Power Dynamics Under the Iranian Constitution
MIKE KOWALSKI* ∙ January 21, 2023 ∙ ARTICLE
Introduction
On its face, the Constitution of the Islamic Republic of Iran (the “Iranian Constitution” or “Constitution”) is worlds apart from more familiar, Western constitutions.[1] Modern Iran’s very name, for instance, proudly announcing to the world its status as an outwardly Islamic state, seems repugnant to Western constitutional notions of separation of church and state. Upon a closer examination, however, the Iranian Constitution is not significantly different from Western constitutions in terms of having legislative, executive, and judicial branches of government. Yet, as an analysis of Iran’s Guardianship Council and its relationship with the Supreme Leader reveals, the Iranian Constitution differs significantly from its Western counterparts in how power is allocated.
I. Introducing the Iranian Constitution
The product of the 1979 Iranian Revolution, the Iranian Constitution “erect[s] … a framework based on a modern legal system to legitimize … [an] ideology rooted in an interpretation of Shi‘i Islam.”[2] This interpretation of Shi‘i Islam stems from a fundamental rift in the Islamic community following the death of the Prophet Mohammed. Essentially, the split between Shi‘i Muslims and the predominant group of Muslims, Sunnis, originates from who they accept as the first legitimate caliph, or central authoritative figure of the Islamic community, after Mohammed’s death.[3] While Sunnis accept Abū Bakr as the first legitimate caliph, Mohammad’s father-in-law, Shi‘is instead believe Mohammad’s cousin and son-in-law, Ali, should have been the first caliph.[4]
Although Ali eventually became the fourth caliph in the Sunni tradition, a significant discrepancy between Sunnis and Shi‘is was born out of disagreement over the validity of religious and legal pronouncements provided by the first three caliphs and their supporters.[5] Whereas Sunnis accepted these first three caliphs and their supporters as legitimate religious leaders, who spoke with authority on Islamic law, Shi‘is rejected this belief.[6] Instead, the majority of Shi‘is, including in Iran, referred to as “Twelver Shi‘is,” believe that twelve imams, or “leaders,” beginning with Ali are the true leaders of Islam, providing authoritative interpretations of Islamic law.[7] The twelfth imam, however, went into occultation in the late ninth century of the Gregorian calendar and remains in hiding to this day.[8] This foundational knowledge of Shi‘i Islam is an important backdrop for understanding the Iranian Constitution.
Like all constitutions, the Iranian Constitution allocates power and authority.[9] In this endeavor, it adheres to the Westphalian idea of sovereignty in which states are the sovereigns over their own territory and largely refrain from meddling in the internal affairs of other states.[10] The Iranian Constitution also organizes its government into legislative, executive, and judicial branches.[11] However, the ways in which these three branches interact with one another and share power is markedly different from Western models. Citing the Qur’anic verses that “[t]heir affairs are by consultations among them” (42:38) and “[c]onsult them in affairs” (3:159), the Iranian Constitution provides that consultative bodies are to be central in governmental decision-making.[12] In this spirit, the Constitution provides for a Guardian Council, which has significant influence over both the legislative and executive branches of the Iranian government.[13] Yet even this Guardian Council is beholden to the Supreme Leader of Iran, in whom “the wilayah and leadership of the Ummah devolve upon” while the twelfth imam remains in occultation.[14]
II. Iran’s Guardian Council
The Guardian Council wields significant power over both the legislative and executive branches of the Iranian government. As an embodiment of shura, the idea of consultation central to Islamic law, the Iranian Constitution dictates that the Guardian Council shall be composed of six adil fuqaha, or Islamic law scholars, and six jurists, for a total of twelve members.[15] Guardian Council members serve terms of six years, these terms being staggered such that half of the members of the fuqaha and jurists respectively change every three years.[16]
A. Controlling the Legislature
