The Constitution of Iran

"But even if we attributed all such questions dealt with in Tahrir al-Vasileh to the domain of public law, the solutions offered would be too primitive and meager to meet the needs of a 20th-century society. Iranian society has already developed to the point that its requirements, even in the area of private law, by far exceed the capacity of a work like the Tahrir al-Vasileh. In the arena of public law, such collections are even less able to offer solutions to 20th Century problems. We have seen how when framing its constitution, the Islamic Republic was obliged to borrow fundamental elements from non-Islamic sources, both conceptually and it terms of content. In the area of administrative, financial and employment law, the situation is no different. And the same hold true for international law and the penal code." (p.167)

Helpfulness (or not) of fatwas dealing with modern society aka mostahdasat ["new occurrences"]

"What is striking about the mostahdasat ["new occurrences"] is not only the limited range of subjects pertaining to modern life that they attempt to regulate legally but also the brevity of their exploration of particular questions - scarcely an appropriate way of offering a solution. In addition, the solutions are of a noticeably negative character. Listening to the radio or watching television is frequently forbidden or only allowed provided it does not contradict the shari’a. The use of exchange bureaux or banks is only permitted if interest is renounced. Lotteries are forbidden, artificial insemination is only allowed if the sperm donor is the husband of the female recipient. It is forbidden to carry out an autopsy on the corpse of a Muslim, and so on. Interestingly, many of these reservations and prohibitions have been dropped in the Islamic Republic." (p.169)

Silliness in Khomeini's fiqh - Extraterrestrials

At times it seems as if the questions have been phrased in order to cause embarrassment to the grand ayatollah (though of course he himself formulated them). There is for example, the question of how to determine when a creature or a human being on another planet attains its majority. What does Islamic law have to offer as a solution to the question that would arise if children on another planet `develop into men within one year [of their birth]? The answer is: `There is no problem with establishing that they have attained their majority if their majority is manifest through ejaculation of sperm and the appearance of public hair.` To the question of what the Islamic ordinances say about marriage on another planet, one answer is: `Marrying creatures on other planets is permitted, if they are possessed of reason and understanding. And this applies even if they have a different physical appearance.` Finally, it is noteworthy that most of the solutions pertaining to `new matters` lack the kind of proof which religious law requires. ... Such is the case, for instance, when it is declared permissible to take out an insurance policy, although Islamic law is unfamiliar with insurance and has no formula for it amongst its usual contractual formulas, nor regulations to cover it. To legitimate the decision, it is explained that the conclusion of such agreements is not dependent on their being mentioned in the shari'ah. They are allowed as long as they are not contrary to the general principles regulating agreements in the shari'a, e.g. the parties involved enjoy mental health, are of age, etc. (p.169-170)

Admissions of Problems by the Revolutionaries (p.167-8)

`[We have to deal with] the many questions, laws and operational regulations... that received no mention in the shari'a [such as traffic regulations].` - Ayatollah Behesti speaking in the Assembly of Experts in 1979.

`We find ourselves in a vacuum with regard to the questions concerning the social order and inter-personal relations.` - Ayatollah Khatami, Minister for Islamic Guidance, 1991.

Problems with the legal code have `risen to the sky like a mountain`. - editors of Howzeh 1988e, no.25, p.30.

`[Even the rationalist Shi'i jurists] have not developed their ability to practice legal judgments and deductions that go beyond the limits of individual acts and decisions, and the area of commands and prohibitions affecting individuals.` - Howzeh 1987/1988, no.23, p.22.

Even Ayatollah Azari Qomi, "otherwise a defender of the perfection of the shari’ah, was obliged to admit in a series of articles published by Resalat in 1989 that the shari'ah displayed many gaps which would have to be filled by adaptations to time and place. [These articles nevertheless bore the title: `The Self-sufficiency of Islamic Jurisprudence` Resalat, 21.1.89 and immediate subsequent issues]. Apparently, despite the awareness of gaps in the shari'ah it is possible to conclude that Islamic law is perfect, either by not facing the serious consequences this has, in particular with regard to the legitimacy of velayat-e faqih, or by ignoring the enormous extent of the actual gaps. (p.174)]

How about .... Adopting "practices and norms" of the non-Islamic society? It's part of Islamic History

Islamic jurisprudence sanctioned "either tacitly or in explicit written or oral form and then accepted into the Islamic code of morals or law. Even most of the practices contained in the 500 or so ahkam-verses of the Koran (ayat-e ahkam) were current amongst pagan Arabs before Mohammad. The ordinances that are designated as `sanctioned ordinances` (ahkam-e emta'i) are consciously distinguished in Islamic law from `the established ordinances (ahkam-e ta'sisiyeh) instituted by Mohammad. [source: Coulson: 1964; Motahhari: n.d., p.12; M. Watt; 1980, vol.I, p.234; and see also Welhausen: 1961. "...after the Prophet's death, the Muslims had close contact with the morals and customs of newly subdued peoples and empires. Indeed, according to Naser Katuzian, this is how Islamic law came about. We know that his process of assimilation from subject peoples was not limited to the ahkam themselves" but also involved "technical methods of formulating legal opinions" which were influenced by "Jewish and Roman sources."

BUT "it is also worth remembering that the acceptance of customary practices (`orf) into traditional Islamic law took place over a period of several centuries and therefore a less disturbing process" than what is going on now. (p.168)

How about ... applying reason to develop new ahkam?

The complicated process of developing new ahkam putting `aql (reason) as a forth resort following the referred ones of the Qur'an, sunna and ejma' (consensus of the jurists), involves sorting through the four technical rules (necessity of the premise, contradiction, priority, and coincidence of the command and the prohibition). Then if the "action in question is unavoidable, the jurist is allowed to support his judgment by reasoning. But even in this case, there are limits, which are defined by the so-called operative principles (osul-e 3amaliyeh) (which are the principle of being free, of caution, of choice and the precedence principle). (p.170)

"These fetters on reasoning, laid down as guiding principles, restrict the capacity of Shi'i jurisprudence to adapt itself to new situations." Thus there was "little noteworthy progress" and a "paucity of legal solutions pertaining to `new occurrences`" (p.170)

Reality of Problems of the Shari'ah (p.171)

"since the revolution, officials in the different branches of government have passed what amounts to a mountain of laws, statutory instruments, resolutions and statutes that have no demonstrable relationship to the shari`ah. Indeed the very subjects of this legislation are not mentioned in the traditional Shi'i law books. For the new legislation regulates social, that is to say socially relevant, relationships which are foreign to the mercantile, agricultural or nomadic societies in which the shari'a came to exist.

Ironically... "bills that have no precursor in the shari'a or that make no attempt to establish a link with the shari'a, as a rule pass through the legislative institutions with relatively little friction and are enacted rather quickly. By contrast, bills relevant to the shari'a regularly become the object of debates that go on for years between the various legislative bodies and the representatives of different interpretations, political positions and interest groups within those bodies. For the most part, the debates hold up the process of legislation or even block it completely. In this sense the shari'a has proved to be the undoing of legislation, placing obstacles in its way that can only be overcome with great difficulty. When a law of this kind does finally emerge from the legislature, [instead of being the product of some kind of consensus where all agree on its being within the boundaries set by God] as a rule it no longer corresponds to any of the positions that had originally demanded its conformity with the shari'a." IOW the law is "in disagreement with the Shari'a" (p.172, The Constitution of Iran by Asghar Schirazi, Tauris, 1997)

Solutions

Shari'ah of Maslahat (interest of the state)

"These fetters on reasoning, laid down as guiding principles, restrict the capacity of Shi'i jurisprudence to adapt itself to new situations." Thus there was "little noteworthy progress" and a "paucity of legal solutions pertaining to `new occurrences`" So "the innovative steps that have been taken since then are based less of the application of reasoning as defined by Shi'i osul-e feqh, than on raison d'etat, i.e. on the rules of Maslahat ("interest," [as in interest of the state]) the validity of which in earlier times was always questioned by the Shi'i jurists, though not by several Sunni schools of jurisprudence." (p.171)

Ipso facto Shari’ah of ahkam-e hokumati or `state ordinances`

"A few theoreticians of the velayat-e faqih occasionally found it convenient to have recourse to a means of covering up this awkward situation. They declared that every resolution which found approval with the legislative institutions of the Islamic state automatically acquired religious sanction and could be incorporated into the corpus of the shari'a. These resolutions corresponded to the so-called `state ordinances` ahkam-e hokumati. They belonged to the shari'a for the simple reason that they had been enacted by an Islamic state. By way of explaining this point, Ayatollah Montazeri made the following statement to the Assembly of Experts for Framing the Constitution: `We have two kinds of ahkam, one which appears in the Koran and in feqh ... and one which is governmental in the sense that the ruler of a particular place issues it with regard to specific cases on the basis of general [Islamic legal principles].` .... If this explanation is to have any degree of legitimating effect, then one would at least expect to hear from Parliament of the Guardian Council on the basis of what principles they establish laws that are not found in the sources of the shari'a. But generally speaking, they do not confront this problem." (p.171-2)

