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Mohammad Rahbar

The Guardian Council in today’s Iranian Constitution is the result of a retreat by the representatives of the National Consultative Assembly after the Constitutional Revolution, from the idea of a modern government in favor of the privileges of clerical rule.

The Constitutional Revolution had two strong branches that came from two opposing roots; intellectuals and clergy.

The constitutional intellectuals, who emerged from the secret gatherings of the Naseri period or were among the first generation of Western-educated individuals, proposed a parliamentary system similar to that of England, in which the king had no role in affairs and, according to the constitutional law, held an honorary position while all matters were handled by the parliament. The prime minister was the executive force of the National Consultative Assembly, which was elected by the social classes of that period (at that time, the parliament was not yet directly elected by the people’s vote).

For the first time, the melody of enlightenment was celebrated among the people, and the Constitutionalists’ front of intellectuals had supporters among the mostly illiterate Qajar society due to their novelty and lack of official recognition. However, religion, seminaries, and authorities could still have a significant impact on the course of the Constitutional Movement and break the ranks of the Constitutionalists’ fighters.

Although the prominent figures of that era, such as Ayatollah Mazandarani and Ayatollah Khorasani, were supporters of constitutionalism and the book “Tadbir al-Ummah” by Allameh Nayini represented a fresh perspective on politics, and they brought the parliament within the realm of guardianship and contract, deriving a social contract from Shia jurisprudence, the type of clergy that the common people understood was not of the same kind. They were not like the authors of the old book “Tadbir al-Ummah” from Qom, such as Fazlullah Noori and Sheikh Kazem Yazdi, who firmly declared what was forbidden and allowed and reminded people of the afterlife, and their hands were warm with excommunication.

Sheikh Fazlullah came with a fierce determination and, driven by his strong desire for power, he sensed that this parliament and constitutional monarchy, if they strike a blow against the king in the first step, will then turn to the clergy and the widespread organization of the mullahs who have a separate government alongside the king.

This was the situation and one of the lawyers of the first parliament, named “Fazeli Agha”, at the same time that the Sheikh was protesting against the constitutional and legitimate demands, said: “We have suffered two injustices from this parliament. One from the government and one from such scholars. We never considered these scholars as scholars, and now we do not want to consider them as such, even though we have walked with them and they have walked with us, but now we must make it clear to the people that they are not among the scholars.”

But they were among the scholars and, in fact, from the pillars and elites. The Constitutional Revolution was the result of the illness and peaceful nature of Mozaffar al-Din Shah Qajar and the fact that the Qajar system had reached a dead end in terms of management. It was able to impose the constitutional rule on the king, but it could not impose such restrictions on the scholars, whose influence and power were still strong.

Shiite spirituality, which had been baptizing kings since the Safavid era, gained immense power with the weakness of the Qajar dynasty after their defeat in the war with Russia. The administration of justice and religious courts were officially under the control of the clergy. Endowments, tithes, and zakat were considered holy taxes that provided financial support for the clergy. The spiritual leadership of the community gave the clergy such power that they could paralyze the court with a single decree, and Naser al-Din Shah, with all his pomp and grandeur, had to taste the lash of the sixty lashes in the case of tobacco and the half-sentence verdict of Mirza Shirazi.

The Shi’a clergy was present in both the supporters and protesters’ camp during the Constitutional Revolution, and whichever side gained power, the clergy gained more strength and stability. Despite their differences, the protesters and supporters of the clergy believed that Islamic law and religious interpretation by the scholars were superior to the customary laws of the parliament, and at the very least, they believed it was possible for customary laws to clash with religious rulings and divine principles.

Clerics, as a social class, were represented alongside princes, scholars, and professionals, but even so, the law that passed from the National Consultative Assembly was not considered Islamic and the institution of clergy wanted to have the right to sit in a higher position than democracy and the parliament.

In the supplementary plan of the Constitution, there was initially no mention of the supervision of the clergy over the parliament, but later, through the efforts of religious leaders, this principle was included in the Constitution, stating that in each term, five top scholars who are familiar with the current circumstances, should oversee the laws of the parliament.

The method was also established that the scholars of Najaf and Qom introduce twenty individuals and select five of them for the council.

