The Constitution of Iran

The Constitution of Iran
by Asghar Schirazi,
Tauris, 1997

Dissects the Islamic Republic, giving much detail. Sometimes fascinating (for a student like me), sometimes painfully dry and poorly written.

The Constitution of Iran - Islamic or Contradictory?

"Despite this claim [that the constitution is based solely on the Koran and the sunna] the Constitution of the Islamic Republic contains important elements which have been borrowed, not from the shari'ah, but from Western secular sources and stand out as concepts such as 'law' (qanun),
'sovereignty of the people` (hakemiyat-e melli),
'nation' (mellat),
'the rights of the nation' (hoquq-e mellat),
'the legislature' (qovveh-e moqannaneb),
'the judiciary' (qovveh-e qaza'iyeh),
'parliament' (majles [majlis of course is Arabic but the concept of a parliament is not]),
'republic' (jomhuri),
'consultation of the people' (hameh-porsi),
'elections' (entekhabat). (p.18)

Amongst the problems of the ISI constitution is that "the secularist and legalist components of the Constitution of the Islamic Republic have not been adapted to one another in a harmonious way, but appear in one and the same text as elements that contradict and exclude one another. The sovereignty of the Islamic jurists negates the sovereignty of the people, the Islamic community is set over against the Iranian nation, Islamic regulations and principles limit the rights of the people, the Guardian Council deprives parliament of power, the leader suppresses the president, the concept of velayat-e faqih reduces the idea of a republic to an absurdity." (p.19)



... Or How Khomeini Strung Along the Secularists and Moderates Until He Had Control of the Constitution Writing Body and Could Do What Ever He Wanted

"The first attempt to draft a constitution began in Paris while Khomeini was preparing for his return to Iran. Hasan Habibi, who is now [circa 1997] first deputy of the president, was charged with this task. ... Habibi's preliminary outline was completed on 22.1.1979 (22 Jan 1979) and presented to Khomeini who took it to Tehran on 1.2.79. Shortly afterwards it was reworked by a commission made up of Habibi himself and five civil jurist and again delivered to Khomeini.
Further revisions were made by a commission chaired by Yadollah Sahabi, an advisory minister to the provisional government of Mehdi Bazargan. .... The result was finally published on 14.6.79 as the official preliminary draft of the constitution.

"PRELIMINARY DRAFT" CONSTITUTION, with no velayat-e faqih is supported by Khomeini

This document contains no reference to velayat-e faqih, nor does it reserve any special posts for Islamic jurists except on the Guardian Council. Even on this body the Islamic jurists are in a minority. ... the Islamic jurists were to be chosen by parliament from an unspecified number of jurists to be proposed by the highest religious authorities..." There is no "leader" and the president is not meant to be a jurist.

The Khomeini's hand-picked Prime Minister, Bazargan, "described Khomeini's corrections of the preliminary draft as 'insignificant'. According to Sanjabi, Khomeini had no more than six or seven points of criticism, one of which related to 'the clergy's supervision of laws and regulations.' .... On more than one occasion Khomeini gave his approval publicly to that draft. For example, in a speech delivered to members of the Tehran Preachers' Society on 17.6.79, he twice said that the preliminary draft was, for the government, correct and that everyone would confirm it. And he reiterated this point the following day [18.6.79] before the Revolutionary Guards, declaring: `We must support and confirm the constitution so that the constitution will be as Islam requires. It must be approved quickly. It is a blueprint made by the government and this blueprint is correct.` In the same speech he repeated the last sentence a second time. (p.22-3)

Prior to Revolution (and even for a while after returning) Khomeini Denies He will serve in Islamic Government. Never mentions velayat-e faqih.

"The Revolutionary Council examined the draft, approved of it unanimously and in the form that it was published on 14.6.79, declared it to be the official preliminary draft of the Revolutionary Council." Khomeini's overtly expressed approval of the preliminary draft was consistent with the position he customarily outlined in Paris when the international press asked him about the role of the clergy in the future Islamic Republic. On 26.10.78 Khomeini told a journalist from Reuters that: `The 'ulema themselves will not hold power in the government. They will exercise supervision over those who govern and give them guidance.` To the question put to him on 7.11.78 by a reporter from Associate Press as to whether he himself would occupy a post in the new government, Khomeini replied: `Neither my age nor my inclination and position would allow me to do something like that.` A day later he gave virtually the same answer to a reporter from the United Press and added that he had already stated this many times. He repeated this position in several other interviews he gave in Paris. Indeed in his interview, speeches, messages and fatvas during this period there is not a single reference to velayat-e faqih. In many of these pronouncement he certainly referred to the 'Islamic state`' but he never specified precisely what he meant by that term." (p.24)

"Even after his return to Iran Khomeini continued to give the impression that he had no interest in exercising government power. He had it announced everywhere that he would soon return to Qom to assume his work as a jurist. He took up residence in the city on 1.3.79 and the press reported that he intended to stay there. [Kayhan 2.3.79]... the daily newspaper, Ayandegan which viewed all the developments of the post-revolutionary period from a radical-secularist perspective, took it for granted in its `Resume of the Week` on 21.6.79 that Khomeini wanted the Assembly of Experts to pass the preliminary draft of the constitution in its published form. A further indication of the extent of this confidence is the earnest and zealous way secularist intellectuals and organisations in particular produced positive criticism of the preliminary draft of the constitution. This is attested by more than 4000 proposals that were submitted for amending, replacing or correcting its contents."[MK (Majles-e Khobregan) IV/3 and 307]

National Referendum on Islamic Republic

There was no mention of the velayat-e faqih in national referendum on `whether the form of the future state would be the Islamic Republic or not.` And of course if the word republic means a state where sovereignty rests in the citizens, this would seem to preclude a state where the sovereignty rests with God and power is the reserves of clerics exercising interpretation of his divine law.