The Guardian Council exerts substantial influence over the Iranian legislature, the Islamic Consultative Assembly (the “Consultative Assembly”), including acting as the gatekeepers of its membership. Members of the Consultative Assembly are directly elected by the people of Iran for four year-terms.[17] However, the Guardian Council oversees these elections and has the power to bar Consultative Assembly hopefuls from running for a seat.[18] In 2020, for example, the Guardian Council prevented about 9,000 Iranians from running for the Consultative Assembly, most of whom “were reformist and moderate candidates.”[19] Nevertheless, if a prospective candidate makes it past the Guardian Council and the Iranian people, he will help comprise a Consultative Assembly 290 members strong.[20] The Iranian Constitution ensures a minimum representation among these members for certain religious minorities (i.e., Zoroastrians, Jews, Assyrian Christians, Chaldean Christians, and Armenian Christians).[21] However, all members must pledge an oath “to protect the sanctity of Islam and guard the accomplishments of the Islamic Revolution” in addition to defending the Iranian Constitution.[22]
The Guardian Council also decides which legislation passed by the Consultative Assembly becomes law. With a quorum of two-thirds, the Consultative Assembly may pass legislation,[23] but all such legislation “must be based on Islamic criteria.”[24] The Constitution provides that “[t]his principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations[.]”[25] More explicitly, the Iranian Constitution states that “[t]he Islamic Consultative Assembly cannot enact laws contrary to the usul and ahkam of the official religion of the country or to the Constitution.”[26] However, members of the Consultative Assembly do not make these determinations of law themselves. Rather, the Guardian Council wields the power to decide whether legislation proposed by the Consultative Assembly conforms with Islamic criteria and the Iranian Constitution.[27] In fact, the Guardian Council’s power over the Consultative Assembly is so extensive that without a properly constituted Guardian Council, the Consultative Assembly has no legal status under the Constitution.[28]
Within the Guardian Council, only the fuqaha may decide whether prospective legislation is compatible with Islamic law by simple majority vote.[29] Legislation is deemed constitutional, meanwhile, by a majority vote of all Guardian Council members.[30] If legislation does not conform with either the Iranian Constitution or with Islamic law, it is sent back to the Consultative Assembly, offering that body a chance to amend it accordingly.[31] By agreement of three fourths of all members, the Guardian Council also interprets the Iranian Constitution.[32] In this way, the Guardian Council acts as a powerful, preemptive supreme court, striking down proposed legislation before it becomes law.
In practice, the Guardian Council approves a significant percentage of legislation proposed by the Consultative Assembly. During the Consultative Assembly’s first session, between 1980 and 1984, the Guardian Council approved 87.0% of proposed legislation.[33] During the second and third sessions, collectively between 1984 and 1992, the Guardian Council approved 84.5% and 85.2% of proposed legislation, respectively.[34] The Guardian Council approved a high of 89.9% of proposed legislation during the fourth session, between 1992 and 1996.[35] This figure then fell to 87.9% during the following session between 1996 and 2000, and then to a low of 75.9% during the sixth session, between 2000 and 2004.[36] During the three subsequent sessions, collectively between 2004 and 2015, these figures were 82.4%, 84.8%, and 81.0%, respectively for each legislative session.[37]
However, these approval figures would likely be much lower without the soft power the Guardian Council exerts over the Consultative Assembly. For instance, Guardian Council members may sit-in on Consultative Assembly sessions during debates.[38] In fact, Guardian Council members must attend these sessions and express their opinions when bill debates are considered urgent.[39] These physically-imposing reminders to the Consultative Assembly of the Guardian Council’s power over them likely suppresses legislation Consultative Assembly members introduce, let alone pass, via self-censorship, knowing that certain legislative attempts are futile. Even when Guardian Council members are not physically present at Consultative Assembly sessions, their mere existence likely has a similar chilling effect on proposed legislation. In this way, a significant amount of proposed legislation that the Guardian Council would probably strike down never reaches its members’ desks, thereby inflating its legislation approval numbers. The upshot is that although nominal legislative power may lie with the Consultative Assembly, this power is severely constrained by the Guardian Council, making the legislative branch unlike any of its Western counterparts in practice.