Ipso facto Shari`ah of ahkam-e hokumati or `state ordinances` - What is the Basis of it

"State ordinances base their legitimacy on the interest of the Islamic state or government. Whenever it interest are at stake the state can suspend the primary Islamic ordinances, temporarily or permanently, by issuing state ordinances. The resort to maslahat to justify various government or private actions has played an important role throughout the history of Islam. The practice was accepted by most of the Sunni schools of jurisprudence as the rule of esteslah (taking account of interests) and masaleh-e morsaleh (consideration of interests without derived them from the shari`ah). However the Twelver shi'a have always rejected it as bed'at (forbidden innovation). According to Ayatollah Ebrahim Jannati, Shi'i law rejects the rule of masaleh-e morsaleh because it may cause too much harm: it could be interpreted as an admission that Islamic legislation suffers from deficiencies, and it establishes the possibility that different opinions may be represented at the same time and that conflicts may break out between them. In addition masaleh-e morsaleh are inferences based on conjecture zanniyat, and are therefore prohibited in Islamic law. (p.233)

Secondary Legal categories `anavin-e sanaviyeh including the `Rule of Emergency` qa'edeh-e zarurat

"A `Rule of Emergency` qa'edeh-e zarurat is often used to circumvent the shari'a. According to this rule, in an emergency a commandment or a prohibition - IOW an ordinance - can be overlooked." `Emergencies make it permissible to do what is forbidden.` [source: Ja'fari Langarudi: 1984, p.775] The rule of emergency is based on, amongst other things, the Qur'anic verses 2.173 and 6.145 where, after mentioning forbidden meat, the sentence follows: `But if a person finds himself in a dilemma, without desiring (something of his own accord)` he will not be guilty if he eats the forbidden meat.` (p.175)

Emergency (qa'edeh-e zarurat) in Urban Land Legislation

This rule was used to get around taslit, the shari'ah rule according to which `people are masters over their wealth`, when Revolutionary Council and parliament were trying to stimulate housing construction by forcing owners of vacant land ("waste land") to build housing. "Land speculation had given rise to the current situation and the only way to deal with it was to restrict the right to own urban land. The shortfall of 3 million homes, the lack of government funds for the purchase of land on which to build new homes, the adverse effect of increased ownership of property and the harm caused by homelessness to young couples were, according to the housing minister, other valid reasons for an appeal to the rule of emergency." (p.178) Guardian Council did not agree and rejected parliament's resolution anyway (circa 1981) (p.178)

How to resolve the dispute between the populists of the parliament ["the [Islamic] radicals went on the assumption that Islam did not allow private ownership of land. What they accepted as Islamic was simply the right of exploitation, which was acquired through personal work and consequently limited to the amount of land an individual exploited." (p.185)] and the strict-shari'ah-constructionists of the Council of Guardians? "on 24.1.82 he qualified the authority he had issued to parliament by requiring that the rule of emergency only be used on the basis of a 2/3 parliamentary majority. On the other hand he ordered that the Guardian Council could not raise any objections to resolutions passed by 2/3 majority in parliament." (p.181)

Capsule attitude of the conservatives

(referring to a populist rent law): `Included amongst the undisputed ordinances relating to the question of renting, is the recognition of an owner's right to own and dispose of his property as he wishes. If it is necessary to protect the weak, a different way must be found. This religion is perfect. Go and find the correct way.` - MP Hojjat al-Eslam Mohammad Khamene'i (p.188) COMMENT: i.e., I have no idea what that correct way is but since the religion is perfect it must exist. Don't tell us you think there's something wrong with Islam, you populists!

Capsule Rationalization of Emergency Supporters

The primary ordinances and secondary ordinances ... formulated on the basis of an emergency were just as Islamic as the other. Both sets of ordinances together formed `the most important element of the divine ruling system. - Ayatollah Montazeri in Resalat, 27.7.92 (p.199)

Problems with the use of the `Rule of Emergency` qa'edeh-e zarurat

The Council of Guardians complained "The ruling system of Islamic Republic could not be set up on the basis of secondary ordinances and temporary emergencies. But this is exactly what the government and parliament, at least when dealing with certain problems, were trying to do by repeatedly using this rule to legitimate their legislative undertakings." Furthermore, while an emergency by definition lasts for a limited period of time, (for example the law of October 1986 was valid or only three years) the laws on urban housing and agricultural land reform concerned ... ownership of land. And the emergency legislation did NOT call for the land to revert back to the pre-emergency owner once the emergency was declared over. (p.186)

Problems with NOT using the `Rule of Emergency` qa'edeh-e zarurat

"the Imam, the president, the prime minister and the president of the parliament had for many years assured the farmers that the land [that they occupied but that legally belonged to landowners] would be given to them." Furthermore their support was crucial for the expensive and bloody war against Iraq. "What would happen if these promises were broken and the farmers were forced to swallow this `pill of despair`? (p.187)

Emergency in foreign trade qa'edeh-e zarurat

Bill passed April 1983 called for the government "to create the organisations necessary to nationalise foreign trade. Art. 2 justified nationalisation on the basis of a Koranic verse that says God will not allow unbelievers to rule over Muslims and the policy of `neither the West nor the Eastern Bloc.` Foreign trade had to be regulated in such a way that `the economic, political and cultural dominance of unbelievers and foreigners over Muslims` would be hindered....`" (p.194)
`the channel for trade was the channel through which the unbelievers had established their dominance over the Muslims.` - `Ali Akbar Ma'sumi spokesman for the Parliamentary Committee for Commercial Affairs (p.195)

Member of the C of G, Ayatollah Mahdavi-Kani "expressed the view that the Guardian Council had the authority to declare invalid any article of the constitution which in its particular or general meaning contradicted the shari`ah." A reference to the fact that the constitution called for state monopoly on all foreign trade but the C of G was vetoing a bill to implement this. (p.196)

C of G vetoed the bill and after trying three times to satisfy the C of G with revisions the Parliament gave up "without of course abandoning the state monopoly on foreign trade"

Emergency (qa'edeh-e zarurat) in Punishing Speculators

Formulating a bill especially directed against speculation (ehtekar) was very difficult because the shari`ah only conceived of speculation as illegal when it involved wheat, barley, raisins, dates, fat and olives, i.e. products which in earlier times were in general use and the hoarding of which was forbidden."
COMMENT: sound like the perfect opportunity for some legal reasoning by analogy to update the list of goods to include some more contemporary products ... don't you think?
Well Khomeini didn't! "Although there were some jurists such as Ayatollah Montazeri (1988) who had no legal objections to extending the range of goods which came under the relevant ordinance of the shari`ah other authorities, including Khomeini himself, were against any such extension." (p.197)

Emergency (qa'edeh-e zarurat) in Punishing Speculators - How to get around the shari`ah

Became law 24.4.88. "The text of [article 3] stipulated: `Anyone who keeps hidden more than a one-year supply of goods that are considered essential for the public, or under the definition of `speculator` (dar hokm-e mohtaker ast) and will be punished with the penalties provide for speculation` BUT it didn't say they WERE speculators! Just that they were ACTING LIKE speculators and "therefore must be punished accordingly." Neat huh? (p.198)

More Conflict between Populists and the sticklers for Shari`ah

In 21.12.82 the Minister of Labor and member of the "conservative camp" tried to get a labour law passed that was "in complete agreement with the shari'a" based on Islamic ordinances of leasing in the sense that it considered an employment contract to be a lease in which the employee's labour represented the object of the contract. ... Consequently, its remuneration was not described as a wage (mozd but as rent (ojrat)." But the basis of leasing fiqh in the Islamic Republic, Khomeini's tome "Tahrir al-Vasila is more concerned with the leasing of things and animals and only marginally with the conditions of a lease that regulates the labour of people." (p.208) In any case "from the very beginning this bill met with such violent opposition from the workers and official and non-official representatives and sympathisers that it could not even be passed in the Council of Ministers ... Three more bills were worked out ... [over the years until] November 1986, ... none of which was able to meet the government's criteria." (p.209)