Referendum turnout was very high. 98.2% voted yes. Democratic National Front, Democratic Party of Kurdistan and Organisation of the Feda'iyan-e Khalq boycotted it. (p.27)

Bypassing the Constituent Assembly in Drafting the Constitution

"Originally, a Constituent Assembly (Majles-e Mo'assesan) had been promised in which hundreds of delegates would draw up the final version of the constitution. The decree of 4.2.79, in which Khomeini appointed Bazargan prime minister of the provisional government, charged him with the task of preparing forthwith for the election of this Constituent Assembly. And his promise to summon the assembly, for example on 8.4.79 before a group of railway employees who visited him. [Draft was published in Kayhan on 28 and 29 April 1979] .... But once the official version of the preliminary draft was completed, the thought was circulated that the intervention of the Constituent Assembly was not really necessary in order to adopt the constitution; the people could give it their direct approval by means of a second referendum," since everyone seemed to pretty much agree the preliminary draft constitution was OK. This would speed up the process of establishing a constitution which was important because anti-revolutionary forces were still abroad in the land, and the sooner legitimate government could pass reform measures and speed up normalisation the better. Rafsanjani is said to have argued that bypassing the Constituent assembly would prevent `reactionary and fanatical members of the clergy` from vetoing the preliminary draft of the constitution.
"a compromise" whereby "`an assembly of the final examination of the constitution` which would check over the text of the preliminary draft and present it for final ratification in a national referendum [was reached]. This assembly would consist of just 40 delegates rather than the `hundreds of representatives of the people` envisaged for the Constituent Assembly. The reduced size, it was argued, would guarantee a speedy completion of business." (p.29)

The Revolutionary Council passes a bill on 5.7.79. The first article of this bill stated that the task of the assembly would be `to express its conclusive opinion on the text of the Constitution of the Islamic Republic of Iran which has already been reworked and checked over through several phases.` (LB (Council of Ministers decrees)1978/1979 p.52)(p.29)

Opponents of the referendum were assured the only one third of the representative would be from the clergy; that the assembly would be required to complete its work within one month. (p.29)

Then warnings were issued "to those who continued to insist on a Constituent Assembly and denounced the broken promises of the governing councils, ... on 15.6.79 Khomeini went so far as to declare that the stubborn insistence on a Constituent Assembly should be considered as a conspiracy of counter-revolutionaries against Islam whose only purpose was to gain time," [Kayhan, 16.6.79] followed by another attack on Constituent Assembly supporters two days later.


Or How Khomeini and his network, now confident they can control the Assembly of Experts, make a 180 degree U-Turn attacking the preliminary draft they had seen nothing wrong with weeks earlier, and propagandizing for the velayat-e faqih constitution they will shortly pass despite boycotts by liberal/left.

"Once the resolution to scrap the Constituent Assembly had been successfully pushed through, it was possible to propagate the idea of velayat-e faqih in public. This phase began with a violent attack against those who criticized the monopolistic intentions of the clergy. At the same time, the preliminary draft of the constitution was subjected to a variety of criticisms formulated by legalists. Khomeini had already denounced his opponents on 26 May as having intentions to exclude the clergy from politics - a betrayal, he declared, whose purpose was the annihilation of Islam. Whereas before this date Khomeini had dealt with the advocates of a Democratic Islamic Republic with relative caution, he now denounced them as enemies of Islam. [Kayhan 18.6.79] This was despite the fact that the prime minister [that Khomeini had appointed and commanded Iranians to obey] belonged to this group, ...

Manipulation of Assembly of Experts election.
"Irregularities included:

  1. The dissemination of false information. For example, it was announced that the Grand Ayatollah Shari'at-madari had taken part in the elections, although it was known that he intended to boycott them.
  2. The falsification of results. For example, two Shi'i candidates won the election in Sunni Kurdish regions, which was generally seen as proof of a massive electoral falsification. In several provinces the votes counted and accepted as valid exceeded the number of people eligible to vote.
  3. Acts of violence directed against unwanted candidates and their supporters.
  4. The completion of ballot papers on behalf of the illiterate as the dominant clergy wished.
  5. Informing voters that Khomeini and other important members of the clergy had declared it was a religious duty to vote for certain candidates.(p.31-32)

However, the biggest single advantage which the supporters of the velayat-e faqih enjoyed in the election was that the voting regulations in some cases made whole provinces into single wards. In each province one delegate was chosen for every 500,000 voters. Had the electoral wards been drawn up on the basis of a division between city and countryside, many clerics, who were chiefly elected by the rural population, would not have been successful." But since the Assembly of Experts drastically reduced the number of delegates to be voted on, this was to be expected.

COMMENT: But if this were true wouldn't the anti-VF delegates still have been in a minority with a larger constitutional assembly group? This draws up the question of whether Khomeini had more votes than the liberals/democrats/leftists and knew it, and whether his manipulation of the election of delegates was not a thwarting of the will of the majority but a speeding up the inevitable - i.e. the installation of the government he (the leader of the revolution) wanted, VF government with himself as VF. After all, his network was dominant in the countryside and must have had a good many supporters in the city among the recent migrants from the countryside.

  • Five Islamic radical organisations: Mojahedin-e Khalq Jonbesh, JAMA (Revolutionary Organisation of the Muslim People of Iran), SASH (Islamic Organisation of Councils), OMMAT (the Militant Muslims Movement), wrote an open letter to Khomeini" protesting against these irregularities.
  • "The Grand Ayatollah Baha al-Din Qomi described electoral manipulation in the province of Khorasan as `an unimaginable betrayal` while the members of the Religious Academy of the City of Mashhad compared the elections to those held under the Shah's regime.
  • The Grand Ayatollah Shari'at-madari boycotted the proceedings and along with the Islamic People's Republican Party that he was close to, demanded that they be annulled.
  • The Grand Ayatollah Hasan Mahallati also protested.
  • The National Democratic Front, the National Front, several parties that represented the ethnic minorities and many other leftist-oriented organisations called for a boycott on the ground that the formation of a Constituent Assembly had been blocked and the elections for the Assembly of Experts had been prepared and would be carried out by undemocratic mans.
  • The rigging meant the elections results were to the full satisfaction of Khomeini and the leaders of the IRP. Out of 72 delegates whose election was officially recognised. 55 were clerics, who with few exceptions, followed the so-called `line of the Imam.` This was also the case with most of the delegates who were not clergy. (p.32)


    Khomeini defined the status the clergy were to hold in the assembly and consequently in the Islamic regime as follows:

    Determining whether [principles laid down in the constitution] are or are not in conformity with Islamic requirements is exclusively reserved for revered jurists who, thanks to God, form a particular group in the assembly.