B. Influencing the Executive
The Guardian Council also significantly influences the executive branch of the Iranian government, the President of the Republic (the “President”). Having the responsibility of overseeing presidential elections, the Guardian Council can prevent candidates from running for President.[40] This role gives the Guardian Council the power to control the direction of the Iranian government in yet another tangible way. Only candidates the Guardian Council approve of have a real chance of winning. For example, in June 2021, the Guardian Council approved “‘only seven’ … out of some 590” people who registered to run for President.[41] In this way, only candidates whose vision for the future of Iran is aligned with the Guardian Council’s views will have a chance of acceding to President.
III. The Supreme Leader: The Guardian Council’s Puppet Master
Although the Guardian Council wields significant power over the legislative and executive branches of the Iranian government, this power is curtailed by the Supreme Leader, in whom ultimate power in Iran resides. The situation is as follows: the three branches of government operate within the domain of where the real power lies, with the Supreme Leader and, as his indirect proxy, the Guardian Council. The three branches of government may have nominal lawmaking, law-enforcing, and law-interpreting powers, as in the West, but the Supreme Leader, sometimes exerting his power indirectly through the Guardian Council, ultimately dictates the extent of these powers.
A. Choosing the Guardian Council and Influencing Legislation
The Guardian Council may be powerful, but the Supreme Leader is the one who decides who pay be part of it. Empowered by the Iranian Constitution, the Supreme Leader directly appoints the six fuqaha of the Guardian Council.[42] As a corollary, the Supreme Leader may also dismiss the fuqaha.[43] These fuqaha are unlikely to directly challenge the man who has explicit constitutional authority to remove them virtually at will. Consequently, the Supreme Leader has substantial influence over how the fuqaha will interpret Islamic Law and in deciding which legislation the Consultative Assembly proposes may become law.[44] These appointment and removal powers over the six fuqaha also provide the Supreme Leader with the tiebreaking vote, albeit indirectly, in how the Guardian Council interprets the Constitution by its three-fourths majority.[45]
Further providing him with influence over the Guardian Council’s composition, the Supreme Leader also directly appoints and may remove the Head of the Judicial Power.[46] The Head of the Judicial Power in turn then selects the pool of jurists from which the Consultative Assembly must choose its appointments for the six jurists to the Guardian Council.[47] Therefore, the Supreme Leader may only choose a Head of the Judicial Power who will in turn select jurist candidates of whom he approves. If the Head of the Judicial Power goes against the Supreme Leader’s wishes, the Supreme Leader may simply remove him from his position, thereby exerting significant power over the Head of the Judicial Power to conform with the Supreme Leader’s will. As with the fuqaha, the Head of the Judicial Power is likewise unlikely to challenge the Supreme Leader’s wishes out of a desire to keep his position in government. This power dynamic solidifies the Supreme Leader’s control over the Guardian Council’s membership, thereby cementing his indirect control over legislation allowed by the Guardian Council to become law on both Islamic law and constitutional grounds.[48] Moreover, if the Consultative Assembly is unable to conform rejected legislation with the Guardian Council’s wishes, and indirectly those of the Supreme Leader, the matter will go before the Nation’s Exigency Council (the “Exigency Council”).[49] This Exigency Council is composed of members the Supreme Leader appoints directly and may unilaterally remove.[50] Using procedures which the Supreme Leader must approve, the Exigency Council then resolves these legislative disputes.[51] In this way, the “rule of law” in Iran is really the rule of the Supreme Leader, the product of an authoritarian regime with Islamic elements rather than a natural outgrowth of Islamic law.[52]
B. Limiting the Guardian Council’s Control over the President
