“Right-aligned image”
Mohammad Mohabbie

First: Problem Statement.

The original 99 articles of the Constitution of the Islamic Republic of Iran state: “The Guardian Council is responsible for overseeing the elections of the Assembly of Experts, the President, the Islamic Consultative Assembly, and referendums and general polls.” Article 98 of this law also designates the interpretation of all principles of the Constitution as one of the responsibilities of the Guardian Council.

A few months before the 10th parliamentary elections in 1394 (2015), President Hassan Rouhani criticized the monitoring methods of the Guardian Council and made important statements questioning the legitimacy of their oversight. Unfortunately, his words did not have much impact. Oversight by the Guardian Council is one of the most controversial issues in the current democracy in Iran.

But where is the root of the debate over the supervisory authority of the Guardian Council?

It must be said that from the year 1358 when the Constitution was approved by referendum until 1370, there was no news of this type of interpretation of the concept of oversight. The Guardian Council, in 1370, with a very expansive interpretation of the word “oversight” in Article 99, completely undermined the Constitution and gave the essence of “appointments” to the elections. The Guardian Council insists that the meaning of oversight in Article 99 is oversight of all stages of the elections, not just election day. Therefore, it must also oversee the qualifications of candidates.

Unfortunately, the new claim of the members of the Guardian Council is that they not only monitor the qualifications of candidates, but also have the responsibility of overseeing the representatives of the parliament, which they have named “supervising the actions of the parliament members through monitoring is necessary in order to determine whether they still have the qualifications to continue their representation or not.”

It is true that the Guardian Council is the interpreter of the Constitution, but that does not mean that it should not be subject to criticism in its interpretation! Even if we accept that supervision is present in all stages of the elections, not only monitoring the actions of the parliament representatives, but also examining the qualifications of the candidates for parliament cannot be considered a supervisory task; rather, it is an executive task because the government is responsible for executing the elections. And since examining qualifications requires obtaining information about the candidates’ security, judicial, educational, and occupational backgrounds, which can mostly be provided by government institutions, the executive body must conduct the examination. However, the executive body must also adhere to the principle of qualification for the candidates, unless there is evidence to the contrary. But if the government, as the executive body, rejects someone’s qualifications with baseless excuses, then the supervisory body, namely the Guardian Council, must investigate so that no one’s rights are violated, instead of the executive

According to the two fundamental principles of jurisprudence, namely the principle of validity and the principle of innocence, in the topic of candidates’ qualifications, the principle of qualification of individuals is the main principle, unless it is proven otherwise with evidence. However, the jurists of the Guardian Council think exactly the opposite of Islamic principles and insist on the principle of disqualification, and the qualifications of candidates must be verified. This goes as far as examining their beliefs, which is not beneficial for the system.

Second: The philosophy of the Guardian Council of the Constitution.

The phenomenon of safeguarding from the constitution as the most important legal document of any country and also monitoring elections (not monitoring parliament members) in democratic countries is a normal and even necessary matter. It is interesting to know that this Guardian Council in the Constitution of the Islamic Republic of Iran is derived from the Constitutional Council of France. The Constitutional Council of France has at least 9 members who are legal experts, and the President, the President of the National Assembly, and the President of the Senate each appoint three members. Also, any former President whose term has ended becomes a lifelong member of this council. Among the former Presidents, three are still alive: Jacques Chirac, Nicolas Sarkozy, and Valéry Giscard d’Estaing; only Giscard d’Estaing is currently a member of this council, while Chirac and Sarkozy have resigned from their membership.

The authority of this council includes overseeing the process of presidential elections, interpreting the constitution, and aligning the laws of the parliament with the constitution. However, unlike Iran, not all decisions made by the parliament are sent to the council; instead, specific institutions and individuals designated by the law have the right to raise objections and request for the review of a law passed by the parliament in the French Constitutional Council.