    This task being a matter for experts, the other `honorable delegates` who did not possess the necessary qualifications should not interfere. Khomeini also expressed the hope that delegates from two specific groups would not influence the constitution - those `inclined to Western or East European schools of thought or influenced by deviant views' and 'persons who lack the capacity to understand Islamic regulations and sciences, and under the influence of deviant schools interpret the noble Koran and hadith texts according to their own wishes' [source: MKIV/319f.] (p.33)


    "During the debate on Article 5, Rahmatollah Maraghe'i objected to the fact that those directing the Assembly of Experts had replace Article 2 of the preliminary draft in which the will of the people was designated as the basis of sovereignty, with Article 5 which had a completely different meaning. Such a procedure was beneath the dignity of the assembly. He was not, he declared, fundamentally against velayat-e faqih, if this were taken to mean the sovereignty of Islam, but he rejected outright the idea that 'a special class should make a monopoly out of Islam for itself.' (p.45) Shortly before Sept. 9 Article 5 passes in the Assembly of Experts. This article establishes the principle of velayat-e faqih.


    "In mid-October the great majority of ministers voted to dissolve the Assembly of Experts on the grounds that it had exceeded the deadline by which it was to have completed its work, and that it had overstepped its authority because it was engaged in rewriting the text of the constitution, instead of making adjustments to the preliminary draft." They first go to Khomeini before releasing their decision to the press. Khomeini "was, predictably, enraged. The resolution was quietly dropped." Public learned of all this from a speech given by Khomeini 22.10.79.(p.47)


    Ayatollah Reza Zanjani and the Grand Ayatollahs Shari'at-madari and Qomi.

    Here is Zanjani's position:

    'According to the unanimous opinion of the Imami Koranic interpreters and theologians, velayat-e faqih in an unrestricted form based upon the Koranic verse about the ulu al-amr [o believers! Obey those in authority among you. Q4:59] is exclusively reserved for the rightly guided Imams (peace be upon them!) For it does not stand to reason that God, all-Wise, would bestow the powers of the infallible Imam upon fallible human beings.'

    Zanjani advocated velayat-e faqih as it is defined in article 2 of the Supplement to the 1906/7 Constitution which, at least in principle, had been in force up to the revolution. According to this definition, a commission consisting of five mojtaheds would have the right to veto any laws passed by parliament if those laws were not in conformity with the shari'a ... The commission was to be elected by parliament from a group of 20 mojtaheds ... Consequently, Zanjani considered the Assembly of Experts to be superfluous and harmful..." (p.47-8)

    Setback for Modernists - Ayatollah Taleqani Dies

    Ayatollah Taleqani dies 9 September 1978. "the modernist Islamicists lost an extremely popular man whom they had hoped would act as an effective counter-balance against the monopolistic desires of the host of clergy gathered around Khomeini." (p.51)

    National Referendum on the Constitution

    Passes 2-3 December with official claim of 15,758,956 votes (over 99% in favor of the constitution). Voter for first national referendum in March had been 20,439,908. (p.52)


    What Khomeini called for

    The Constitution of the Islamic Republic does not specify whether the so-called Islamic principles (mavazin) or ordinances (ahkam) are to provide the criterion for compatibility with the shari'a of the laws passed by the state. Khomeini insisted on the application of the ahkam or `Islamic laws.` One section of his book, the Islamic State (1982), bears the title `The Necessity of the Permanence of the ahkam` and speaks of `putting the ahkam into practice` for all eternity. `Islamic laws,` writes Khomeini, `cannot be annulled or limited by time and space.` Any objection to this proposition is `a contradiction to the requirements of belief.`(source: p.25 of `Islamic State`)(p.161)

    First stage of attempt to institute the Shari`ah - Talk

    During the first years of the Islamic Republic, the need to enforce the Islamic ahkam was a constant refrain in Khomeini's speeches ... to Assembly of Experts he stressed that the document would be invalid if even one of its articles contradicted the ahkam. (source: M1/5) ... message to MPs on the inauguration of the 1st Majles, he warned against legislation which contradicted `the sacred Islamic ahkam` (1981)(p.162)

    Beginning of the revolution

    "Even before they took political power, the legalists began to apply the ahkam partially. In the period immediately preceding the revolution, violence was used to close down bars, shops selling spirits, or pork and sausages containing pork." Immediately after the transfer of power, the so-called `hokkam-e shar` (shari'ah judges) sentence actual or alleged representatives of the old regime to death or flogging and ordered their wealth to be confiscated on the basis of Islamic criminal law. In March 1979, Khomeini demanded the observance of Islamic rules of dress for women working in or frequenting the government offices. (source: `Women may frequent the ministries, but not naked [i.e. unveiled]; they must wear the veil.` (Kayhan, 7.3.79)Music, dance and chess were also forbidden. (Jomhuri-ye Eslami, 17.12.80 )(p.162)

    First stage of attempt to institute the Shari`ah - Spinning wheels

    "The first attempts at systematic Islamicisation were made in those areas of law where the contrast between the legal practice... under the Pahlavis and the shari`a was very visible." (p.162) Supreme Court asked the Guardian Council to decide whether all non-Islamic laws, resolutions and statutory instruments should be annulled and the courts instructed to dispense justice in accordance with Islamic principles... i.e. from Khomeini's fatvas. Guardian Council said deciding whether existing laws were compatible with the shari`a was within its (Guardian Council's) jurisdiction. (p.163)
    COMMENT: unclear what this means. Guardian Council will do it all? When?

    Why delay?