However, the first council was opposed to this supervision for three main reasons. The reasons for opposition remained in history and, of course, there was no ability to resist the power of the clergy. Those three reasons still exist and can be counted as reasons for opposition to the Guardian Council of the Constitution, and those three reasons are:

1. This oversight is in violation of the legislative powers of the National Assembly.

2. Lawyers in parliament have the power of representing the people and cannot delegate it to others.

3. If supervision is necessary, the scholars of the supervisory board must be elected by the people’s vote.

The Constitutional Monarchy Law did not last more than eleven years and the supervisory board, due to conflicts among scholars and the fact that those five individuals had to reach a unanimous decision or absolute majority, apparently failed to do so and was not formed again. In that same instance, the late teacher, who was a member of the supervisory board, closed the path to women’s right to vote with a striking speech.

With the fall of the Qajar dynasty and the rise of Reza Shah Pahlavi, a new form of tyranny emerged, with no signs of constitutionalism or adherence to the rule of law.

The Islamic Revolution of Iran, with the leadership of the clergy and the intellectual opposition to the constitutional law and the progressive principle of the Guardianship of the Jurist, was not in any way a follower of constitutionalism and its extension towards freedom and movement towards a modern democratic government; except that this supervision of the clergy over the parliament, which was reluctantly included in the constitutional law, was voluntarily included in the Constitution of the Islamic Republic.

It is not fair to say that the Islamic Republic is a legitimate republic and its republicanism is crucified on the four pillars of clergy.

It seems that the Supreme Leader, with his extensive supervisory and executive powers, and the always clerical head of the judiciary, were not enough to restrain the people’s vote, as the Guardian Council sits on top of the parliament.

The Guardian Council has always been the protector of the interests of the ruling clergy in the Islamic Republic. It is a fortress built at the gates of government and has disrupted both the parliament and elections until now.

If the supervisory board of the National Consultative Assembly was chosen from outside the realm of power and the selection of supervisors was the responsibility of the Assembly, in the selection of clerics for the Guardian Council, the Islamic Consultative Assembly, and the seminaries – if we believe in something as an independent seminary from power – they have no role.

The leader of the Islamic Republic chooses the six jurists of the Guardian Council and in the past 37 years, the majority of the jurists of the council have been selected from the most esteemed levels of clergy, making the Guardian Council one of the most stable institutions of the Islamic Republic. The tenure of Sheikh Ahmad Jannati, the secretary of the Guardian Council, is in accordance with the principles of the Islamic system.

In the selection of the six jurists of the Guardian Council, the legal community and attorneys have no share. The jurists are solely chosen by the head of the judiciary and it is a mere formality that their vote is written down in the parliament.

With this introduction process, the lawyer does not reach a conclusion, but still the spirit of the scholars is disturbed and according to the constitution, there is no equality in voting and lawyers do not have the right to enter legal supervision, and on the other hand, council elders have the right to express legal opinions.

Supervision and legal oversight of the parliament is not the only duty of the council, but the Guardian Council is the exclusive institution for interpreting the Constitution. Therefore, if it interprets the supervision of elections, which is also within the jurisdiction of the council, no one can object. According to the law, even if the interpretations of the council go against the nature of the parliament and elections, there will be no room for a solution.

The Guardian Council, with these characteristics that we have mentioned, is a philosophical problem. This means that as long as we believe in the conflict between customary law and religious law, or that we do not accept equality in voting rights and determining destiny, and consider the clergy as a separate and distinct entity from society, the Guardian Council remains in place.

The strategic retreat of the Constitutional Assembly towards the clergy and the occurrence of the Islamic Revolution and the destruction of intellectualism in Iran, resulted in a change of regime from constitutional monarchy to a republic, but without the freedom of elections and the formation of a national assembly.

These days, the discussion is whether the Guardian Council can extend its supervision over the behavior of representatives. It must be said that with the authority it has in the law and the right to interpret the constitution, the Council can do such a thing.

Opponents of monitoring and interpretations of the Guardian Council must take the discussion further and start questioning whether clerics have a special right and unique understanding that they must be present in all branches of government, and also whether the Guardian Council has had any benefit in the past thirty-seven years and whether there is a need to maintain such a council. These questions also extend to the concept of Velayat-e Faqih and the relationship between government and religion.

The seizure of power and management in Iran calls for seekers of solutions to raise fundamental questions and practical answers, otherwise the temperament of the clergy and the approach of the Guardian Council will prevail, whether we like it or not.