Some members of the Guardian Council consider it to be derived from the second principle of the supplementary constitution, known as the principle of balance. However, the analogy is not correct; because the jurists who were subject to the principle of balance were themselves members of parliament and not an independent body from parliament. In the draft of the Islamic Republic’s constitution, which did not include the principle of guardianship of the jurist, an 11-member Guardian Council was envisaged, with 5 members being jurists and being introduced by the jurists and elected by the parliament, and 6 members being legal experts and being introduced by the president and elected by the parliament, with similar powers to the French Constitutional Council. However, with the changes in the principles of the draft constitution in the final review by the parliament, the Guardian Council became a 12-member body; consisting of 6 jurists appointed by the Supreme Leader and 6 legal experts selected by the judiciary and approved by the parliament.

The most challenging part among the powers of the Guardian Council is monitoring the elections.

“Supervision in literal terms means “applying care over the execution of a matter”. There are two types of supervision: “surveillance” and “corrective supervision”.”

Surveillance monitoring is a type of monitoring in which the observer’s duty is only to gather information and report it, and they do not have the right to interfere in the process. On the other hand, supervisory monitoring is a type of monitoring in which the observer, in addition to gathering information, has the right to intervene, issue orders, and influence the process according to their own judgment.

The Guardian Council’s supervision over the elections was mainly focused on monitoring until the passing of the founder of the system. This council emphasized its supervisory role during the election process. The approval or disqualification of election candidates was the responsibility of the executive bodies of the elections, and the Guardian Council only investigated the qualifications of disqualified candidates in case of complaints.

In April of 1991, Gholamreza Rezvani, a member of the Guardian Council who had been appointed by the same council as the head of the central monitoring committee for the fourth parliamentary elections, wrote letters to the Guardian Council and requested the interpretation of Article 99 of the Constitution.

Mr. Rezvani, in his letter, requested the Guardian Council to declare their interpretive opinion on the interpretation of Article 99 of the Constitution, based on Article 98 which grants the exclusive authority of interpreting the Constitution to the Guardian Council, stating that “sometimes doubts arise regarding the quality of execution and supervision of elections.”

Ayatollah Mohammadi Gilani, the temporary secretary of the Guardian Council, announced in response to this inquiry: “The aforementioned supervision is a constitutional principle and includes all stages of the election process, including the approval or rejection of candidates.” Therefore, for the first time, the term “supervision” has entered the political and legal literature of Iran.

The Guardian Council believes that supervising the elections is an introspective supervision; meaning that in cases where the supervision is delegated to itself, the institution performs the supervision internally. Although the Guardian Council has not explicitly defined this supervision, it is of the opinion that its supervision over the elections is introspective. This means that an organization is supervising its own work and therefore this is considered as introspective supervision. This is while the responsibility of holding elections falls under the Ministry of Interior.

Firstly, this interpretation was contrary to the legal procedure of the Guardian Council 11 years ago, and secondly, in the final review of the Constitution by the Parliament, there was no indication of the legislator’s intention to limit the concept of supervision in Article 99. Thirdly, supervisory oversight is restrictive of the freedom of elections and the principle of the republic, which is in clear contradiction with the other principles of the Constitution. It is true that in Article 98, the interpretation of the Constitution is solely the responsibility of the Guardian Council. However, the interpretation of a legal text must also consider all legal aspects and not contradict the original text, the interpretive institution, and the legislator’s intention. It would have been better if the President at the time had warned about the Constitution during the presentation of this interpretation, so that this supervisory oversight would not become a precedent. But it is not too late. We can still prevent incorrect precedents. It seems necessary to

Third: Supervision of the election results.

In recent years, the interpretation of the Guardian Council’s oversight has become more expansive. The members of the Guardian Council have established a new right for themselves, which is the oversight of representatives after their election. This means that the Guardian Council has the right to disqualify a representative, even after their election and membership in parliament. In the early days of 2016, the issue of disqualifying Minoo Khaleghi, the elected representative of Isfahan, was raised and the Guardian Council, in a self-righteous manner, imposed its own opinion. If at that time there had been critical analysis and rational resistance against the law-breaking of the Guardian Council, perhaps the members would not easily bring up current discussions.