    In addition to this opposition by the Guardian Council to Supreme Court's initiative there were also "numerous other protests which occurred even within the Ministry of Justice, in particular against Islamicising the criminal law." After all, there would be a "legal vacuum ... created if existing laws were annulled." (p.163)

    ... Impatience of Fuehrer

    "Khomeini was extremely displeased with these delays." "In August 1982, his patience exhausted, in a speech to pilgrims bound for Mecca he demanded that judges hand down verdicts based, not on current laws, but on the laws of the shari'a. He declared his readiness to take responsibility for this decision: `All laws from the time of taghut [shah] are against the shari`a. They must be thrown away.` He was not prepared to accept further delays - those who maintained that the existing laws must be retained should, he said, `have their face bashed in .` In the same speech, he instructed the Guardian Council and the Supreme Court to announce that it would be a criminal offence to act according to the old laws that violated the shari’a." `We maintain that our republic is Islamic. The Islamic ahkam must [therefore] be applied in this republic`(p.163)(source: Kayhan 23.8.82)

    So Courts were Ordered to obey Shari'a

    "The pro-government press promptly announced that Khomeini's order set in motion `the revolution in the justice system.` In compliance, the Supreme Court issued a circular ordering that `all current laws which violate the shari'a are as of now cancelled and invalid.` Judges were instructed, on pain of punishment, to base their finding on valid juridical sources or on valid fatvas ... until parliament had time to pass the necessary Islamic laws." and to consult the Supreme Court or Bureau of the Imam if in doubt. (p.163)(source: Kayhan 24.8.82)

    Parliament and the Council of Guardians then bickered.

    Resolution by parliament on 5.9.82 "obliging all ministries and government institutions `to forward within ten days all the laws they use to the Guardian Council, so that within a six-month deadline the council can judge whether their content contradicts the Islamic ahkam."
    But the Guardian Council saw this resolution as an infringement of its own powers and rejected it as contradictory to the constitution, but at the same time emphasised its readiness to co-operate with the appropriate government authorities in identifying those laws which violated Islamic principles... (p.164)

    Another step... with no results

    Another step parliament undertook to Islamicise the laws in the spring of 1981 should be mentioned here. It consisted of setting up a `special commission for examining laws passed by the Revolutionary Council and laws dating from before the revolution.` Four years later however, the commission in question was dissolved. It had succeeded in examining only two laws relating to the Guilds (Nezam-e Sanfi) and the protection and expansion of industry, the result of which” was one bill it put before parliament. (p.164)

    Council of Guardians' Effort

    28.7.85 C of G asked Parliament to allow it to examine not only the acceptability of individual articles of a law but also whether the law as a whole was acceptable when it came to amending laws from the time of the taghut. Otherwise, it would be necessary, the council maintained, to create a new laws for every legally regulated situation. The immediate cause of this [was controversy over the Rent Law of 1977] "These attempts at Islamicisation met with scant success. In a collection of judgments handed down by the Guardian Council published in 1992, there are only 24 cases of this kind [??] to be found after 12 years of activity by the council. These consist of laws and parts of laws approved either by the Revolutionary Council or promulgated in pre-revolutionary times which the Guardian Council, on the occasion of parliament passing resolutions or at the request of the Supreme Court and other government authorities, found to be in partial or complete disagreement with Islamic principles. They are overwhelmingly concerned with Islamic jurisdiction in general and the Islamic code of criminal law and criminal proceedings in particular. In a few limited cases, they involve questions of ownership or the prohibition against earning interest. It is noteworthy that the decisions formulated on these occasions by the Guardian Council were in part annulled, either by the Assessment Council or by laws that were passed later on and which the Guardian Council itself also approved. [source: Mehrpur: 1992, vol.III p.167ff](p.164-5)
    The most interesting case amongst the judgments handed down by the council on the laws of the ancien regime is found in a letter to the Ministry of Agriculture dated 12.7.84. The letter instructs the ministry to drop `as quickly as possible` an order it issued implying that the land reform law promulgated during the `era of taghut` would remain in force. According to the council this law contradicts the shari'ah. [source: Madani: 1988, vol.IV, p.444 f.] However contrary to expectations, the law was not annulled but instead made more stringent." [source: Schirazi: 1993, passim]
    The fact that the Islamicisation of law only proceeded in a halting fashion does not mean that there were no significant changes in Iran's legal system. ... The question is not whether the Islamic Republic has or has not altered the laws of the ancien regime. Laws are continually amended, annulled or supplemented in every country. It is whether the numerous changes that have taken place have fulfilled the requirements of Islamicisation. (p.165) Categories of laws

    1. Laws which were in any case based on the shari'a and therefore underwent very little change. [civil laws whose codification began in 1910 and continued up to 1935. Curiously, this process took place during a period when modernization was the principle concern of the government. Modern elements were incorporated only in those areas pertaining to commercial law and the code of civil procedure where the Islamic ahkam were not sufficient to deal with modern legal issues.]
    2. Laws that contradicted the shari'ah and were therefore partially or completely changed. [e.g. laws from the old regime prohibiting the clergy from having access to the landed property of religious foundations..]
    3. Laws that were considered anti-Islamic before the revolution but were later tolerated or approved.
    4. Laws that have merely appeared to be Islamicised, or whose Islamicisation came up against difficulties and was abandoned.
    5. Laws that have no relationship to the shari`a but have had to be accepted out of sheer necessity.

    What were considered good Ahkam or Shari`ah Laws?

    Traditional Collection of Islamic Ahkam include Khomeini's two works Tahrir al-Vasileh and Towzih al-Masa'el, each a "kind of handbook," both for "simple believers" "imitating" Khomeini, and for judges and legislators looking for legal precedents,

    Tahrir al-Vasileh ... lists 4397 questions (followed by Khomeini's solutions), which in the traditional manner are arranged in different parts and sections. The solutions are either presented in the form of answers to concrete questions relating to the ritual or material life of believers, or as methodical exercises whose purpose is to formulate possible answers to speculative questions.

  • 18.2% of the questions deal with regulations pertaining to ritual purity and prayer.
  • 16% of the (questions and) solutions "deal with questions about Islamic taxes (khoms, zakat and taxes relating to waqf foundations)." (These, combined with ritual purity and prayer, traditionally come under the heading of worship ('ebadat)).
  • "Another 14.1% are concerned with the Hudood"
  • 51 questions [About 1%] deal with defense (defa')
  • 129 [Almost 3%]with enjoining the good and forbidding the evil.
  • 44 [About 1%]with the adherents of religions of the Book (ahl-e zemmeh)
  • 105 [2.3%] with new occurrences (mostahdasat)10 on insurance, 6 on foreign exchange bureaux, 8 on paying indemnity, 12 on banks, 7 on lotteries, 10 on artificial insemination, 7 on autopsy and organ transplantation 10 on sex change 11 on radio, television, etc. 18 on prayer and fasting in aeroplane or at the earth's poles, and 6 on outer space. (p.169).
  • 25.3% (1116) questions are directly or indirectly connected with public laws. Including khoms tax, enjoining the good and forbidding the evil, defense and relations with Christians and Jews. But this notion is an assertion of the "modern theory of velayat-e faqih". "Traditionally" they were NOT part of public law, such questions either came under the heading of worship (`ebadat) or were considered to be in the domain of private law, in so far as they were applied in courts convened outside the state apparatus by clerics at the request of the contending parties." A sort of mediation/conciliation operation, not command of the state. (Constitution of Iran p.166-7).

