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Journal: 

Comparative Law

Issue Info: 
  • Year: 

    2024
  • Volume: 

    8
  • Issue: 

    2 (پیاپی 14)
  • Pages: 

    113-131
Measures: 
  • Citations: 

    0
  • Views: 

    40
  • Downloads: 

    4
Abstract: 

impeachment is an institution that can remove high-ranking officials of the executive who are disqualified and unfit to continue the office. impeachment could be seen in the constitutional law of all kinds of political systems, including presidentialism, semi-presidentialism and the parliamentary Republic. In some instances of domestic research, we see the fusion of impeachment and interpellation, which sometimes leads to mistakes leading to deduction. Scrutinizing the terminology of impeachment is the solution for such fusion. Accordingly, the question of the research is: what are the elements of impeachment in order to recognize it from interpellation? By the descriptive-analytic method, the research concludes that differences in officials and differences in grounds of removal are the most important elements and parameters for the distinction of these two terms. While impeachment targets officials with protected tenures or terms of office, interpellation is practiced mostly where ministers are subject to the confidence of the parliament. The common ground of impeachment is removing a person or persons in the government whom the legislature deems unfit to continue in office due to subversive acts against the country and grave violations of public trust, which contain several instances like violations of law, corruption and treason. In addition, the procedure, stages and outcomes of impeachment and interpellation would be distinguished in many aspects. The paper is about to explain impeachment and distinguish it from interpellation.

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Author(s): 

Saeid Seyedeh Zahra

Journal: 

Public Law Research

Issue Info: 
  • Year: 

    2023
  • Volume: 

    25
  • Issue: 

    79
  • Pages: 

    127-162
Measures: 
  • Citations: 

    0
  • Views: 

    94
  • Downloads: 

    21
Abstract: 

1. IntroductionThe president’s interpellation before the Islamic Consultative Assembly (ICA), set in the Constitutional law of the Islamic Republic of Iran, has been a challenge. The cause of the challenge is the contrast between the 2nd clause of Article 89 of the Constitution and Article 114 of the Constitution. Article 89 says: “In the event that at least one-third of the members of the Islamic Consultative Assembly interpellate the President concerning his responsibilities for leadership of the executive power and managing the executive affairs of the country, the President must present himself to the Assembly within one month after the submission of the interpellation and to give adequate explanations regarding the matters raised. After hearing the statements of the opposing and favoring members and the reply of the President, if two-thirds of the members of the Assembly vote for his incompetency, the vote will be communicated to the Supreme Leader for implementation of Article 110(10)”. Article 114 holds: “The President is elected for a four-year term by the direct vote of the people. His re-election for a successive term is permissible only once”In other words, The main cause of the challenge is the appointment of the president through elections and the lack of any power by the Islamic Consultative Assembly in this regard. The current presumption among the legal society is that interpellation would be applied to an authority that is elected by the ICA. Although the current presumption is relatively true, what has been neglected during these years is that in fact, the interpellation of the president in the Constitution of the Islamic Republic of Iran is impeachment in a different, unique concept. Discussion In some political systems, the president would be removed by legislative assemblies by means of impeachment.  Comparing the elements of the term impeachment with the elements of interpellation proves the above claim. Hence, comparing the two elements of  their grounds and their procedures are notable.in the draft of the Constitution, a two-stage procedure for the removal of the president was set, but after the enactment of the Constitution, two different one-stage procedures were created. One procedure would be run by the Islamic Consultative Assembly, and the other would be run by the Supreme Court. In fact, two procedures that work together in an impeachment, have been transformed into two independent procedures, both of which leave the final decision-making  to the Supreme Leader.ConclusiomThe grounds for the president’s removal have been changed from “treason or conspiracy against national security” in the text of the Constitution to “treason and violation of legal duties” and eventually, to “violation of legal duties” and “lack of qualification”. Lack of qualification and being unfit to continue in office are common concepts among the grounds of impeachment in different political systems. lack of qualifications, incapability in doing his executive duties, or ineptitude in executive management in the text of the Constitution of the Islamic Republic of Iran are the instances of the general notion of “being unqualified unfit”. Both concepts of “lack of qualification” and “violation of legal duties” are incorporated in the general notion of unfitness in the legal and political literature of the Islamic Republic of Iran and are equal to impeachment in other systems; However, interpellation is often based on political reasons. Since the causes and the grounds of the president’s removal are enumerated in the Constitution, we can conclude that the nature of presidential removal in the Constitution is impeachment, but its title is interpellation.Thus, some clarification and some reforms are required by amending the Constitution. Before any constitutional amendment, the nature of the interpellation of the president and its elements should be explained by the legal society. It may prevent this oversight tool to become a reason to remove the president based on political disagreements and may regulate and restrict the oversight tool to only clear legal grounds. This may, in the future, be the inspiration to possibly omit or add to the grounds for presidential removal in the constitutional amendment. According to the current laws and regulations, the procedure of presidential removal via Islamic Consultative Assembly is almost clear but the procedure of presidential removal through the Supreme Court is unclear. Again, reforming the procedure of presidential removal and merging the two procedures requires an amendment to the Constitution. Another subject that must be considered is the effect of this presidential removal mechanism and whether, irrespective of the removal from office, there are any other effects and sanctions for the president or not. Another sanction for the president’s incompetency would be exclusion and prohibition from holding any public office which is worthy to be debated and considered for the future.