Why wouldn't Rule of Emergency work for the Labor Law

1. the rights of employees provided for in the labour law could not be passed as concessions granted for a limited period ...
2. a draft bill consisting of 198 articles had no chance of obtaining for all its parts that were based on the rule of emergency the 2/3 majority necessary to neutralize the expected opposition of the Guardian Council. (p.210)

Secondary Contractual Conditions shart-e zemn-e `aqd and the Labor Law

So Secondary Contractual Conditions shart-e zemn-e `aqd Were To Be Used as a Means of Circumventing the Shari'ah to pass The Labor Law

So the rational for the Labour law was that the government supplied "public and state services and facilities such as water, electricity, telephone lines, fuel, foreign currency, raw materials, harbour and docking facilities, roads ..." and so could "impose binding conditions on companies" such as regulations to protect workers.
Khomeini supported labor legislation. The C of G did not. When the C of G vetoed the bill on the grounds that the government could only impose "binding conditions" of labour laws on new businesses (apparently believing that imposing it on old ones that had previously had gotten services without the conditions would have been breaking some implicit contract), Khomeini provided the government with a fatva stating `whatever the past or temporary case, binding conditions can be imposed` on businesses. (7.12.87) The government saw this fatva as a means "to disarm" the C of Gs. `Whenever the government wishes to intervene in social issues, it can legitimate its action with the help of this great fatva of the Imam` said the Minister of Labour `This fatva will from now on release the government from dependence on secondary ordinances...` (p.211)[source: Kayhan8.12.87] Exasperated, the C of G wrote Khomeini a letter "for further clarification"

There are people who hold that view that the government, on the basis of this fatva, is authorised to replace the noble and certain Islamic regulations with `any form of regulations pertaining to social, economic, commercial, municipal and agricultural matters or to matter affecting employment and the family,` and to use the services and facilities which are exclusively at its disposal, and which people are forced or virtually forced to rely on, as a means of putting through its general political measures, even if that entails prohibiting activities which the shari'a allows [like paying low wages, not providing unemployment insurance, etc.] or imposing prohibited activities.

the Islamic regulations in matters of leasing, sharecropping, trade, the family, etc. would little by little be undermined, suppressed and finally changed .. The people referred to [in Parliament] ... wish to use this fatva in order to establish the social and economic system`.]

Khomeini responded by coming "out even more openly in support of the government's position. `the government without any condition ... in all matters under its jurisdiction` could demand a price for its services and facilities when the population made use of them. Moreover, the areas where it could demand such a price were not restricted to those mentioned in the letter of the minister of labour.(p.212) source Mehrpur: 1992 or Howzeh no.23 1987 p.30f.]

The C of G still failed to approve the legislation, but apparently was willing to after a few corrections were made to the bill to save (the C of G's) face. (p.212)

However Khomeini had "signed several other fatvas of far more fundamental significance which, amongst other things, made it unnecessary to apply the rule of secondary contractual conditions. The high point of this phase was reached in a letter to Pres. Khamene'i on 7.1.88 in which he declared that the state is

a branch of the absolute trusteeship of the Prophet ... and constitutes one of the primary ordinances of Islam [which] has precedence over all the other derived ordinances such as prayer, fasting and pilgrimage.[Kayhan 31.8.88]

Parliament then saw it had "a far stronger source of legitimation" for its bill and passed it on the Assessment Council when C of G failed to pass it. Bill passed without reference to secondary contractual conditions.

Ayatollah Yazdi of the C of G declares the law rightfully belongs to the category of Islamically sanctioned ordinances (ahkam-e emza'iyeh) that `already existed before the Islamic legislators and were taken over by them into Islamic law.` (... Whatever that means.)(p.214)

What was the Labor law anyway?

The Labour Law of the Islamic Republic which finally emerged from this lengthy process has many points in common with the old, non-Islamic law of 1958 as well as with the labour laws of other countries. The most important difference is that the new law gives more advantages to the workers than the 1958 law. Employees no longer work at the orders of their employer but at their request. Means of transport, according to the new law, come under the concept of `the company` so that an accident which happens on the way to work is classified as an industrial accident. Dismissal is linked to many more conditions which favor the employee than had been the case in the old law. The working week has been reduced from 48 to 44 hours, and statutory holidays have been increased from 12 days to one month." This "enabled the regime's propagandists to characterize the 1958 law as a product of the ear of taghut (the counter-God) and to celebrate the new law as Islamic." (p.214)

Marriage Law

1967 Marriage Law Under the Shah

1967 law by the Shah's government was one of the causes celebres of the anti-Shah traditionalists. The law called for

1967 Marriage Law - Khomeini's Opposition

Conservative like Khomeini found it an intolerable violation of the Shari'ah

The law which was passed in recent years by illegitimate parliaments that violated the shari'ah as a family protection law by order of agents of foreign powers for the purpose of annihilating Islam and destroying the family hearth of the Muslims is contradictory to the Islamic ordinances ... Whoever has approved it is, from the point of view of the shari'a and the law, a criminal. Women who are divorced at the order of the courts have not obtained a valid divorce and shall be considered as married women. If they marry [once again], they are adulteresses. Whoever knowingly marries them is an adulterer and deserves the hadd punishments of the shari’ah. Their children are illegitimate from the point of view of the shari’ah. They cannot inherit as wives, and the other relevant regulations of the shari'a pertaining to adultery shall be applied to them. And all this is the case, whether the courts declare their divorce directly or oblige their husband to undertake the divorce. (Khomeini, Towzih al-Masa'el, solution #2836)

1967 Marriage Law - Getting Rid of It

"Naturally the annulment of this law was one of the first undertaking carried out within the framework of Islamicisation ... 26.2.79, the minister of the interior, Ahmad Sadr Hajj Seyyed Javadi, informed the press that the application of the Family Protection Law had been stopped by order of the leader.."

But soon many traditionalist Muslim women who had other ideas of what the shari`ah had to say about the divorce applied pressure to Khomeini who ended up promising a group of women who visited him in Qom on 29.10.79 that

If women when concluding marriage set it as a condition that in matters of divorce they are the authorised representative [of their husband] in absolute terms, i.e. that they may divorce him whenever they wish, or in relative terms, i.e. if he mistreats them or, for instances, takes another wife, then there are no other obstacles for them; they may obtain a divorce.[source: Kayhan 30.10.79]

This left the problem of women who were already married, so a few days later he declared that women already married could turn to jurists. "The jurists had the right to issue a divorce if a husband mistreated his wife and she lodged a complaint with them against him." [source: Kayhan 30.11.79]

The "chief obstacle to implementing this `solution` in practice was that husbands, law courts and the registry offices did not feel bound to follow the order and often preferred the more comfortable choice of deciding in favour of conformity to the shari'ah." So the reform proponents went to the legislature.

New 1992 Divorce Law of the Islamic Republic

Many women regime supporters and journalists who wanted less discrimination of women were still disappointed with the divorce law, but "all those men and women who had divorced after 1967 and therefore stood accused of adultery by Khomeini, were now pronounced innocent." (p.219)

But Could fuqaha Really Accept These State Ordinances over Shari'ah?

And yet clerics couldn't really bring themselves to accept the non-shari`ah law: "Many justices did not understand how, given this new society, they should incorporate the state into the system of the shari`a or how they were to define the relationship between the established shari`a and the new laws that continually had to be passed." Here is [MP] Hojjat al Eslam `Abbas `Abbasi asking himself in a debate over the divorce what would happen if a court did not approve a petition for divorce though the husband had proclaimed "I divorce thee, I divorce thee, I divorce thee, "in accordance with his rights as stipulated in the shari`a. `Is such a divorce legal or not? Is the wife divorce or isn't she?` He answered: `Yes, of course she is divorced` [source: MM19.11.89 p.22](p.229)

Penal Law and the introduction of state ordinances

Islamic Penal Law has four parts:

The Problem: The government wanted some punishments more severe than the shari'ah called for. (For example on `Persons Driving Up Prices` where they wanted "exile, closing down the business, suspension from service," etc.) Parliament wanted the hodud punishment of whipping replaced by fines and imprisonment. (p.223-4)

To get around the opposition of the C of G, Parliament procured 2 Fatwas from Khomeini:

"By way of justifying his fatva, Khomeini endowed his state ordinances with the status of primary Islamic ordinance, which as such could naturally not be contradictory to the shari'ah, even if they suspended some part of the shari'ah's stipulations." (p.226)

"Khomeini's two fatvas and the law approved by the Assessment Council, introduced the concept of `state discretionary punishments` - a novelty which represented a special form of deviation for the shari`a - to the Islamic Republic. The attribution of the term `state` to this form of discretionary punishment virtually signified `contrary to the shari'a`. (p.226)

With regard to the legal stipulation laid down by the Islamic hodud, qesas and diyat, the legislators are so unsure of themselves that, at the time of writing, these are still put into practice on an experimental basis only. The punishments which the shari'a actually prescribes for crimes such as adultery (stoning) or theft (chopping off a limb), are only exceptionally imposed, even if one assumes that information on this subject is not always published.(p.244) [A female legal adviser, in a lecture she gave outside Iran, recounted how many judges look for grounds to avoid applying the penalties prescribed for adultery. [Adviser is not named.]]