The Guardian Council chooses who may run for President, but the Supreme Leader decides who among these candidates officially wins. The Iranian Constitution provides that the Supreme Leader shall “[s]ign … the decree formalizing the election of the President of the Republic by the people.”[53] This provision offers the Supreme Leader significantly more power than a first glance suggests, and no other event quite captures the extent of this power as the Supreme Leader’s response to the 2009 presidential election in Iran. In 2009, Iranians largely expected that reformist candidate Mir Hossein Musavi would win the presidency.[54] However, the official results declared that conservative incumbent Mahmoud Ahmadinejad had won the race.[55] These official results were largely disputed both by Iranians themselves and Western media outlets.[56] Yet, nevertheless, the Supreme Leader endorsed these results,[57] consequentially “shatter[ing] … Iran’s political equilibrium.”[58] By doing so, the Supreme Leader ensured that “[a]ny political initiative in opposition [to the election results] would now also constitute a direct and overt challenge to him.”[59] Exhibiting the effectiveness of this powerful pronouncement and the resulting power dynamic it created, conservative candidate Ahmadinejad successfully remained President of Iran until 2013.[60]
The Supreme Leader also exerts significant control over the President once he is in office. The Constitution grants the Supreme Leader the power to dismiss the President “after the Supreme Court holds him guilty of the violation of his constitutional duties, or after a [two-thirds majority] vote of the Islamic Consultative Assembly testifying to his incompetence[.]”[61] As the Chief of the Supreme Court is nominated by the Head of the Judiciary,[62] who is appointed by the Supreme Leader, it is not difficult to imagine how the Supreme Leader could indirectly influence the Chief of the Supreme Court to find the President in violation of some part of the Constitution upon his request. The Supreme Leader could likewise exert his indirect influence over the Consultative Assembly to ultimately direct them to issue a vote of no confidence of the President. In light of this power dynamic, each of the first “four … presidents [who] … served beneath Khamenei,” the first Supreme Leader of Iran following the leader of the 1979 Revolution’s death, “sought to swing the political pendulum in different directions and at strategic moments, but ultimately all of them have deferred to the authority of the Supreme Leader as the overarching power holder[.]”[63]
IV. Lack of Effective Checks on the Supreme Leader’s Power
Given the central role of the Supreme Leader in Iran, one may question why there are any constitutional checks, nominal as they may be, on his power at all. Throughout the Twelver Shi‘i tradition, from which the Iranian Constitution derives its legitimacy, mujtahids, or religious leaders, had been those in a position to discern Islamic law while the twelfth imam remained in occultation.[64] The leader of the Iranian Revolution of 1979, Ayatollah Khomeini, took this tradition a step further by declaring that “only the mujtahids could confer legitimacy on secular rulers.”[65] Consequently, the Supreme Leader derives his power from these mujtahids under the Iranian Constitution.[66] It therefore follows that these mujtahids should have a check on the Supreme Leader’s power. In practice, the mujtahids are represented by the “Assembly of Experts,” who are responsible for electing the Supreme Leader.[67]
However, once the Supreme Leader assumes his office, the Assembly of Experts (the “Assembly”) provides no effective check on his power. The Assembly is directly elected by the people of Iran in an election that is overseen by the Guardian Council.[68] As has already been noted, the Supreme Leader has extensive influence over who is appointed to the Guardian Council. Consequently, he can ensure that officials loyal to him are able to stand for election to the Assembly, while those opposed to his regime are blocked from standing for election.[69] Although the Assembly is tasked with overseeing the Supreme Leader’s performance, wielding the nominal power to remove him,[70] many officials who make it onto the Assembly “owe … their careers to the Supreme Leader in the first place” and “are quite unlikely to vote against him in the Assembly.”[71] In fact, the Assembly “has been reticent to challenge the Supreme Leader even in a single instance.”[72] In this way, the constitutional checks on the Supreme Leader’s power are ineffective in practice.
