The Concept and Scope of Competence in the Jurisprudence of the Guardian Council

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Nasouri Mazdak; Gorji Azandriani Ali Akbar

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Journal Paper

Paper Information

Journal: Encyclopedia of Comparative Jurisprudence and Law Year:2024 | Volume:2 | Issue:3 Page(s): 93-113

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Title

The Concept and Scope of Competence in the Jurisprudence of the Guardian Council

Author(s)

Nasouri Mazdak | Gorji Azandriani Ali Akbar | Issue Writer Certificate

Keywords

Rule of law

Guardian Council

jurisdiction

public authorities and institutions

Abstract

The Guardian Council, endowed with specific and exclusive competences, is regarded as one of the pivotal sovereign institutions in the legal and political system of the Islamic Republic of Iran. Its core function lies in safeguarding the Rule of law. Therefore, analyzing the decisions and opinions of the Guardian Council is essential to understanding this public body's approach to the concept of a rule-of-law-based government, as well as the implications and outcomes of this principle (principle of competence and principle of lack of competence) in evaluating the validity of administrative decisions. This article aims to analyze, clarify, distinguish, and demarcate the concept and scope of various common types of competence in public law and their criteria as reflected in the practice of this fundamental institution. This study, conducted using a descriptive-analytical method, demonstrates that the Guardian Council has identified five main characteristics of the principle of competence in its jurisprudence: legality, obligation, limitation, exclusivity, and non-delegability. Generally, the Council has sought to regulate and ensure the boundaries of the competences of public authorities, and when it fails to recognize the competence of a public authority in statutory laws, it challenges their actions or decisions on the grounds of lack of competence. Moreover, the Iranian constitutional judge has adopted a restrictive interpretation for mandatory competences and a broad interpretation for discretionary competences. In its jurisprudence, the Guardian Council simultaneously exercises both “legal authority” and “legal discretion.” In other words, its performance embodies both a binding and obligatory dimension (legal authority) and a selective and discretionary dimension (legal discretion), and it defines its competenceal scope in such a way that certain duties are explicitly imposed on it. Nevertheless, while executing these duties, the Council also possesses discretionary powers to interpret and apply religious norms and legal standards in specific circumstances. This scope of competence is not only grounded in statutory texts but also evolves dynamically through the Council’s interpretative rulings and practical precedents. This characteristic indicates the quasi-obligatory and quasi-discretionary nature of the competence vested in this public institution.

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