Revolutionary Act later reversed. Confiscation of Wealth of Iranians who fled the country

"On 11.1.83, parliament resolved that the wealth of Iranians who had fled abroad would be confiscated, justifying its decision by stating that such people subscribed to counter-revolutionary attitudes. However, the Guardian Council ruled that, from the standpoint of the shari'a, flight from Iran did not justify the infringement of property rights." (p.228)

Final Solution to the Shari`ah Problem: 1988 Fatwa on the Supremacy of the State Over Secondary Ordinances

From your comments during the Friday prayers it would appear that you do not believe it is correct [to characterize] the state as an absolute trusteeship which God conferred upon the noble Prophet, God bless him and his family and grant them salvation, and that the state is the most important of God's ordinances and his precedence over all other derived ordinances of God. Interpreting what I have said to mean that the state [only] has its powers within the framework of the ordinance of God contradicts my statements. If the powers of the state were [only] operational within the framework of the ordinances of God, the extent of God's sovereignty and the absolute trusteeship given to the Prophet would be meaningless phenomenon devoid of content. (p.230)

Reaction to the 1988 Fatwa on Supremacy of the State over Secondary Ordinances – Elation (p.236)

Rafsanjani: `I ask those gentlemen who have been appointed by the Imam to take seriously the views of the Imam and not to allow their own views or the views of others to be an obstacle to implementing the Imam's decree.` With the decree `the way has been barred to wrong guidance and false piety and they will not be allowed in the name of Islam to block the capacity of the state to act.` [source: Kayhan 7.1.88]

Ayatollah Musavi Ardebili: Decree and other fatvas during the previous months `constituted the most important of all the achievements of the revolution.` [source: Kayhan 18.1.88]

But was the Principle of Maslahat Such an Innovation? Or Was It There All Along in the Revolution?

"The recourse to maslahat is evident from the earliest days of the revolution. The edicts of the Revolutionary Council in the spring of 1980 to limit private ownership of agricultural land present several examples of this. According to the bill of 1.3.80, when turning over large estates to the farmers `the interests of society` is to be constantly borne in mind. In the bills of 19.3.80 and 15.4.80, `the requirements of trusteeship` and of `the ordinances of the ruler` are referred to. `The interest of the Islamic Community,` as Ayatollah Beheshti stated, had played a decisive role in the latter bills. [source: Ettela'at 4.9.81](p.237)

Why Wasn't the Science of Fiqh Able to Provide Laws for the Islamic Republic?

Political Reasons - Conservatism of Fuqaha Contributor Base

Khoms "provides the financial basis for the independence of the grand ayatollahs, the state would prefer these sums to go into a central fund which would possibly be under the control of those who hold power in the academies. Criticism of this kind is based on more credible reformist motives when it emphasises that the direct payment of taxes to grand ayatollahs results in their dependence on the mass (`avam) of contributors and an obligation, the exercise of ejtehad, to take account of the usually conservative stance of the masses and therefore to issue ruling against reforms."

Conservative Traditions of the Religious schools

"The abilities of applicants to the academies are not tested, there is no fixed study program, textbooks date from previous centuries and to a great extend treat subjects that no longer have present-day relevance, and generally speaking `the system of education is not directed towards a defined goal.`... Furthermore, the academies do not attempt new research. Instead they produce resalehs which always contain the same contents, commentaries on old books and commentaries on commentaries." (p.261)

Concentration on Feqh itself instead of Broader Outlook

"Another problem with the academies is their concentration on feqh, as if `the Islamic sciences could be reduced to feqh and its osul.` Koranic interpretation, theology, philosophy and ethics are relegated to an obscure marginal life which depends on the personal interests of the professors and the students." (p.261)

Politics... Disinterest in non-Religious Sciences

"The way the academies deal with the other Islamic sciences makes it clear how they stand in relation to the modern sciences and the human sciences [i.e. social science and sometimes psychology], which are still roundly ignored. Moreover, after the foundation of the Islamic state the academies developed a new problem - namely that the teaching staff became involved n politics and ceased to concern itself any longer with teaching.. Hojjat al-Eslam Bayat has remarked: `I know some Imams of the Friday Prayers who no longer read any books and don't do any teaching.`" [source: Howzeh, No.37/38 (1990), p.136](p.261)

The Lack of Effort by Fuqaha Themselves

`We are the ones [who are responsible], for we have not applied ourselves adequately.` Had we done so, `Islamic feqh would not have left a single question unanswered.` [source: Jannati, Mohammad Ebrahim `Ejtehad dar Jame'eh-e Eslami.` Kayhan-e Andisheh,no10, pp.6-18]

Rulers have treated the `ulama as enemies

"Rulers have treated the `ulama as enemies. Consequently, they have exercised caution and, since the people could not turn to them for solutions on these questions, they have felt no compulsion to think about them or to issue pertinent fatva." (p.262)

COMMENT: That one doesn't fly. If Khomeini was incautious enough to call for the Shah's overthrow for many years couldn't he have found time to think up some innovative feqh preparing for his Islamic state. His line in Islamic Government was that there was plenty of feqh. Feqh covered al areas of live and would be sufficient to run a state.

Reverence for the Past and Formalism

"`reverence for the views held by fuqaha who have passed away.` `the sickness of sacralisation` (taqaddos-zadegi) ... clinging to ordinances which no longer have any relevance to their objects, which have been completely transformed under the changing conditions of time, place and technology." For example "The three month period (`eddeb) a divorced wife must wait before remarrying in order to establish whether she is pregnant, is still adhered to although pregnancy can be established much sooner by means of modern medical techniques. Despite modern methods of criminology, the oath, confession and testimony are still employed [exclusively (I think he means)] as Islamic means of proof in the courts. The regulations concerning interest are still are still declared to be inviolable although everyone now knows that in the current galloping inflation they favour debtors. On the basis of these and many other examples, `Abbas `Abdi comes to the conclusion that Islamic law has fallen prey to formalism [source: Salam 9.9 until 15.10.91. The editors of Howzeh (1978a, p.132 f.) describe this formalism as a sickness characterised by a jurist being satisfied with externals zaber-zadegi when practising efta` (issuing a new fatva) or when conducting legal research.](p.262-3) Another example cited by Khomeini himself is the exemption given for betting on horse racing and archery by Islamic law (betting is otherwise forbidden). Why is it exempt? Horse racing and archery are important military skills, i.e. they were, but "these days Islamic territory can no longer be defended by horsemen or bows and arrows." (p.263)

Imperialist Conspiracy

Attempts to Reform Science of Fiqh

Demand for Reform of Religious School

"The urgency to the reformers of the issues posed by the deficiencies of the shari`a is evident in their constant warning of the dangers of neglect. in 1986 Howzeh [issue n.14 p.31] thought that if reforms were not carried out a collapse of the academies would follow. A few months later, the journal warned that the future of the clergy was in jeopardy. The danger was all the more serious because the failure of the religious academies to implement reforms would entail the defeat of the Islamic revolution which, in its turn, would mean abandoning the dominion of Islam for years or even for centuries." (p.267)

Ideas to reform the academies:

In justifying the actual violation of fundamental rights in the Islamic Republic ... the most common slogan one hears ... is: `Yes to freedom, but no to conspiracy!`

Corruption

"The clergy’s access to state sources of income has made possible a lifestyle so luxurious that its more cautious or conscientious members began quite early on to warn their colleagues of the consequences. Already in 1982, Rafsanjani demanded that the clergy maintain the life-style common amongst the students at the religious academies before the revolution. [Source: 20. Kayhan, 18.4.82. This was not the first occasion on which such a demand was voiced.]
Ayatollah Montazeri repeatedly expressed the same demand. [Source: see for example Kayhan, 25.1.84 and 4.8.84, as well as Resalat, 23.10.85 and 22.2.89]
In August 1991, Khamene’i voiced his displeasure with those functionaries who lived in the luxurious houses of ministers of the Shah’s era and indulged in expensive wedding ceremonies. [Source: Ettela’at 15.8.91. At this time the rumour was circulating that Ayatollah Karrubi had arranged such a wedding for his son.]
On 30 October of the same year, Resalat warned that the people would lose their trust in the state because of the tendency of government officials to live in luxury."
[Source: Ettela’at 15.8.91. MISTAKE!!!!!!!!!!!!!! At this time the rumour was circulating that Ayatollah Karrubi had arranged such a wedding for his son.] (p.304)
"To give an idea of the degree of support that the foundations receive from the government, it is sufficient to note that the head of the Nobovvat foundation is still alive, although as of 5.10.88 he has twice been condemned to death by the courts because of the criminal financial activities of this foundation." (p.157)

