However, implementation of Shar’ i supervision on the fourth principle does not have per se any confrontation with stability and rigidity of the Constitution. In addition, this study will compare both “ shar’ i supervision” and “ interpretation of the Constitution” . According to the analysis, effects and positions of Shar’ i supervision and Interpretation, it can be claimed that there is close relation between two concepts, even it is possible to claim that Shar’ i supervision of the Guardian Council jurists means entering the arena of Article 98 and interpretation of Constitution.