    "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.

  • 1022 bills passed by Revolutionary Council during its year and a half of legislative activity.
  • 931 bill passed by parliament and confirmed by the Guardian Council during the first three parliaments
  • 452 laws passed by the fourth up to April 1995. "Only a small proportion of which have anything to do with matters dealt with in the shari'a." ... Which is why the Guardian Council let them through!

    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)


    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

    Made use of because the state could be a third party in a contract between, for example, employers and employees. But the shari`a does "not allow such third partners" so the idea is basically bogus and the Guardian Council would not allow them.

    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.
    This would mean
    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`.]
    they desire. [Letter dated 17.12.87. (p.212) source Mehrpur: 1992 or Howzeh no.23 1987 p.30f.]

    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]
    "Consequently, the ruler could suspend all the derived ordinances (ahkam-e far'iyeh) when it was in the interest of the country and of Islam to do so."

    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

  • Husband could only divorce their wives with approval of a law court;
  • wives were given the right to petition a court for divorce;
  • the court was to grant a divorce if both spouses agreed, or if it was established by the court that the marriage was ruined;
  • in addition to the grounds recognised by the shari`ah, the wife could petition for divorce if her husband had been sentenced to five years or more imprisonment for a criminal act, if he suffered from a disease which impaired family life, or if without her permission he took a second wife, abandoned family life or was prosecuted for a crime which damaged the dignity of the family and the wife;
  • the court could only allow a man to take a second wife if it had established the fact that he was financially capable of doing so and could fulfill the rule of impartiality in his treatment of both wives.
      So that these innovations would not be in violation of the shari’ah, the law declared that they were to be written into the marriage document in the form of secondary contractual conditions, and that the wife's right in matters of divorce was to be indicated as having been conferred on her though irrevocable authorisation by her husband. Accordingly, the husband had to accept as a secondary contractual condition of the marriage that his wife, as his authorised representative, acquired the right to divorce him through the courts." (p.216)

      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

      On 19.11.92, the Assessment Council approved of the parliamentary legislative initiative." This law was less favorable to women the original Parliamentary bill. It "gave the decision regaining divorces, as did the law of 1967 to the competent courts. If the courts come to the conclusion that the marriage partners cannot get along together, divorce is then permissible. When coming to a decision concerning a petition for divorce and the consequences it will entail with regard to financial matters and the custody of children, the courts are to take account of all the secondary contractual conditions entered into at the time of marriage. Note 6 stipulates that `after the divorce` the wife can apply for payment of compensation for work which she undertook during her married life but which the shari'a does not define as obligatory.
      To begin with the court attempts to facilitate a mutually agreed upon settlement. But in cases where such a settlement cannot be reached it acts in accordance with whatever binding conditions were entered into at the time of marriage inside or outside the marriage contract. Otherwise, the court establishes a fixed sum for the wife which depends on whether the work in question was carried out as a voluntary donation (tabarro') or not. In any case, such a sum only goes to the wife if she is not the partner petitioning for divorce and is not herself responsible for the divorce because of her refusal to carry out her marital duties, difficult behavior or sexual misconduct. The law contains two other rules which are contrary to the shari`ah: the presence of a woman in the courts as an adviser is allowed; and the divorce only comes into force once the husband has returned the wife's dowry (mahr), the furnishings and belonging jahizeh the wife brought to the marriage, and paid any maintenance (nafaqeh required of him." (p.219) [source: LB: 1992-93, p.490 ff.]

      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:

    1. qesas - retaliation
    2. diyat - compensation
    3. hodud - fixed punishments
    4. ta'zirat - discretionary punishments

        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:

      1. Question - ... Is it permissible to fix as ta'zirat such penalties as arrest, exile, closing down a business, suspension from service, fines and in general any punishment which is calculated to stop certain offences, or whether when applying these punishments one must be content with the ta'zirat that exist in written form.
        Answer - When applying ta'zirat in conformity with the shari'a, it is advisable to be content with the penalties that have been fixed in written form, unless [the offence] has a public character such as speculation and driving up prices, which along with the state regulations concerns the second question.
      2. Question - In parliament laws are passed for the purposes of governing which deal with [matters concerning] smuggling, customs formalities ... and generally with state ordinances ahkam-e soltaniyeh. In order to oblige the population to obey these laws, any particular law stipulates penalties to be imposed on offenders. Do these penalties come under the heading of ta'zirat as defined by the shari`a? Are the ta'zirat which conform to the shari'a related to these or are these of another kind and substance, being independent from the ta'zirat ... ?
        Answer - "the state ordinance were to be distinct from the ta'zirat provided in the shari'a. `Offenders can be punished with preventive penalties, to be determined by the ruler or his representatives.`(p.225) [source: MM 30.7.86 f. See also the information given by Ayatollah Yazdi in Ettela'at, 30.5.90]

          "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

          the trustee-ship (velayat), that is to say the state, is the most important of all God's ordinances and raised the decisions of the state above all other Islamic ordinances, which were thus demoted to derivative status. Just a few days before this, on 1.1.88 in a Friday sermon, Khamene'i had stated with reference to Khomeini's fatvas on the secondary contractual conditions that the leader only meant those conditions which `fall within the framework of the ordinances accepted by Islam and not any others.` [source: Kayhan 2.1.88] Khomeini abruptly rejected this conservative interpretation and wrote:
          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
          `international unbelief` (Kofr-e jabani) "has also been held to be responsible - by Ayatollah Jannati - for the stagnation of the feqh. Through its hirelings and untrustworthy elements inside the country Kofr-e jabani is not only out to hinder Islam, which now rules over Iran, from influencing Islamic society but endeavours to drive from the arena of actual practice a dynamic and progressive feqh which is based on ejtehad. [source: Jannati, Mohammad Ebrahim 1990, `Feqh-e Ejtehadi va Eslah-e Howzehha az Didhah-e Emam.` Kayhan-e Andisheh, no.29, p.37 f.] According to Rafsanjani, imperialistic powers send their informers into the academies in order to create by this means their own circles of influence. [source: interview in Howzeh no.11, 1985] (p.263-4)