"numerous breaches of the law and the judicial abuse which occur on a daily basis in the justice system for political reasons as well as for personal gain - abuses that occasionally reach such proportions that members of parliament have been moved to speak out in protest." (p.244) "190 signed a letter addressed to the president of parliament in which they complained about conditions in the Ministry of Justice (Kayhan 19.1.89). See also the reports of Kayhan on the Ministry of Justice which were published in several issues between 16.1.89 and 22.2.89. With regard to the structure of the justice system in the Islamic Republic see Madani: 1986-90 vol.VI, 1990)"

Clergy - How the Veleyat-e Faqih Has Change It's Nature

"Before the revolution the clergy received money fro their upkeep from the population in the form of fees for performing religious rituals, today they draw a salary from the state treasury. In addition many of them have acquired an income through state transactions or by offering to use their influence in the state apparatus on behalf of clients in return for money or other advantages." (p.304-5)

Why the Restrictions on Freedom Cannot Last

"In a complex, highly differentiated society such as that of Iran, with its exceptionally large urban population, its modern middle class, its academics, experts and students, and a bourgeois movement that has already been under way for decades, the suppression of freedoms in general and of an opposition press in particular cannot be maintained in the long run. Independent intellectuals find other ways to communicate with the public and to promote their views. They do not disappear when they face suppression but simply wait for the next opportunity to make themselves noticed." (p.301)

HOW THE IRI GOVERNMENT WORKED - KHOMEINI'S POWER AND GOALS

Khomeini: Outside the Constitution

... Khomeini's "influence was so great that it brought about changes in the powers conferred on parliament and the Guardian Council, including revisions of the text of the constitution in ways the constitution itself does not sanction, and the establishment of a council to undertake such revisions.

"The first decision aimed at changing the powers of the two legislative institutions gave parliament full authority, in an emergency to pass laws with an absolute majority that contradicted the shari'a and the primary Islamic ordinances (ahkam-e avvaliyeh). The immediate occasion for this was a measure taken by the Revolutionary Council and later by parliament to restrict private ownership of agricultural and communal lands. Because they contradicted the shari'a, these measures were rejected by some of the high-ranking clergy and later by the Guardian Council. However the government of the Islamic Republic deemed them indispensable and so in October 1981, Khomeini bestowed upon the parliament the power to pass them." (p.63)

Outside the Shari'ah - Labor Law

Outside the Shari'ah - Taxes Sahm-e emam portion of the Khoms

Khomeini wrote in The Islamic State

when the Islamic state is realised, it will have to be run with just these taxes that we have, i.e. khoms and zakat, the later of these being naturally quite small, as well as jeziyeh and kharaj (to be levied on national productive agricultural land)

So the debate started in the Assembly of Experts at the time of framing of the constitution with Shari’ah supporters raising the alarm that the tax bill was "more dangerous for the revolution than the United States and Soviet Union" (Hojjat al-Eslam Mohammad Baqer Akhundi) Ayatollah Azari Qomi and the Guardian Council warned too. "But the decisive word was spoken by Khomeini. ... Khomeini who declared that taxes were one of the `primary laws of the state.` [Already on 17.12.83, Khomeini had supposedly declared the opponents of levying taxes to be ignorant. He had asked them if they thought the costs of the war and running the government could be met by the 1/5 tax alone. See Howzeh. 1990 p.12] Thus, the resistance of many opponents of taxation that contradicts the shari'a, was broken. None the less, it was another three years before the bill got its second reading and was passed in parliament. [MM 21.1.88 to 2.2.88] It only became a law because the Guardian Council preferred to abstain from handing down a ruling on it. (p.239)

Outside the Shari'ah - Interest on Loans

"Another example of maslahat in the economic sphere concerns the Islamic regulation of banking, at the centre of which is the issue of interest (reba). The first step in this direction was already taken in the budget law for 1358 (1979/80) This lead to the passage in 1983 of the Law on Banking Without Interest. However, in reality these legislative measures achieved little more than a prohibition on the use of the old terms for earning interest, and their replacement with new terms. Instead of reba, the terms karmozd (handling fee), sud-e qat'I (fixed earning), sud-e mowred-e entezar (expected earnings) and so on came into use, as well as tahsilat (payment facilities) and similar terms in place of vam (loan). This had to happen, as otherwise the banking system could not function. Five years later, Hojjat al-Eslam Movahhedi Savoji complained in parliament that in practice the banks were charging between 8 and 10% interest. [MM 27.10.89] On 4.7.90, the newspapers reported that earnings (sud) had risen to 13% for long-term deposits of five years and to 10% for one year deposits ...." [for example see Salam 17.3.93](p.239)

Outside the Shari'ah - Separating the Marja'iyat from the Velayat-e faqih

"A dramatic example of an action based on maslahat in the political domain was the choice of Hojjat al-Eslam Khamene'i as the successor to Khomeini in his capacity as leader. The choice was made despite the fact that, as we saw in Chapters 4 and 5, it was tantamount to establishing a separation between the marja'iyat and the office of leader ... [potentially undermining] a central legitimating pillar of velayat-e faqih... So that this breach would not be too apparent, another decision was taken which was likewise based on interest: the uncustomary conferring of the title of ayatollah on Khamene'i who until then had been addressed as a hojjat al-esalm.

Outside the Shari'ah - Separating the Marja'iyat from the Velayat-e faqih - Reaction to It

Ayatollah Azari Qomi "came to the conclusion that `all problems of the system, its government offices and even the office of the leader, were to be decided after taking account of what was in the state's interest.` Since the state represented the highest principle, everything had to be done to protect it. He went so far as to declare that the existence of the [Islamic] state had such overriding importance that even if out of some necessity a depraved infidel came to preside over it, it was the duty of believers to obey him." [source: Resale, 30.4.89]
COMMENT: WOW!

Outside the Shari'ah - Abandoning pan-Islamic foreign policy

"The unwilling halt to the war with Iraq, and the approval in practice of the West's policy towards Iraq in the second Gulf War followed upon this shift in foreign policy." (p.240)

Outside the Shari'ah - Music and Chess

"In another fatva, Khomeini declared it permissible to listen to music produced by instruments that can be used for licit as well as illicit music (alat-e moshtarakeh). The same fatva gave permission to play chess if it is only done for the fun of the game." (p.68) (Source: See Khomeini's refutation of the objections Hojjat el-Esalam Mohammad Hasan Qadiri raised against this fatva in Howzeh, no.28 (1988), p. 2 f.

Abandonment of "shari'a prohibitions on the grounds of the interests of the state. The best example of this is music. Despite his condemnation of music in the Tahrir al-Vasila, Khomeini not only came to declare that it would be tolerated in practice but that it was, at least partially, useful." (p.240)

Fatva Disapproving of Music During the Shah's Reign

Performing and listening to singing (ghena'), as well as making money from it, are forbidden. Ghena' means not only making one's voice attractive, but also includes the drawing out and varying of the voice in a way that induces merriment and which is suited to gatherings for the purpose of amusement and having fun. And it also includes musical instruments. It makes no difference whether it is used to accompany the holy word such as the Koran or prayer or as a dirge or to accompany prose or poetry. Indeed, the penance is doubled when it is used to accompany the holy word such as the Koran or prayer or as a dirge or to accompany prose or poetry. Indeed, the penance is doubled when it is used in connection with worshipping the sublime God. (p.240)

The only exception to this general prohibition is the performance of female singers at weddings... In any case it is more advisable `if singing is avoided altogether (vol.II p.351). In another passage in the same book listening to singing and suchlike on the radio or a tape recorder is declared to be forbidden (vol.IV, p.485). In his Towzih al-Masa'el (p.23), Khomeini also forbids making money by means of playing musical instruments or games of chance."

Banning Music Early in the Islamic Republic

Despite the fact that music had a long rich history in Iran and Islam and that music and song were used for "mobilization" during the 1979 revolution, "in the wake of the revolution, after an initial period of tolerance, the ruling clergy began to fight against it. Music was prohibited on radio and television, music schools were closed down, and musicians, in particular female singers, were maltreated. [see Liga: 1988, p.V/I ff.] This was followed by the prohibition of imported cassette players and video cassettes and the regular deployment of the forces of order to confiscate such equipment which had been imported earlier or recently smuggle in."

