Abdorrahman Boroumand Center

for Human Rights in Iran

Promoting tolerance and justice through knowledge and understanding

Iran's Reforms: Constitutional Constraints

Mehrangiz Kar/English Translation by Hormoz Hekmat
Journal of Democracy 14.1 (2003) 132-136
January 14, 2003
Journal article

In assessing the prospects for democratic change in Iran, one must attend not only to broad social pressures throughout the country, or even to the concrete reform initiatives that come from within the government, but to the ultimate institutional determinant of contemporary Iranian politics: the Revolutionary Constitution of the Islamic Republic. In what follows, then, I will discuss the impediments and obstacles to political reform that Iran's Constitution poses, and explain why such reform cannot be realized without radical constitutional change.

Since the election of pro-reform president Mohammad Khatami in 1997, there have been two basic approaches, two outlooks, toward the achievement of reform in Iran: "Reformists" within the regime essentially believe that the Constitution has the capacity—indeed, the positive potential—to lead the Revolutionary government of Iran toward democracy. By contrast, "secularists," who remain outside the regime, basically think that the Constitution contains impediments profound enough to block meaningful reform. It is not uncommon for reformists and secularists to take shared positions on immediate political questions. And they share some broad, long-range political goals that set them together [End Page 132] in opposition to conservatives. But there are profound stakes between them when it comes to evaluating the conditions for a transition to democracy in Iran.

To be sure, there are articles in the Constitution that allow for the implementation of the basic rights and freedoms for the Iranian people. Certain articles speak of the rights of the accused, due process of law, and other concepts that can be considered essentially liberal-democratic and conducive to the realization of human rights in Iran. But there are other articles that negate these liberal concepts altogether, for which reason one can fairly say that, in the aggregate, the mechanisms afforded by the Islamic Republic's Constitution are quite clearly not conducive to liberal-democratic reform.

When Khatami became president, the Fifth Majlis was dominated by the most conservative elements. To prevent Khatami from being able to carry out his reform agenda, conservatives wasted little time in passing new laws to further restrict those few and limited rights and freedoms that Iranians then enjoyed. For example, they passed newly repressive laws on criminal procedure in cases of press-law violations, further limiting the rights of the accused. And this was just one of the areas in which they tried to tie President Khatami's hands as he attempted to implement the reform program on the basis of which he was elected.

Because of the obstructionist posture of the Fifth Majlis, reformists naturally came to believe that the realization of their goals depended on whether they could gain control of the parliament. Prior to the elections for the Sixth Majlis in 2000, reformists started devising slogans and programs aimed at overhauling the legal system—talking about amending laws that limited people's right to run for public office, restricted the press, and dealt unfairly with women and religious minorities. The reformists also proposed laws intended to ameliorate Iran's catastrophic economic situation. Running on this agenda, they won overwhelming voter support and 200 of the parliament's then-270 seats.

More than two years have passed since the inauguration of the Majlis's sixth term, and despite the presence in that body of a number of very courageous representatives who have discussed in detail, and assiduously promoted, the reformists' program, nothing concrete has yet been accomplished. Indeed, conservatives have accused a number of Majlis deputies of breaching Islamic law and the Iranian penal code merely by criticizing conservative-controlled institutions in the course of parliamentary debate. Some deputies have been tried, and one—Hossein Loghmanian, a deputy from the west-central city of Hamadan—was jailed for a number of weeks. Loghmanian was subsequently released so as to preempt public outcry, but the judiciary has made and kept extensive files on him, as they have on numerous other reformists in the Majlis, for the purposes of political intimidation. Reformist deputies, then, have been denied even limited parliamentary immunity, [End Page 133] creating a new source of political tension in Iran and, at the same time, a new source for public awareness and protest against the situation in the Majlis.

The Nature of the Obstacles

Ultimately, however, it is not the whims of reactionary jurists that are obstructing the legislative activities of the reformist legislature. The barriers faced by the Majlis are fundamentally constitutional.

To begin with, the Constitution has contradictory provisions regarding the functions and prerogatives of the Majlis. On the one hand, the Constitution clearly stipulates that the Majlis is to be an independent legislature. On the other hand, however, the Majlis's freedom to enact laws is subject to the will of another body, the Guardian Council. The members of this Council—six jurists and six high-ranking clerics—are appointed, either directly or indirectly, by the highest official in the executive branch, the Supreme Leader (currently Ali Khamenei).

Bills passed by the Majlis are not legally binding until the Guardian Council attests, first, that the presumptive law does not contradict the basic tenets and provisions of Islamic law and, second, that it does not contradict the basic principles of the Constitution. Strikingly, every single reform law that the Majlis has passed over the last two yeas has been stopped in its tracks by the Guardian Council.

Once the Guardian Council rejects a particular law, it sends that law back to the Majlis with specific objections. The Majlis must then, on the basis of the directives given by the Council, revise and amend the law and send it back. This has continued over the past two years, with many reformist laws held in abeyance; the tension between the Majlis and the Guardian Council is, in other words, paralyzing Iran's legislative process.