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Author(s): 

SHIRKHANI ALI

Issue Info: 
  • Year: 

    2014
  • Volume: 

    6
  • Issue: 

    22
  • Pages: 

    149-170
Measures: 
  • Citations: 

    0
  • Views: 

    746
  • Downloads: 

    0
Abstract: 

Sovereignty, government, and power are concepts which have important determining meanings and interpretations as far as politicians and scholars are concerned. People form governments, however for its survival and effectiveness need a system of supervising and control. So, the main question raised in this research is that in an Islamic society with an Islamic government which is believed to have its legitimacy bestowed upon by God, what sort of surveillance and control is foreseen for the survival and prevention of not being evolved into an autocratic government? . By looking deep into the guidelines and Islamic teaching we find the mechanism of monitoring and control in the Islamic concepts such as the order of doing right things and not wrong as prescribed by Islamic teaching. The obedience of Imams' advices and suggestions, guiding of ignorant, accountability of the rulers, breaking away with the unjust rulers, all of which play determining role in keeping and guaranteeing the survival and the success of an Islamic state in compatible to the Islamic jurisprudence.

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Issue Info: 
  • Year: 

    2023
  • Volume: 

    24
  • Issue: 

    2
  • Pages: 

    225-254
Measures: 
  • Citations: 

    0
  • Views: 

    46
  • Downloads: 

    8
Abstract: 

In parliamentary regimes, principally parliament has the authority to remove political officials from office due to violation of laws or failure in execution of governmental duties. Mechanisms of political  supervision of ministers include notification, questioning, and impeachment. This article employs a descriptive-analytical method, by using library sources, to examine the subject of formality for the political supervision of ministers under the legal system of Islamic Republic of Iran and the Mashrooteh (Constitutional) era. Comparative analysis and historical evolution of this topic pose the question of which system, either the Mashrooteh (Constitutional) or Islamic Republic, has had a more dignified approach to the formality of political supervision of ministers by taking into account the legal, cultural, and historical background of Iran?     The outcome of this research demonstrates that in the mechanisms of notification and questioning, the current political system, contrary to the Mashrooteh (Constitutional) one, has systematically and rationally provided rules governing the application of these parliamentary competencies. On the other hand, in impeachment mechanism, limiting the Members of Parliament to propose it in specific cases, and the effective and accurate examination by Commission had turned the impeachment process into a reasonable and efficient formality during the Mashrooteh (Constitutional) Era, while, in the Islamic Republic system, the quorum for proposing impeachment, the ease of the application of impeachment process, and the broad scope of impeachable subjects have posed notable challenges.