          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:

        1. central organisation for management of them.
        2. central organization of finances
        3. reform of system of education - selecting students, study program, content of textbooks, teaching the human sciences.
        4. specialised personnel to take over management positions
        5. Up to date propaganda.
        6. (p.267)
          Dissatisfaction with Reform - Need for `Human` as well as Religious Sciences

          Reformer differed on how to handle new scientific, technical, social science knowledge. "... opinions differ as to whether the jurists themselves should be experts (karshenas) on new matters or whether they should seek such knowledge for specialists." For example" M.R. Hakimi (1983) wanted `the academies to possess everything and ... to be informed on all dimensions of present-day thought.` It is the advocates of the latter position who are in favour of the curriculum of the religious academies also including the human sciences and even some of the natural sciences." (p.268)

          "In 1994, Ayatollah Mohammad Sadeq Ha'eri Shirazi regretted that the academies still felt they were competent to solve the question of what the shari'a commanded and what it forbade. They did not occupy themselves with the human sciences regardless of the fact that the Koran was the source for all human sciences: `religion` and `the human sciences` were in reality one and the same, and the real mission of the academies was to derive these sciences from the Koran and to disseminate them to the universities so that the latter would not be influenced any longer by Western human sciences, i.e. by Western religions." [source: interview in Resalat 4.5.94] (p.274)

          In 1981 a council was set up in Qom to promote reform but "How far the work of this council has progressed since its foundation can be ascertained from an interview with Ayatollah Mo'men, its chairman, published in Resalat on 24-25.4.94. On the reform of textbooks, or more correctly, the lack of any such reform, Mo'men, stated: `The textbooks presently in use in the academy are those which have been used in teaching for years, perhaps for centuries` ... On the question of specialisation, he reported that matters have remained at the level of planning although teaching in psychology, sociology, economics, philosophy, religions, Arabic literature and especially jurisprudence `will soon begin.` To ward off the cultural invasion, he felt that a department of research should be created.... `We must see to it that in the academy feqh concentrates on questions which have arisen through the creation of the Islamic state.` But only now is the academy occupying itself in detail with the question of velayat-e faqih" (p.274)
          COMMENT: Remember, this is 15 years after the foundation of the Islamic Republic. Remember, this is 8 years after it was determined by Khomeini that interests of the Islamic Republic supercede the ahkam of the shari`ah (and everything else in Islam). So the study of natural and human world where these interests are determined would seem to be pretty damn vital to the ruling class of fuqaha.

          Deficiencies of the Shari`ah - Continuing Dissatisfaction with Reform through the History of the IRI
        7. "In 1988, in a lead article, Howzeh criticised the fact that Imam Khomeini's repeated appeals for the academies to practice a new ejtehad for new questions `had found no positive echo.`
        8. "By 1991 we read [in Howzeh] that the only notable innovations were of an informal nature, were based on individual initiatives and had to be described as inadequate."
        9. "Towards the end of 1993, we read [in Howzeh] that although `some efforts of a theoretical and practical nature` have been undertaken on the path to reform, none the less these represent no more than `a first step.` `The goal lies miles away in the distance.`
        10. 1989 Ayatollah Jannati: "although the means for the progress and development of the feqh were available, as far as content was concerned `none of the required work has been carried out.` "
        11. 1992 Hojjat al-Eslam Mohasen Kadivar: "the measures undertaken over the previous 12 years to reform the Academy of Qom `counted for nothing when compared with the tasks that faced the academies.`
        12. Even conservative legalists such as Ayatollah Azari Qomi are dissatisfied. In 1992, Azari Qomi stated that the academies have not fulfilled their mission...` and compared their work with the time-honoured practice of discussing whether or not the urine of bats is ritually impure.
        13. In 1995, asked whether the academies deal with problems that are of importance to society the replied" `No. Sadly change, whether political, economic or social, has had no impact on feqh.
        14. (p.273)
          Deficiencies of the Shari`ah - Lack of Change of Actual Ordinances

          For all the talk about reform there was little talk about dropping or replacing actual ordinances. "Leaving aside the quiet abandonment of the rather embarrassing ordinances on slaves in the new feqh-books and considering Khomeini's rulings on music, chess, the rules of emergency and the interest of state as a direct outcome of the pressures of government, there is scarcely an example of significance in which there have been signs of revision.

          Deficiencies of the Shari`ah - Lack of Change of Actual Ordinances - Chicken Reformer Motahhari
          Even Ayatollah Motahhari (murdered on 1.5.79), who the legalists recognised as the greatest reformer, was not prepared to renounce such ordinances as the Islamic fixed punishments (hodud), although he devoted entire lectures to the subject of `Islam and the Needs of the Times.` Although he spoke in these lectures of the possibility of distinguishing between the constant and the changeable Islamic ordinances, he devoted all his attention to enumerating those ordinances which were constant." Motahhari inveighed against reformist Tunisian Pres. Habib Bourgiba and "held to the prohibition against eating pork although he admitted there were apparently no hygienic grounds for maintaining the ban.... When it came to specifying which ordinances were changeable, he would either cloak himself in a cloud of caution and vagueness or shift the discussion to the area of new facts where it was easy to revise the relevant ordinances because they had not existed in the traditional shari'ah"(p.269)

          COMMENT: Perhaps these fiqh changes just didn't .... you know, feel Muslim. They were part of identity even if they had lost their original raison d'etre. My wonder: Could you perhaps "divide" the shari`ah. Have a traditional shari`ah for good Muslim behavior (no alcohol, no pork, etc.) and another scientific "shari`ah" for the power of the state (laws on alcohol based on scientific study of what prevents alcoholism, punishments for wrong doing based on scientific study of what deters crime, etc.). On the other hand perhaps this idea is more psychological and political than theological. A true believer would say science will show traditional shari`ah is correct, perfect in fact ... and if it doesn't, it's just bad science, distorted by unbelievers’ biases.