Backing Off the Ban on Music

Question: Is there any problem with the buying and selling of instruments for fun and amusement, if they facilitate licit enjoyment such as playing songs?

Answer: ["the expected and perhaps pre-arranged answer was that] there is no problem in buying and selling of `ambivalent instruments` for the purpose of permitted enjoyments." [source: Howzeh, no.28 (1988a) p.20 By ambivalent instruments` (alat-e moshtarakeh) were understood instruments which can be used for licit as well as illicit purposes.]

"This fatva was followed by another which legitimised music on radio and television with the words that such broadcasts were `on the whole unproblematic.` [The pertinent question came from Esmai'il Ferdowsipur, a member of the supervisory council for radio and television (Resalat, 22.12.87). The fatva itself is dated 19.4.87. In connection with the publication of this fatva, the public was informed that the Imam himself would listen to the radio and television music broadcasts and that he had no objection to them.] Thus music, in particular classical Iranian music, which was not considered frivolous could once more be performed in public, though under certain restrictions." (p.241)

Backing Off the Ban on Music - what was the rational?

"Ayatollah Azari Qomi wrote that committing a forbidden act in the form of listening to music is permissible

when the ruler of the Muslims established that it is in the interest of society to permit music and when it is clear to him that if he does not allow it, people will turn to foreign and counter-revolutionary radio broadcasts and be alienated from the radio of the Islamic Republic, with the result that they could be influence by the poisonous propaganda of the enemy.

if music is permitted by the ruler, the people will be influenced by the correct Islamic propaganda and their inclination for the Islamic laws and regulations will increase. [source: Resalat 13.1.88]

So this suggests that listening to broadcast of music from FOREIGN source is still not allowed, right? Right. In a meeting between Khomeini and "the presidents of the three branches of government ... Rafsanjani put the following question to Khomeini:

Q. Rafsanjani: `Previously you declared that music was forbidden. Why do you no longer object to it?`

A. Khomeini: `Let us assume that the music in question was broadcast by the radio of Saudi Arabia. Then I would forbid it, because wherever Taghut is in power, opposition to what he undertakes is allowed and such opposition conforms to maslahat. But here where the Islamic state is in power, a different form of regulation is valid.` [from a speech given by Khomeini's son Ahmad reported in Kayhan 27.6.90.]

COMMENT: So the message to the public sounds ambivalent. On the one hand, fogedaboudit, the Imam has changed his mind and decided some/most music is "unproblematic." But a less arbitrary (and more probable) explanation offered by Ayatollah Azari Qomi, and suggested in the answer given by Khomeini to Rafsanjani, is that music on radio is allowed so that the Islamic Republic can compete with Taghut for listeners' attention. If the Islamic government could somehow cut off the siren song of foreign broadcasts - say through the eventual world Islamic conquest Khomeini hoped for - the rationale for allowing music and the broadcasting of it would be no more. There would be no reason for the public not to expect the ban to be resumed.

Backing Off the Ban on Chess and Broadcasts of non-hijab people

In the same two fatvas [i.e. on buying and selling of musical instruments and broadcasting of music] Khomeini declared several other violation of morality permissible.

"Moreover, a large number of parliamentary resolutions were repeatedly rejected by the Guardian council, in some cases as often as 5 times."

How Undemocratic Was the Executive Process? - Council of Guardians Interference was not restricted to Legislation

The Guardian Council's intervention in the legislative system of the Islamic Republic has not been limited to laws and legal initiatives but has also extended to statutory instruments (a'in-nameh-e ejra'i)approved by the Council of Minister and other executive institutions, decrees of the Council of Ministers (tasvib-nameh), treaties (qarardad) and statutes (asas-nameh). This extension of powers does not correspond to the actual working of the constitution but is based on the particular interpretation given to that document by the Guardian Council itself. ... The influence of the Guardian Council even extends to the Court of Administrative Justice (Divan-e `Edalat-e Edari)(p.94)

After the Majles "obliged the government to draw up" bills on "self-sufficiency in agricultural products of strategic importance" which the majles viewed as absolutely essential and extremely urgent" ("seven resolutions of this kind were passed during the 1st Majles and two during the 2nd"), the "Guardian council took this right away from parliament, declaring on the basis of Article 75 of the constitution that the framing of bills was a matter exclusively reserved for the government." (p.99-100)

Member of the C of G, Ayatollah Mahdavi-Kani "expressed the view that the Guardian Council had the authority to declare invalid any article of the constitution which in its particular or general meaning contradicted the shari`ah." A reference to the fact that the constitution called for state monopoly on all foreign trade but the C of G was vetoing a bill to implement this. (p.196) COMMENT: Well, it's much like the roll of the supreme court in the US, right? Except that Khomeini and `ulema pretty much created the constitution, successfully keeping opponents and not just secular opponents off the Assembly of Experts. So what could the C of G possibly find unshari'ah-like in the constitution? "This is a further indication that the founders of the Islamic Republic were not sure of the agreement between the constitution of this state and the shari`ah, or that they wished to leave the way open for questioning the constitution at any time in the name of the shari`ah." (p.205)

How Undemocratic (Unconstitutional) Was the Executive Process? - Assessment Council

Assessment Council was created after Khomeini's fatwa on the supremacy of the Islamic Government. It "operates on the basis of statues which it approved itself on 24.10.89 and which Khomeini approved on 12.12.89. Yet when it deems it necessary, the Assessment Council is prepared to violate these statutes and to pass laws without reference to a request by Parliament or the Guardian Council. Out of the 50 decisions taken by the Assessment Council since the autumn of 1992 only 14 were because parliament and the Guardian Council could not come to an agreement over them. The remaining 36 decisions were contrary to the council's statutes." p.95
(Source: "These figures are based on Mehrpur's report in Resalat, 29.12.92. In what looked like an attempt to resolve this contradiction, the vice-president of parliament, Hojjat al Eslam Ruhani, said in an interview with Resalat (30.5.94) that these were cases which the leader had asked the Assessment Council to decide. Ruhani is apparently referring to Article 112 of the revised constitution, which, however, only has to do with the leader receiving advice from the Assessment Council. There is no provision in this article for the Assessment Council to undertake its own legislative activity." (note 67 p.119)

Assessment Council

Was created to `promulgate state ordinances after taking account of the interests of the ruling system and of society, in those cases where disagreement between parliament and the Guardian Council could not be resolved on the basis of the shari`a or the constitution.` (description of presidents of the three branches of the government, not Khomeini) By order Of Khomeini 6.2.88. (p.234) "One of the first steps taken by the Assessment Council - which began its work in the second half of February 1988 - was to draft its own statues. The only power it conferred on itself was to decide what was in the interest of the ruling system. This power would only be exercised if it proved impossible to resolve a conflict between parliament and the Guardian Council. But in giving his view on the council's statutes, Khomeini extended its powers allowing it to decide on any subject that the majority of those present during a session with the necessary quorum deemed worthy of discussion. [source: MR II 856] In effect this turned the Assessment Council into a legislative authority capable of framing legislation independently of parliament and the Guardian Council. ... protests from many MPs and the Guardian Council led to a formal revocation of these extended powers, although in practice the Assessment Council continued to promulgate laws independently. [source: on this subject see Mehrpur: 1992a, Parts 3 and 4](p.234)

Was the Undemocratic Neutering of the Parliament Just Part of Khomeini's Plan?

"The work of parliament, and its jurisdiction, are increasingly defined as professional expertise (kar-shenasi) brought to bear in the formulation of bills and must be distinguished from actual legislation. Indeed, this task corresponds to the function assigned to parliament in Khomeini's book The Islamic State, namely planning-work`(p.295) .... In his book, parliament is called the Planning Assembly (Majles-e Barnameh-rizi)" (p.48 of Islamic Government) (p.306) COMMENT: Actually Khomeini says INSTEAD of a parliament we will have a Planning Assembly as the third branch of government in our Islamic Government.

How Undemocratic was local governance? Or a Case Study in how the Powers-that-Be Stalled and Stalled and Stalled, Reneging on a Promise of the Revolution Enshrined in the Constitution

"The notion of showras or councils - in the sense of local administrative autonomy throughout the country - had by the time of the revolution, been favoured by many politically-oriented people in Iran for several decades and was especially popular amongst members of the different ethnic minorities... The revolution was itself partially organised on the basis of councils formed in various industries and in city neighborhoods"

Islamic Republican Party - Why was it disbanded?

Opposition parties were banned by law in September 1981 although "for the most part" they had been suppressed "before the law on parties was passed."

