JOURNAL OF PUBLIC LAW KNOWLEDGE
Year:2019 | Volume:8 | Issue:25|Papers Count:6

The Islamic Republic of Iran's Constitutional System, which is designed to implement divine rulings, has created a structure based on the theory of “ Velayat-e-faqih” , which is unique in some cases, but its overall form is already used in the structure of other countries. Due to legal frameworks formed on specific grounds, use of pre-manufactured structure may create bottlenecks that affect the internal content of Islam, Sharia and jurisprudence as the essence of the Islamic system, and it gradually pave the way for secularization of the structure in the Islamic system. Therefore, the necessity to pay attention to the structural criteria in Islamic government is more important than ever. This paper after explaining the impact of structure on content and in search of the aforementioned structural criteria in Islam seeks to answer this question that whether Islam as the based Sharia governing the Islamic Republic of Iran has given instructions for the form and structure of government or no. In the authors' view, from Islam as a general normative model, it can be inferred some requirements in the field of structural arrangement for the Islamic Republic of Iran.

In accordance with the Article 77 of the Constitution, the treaties and international agreements of the Islamic Republic of Iran must be approved by the Islamic Consultative Assembly and based on the implications of the other articles of the Constitution including Article 91, these treaties will be considered by the Guardian Council so as not to contradict with Sharia and Constitution. The Guardian Council usually declares the substantive treaties including those on cooperation in criminal matters (extradition, transfer of convicts and criminal assistance) inconsistent with Sharia, because their acceptance requires approval or enforcement of non-Islamic laws and regulations, or sentences issued by the non-Islamic courts of the mutual government. These treaties become law with the insistence of the Assembly according to Article 11 of the Constitution by the Expediency Council. Final decision of the Guardian Council’ s members is based on the majority of their votes and the views of minority jurist members regarding the non-contradiction of these treaties with Sharia do not reflect in their final decision, which the author attempts to clarify in this paper. It seems dynamics of Shia jurisprudence, grading of government interests and the authorities of Vali-e-Faqih require the treaties not to be in inconsistent with the Sharia norms and hence, their approval in the expediency Council has no legal justification.

Following the victory of the Islamic Revolution on February 22, 1979, one of the basic strategies and approaches of Imam Khomeini was to establish a new political and legal system based on the drafting of a new Constitution. The Constitution of the Islamic Republic of Iran, as the most important foundation of governance, rather than being based on the views of any legalist or theorist, was based on the views and opinions of Imam Khomeini. Accordingly, exploring how Imam Khomeini's views and opinions influence the development and formation of the Islamic Republic of Iran constitutes the main question of this research that is studied and analyzed in a descriptive-analytical method. Based on the findings, it is concluded that both the procedural process of drafting the Constitution including providing the draft of the Constitution, establishing constituent assembly for final analysis of the Constitution and final approval and revision of the Constitution and mentioned substantial procedure, content and context of the Islamic state system in the Constitution have been developed and influenced by the views of Imam Khomeini. On this basis, it can be said that valid, correct and original interpretation and impression of the provisions of the Constitution, based on the teachings originated from religious democracy, is an interpretation that contains definite views of the Imam regarding this subject and at least it should not contradict with detailed and scientific views and approaches presented by him.

The legitimacy at times means the legality of the Political body and its structures; that is created and adhered to in consideration of legal regulations. On the other hand, the legitimacy at times means that an entity and its structure are rightful and created on the basis of power Theory which is valid among the majority of citizens. Therefore, the legitimacy of the Council of the Islamic Revolution (Shoray-e Enghelab-e Islami) is studied in two grounds. The first is studying the legality of the Council in which its legal mechanisms are defined. The other ground is the studying of the legitimacy of the Council whether it is based on the valid power theory which is believed by the majority of Iranian citizens or not. This paper through a descriptive-analytic approach concludes that the Council of the Islamic Revolution is immune from legal and legitimate problem.

Enumerating the sources for judgment in Article 167, the Constitution of the Islamic Republic of Iran implicitly considers the unified judicial precedents as the other sources. Although the issuance of unified judicial precedents based on the Constitution is exclusively the competence of the the Supreme Court but it is one of the powers of the Administrative Justice Court according to the ordinary laws. Based on descriptive-analytic studies, it was found that predicting this competence for the Administrative Justice Court is in contradiction with different Constitutional Articles, including Articles 73, 173, 161 and also legal principles such as "independence of judges" and "incompetency". In addition, with regards to legal mechanism set forth in article 161, even with taking into account the specific judicial requirements, predicting this competence for the Administrative justice Court through the Expediency Council has no legal justification. Accordingly, in order to protect both Constitutional principles and the processes existing in such fundamental legal text and to respond judicial requirements, it is proposed to devolve such competence to panel of judges specialized in the administrative matters within the Supreme Court structure.

Judicial justice is one of the important field of social justice which means the observance legal and divine rights of the companions in various processes of proceedings. Due to qualitativeness of the concept of justice, most countries nowadays have set different objective indicators and criteria for evaluating justice in the judiciary. Existence of criteria in this field, besides orienting the judiciary's macro policies and plannings, provide for performance evaluation of that entity in realizing judicial justice. So, the main research question is to determine the evaluation criteria for realization of judicial justice and legislative means to guarantee these indicators from the viewpoint of the IRI constitution. This article through a descriptive-analytic method indicate that the Constitution beside determining the judiciary as responsible for implementing judicial justice, has assigned some criteria and measures for evaluation of justice in judiciary. The most important indicators in this regard are availability of the court, rule of law, judicial independence, accuracy of the trial, equality before law and observance of the defense rights of the people.