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Shahin Sadeghzadeh Milan

The differences between the judicial systems of the United States of America and the Islamic Republic of Iran are numerous. In this article, several major differences will be mentioned and their significance will be explained.

The letter “A”.–

Interpretation of the Constitution.

Perhaps the most important power of federal courts in America is to interpret the Constitution. Based on this, district courts, appellate courts, and the Supreme Court of America can all declare a law passed by the US Congress unconstitutional and nullify it based on their interpretation of the Constitution. However, the final decision in this matter lies with the Supreme Court of America. If the Supreme Court does not agree to a request for review, the decision of the appellate court will be upheld and enforced.

Many of the most important legal decisions in American history have been made by the Supreme Court of the United States. For example, the Supreme Court’s ruling on the unconstitutionality of segregated schools for white and black students in 1954 and its ruling on women’s right to abortion in 1973 are considered pivotal moments in modern American history. These decisions were based on the fact that the power to interpret the Constitution lies with the judiciary.

Unlike America, the Iranian Constitution does not recognize the judiciary as having the right to interpret the Constitution. Article 98 of the Constitution states: “The interpretation of the Constitution is the responsibility of the Guardian Council, which is done by the approval of three-fourths of its members.” The Guardian Council is also the only authority that confirms the compatibility of laws with the Constitution. In fact, before a law can be implemented, it must first be approved by the Guardian Council. This is completely opposite to the process in America, where a court can review the compatibility of a law with the Constitution after it has been implemented and a complaint has been filed by an individual or entity that has been affected by it.

If we assume that the Guardian Council is fulfilling its responsibilities properly, the advantage of the Iranian system is that a law that is in conflict with the constitution is not enforced from the beginning and no one’s rights are violated. In addition, there is a cost-saving in the direct and indirect expenses involved in a legal claim and the legal question is clarified very quickly. On the other hand, the flaw in the Iranian system is that after a law is confirmed to be in accordance with the constitution, citizens who are harmed by that law do not have the opportunity to raise their complaints and do not have any other option to protect themselves from the consequences of that law, other than requesting a revision by the legislator. In contrast, in America, after a law is implemented, individuals and legal entities can demonstrate the effects of that law on their lives or activities in court and request that the court make a decision considering the real-world impact of the law. Although this method may have higher costs and may not clarify

B.–

Final decision maker.

According to the US Constitution, the judicial branch, and in fact the Supreme Court of America, is the ultimate authority for resolving the most important legal and constitutional issues and challenges. In other words, when the Supreme Court of America makes a decision on a matter, it is considered resolved. In this case, there are only two ways to change the law: 1) changing the Constitution, or 2) changing the members of the Supreme Court and bringing a new case to be decided differently by the Supreme Court.

However, in the legal system of Iran, the status of the final legal authority is not very clear. Regarding the interpretation of the Constitution, the Guardian Council has the final say, in matters of subsidiary laws, the Expediency Discernment Council makes the final decision, and in judicial cases, the Supreme Court or the head of the judiciary has the final say. However, in each of these cases, there is also the possibility of intervention by the Supreme Leader of the Islamic Republic. Although the Constitution explicitly does not give the Supreme Leader the power to intervene in many cases, the concept of absolute guardianship of the jurist has been interpreted in such a way that the Supreme Leader of the Islamic Republic has the right to impose his opinion in any matter he deems necessary.

J.–

How to choose judges.

Federal judges in the United States are first nominated by the President to the Senate and, upon receiving a vote of confidence from the majority of the Senate, are appointed to the judiciary. In other words, both branches of government that are considered “political” and are elected by citizens play a role in selecting members of the judiciary. Additionally, the removal of judges is possible with a majority vote from the House of Representatives and two-thirds of the Senate, although this is rare in practice.

According to the 158th article of the Iranian Constitution, the appointment and dismissal of judges is the responsibility of the head of the judiciary, who is selected by the leader of the Islamic Republic. In other words, the judiciary is completely under the control of one person – the leader of the Islamic Republic – and there is no independent institution overseeing the performance of judges. In these circumstances, the independence of the judiciary is meaningless; as this branch is essentially an arm of the leader of the Islamic Republic to exert influence over the affairs of the country. The 38-year experience of the Islamic Republic has shown that the judiciary in Iran is not independent and is, in fact, the executor of the policies of the leader of the Islamic Republic and the security institutions under his supervision.

سلام، من امیر هستم

Hello, I am Amir.

Legal Manager of the Center for Human Rights Documents in Iran.