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Author(s): 

Ramezani Saadi

Issue Info: 
  • Year: 

    2021
  • Volume: 

    4
  • Issue: 

    1
  • Pages: 

    90-113
Measures: 
  • Citations: 

    1
  • Views: 

    117
  • Downloads: 

    0
Abstract: 

Uterine rent is one of the almost new topics in which the nature, validity and invalidity and its effects have been variously debated and different opinions have been expressed. In most studies and researches in this field, the nature of this obligation and the rules governing it have usually been considered as the criterion for the man and woman who have the sperm, but in this research, the main attention and emphasis is on the woman who undertakes this Commits and what is the necessity and justification on the basis of which he agrees to this action. Can the subject of the contract be the encroachment on a part of the human body? In this study, the correctness of citing the principle of immorality has been criticized and evaluated, and by examining one of the pre-Islamic marriages called "marriage of impeachment", it is concluded that the ownership of ablution, including the rights of God It has been given exclusively to the couple through marriage. Finally, due to the conflict of this contract with the general rules of contracts, including the subject of marriage and good morals, the rights of the child and the rules of non-mahram, the promise to annul it is strengthened.

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Issue Info: 
  • Year: 

    2023
  • Volume: 

    14
  • Issue: 

    2
  • Pages: 

    7-21
Measures: 
  • Citations: 

    0
  • Views: 

    92
  • Downloads: 