Aside from the lack of effective constitutional checks on the Supreme Leader’s dominance over the Iranian government, he also has several extralegal means at his disposal to remain in power, should it come to that. The Iranian Constitution provides that the Supreme Leader has the power to appoint and dismiss the chief commander of the Islamic Revolution Guards Corps (IRGC).[73] Some may contend that the IRGC may have the power to remove the Supreme Leader by force, given its rise in political importance in Iran since the 1979 Revolution.[74] However, the Supreme Leader’s power to replace the commander of the IRGC creates the conditions for “a game of musical chairs so as to preclude any one individual from becoming too powerful” to challenge him.[75] Thus, rather than posing a threat to the Supreme Leader, the IRGC instead offers him protection against any potential challengers to his power through the use of brute force. To add even more arrows to his quiver, the Supreme Leader is also the supreme commander of Iran’s other armed forces and may appoint and dismiss his subservient military commanders and the chief of the joint staff at his will, thereby creating a similar power dynamic as seen with the IRGC.[76]
Conclusion
Even a cursory glance of the Iranian Constitution reveals that it is quite different from Western constitutions in at least one aspect. While many Western countries have at their foundations the principle of separation of church and state, Iran rejects this notion entirely and organizes itself as an openly Islamic state. Yet upon a closer examination, one sees that the Iranian Constitution has many similar trappings of its Western counterparts. It seems to comply with the idea of popular sovereignty, recognizes the Westphalian system of international relations, and has three branches of government with nominal lawmaking, law-interpreting, and law-enforcing powers. However, aligned with traditions found in Twelver Shi‘i Islam, which undergirds its legitimacy, the Iranian Constitution also provides for a powerful Guardian Council that completely distorts the usual power dynamic between the three branches of Western government. This Guardian Council not only serves as the gatekeeper for membership in the Consultative Assembly and ascendancy to the Presidency, but also wields direct power to prevent legislation from becoming law.
Even this Guardian Council’s powers are not unchecked, however. Ultimately, this council is beholden to the Supreme Leader. Not only does the Supreme Leader decide the composition of the Guardian Council, but he also wields the power to determine who fills the roles of both the Presidency and the Head of the Judicial Power and can significantly influence the men he chooses for these offices. These dynamics provide the Supreme Leader with substantial power over what proposed legislation in Iran becomes law. Moreover, he exerts significant influence over the religious body legally charged with conferring legitimacy on him and is nominally empowered to oversee his performance, the Assembly of Experts. In this way, the Assembly stands as an ineffective constitutional check on the Supreme Leader’s power. As a last resort, the Supreme Leader also has extralegal means at his disposal to stay in power via the IRGC and other armed forces in Iran. In this way, all major players in the Iranian government are ultimately beholden to the Supreme Leader, in whom ultimate power resides under the Iranian Constitution.
* JD Candidate at Notre Dame Law School, 2023.
[1] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989.
[2] Mehrangiz Kar & Azadeh Pourzand, The Rule of Law and Conflict in the Reform Era in Power and Change in Iran: Politics of Contention and Conciliation, 195, 198 (Daniel Brumberg & Farideh Farhi eds., Indiana Univ. Press 2016).
[3] Moojan Momen, An Introduction to Shi‘i Islam: The History and Doctrines of Twelver Shi‘ism 11 (Yale Univ. Press ed., 1985).
[4] Id. at 11-16.
[5] John McHugo, A Concise History of Sunnis and Shi‘is, 163-64 (Georgetown Univ. Press ed., 2017).
[6] Id.
[7] Id. at 164.
[8] Omid Ghaemmaghami, Encounters with the Hidden Imam in Early and Pre-Modern Twelver Shi‘i Islam 1-2 (Koninklijke Brill NV ed., 2020); all future dates noted are also according to the Gregorian calendar.
[9] See James Parker Hall, Constitutional Law 3 (LaSalle Extension Univ. ed., 1922).
[10] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 9.
[11] Id. Chapters 6, 9, and 11, respectively.