First of all, it should be noted that even if we accept the idea of supervision, the Guardian Council does not have the right to disqualify an elected representative after the end of the voting process. The deadline for the Guardian Council to declare the qualifications of candidates is clear and explicit (Article 53, Clause 3 of the Parliamentary Elections Law). According to the text of the Parliamentary Elections Law, no institution has the right to remove any of the candidates from the list of nominees from the moment the voting begins, unless the candidate himself withdraws. And even this withdrawal is not possible after the ballot boxes are closed; let alone after being elected and taking office in the parliament and taking the oath of representation.

Expressing an opinion about the qualifications of a candidate before the time of voting is allowed, and after voting, especially after the end of voting and announcement of results, declaring the disqualification of a candidate does not have any legal or substantive basis. Determining the qualifications of a candidate is for the day of the election. There are other mechanisms in place after the election to prevent an elected representative from being disqualified from membership in the parliament. These include rejecting the credentials of the elected representative or nullifying the election, etc.

We said that according to the logic of Iran’s Constitution, the Guardian Council only has the right to express opinions about candidates until the start of the voting, and after that, it has no rights in this matter. Unfortunately, not only has it taken this right even after the start of the voting, but also after the start of the term of representation. However, the Guardian Council has been practicing this dangerous innovation in expressing opinions about the qualifications of candidates in its 16-year record. This council committed this innovation in 1380 and many people easily overlooked it at that time, and unfortunately it does not seem that anyone remembers it much. On June 12, 2001, at the same time as the eighth presidential election in Iran, in East Azerbaijan province, and for an empty seat in the third term of the Assembly of Experts, the midterm elections were held. Two candidates participated in it: one was a young scholar, Dr. Reza Elhami Kalvanagh, (

Fourth: Fundamental Contradiction.“

Supervision over representatives.“

With the spirit of the constitution.

The story of monitoring the behavior of the representatives of the Islamic Consultative Assembly, which has become a challenge between the Guardian Council and the members of the tenth parliament in recent days, was first raised by the leader of the Islamic Republic. Ayatollah Khamenei, in 1389, said in a speech: “A monitoring mechanism must be defined in the parliament so that if someone in the position of representation abuses or falls short, they can be held accountable.”

Following these great words, the highest authority of the Islamic Republic of Iran, the representatives of the Eighth Parliament prepared a proposal titled “Supervision over the Performance of Representatives”. This controversial and challenging proposal sparked widespread agreements and disagreements. Ali Motahari referred to this proposal as the “Document of Servitude” and at the time said, “Let us not sign our own document of servitude; because a representative must be free, unbiased, and independent and be able to freely express their opinions.” On the other hand, Ahmadinejad, the representative of Shazand in the Eighth Parliament, defended this proposal by saying, “The approval of the Parliament’s supervision over the behavior of representatives will be a document of honor for the Eighth Parliament, which will remain in history and history will remember the Eighth Parliament with kindness.” And finally, this proposal was approved.

After this process, and in the past 6 years, the Guardian Council has been seeking a legal solution to turn this oversight into a pressure lever in the hands of this council over the elected body of the parliament. Certainly, the Constitution does not give this authority to the Guardian Council, but the general policies of the system in the matter of elections have been imposed on the members of the Guardian Council. About a month ago, the leader of the system, in accordance with Article 110 of the Constitution, communicated the general policies of elections in 18 articles to the heads of the three branches of power and the head of the Expediency Discernment Council, and in Article 13 of these policies, the scope of the Guardian Council’s authority has been extended to after the confirmation of the election results. In Article 13 of the notification, it is stated: “Determining the necessary procedures for the proper execution of the duties of representation, observing the bylaws, preventing financial, economic

It seems that this clause of the general policies of the system regarding elections is in complete contradiction with the spirit of the Iranian Constitution. Naturally, in no principle of the Constitution, there is anything under the title of “supervision over the performance of representatives”. Even no principle implicitly refers to such supervision. There are supervisory mechanisms within the parliament itself, as in Article 90 of the Constitution, which has a commission with the same name in the parliament. Anyone who has a complaint about the performance of the powers (including the legislative power itself) can refer to this commission and file a complaint. Since the parliament is considered the house of the nation and the representatives of the nation are elected to supervise other powers and legislate, it is legally logical that these representatives should be independent and have no concerns or worries about fulfilling their duties according to various principles of the Constitution.