    20
Abstract: 

This article, with a descriptive-analytical method, tries to answer the question of whether in Iran's legal system, the criminal policy of the Estiza Foundation has been fair and effective in dealing with and fighting the crime of disrupting the economic system. Therefore, while referring to the process of approval of Istiza, the challenges of Istizia in 1397 and 1399 have been examined and finally, their function as well as their strengths and weaknesses have been evaluated. The findings indicate the inefficiency of the judicial criminal policy and the failure to achieve the desired result in curbing the crime through its implementation and restricting the rights of the accused. Therefore, measured and scientific methods in the fight against economic corruption should replace the symbolic emphasis on the "war on corruption" and a fair and discriminatory judicial system for economic crimes should be designed and approved in the light of legislative criminal policy in the form of a comprehensive plan or bill. Introduction In Iran as in many other countries, special measures have been adopted in the highest policy-making areas to control economic crimes. In this regard, different approaches have been taken at specific times, and in the last step, following the economic crisis of 2017 and the uncontrolled increase of economic indicators such as the price of currency and gold in a short period, the head of the Judiciary in August of the same year, referring to the Economic war, through a detailed letter, requested from the leadership the formation of special courts to fight economic crimes, and with his permission, the mentioned courts were formed.Although doubts about the ability of the legal mechanism to fight corruption concerns about impartial proceedings and the fear of undue influence have forced the authorities of the criminal justice system to establish special anti-corruption courts (for further reading, see: Ghahramani and Saibani, 2019: 190) and the ineffectiveness of the criminal policy and the usual procedure regarding economic crimes - considering the specific characteristics of these crimes - is an undeniable and obvious issue, but at the same time, it should be noted that granting special powers to special courts and establishing exceptional arrangements should not cause other concerns. At the same time, this action should not lead to leaving the rule of law, threatening or restricting the rights of the defendants, granting extra-legal powers to judicial authorities, or causing other aspects of the crisis in criminal policy; An issue that aims the integration of criminal policy and makes its effectiveness less and less and, according to some, causes double corruption (Heidarizad and Fakhr, 2022: 56). The fact that the judicial system is the designer and enforcer of the law that is the basis for the creation of special discriminatory organizations and proceedings, is not compatible with any of the principles of the separation of powers and the separation of the boundaries of legislation and justice, and ultimately will lead to the distancing of judicial procedures from legislator's desirable criminal policy. (See: Lazerges, 2022: 69). The principle of separation of powers, as one of the principles guaranteeing the status of the rule of law, expresses the granting of the exclusive power of law-making by the society to the legislative body. The obvious result of this principle is the avoidance of other powers from policymaking and legislation. MethodologyIn this article, while analyzing the challenges of resorting to permission-based criminal policy, the rulings stipulated in the first and second permissions of the heads of the Judiciary from the Supreme Leader have been comparatively analyzed and in the first part, the legal position of this permission (Estejazeh) will be examined. Then, entering into the nature of Estejazeh, the contents of its rulings will be analyzed from the point of view of expanding or restricting the rights of the defendants, and finally, the solutions ahead will be explained. Results and DiscussionAfter the two-year execution of the Estejazeh and the activity of special courts dealing with economic corruption, the new head of the Judiciary presented a new Estejazeh to the Supreme Leadership to resolve some of the criticisms and challenges that were raised. The Supreme Leadership also agreed with this request by writing that "...accelerating the follow-up of proposals through the legal path and observing strictness in court rulings is strongly recommended". The focal point of this Estejazeh is the leadership's emphasis and statement on "pursuing proposals through the legal path".The second Estejazeh, despite the disadvantages that were discussed in the previous speech, has taken effective steps to overcome the challenges, but its basic defects remain. For example, the issue of single-stage proceedings is repeated in the Amendment of Permission (Estizan) in paragraph 7 in a different way; with the difference that the 10-day deadline for appeal in the death penalty is not mentioned in paragraph 7.The experience gained from the execution of Estejazeh has now simplified the path and shows us that the permission-based criminal policy is neither logical nor feasible to remove the obstacles of fair trial, crime prevention, and proper sentencing of economic crimes. Returning to the general provisions of the criminal procedure law is an inevitable necessity, and the creation of any discriminatory rule in the organization or procedure for economic crimes depends on the existence of a transparent, consistent, and specific strategy for controlling and curbing disruptions in the country's economic system, and emotional and cross-sectional policies in economic crises and political turmoil, can never be effective in fighting corruption and only has temporary effects. Ignoring and depriving the accused of many defensive and acquired rights does not only mean removing the defect of the present law but also violating it. Therefore, decisiveness and speed in dealing with economic corruption do not mean limiting and attacking the defensive and legal rights of the defendants, and it necessarily requires observing the principles of fair trial as much as possible to obtain valid and well-reasoned judicial rulings. ConclusionsThere is no valid reason for the possibility of setting criminal rules or assigning judicial authority outside the framework of the rule of law principle in dealing with economic disruptors and corruptors. Resorting to special instructions and contrary to the law with the argument that speed and urgency are necessary in dealing with economic crimes is unjustifiable. Considering the delay of the mentioned crimes and the increase in their scope and destructive consequences, it can be said that until there is no local, codified, and regularized legislative, judicial, and executive criminal policy, the adoption of any other strategy is ineffective and there will be no result other than people's distrust of security and judicial justice. Selection of ReferencesAshouri, Mohammad (2016), Criminal Procedures, 1st Vol., 5th edition, Tehran: Samt Publications.Ebrahimi, Shahram and Majid Sadeghnejad Naeini (2013), "Criminological Analysis of Economic Crimes", Criminal Law Research Quarterly, Second year, No. 5, pp. 147-174.Omidi, Jalil (2003), "Criminal Proceedings and Human Rights", Majlis and Research Magazine, 10th Year, No. 38, pp. 113-146.Babakhani, Erfan and Hadi Rostami (2022), "Differential Handling of Economic Crimes in Iranian and French laws", Comparative Studies on Islamic and Western Law Quarterly (CSIWL), 9th year, No. 1, pp. 31-62.Heidarizad, Asma, and Hussein Fakhr (2022), "Extra-legal Proceedings: a Critical Review of the Foundations of Judicial Estejazeh in the Light of the Constitution", Criminal Law Research Journal, No. 27, pp. 33-62.Khanalipour Vajargah, Sakineh (2017), Activists of Iran's Criminal Legislation Process in the Scope of Corruption and Economic Crimes, in Criminal Policy against Economic Crime, edited by: Amir Hassan Niazpour, Tehran: Mizan, pp. 104-71.

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Author(s): 

SHAHALI AHMADREZA

Issue Info: 
  • Year: 

    2014
  • Volume: 

    10
  • Issue: 

    35
  • Pages: 

    111-134
Measures: 
  • Citations: 

    0
  • Views: 

    1223
  • Downloads: 

    0
Abstract: 

This article mainly tries to study how much indexes of political freedom in Islamic Republic of Iran have been implemented with an emphasis on the constitution. To this end, first the position of freedom in the constitution has been explained then principles related to political freedom in Islamic republic of Iran's constitution have been studied and indexes of political freedom have been extracted. Later, presenting distinctive statistical data based on these indexes, the amount of attention paid to political freedom by different governments from 1990 to 2010 has been studied. The statistics in this article, most of them presented for the first time, include elections after the victory of the Islamic revolution, the number of licenses issued for the periodicals during the tenure of “construction” Government, “reforms” Government and ninth government, the field of periodicals, the number of political organizations and parties during “construction”, “reforms” and ninth government, house impeachment of ministers and cases of not giving the vote of confidence, questioning different ministers, investigation from different institutes and organs. These statistics indicate that political freedoms are among the most important achievements by Islamic republic of Iran and different governments have paid serious attention to this issue.