The prohibition of opposition parties was also in part justified by the claim that a religious community could not allow itself to be split into parties. A community that moves toward one common goal, led by a wise leader who is God's representative, could have no reason to allow itself to be divided. ... The only possible party in such a community is Hezbollah which embraces all members and consequently does not need any special organisation to represent it." So it was that even the pro-Khomeini parties bit the dust. "The most important of these were the Islamic Republican party (Hezb-e Jomhuri-ye Eslami) [disbanded 2.6.86] and the Organisation of the Mojahedin of the Islamic Revolution (Sazman-e Mojahedin-e Enqelab-e Eslami) [which] disbanded itself at Khomeini's recommendation on 6.10.86"

Harassment and Disbanding of the Liberation Movement

"Although the more or less total cessation of the Liberation Movement's activities was only decided and enforced after Khomeini's death, even before that date its activities were severely restricted. By the autumn of 1988 these restrictions had reached such proportions that the party felt obliged to describe its continued existence as a form of `humiliation and betrayal` of its ideals. This statement occurs in a letter to Khomeini dated 4.10.88 in which the party describes the restrictions imposed on it through five successive phases of intensified persecution. The fifth included the arrest of 80 of its members, the occupation of its central office, the confiscation of its funds and documents and slandering of its members as spies, apostates and hirelings of foreign powers. The letter went on to say that, in the face of such strangulation, the party had little choice but to effect `its own honourable self-dissolution.`"

Above the Law - Privileges of the Ruling Class

"To give an idea of the degree of support that the foundations receive from the government, it is sufficient to note that the head of the Nobovvat foundation is still alive, although as of 5.10.88 he has twice been condemned to death by the courts because of the criminal financial activities of this foundation." (p.157)

Governmental and Political Bodies

Guardian Council

Explanations for its Decisions

Decisions - Majority or Unanimous

Although ejtehad implies disagreement and error in drawing judicial inferences it is not normally conceived as so unreliable a method of reaching a ruling that it will lead to disagreement in most cases... (p.251) In most cases the decisions of the Guardian Council are not unanimous but based on a majority (Madani: 1986-90, vol. IV, p.173). With regard to decisions taken on the basis of the shari'a, this means according to the council's statutes, at least 4 out of the 6 votes (Madani: 1986-90, vol. IV, p.175). Although the text of the official findings issued by the Guardian Council does not indicate whether the decision was unanimous or based on a majority, there is no way of knowing how often a decision was hindered by the absence of a necessary majority." (p.253)

National Security Council

"The National Security Council is composed of the

Supreme Council for Social Revolution

"The Supreme Council for Social Revolution, as we saw in Chapter 4, is another institution with legislative powers which was not elected by the people. The council's goals and tasks are defined in its statutes which were drafted by Khomeini himself in 1986. They clearly demonstrate the extent of this council's activity in areas which in a democratic system would normally be dealt with by parliament. Amongst its tasks are `working out the principles for cultural policies under the government of the Islamic Republic, and defi9ning the goals and the direction of plans for culture, education and research` as well as the `spread and reinforcement of the influences of Islamic culture in all areas of society, and the intensification of the cultural revolution and the development of general culture.` The resolutions passed by this council have regularly appeared since 1986 in a separate part of the stature-books published annually by the Ministry of Justice. They are referred to as `operational regulations,` `statues`, `orders` and so on but in reality they have the character of laws."
One MP by the name of Mohammad Khamene'i "cited a series of examples" of how the Judiciary `overstepping the law and has usurped the position which is exclusively reserved for parliament` "which include the annulment of 10 articles of the civil code." [source: Masa'el-e jomburi-ye Eslami-ye Iran 23.10.83 pp.10 f, 59f and 64] (p.97)

Other Non-Elected Bodies

To appreciate the full extent of intervention in legislation by non-elected institutions, it is also necessary to mention the

Revolutionary Courts

"Legal prosecution of opponents of the regime is either carried out by the Revolutionary Courts (Dadgah-e Enqelab) or the Special Courts for the Clergy (Dadgah-e Vizheh-e Ruhaniyat). The Revolutionary Courts were originally ad hoc institutions presided over by shari'a judges (hokkam-e shar'). In 1983, these courts were obliged to attach themselves to the Ministry of Justice. The execution of thousands of the regime's opponents after the revolution was ordered by them. The general fear inspired by the Revolutionary Courts is so great that whenever the government wishes to put an abrupt stop to a particular practice, such as driving up prices, it simply threatens those responsible with prosecution in the revolutionary courts. The Special Courts for the Clergy pass sentence on political or moral offences committed by the clergy." (p.154)

Representatives of the Imam (Namayandegan-e Emam).

... are one of the most important institutions of supervision and propaganda. They act as a kind of extended arm of the leader in all the chief educational, administrative and security agencies and other state institutions, and use their considerable power to intervene in the running of those organisations. (p.154)

Imams of the Friday Prayers (Emam-e Jom'eh)

... lead the faithful in the performance of the Friday prayer, are appointed directly by the leader or through the Secretariat of Friday Imams in all the cities. They are in practice a powerful authority that stands over the local governors and mayors, although their official functions is to supervise religious activity, propagate the doctrine of VF and agitation." (p.154)

Political-Ideological Bureaux (Darfarha-ye `Aqidati-Siyasi)

Organisations of control and agitation. ... `an essential and vital foundation of the regime of the Islamic Republic` (Khamene'i) installed in all areas of the state apparatus... meant to provide ideological instruction to state employees and watch over them in their work place." (p.154)

Organisation of Islamic Propaganda (Sazman-e Tablighat-e Eslami)

Produces and distributes publications inside and outside Iran. ... came into existence in 1981 (p.154)

Organization for Jihad in the Universities (Jehad-e Daneshgahi)

a student organisation loyal to the ideology of the regime. It emerged in connection with the cultural revolution and is entrusted with the task of Islamicisation in the universities and combating the forces which work against this goal.... is under the supervision of the Supreme Council for the Cultural Revolution. This organisation had recently been extremely active under the name of `Ansar-e Hezbollah` and during the elections to the 5th Majles took strong action against candidates who did not belong to the conservative faction on 2.4.1996 it held its first congress and took on the character of a political party. (p.152)

Party of God (Hezbollah)

"this title does not designate a separate independent organisation but loosely bound groups of thugs who are regularly sent out, usually from headquarters located in a mosque, to suppress by violent means undesirable activities of a cultural or moral nature." (p.153)

Harasat

Is a security bureau which has representatives in every state organisation and bears chief responsibility for matters of security in the administration.(p.153)

Khaharan-e Zeinab (Sisters of Zeinab)
Nasehin (Admonishers)
Sar Allah (Revenge of God)
"... a series of groups who constantly turn up with new names or new forms of organisation whose task is to uphold chastity and morality in the streets and to suppress sources of unrest." (p.153)

Revolutionary Guard

The Revolutionary Guard (Sepah-e Pasdaran) has been made responsible to the Ministry of Intelligence, it can be assumed that this organisation will disposes over its own separate intelligence apparatus. The Revolutionary Guard was set up under the government of Bazargan and has since developed into a full-scale army with air force and navy branches. Its task is to combat both external and internal enemies.... narcotics trafficking. In 1991, in the wake of the unexpected outbursts of rioting by a discontented population in several cities, the Guard formed `a special unit for the security of the cities.`" (p.151)
They form without a doubt the strongest institution of the revolution.. They defend the hierocracy against its opponents and at the same time are an instrument through which the distribution of power can be influenced. (p.299)

Basij

Internal security is also attended to by the "Basij (militia) which is under the direction of the Revolutionary Guard. The Basij is made up of adolescents and volunteers from amongst the lumpenproletariat. Its membership in Tehran alone has been reported as approximately 100,000 and in 1995 it was said to have 1.7 million members among high-school students throughout the country." (p.151-2)

Komiteh-e Enqelab

Revolutionary Committees emerged during the revolution. They originally included the members and sympathisers of an array of groups but after several purges evolved into security forces chiefly employed against the opposition. Over the years they increasingly took on more routine policing tasks and in 1991 were fused with the conventional police in a new organisation known as the Niruha-ye Entezami (Forces of Order). (p.152)

What went wrong? Why Didn't anti-Velayat-e Faqih Forces - Secular and Islamic - Unite and Stop This Nonsense?

Advantages of the Islamicists over the secularists

COMMENT: The "apparent certainty that the clergy would not be capable of governing the state" was rooted in the apparent certainty that the one blue print offered (Islamic Government by Khomeini) was not only dismissed by the `ulema (at the time!) but didn't make any sense. And because it doesn't make any sense the government is brutal and ineffective, the mullahcracy very unpopular, and the IRI is doomed to fall.... eventually. In the mean time it's been in power 20+ years and counting.