          `Dynamic Feqh` v. `Traditional Feqh`

          `Dynamic Feqh` (feqh-e puya) v. `Traditional Feqh` (feqh-e sonnati) "Although they have rarely presented themselves as a uniform movement in the debate, the advocates and supporters of feqh-e puya have been the targets of violent attacks by the dominant authorities in the academies. It is also clear from the violent polemic against them that they are primarily from amongst the ranks of the lay Islamicists. Not wishing to abandon the ground of feqh altogether, they advocate a more radical reform of Shi'i jurisprudence than has hitherto been proposed, and have consequently showed little respect for the representatives of traditional feqh and its content, methods and principles. They have been characterised by their opponents as laymen who attribute whatever view they wish to feqh and Islam without knowing anything about the subject and are prepared to translate and interpret the Koran according to their own ideas thus distorting its meaning. In the view of Resalat, this is a group of eclectic intellectuals who express opinions on questions of feqh and Islam without any scholarly justification whatsoever. They are influenced by Westernised intellectuals and in party by pro-East Block thinkers, are against the clergy and denied the latter's legitimacy. Unfortunately their number is not small." (p.271)

          Conservative line is "consists of maintaining that traditional feqh was itself so dynamic that there is no need of any additional dynamism. The supposed proof of this is the development traditional feqh has undergone in previous centuries." (p.271)

          Deficiencies of the Shari`ah - Reformers

          Mohammad Mojtahed Shabestari - Need for modern knowledge

          "Shahbestari, whose articles usually appeared in the periodical Kayhan-e Farbangi, argues that although religion and the state have been merged in the Islamic Republic, legislation is totally devoid of any theoretical foundation. Resolutions passed on the basis of the rules of zarurat and maslahat are merely reactive. The religious academies are not in a position to conduct a serious discussion about, for example, what they understand by the concepts `ownership,` `employment` and `exploitation.` Not only have they paid no attention to these problems; they do not even allow discussion of them. ... the issues which have arisen in the Islamic Republic are not of a juristic kind and can only be resolved if they are discussed in the context of anthropology, theology and sociology." (p.278)
          This goal cannot be achieved unless account is taken of modern philosophy and the modern sciences, and the information which they have made available. ... Knowledge of this kind is necessary if we are to set ourselves the task of drawing up plans for regulating the social life of human beings.
          Since the Koran and the message proclaimed by the Prophet can only be properly understood today with reference to the sciences, it is necessary to question the interpretation laid down by the academies. As products of a human understanding of religion that is ignorant of the modern sciences, fatvas issued on this basis are devoid of any claim to sacredness. ... To describe [the fatvas]... as ordinances of the shari'ah and to take them to be unchanging, would be not only to attribute something to religion that is alien to its nature but also to help stagnation prevail over Islamic societies."

          Mohammad Mojtahed Shabestari - Fiqh is not basic but changeable
          Another critical feature in Shabestari's thought which runs counter to the official interpretation of Islam is his historically oriented view of the commands and prohibitions contained in the Koran and the sunna. These are contingent phenomena which correspond to the optical and social conditions of the time in which they were proclaimed. ... only the `fundamental values` (osul-e arzeshi) laid down by God and the Prophet possess that character, and they must be applied in concrete terms by Muslims in every day and age in accordance with the prevailing conditions of life." (p.279)
          Mohammad Mojtahed Shabestari - ad-Din is perfect but not all encompassing
          "Shabestari has also contested the interpretation that the jurists give to the proposition that Islam is perfect, thus simultaneously contesting the legitimating foundations of velayat-e faqih. The perfection of religion does not mean that it has an answer to every question. It means simply that God has expressed what He wished to communicate to man in perfect form. The notion that statements are to be found in the Koran and the sunna concerning everything that occurs in politics and economics, will only lead people into error. `Religion does not wish to replace science and technology, and lay claim to the place of reason... God has only offered answers for some of the needs of human beings. As for other needs, He has left it to reason and human effort to supply the answer.` Furthermore, it would be false to want to measure the perfection of religion in terms of human needs. That would be an attempt to define the content of religion by means of man, more specifically by means of man's needs.
          Shabestari also questions the assertion that God has a legislative function. God only establishes values, not laws. `Eternal divine mercy only requires the determination of the direction of human resolutions and measures, and not the determination of laws... The primary reason for sending the prophets was to proclaim truths and lay down eternal values, not to make laws.` This is confirmed by the fact that most Islamic laws were borrowed from moral practices and habits, as well as the customary law, current amongst the Arabs at the time of Mohammed." (p.279)
          Mohammad Mojtahed Shabestari - Political Ramifications

          The logical conclusion that Shabestari draws from these considerations is that Islam has not provided any particular system of government for regulation man's political and social life. ... No one can claim to make Islam a reality or create an Islamic constitution. What is correct is to work for a constitution that does not disagree with Islam." If the people want Democracy, "then religious duty clearly lies in the creation of a system based on these [i.e. democratic] principles.` (p.280)

          Abdolkarim Sorush

          The ideas of Sorush come from even further outside the established frameworks of religious thought. A layman who works within the university system, Sorush has made the `lords` in the academies the target of his free-ranging irreverent."

        15. he argues that "on the basis of epistemological considerations, religious knowledge is dependent on the development of knowledge in general. Consequently, religious knowledge must be described as changeable and as endowed with a worldly and human character" and is not, like God, sacred. Thus it "is obliged to adapt itself to the development of the sciences."
        16. he "poses fundamental questions about the validity and the use of feqh."
        17. "from this relativisation of the knowledge cultivated in the academies, he derives certain political conclusions which lead to the demand that `a religious-democratic state` replace the regime based on velayat-e faqih."
        18. "The connection between the religious and the non-religious sciences is of the same nature as that between the non-religious sciences in general. They are all in a state of flux." (p.282)
          COMMENT: Thus a "Newtonian" religious principle might be replaced by a Einsteinian religious principle. The Newtonian one not being an error but the best knowledge at the time it was developed, taught, embraced. The "Einsteinian" religious principle potentially will be replaced in turn some time in the future.