In the first years following the adoption of the Constitution in 1979, Ayatollah Khomeini decided that a device was needed to overcome any impasse that might arise between the Majlis and the Guardian Council. He therefore decreed into existence a separate body, one effectively appointed by the Supreme Leader, to handle this problem. The exact translation of its name is a bit difficult; in full, it is something like "board to make decisions on the basis of the interests of the Islamic Republic of Iran," or, for short, the Expediency Council. Expediency in this case means the interests of the Islamic Republic, the regime; there is no reference to the public. This body—which was formally added to the Constitution in 1990—is the final arbiter in contemporary Iranian politics: When there is no agreement between the Majlis and the Guardian Council on a particular law, it goes to the Expediency Council, which has the final word.

Before the election of the reformist-dominated Sixth Majlis in 2000, [End Page 134] the Expediency Council had sometimes permitted the final passage of laws that the Guardian Council had rejected as contradictory to Islam. At the time, the Expediency Council was more interested in solving problems than in seeing to it that legislation was indeed compatible with Islamic law. During the Sixth Majlis, however, both supervising bodies—the Guardian Council and the Expediency Council—have been completely dominated by conservative, antireformist elements, leaving the reformist majority in the Majlis totally blocked.

There are a number of bills that have gone from the Majlis to the Guardian Council which the Guardian Council has either rejected or left undecided. And even where bills have reached the Expediency Council, the latter has so far refused to make any decision on them. Included among these acts are a proposed law that would reduce restrictions on foreign investment in Iran (a very important issue for the Iranian economy), as well as one on women's rights.

Why Iran Has No Real Parliament

Thus the Iranian Majlis is not a genuine parliament, given that it must by law accept the views of two other superior organs. And since the Supreme Leader has remained unwilling to change the composition of these two bodies by appointing to them individuals more amenable to the reformist movement that animates the Majlis, the situation is not likely to change.

In addition to its lawmaking role, the Majlis has constitutional duties: to investigate and oversee the performance of the executive and judicial branches of government, and to receive and investigate complaints and criticisms from the public. In these two areas, likewise, the Majlis has been completely unable to fulfill its responsibilities. For example, it intended to investigate and audit the records and activities of the Foundation for the Dispossessed, one of Iran's most powerful bonyads ("charitable foundations" under the control of the Supreme Leader that operate hundreds of companies, receive more than half of the state's expenditures, and account for up to 40 percent of the country's economy). But legislators found their plans scotched when the Guardian Council declared that parliament had no right to investigate these organizations, which are under his direct control. The Expediency Council has decided that the Majlis can investigate organizations under the control of the Supreme Leader when, and only when, he expressly grants the Majlis that right. Although Article 90 of the Constitution empowers a Majlis committee to investigate complaints from citizens about the judicial branch, the judiciary, which is also under the control of the Supreme Leader, has not allowed this committee to be active. In fact, the judiciary has refused to respond to repeated parliamentary inquiries regarding the citizen complaints that the Majlis has received. [End Page 135]

One might think that the emergence of a reformist legislature would naturally lead toward democratic progress. But this has not happened in Iran, and one would have to be idealistic to the point of naivety to think that genuine democratization will come simply by a continuation of the current process. The obstacles in the Constitution and legal framework of Iran are simply too profound.

There is no chance that the Majlis will be able to interpret away the Constitution's antidemocratic principles, for only the Guardian Council enjoys the right of constitutional interpretation. Moreover, although the Majlis is the closest thing that Iran has to an elected governing body, the powers of the Guardian and Expediency councils to purge candidates and validate results mean that even the Majlis is not chosen by truly democratic means. In Iran, in other words, there is no real distinction between appointed and elected organs. And those in which there is any nascent agenda for democratic reform are, by constitutional design, politically powerless to bring it about.

And yet profound social tensions persist. University-student demonstrations erupted this past November after the Islamic Court voted to execute a reformist professor, Hashem Aghajari—a well-known reformist and advocate of democracy and the freedom of speech—for the crime of blasphemy. The Court ultimately withdrew the sentence at the behest of the Supreme Leader, who sought to placate the protesters after a week of demonstrations, but not before threatening them with suppression by "the forces of the people" should they not stand down. The result was a small victory for Iranian democrats, but it also served to reaffirm a status quo in which they, and their representatives in government, remain thoroughly marginalized by the country's real—and constitutionally entrenched—ruling powers.

Considering that the Constitution of the Islamic Republic includes such overwhelmingly antidemocratic features and precludes meaningful change, it is probably inevitable that opponents of the conservatives who rule Iran will eventually turn to violence.

Mehrangiz Kar, an Iranian attorney and activist, is currently in residence at the Woodrow Wilson International Center for Scholars in Washington, D.C. The author of 13 books, she was jailed in Iran in April 2000 on charges of "threatening national security," and remains barred from appearing publicly there. In 2001-02, she was a Reagan-Fascell Democracy Fellow at the International Forum for Democratic Studies. In 2002, she received the Ludovic Trarieux Prize for her work in defense of human rights. The following essay is based on remarks that she delivered at the National Endowment for Democracy in Washington, D.C., on 30 May 2002. They were originally translated by Hormoz Hekmat, editor of Iran Nameh, a social-science journal published in Persian by the Foundation for Iranian Studies.

Accessible through Project Muse at http://muse.jhu.edu/journals/journal_of_democracy/v014/14.1kar.html