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Author(s): 

Mahmoudi Amirreza | Taghvaee Abbas | Ghavami Pour Sereshkeh Mohadeseh

Journal: 

Legal Civilization

Issue Info: 
  • Year: 

    2024
  • Volume: 

    7
  • Issue: 

    20
  • Pages: 

    5-22
Measures: 
  • Citations: 

    0
  • Views: 

    70
  • Downloads: 

    19
Abstract: 

The US Congress, as one of the main governing forces in the US political system, plays a key and unique role. The main task of the Congress is to legislate based on the Constitution, which is extensively discussed in the text of the Constitution. This shows the importance and pivotal role of this institution from the point of view of the drafters of the Constitution. The Congress has a bicameral structure including the Senate and the House of Representatives, and the approval of both houses is necessary to pass laws. Legislation is exclusively in the power of Congress and even the President cannot interfere in this process. Congressional performance is monitored through the confirmation of senior government officials and the impeachment process. In addition to legislation, Congress has other duties; including approving the government budget, approving foreign treaties, approving ministers and judges of the Federal Supreme Court, declaring, war and impeaching the president. This research was done to investigate the position of Congress and the influence and authority of this institution in the policies of the United States of America using a descriptive and analytical method.

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Journal: 

Comparative Law

Issue Info: 
  • Year: 

    2023
  • Volume: 

    7
  • Issue: 

    1 (11)
  • Pages: 

    27-49
Measures: 
  • Citations: 

    0
  • Views: 

    135
  • Downloads: 

    89
Abstract: 

Parliamentary oversight is one of the most important consequences of separation of power system which has a great role in regulating power and protecting the rights of citizens. However, several factors and tools saffect this supervision. Considering the important role of political parties in the democratic life of the society and the organization of power, the role of the parties in realizing the desired parliamentary supervision cannot be ignored. Therefore, this article used a descriptive method and analyzed the reliable library sources to answer the question regarding the role of political parties in the application of political tools of parliamentary oversight. In this regard, it was found that coherent organization within the party is very important to fully exploit and direct the monitoring tools. Subjects that have been regulated in many parliaments, regardless of the type of political system and the difference in the degree of success, were able to organize the parliamentary groups, determine the direction of the flow of tools such as questions, notes, impeachment, etc. (whatever issues are raised in the spotlight for everyone), gain public support for the application of those tools, obtain the power to organize and form the composition of special commissions, moderate the dominance of the majority party, and prevent unilateralism.

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Issue Info: 
  • Year: 

    2023
  • Volume: 

    21
  • Issue: 

    3
  • Pages: 

    221-235
Measures: 
  • Citations: 

    0
  • Views: 

    78
  • Downloads: 

    37
Abstract: 

The aim of this study was to design a model for delegating managers' authority in Islamic culture. The research method of the present study is qualitative and based on the content analysis approach in order to extract the required themes from religious sources related to the delegation of authority. the data were extracted from the religious books (Quran and Nahj al-Balaghah). To calculate reliability, the open-ended reliability method was used and to evaluate the validity, the relative content validity coefficient (CVR) and content validity index (CVI) were used. In the first stage, descriptive coding was done as basic themes, and in the interpretive coding stage, basic organizing themes were classified. The last step was to determine the overall theme, which includes all of the aforementioned themes. Using theme analysis, 82 basic themes, 20 sub-themes, and 7 main themes es were extracted. The main themes were formed in the form of concepts such as the proportion of responsibility and ability, supervision and care, auditing and accountability, Lack of responsibility from higher levels, accountability, and responsibility. As a result, it will be effective that in addition to delegating authority over the manager's performance, she also supervises with calculation and participates in impeachment.

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