[12] Id. Article 7.
[13] See id. Article 91.
[14] Id. Article 5.
[15] Id. Article 91.
[16] Id. Article 92.
[17] Id. Articles 62 and 63.
[18] Id. Article 99.
[19] Nasser Karimi, Iran disqualifies thousands from running for parliament, AP News (Jan. 14, 2020), https://apnews.com/article/44ad5910fa3e1a297d6c0b5ad6c3c59f.
[20] Mehrzad Boroujerdi & Kourosh Rahimkhani, Postrevolutionary Iran: A Political Handbook 168 (Syracuse Univ. Press ed., 2018).
[21] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 64.
[22] Id. Article 67.
[23] Id. Article 65.
[24] Id. Article 4.
[25] Id.
[26] Id. Article 72.
[27] Id. Articles 4, 72, 94, 96, and 98.
[28] Id. Article 93.
[29] Id. Article 96.
[30] Id.
[31] Id. Article 94.
[32] Id. Article 98.
[33] Boroujerdi & Rahimkhani, supra note 20, at 58.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 97.
[39] Id.
[40] Id. Article 99.
[41] As a blanket ban, the Guardian Council forbids women from running for President. Jon Gambrell, Iran approves 7 for presidential vote, bars Rouhani allies, AP News (May 25, 2021), https://apnews.com/article/world-news-donald-trump-middle-east-iran-elections-e1636938e8bc11b30650c90c0bb7764e.
[42] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 110.
[43] Id.
[44] The fuqaha wield extensive powers over interpreting Islamic law and striking down legislation passed by the Consultative Assembly. Id. Articles 36 and 37.
[45] See id. Article 98.
[46] Id. Article 110.
[47] Id. Article 91.
[48] See id. Articles 36 and 37.
[49] Id. Article 112.
[50] Id.
[51] Id.
[52] See Kar & Pourzand, supra note 2, at 220 (concluding that “the authoritarian aspects of the Constitution will tend to overpower its limited democratic potentials in the name of rule by law and order.”).
[53] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 110(9).
[54] McHugo, supra note 5, at 302.
[55] Id.
[56] Robert F. Worth & Nazila Fathi, Protests Flare in Tehran as Opposition Disputes Vote, The New York Times (Jun. 13, 2009), https://www.nytimes.com/2009/06/14/world/middleeast/14iran.html.
[57] Ali M. Ansari, Crisis of Authority: Iran’s 2009 Presidential Election 54 (Chatham House ed., 2010).
[58] Alireza Nader et. al, The Next Supreme Leader: Succession in the Islamic Republic of Iran 1 (RAND Corporation: National Defense Research Institute Corporation ed., 2011).
[59] Siavush Randjbar-Daemi, The Quest for Authority in Iran: A History of the Presidency from Revolution to Rouhani 228 (Bloomsbury Pub. ed., 2017).
[60] Id. at 238.
[61] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 110(10); see id. Article 89(2).
[62] Id. Article 162.
[63] Amin Saikal, Iran Rising: The Survival and Future of the Islamic Republic 95 (Princeton Univ. Press ed., 2019).
[64] McHugo, supra note 5, at 244.
[65] Id.
[66] Id.
[67] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 107.
[68] Id. Article 107; Id. Article 99.
[69] Mehrzad Boroujerdi & Kourosh Rahimkhani, The Office of the Supreme Leader: Epicenter of a Theocracy in Power and Change in Iran: Politics of Contention and Conciliation 135, 162 n.52 (Daniel Brumberg & Farideh Farhi eds., Indiana Univ. Press 2016).
[70] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 111.
[71] Boroujerdi & Rahimkhani, supra note 69, at 145.
[72] Id. at 150-51.
[73] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 110(6).
[74] Boroujerdi & Rahimkhani, supra note 69, at 152.
[75] Id.
[76] 1979 Constitution of Islamic Republic of Iran with Amendments through 1989, Article 110(6).