Contradiction in the Constitution - Democratic Elements v. V.F. Elements

"If this constitution, despite everything, contains elements that contradict its overall hierocratic spirit, [elected president and parliament] the reason lies in the multiplicity of interests which motivated the various strata of the population to participate in the revolution and which in subsequent years could still be entirely ignored." As soon as the formation of an Islamic Republic uncontaminated by democracy appeared to be within the realm of possibility, vehement protest was voiced first of all against the plan to call the post-revolutionary state an `Islamic Democratic Republic`, although this title had been agreed in the Revolutionary Council .... " in preparation for shelving the democratic preliminary constitution and enshrining the velayat-e faqih.(p.293)

"The fact that the hierocratic legalists tolerated the inclusion of democratic elements in the constitution did not mean that they were prepared to regulate their behavior accordingly. Nor did it mean that the Islamic state was conceived in a way that would guarantee the promotion or the enforcement of these elements. The intention was to get rid of the constitution's democratic elements as quickly as possible," ignoring rather than amending the constitution. "Concentrating power in the hands of the leader, undermining and disempowering representative institutions, suppressing fundamental democratic rights..." (p.294)

Contradiction in the Constitution - The Constitution Calls for a Elected Representative Parliament. Khomeini's V.F. System Calls For a `Planning Agency` instead of a Parliament

"Although in emergencies Khomeini allowed parliament, if it had a two-thirds majority, to jump the hurdles created by the Guardian Council and thus attain a greater share in the power to legislate, in practice it rarely enjoyed this power. Once the Assessment Council was established and laws could be passed on the basis of maslahat, parliament lost even this limited privilege, because there was no longer any need for the rule of emergency. Even though parliament primarily drafts its resolutions on the basis of reasons of state, it can only do this within the framework of its function of expertise and within its real area of jurisdiction. It has no authority to pass, on the basis of reasons of state, resolutions which do not take account of the shari'a. (p.295)

Why Were Not anti-Velayat-e Faqih Forces - Secular and Islamic - Effective against Khomeini

"opponents of velayat-e faqih... instead of uniting to defend themselves against the clergy's thrust for power, they split into numerous groups. Failing to recognise the common danger that threatened them, they were unaware that it could only be warded off successfully if they united their forces. There are many reasons for this fragmentation"

VOCAB

Islamic vocab

Ordinances

ahkam - ordinances

hokm-e bokumati - state ordinances

ahkam-e hokumati - `state ordinances` "they belong to the shari'a for the simple reason that they had been enacted by an Islamic state." (p.171)

ahkam-e avvaliyeh - primary Islamic ordinances

ayat-e ahkam - practices developed from "the 500 or so ahkam-verses of the Koran (ayat-e ahkam)," practices "that were current amongst pagan Arabs before Mohammad."

ahkam-e emta'i - `sanctioned ordinances` distinguished in Islamic law from `the established ordinances (ahkam-e ta'sisiyeh) instituted by Mohammad. [source: Coulson: 1964; Motahhari: n.d., p.12; M. Watt; 1980, vol.I, p.234; and see also Welhausen: 1961.

ahkam-e ta'sisiyeh - `the established ordinances` instituted by Mohammad, distinguished in Islamic law from ahkam-e emta'i) - `sanctioned ordinances

ahkam-e far'iyeh - `derived ordinances,` ordinances that can be suspended by the Islamic state "when it was in the interest of the country and of Islam to do so." (p.213)

Other stuff

elhad - heresy

osul-e feqh - `juridical principles` of the shari`ah

'aql - reason. Reason "exists as a fourth possibility (after sunna, ejma') the function of which is once again chiefly to disclose the hidden ordinances of the Koran and the sunna concerning particular questions by applying the procedural rules laid down by the osul-e feqh." (p.170)

ejtehad - independent legal opinions

mavazin - Islamic principles

`orf - "customary practices," one of the elements of Islamic law. "acceptance of customary practices into traditional Islamic law took place over a period of several centuries"

`anavin-e sanaviyeh - Secondary Legal categories, e.g. `Rule of Emergency` qa'edeh-e zarurat

qa'edeh-e zarurat - `Rule of Emergency,` a `secondary legal category` often used to get around complying with the shari'ah.

taslit - shari'ah rule according to which `people are masters over their wealth` (p.175)

niyaz - need

lozum - necessity

ezterar - constraint

Zarar - rule whereby (amongst other things) any right is cancelled if that right causes harm to other people.

3otlat - rule whereby it is permissible to let land lie fallow.(p.186)

Interests

maslahat - interest

esteslah - taking account of interests

masaleh-e morsaleh - consideration of interests without derived them from the shari`ah.

zanniyat - conjecture zanniyat

Periodicals

Kayhan - "one of the most zealous newspapers combating the liberal intellectual heritage." (p.143) Daily newspapers each of which roughly represents a specific power block in the Islamic States: Ettela'at, Jomhuri-ye, Eslami, Resalat, Salam, Abrar and most recently Hamshahri, Iran and Akhbar
"these newspapers provide a platform on which both the fight against the regime's opponents and the internal arguments between its power blocs are carried out. Their relatively small circulation [total circulation of daily newspapers, according to Salam (11.4.94) is not quite 1.5 million. According to the figures released by the deputy of the president of the Ministry for Islamic Guidance and Culture in the province of Khorasan, there are all together 21 daily newspapers (Salam 3.10.94)] justifies the conclusion that their influence does not extend to a broad public but primarily affects those segments of the population that are loyal to the regime." (p.299-300)

Resalat - editorial stance "insists on maintaining views based on so-called traditional feqh... cautious position which approves of reform only in so far as it justifies velayat-e faqih. (p.257)

Howzeh - editorial stance supports reformers ... willingness to apply far-reaching measure in adapting the shariah` to present day requirements, in particular to the needs of government, and to approve whatever reform of feqh and the organisation of the religious seminaries is necessary to achieve this end. .... are prepared to .... abandon many of the carina’s ordinances in the name of zarurat and maslahat." (p.257)

Kiyan - advocates a radical reform of the conception of Islam which begins with Islam's view of man and the world and aims for an eventual reform or the totality of the so-called Islamic sciences (ma'aref-e elsami). Politically this group more or less openly criticises the concept of velayat-e faqih and demands that it be replace by what many of the refer to as `scientific management.`" [government by modern experts] (p.258)

Kayhan-e Farhangi - dito)

Political and Governmental Bodies

Majma'-e Tashkhis-e Maslahat-e Nezam - Council for Assessing the Interest of the [the State] Order, aka the Assessment Council

Jebheh-e Melli - National Front

Hezb-e Jomhuri-ye Eslami - Islamic Republican Party

Mojahedin-e Khalq - one of five Islamic radical organisations

Jonbesh - one of five Islamic radical organisations

JAMA (Revolutionary Organisation of the Muslim People of Iran) - one of five Islamic radical organisations

SASH (Islamic Organisation of Councils - one of five Islamic radical organisations

OMMAT (the Militant Muslims Movement) - one of five Islamic radical organisations

Majles-e Khobregan - Assembly of Experts (appreviated MK in his book)

Surat-e Mozakerate-e Majles-e Showra-ye Islami - minutes of the parliament (MM)

Majles-e Baznegari-ye Qanun-e Asasi - Assembly of the revision of the Constitution (MR)

Collections of laws, decrees, decisions of the Council of Ministers and recommendations issued by the Guardian Council, which were published each year by the Ministry of Justice (LB)

1st majles (1980-84)
2nd majles (1984-88)

OUTAKES

"State ordinances base their legitimacy on the interest of the Islamic state or government. Whenever it interest are at stake the state can suspend the primary Islamic ordinances, temporarily or permanently, by issuing state ordinances. The resort to maslahat to justify various government or private actions has played an important role throughout the history of Islam. The practice was accepted by most of the Sunni schools of jurisprudence as the rule of esteslah (taking account of interests) and masaleh-e morsaleh (consideration of interests without derived them from the shari`ah). However the Twelver shi'a have always rejected it as bed'at (forbidden innovation). According to Ayatollah Ebrahim Jannati, Shi'i law rejects the rule of masaleh-e morsaleh because it may cause too much harm: it could be interpreted as an admission that Islamic legislation suffers from deficiencies, and it establishes the possibility that different opinions may be represented at the same time and that conflicts may break out between them. In addition masaleh-e morsaleh are inferences based on conjecture zanniyat, and are therefore prohibited in Islamic law. (p.233) *******************************************