          "For Sorush no error is as serious as reducing Islam to feqh. This is not simply the result of the clergy's narrow-mindedness but also comes from their wish to be a `source of imitation` and to exercise undisputed rule over others. `What the foqaha's form of Islam today suggests is that the substance of religion can be reduced to imitation and feqh. There is no place for a dialogue between the imitator and the imitated, but only for fatvas, on the one hand and imitation, on the other.` (p.283) [source: speedh before the gathering of the members of Jehad-e Daneshgahi published in Kiyan, no.1 (1991), p.13]

          Obviously, talk about religious democracy sounds like liberalism, but "liberalism," (like "imperialism" or "western"), is one of the Islamic revolution's terms of opprobrium, and Sorush was originally not only a supporter of, but an enforcer of it, oppressing liberal intellectuals. And yet Sorush likes liberal philosopher Karl Popper. He writes a paper `studying the liberal school from its beginning to the present day,` and heads it with the motto of the enlightenment, sapire aude (dare to know). He supports "liberalisation" of the Iranian economy. So he maintains HE himself is not a liberal - `no believer can be a liberal` because there are values which a believer cannot doubt and which cannot be the object of investigation." (p.286)

          How the Two Reformers are Treated

          "Shabestari and Sorush are treated differently by their opponents in legalist, Islamicist circles. Whereas the former seldom evokes audible reactions, the latter has been the target of attacks which are aimed at the positions represented by both men. The reason for this lies, first of all in the rather provocative manner in which Sorush behaves, .. and in all probability [in] the fact that he is not a cleric" (p.287)
          COMMENT: ... and that he is perceived as a renegade, a traitor to the Velayat-e Faqih?

          HUMAN RIGHTS

          Suppression of Freedom of Press by Khomeini Forces

          1978 August 7 - Ayandegan, the daily newspaper with the widest circulation, which had agitated against Velayat-e Faqih was prohibited. Then, immediately after the Assembly of Experts began its deliberation, there followed the prohibition of a series of other newspapers and periodicals. Over the first three days after Ayandegan was closed, 41 newspapers and periodicals were prohibited. [Kayhan 20.8.78-21.8.78] On the day the Assembly of Experts was convened Khomeini personally forbade the Democratic Party of Kurdistan to engage in any activity whatsoever. Three days later, the property of Hedayatollah Matin-Daftari, a leader of the National Democratic Front, was confiscated. [source: Kayhan 22.8.79] On the same day, on the orders of the public prosecutors of the revolutionary courts, the Revolutionary Guards shut down the headquarters of the Mojahedin-e Khalq.[Kayhan23.8.79] (p.51-2)

          CONTRADICTORY STATEMENT Ayandegan "was shut down on 8.8.79. 12 days later, 22 other organs of the press suffered the same fate." (p.135)

          "When in July 1981 the newspapers published by the LMI, the National Front and by Bani-Sadr (Mizan, Jebbeh-e, Melli and Enqelab-e Eslami) were obliged to close, the opposition press ceased to exist. Of the 444 newspapers and magazines that had appeared during the first year after the revolution, less than half remained a few years later. In 1981 alone, 175 newspapers were shut down. By March 1988, the total number of newspapers and periodicals published in Iran was not more than 121. These were without exception loyal to the regime." (p.135)

          Liberalization of Press Control by Khatami

          "The number of newspapers and journals [rose] from 102 in 1988/89 to 369 in 1992/93" (p.137)

          Ministry of Islamic Guidance on Newspaper shutdown

          At the beginning of the revolution the Islamic state was confronted by hundreds of multifarious organs of the press, amongst which, of course, an Islamic press was not represented. [However] the tumultuous Islamic movement smashed the unlawful press. Since then there is truly no longer any danger emanating from that quarter, which could pose a serious threat to the Islamic ruling order. [(p.135)source: Verzarat-e Farhang va Ershad-e Eslami: 1983, vol.I, p.11 f.]

          Khomeini on Ayandegan newspaper and those protesting its closing, speaking to supporters in Qom 18.8.79:

          Had we acted in a revolutionary manner for the beginning ... and broken the pen of all the hireling organs of the press, forbidden all the wicked periodicals and newspapers, brought their chief editors before the courts, forbidden the indecent parties, punished their party leaders, set up the gallows on the public squares and wiped out the wicked perpetrators, these problems would never have arisen ... Had we been revolutionaries, we would never have allowed these wicked perpetrators to appear. We would have forbidden all parties and front-movements. We would have founded a single party, namely the Party of God, the party of those who have been deprived of their rights. [p.125]

          Laws Restricting the Press

          Laws restricting the freedom of the press were two.

          Banning of satellite dish-antennae

          On 15.4.94, the minister of the interior, `Ali Mohammad Besharati announced that the government had forbidden them. (p.243)

          Political Oppression of Demonstrators and Opponents by Khomeini Forces

          1981 January-June - 2444 people were executed by Islamic regime, according to Amnesty International (as quoted by Liga zur Verteidigung der Menshenrechte im Iran 1988, "Dokumentation uber Menschenrechtsverletzugen in der Islamischen Republic Iran" as quoted in Schirazi p.127)

          Takfir by Khomeini Forces

          "Characteristic of the severe treatment of the opposition is the reproach of apostasy made by Khomeini against the National Front when its leaders called upon the people of Tehran to participate in a demonstration of 15.6.1981 against parliament's approval of the law of retaliation (qesas)." (p.127) "Three other grand ayatollahs, Golpaygani, Mar'ashi and Shirazi, confirmed Khomeini's judgment by declaring the opponents of the law of blood revenge to be apostates" (source: Jombari-ye Eslami, 15.6.81-16.6.81)(p.147) Khomeini "threatened the leaders of the Front with the death penalty if they did not repent while the leaders of the Liberation Movement and Bani-Sadr had to make a public apology on TV and the radio because they had supported the Front's appeal." (p.127)

          Religious freedom

          Discrimination against the religious minorities during the years after the revolution was the cause of their massive emigration from Iran. Between 1976 and 1986, the number of Christians in the country declined from 168,593 to 82,061 and the number of Jews fell from 62,258 to 26, 354." (p.136, source: Markaz-e Amar-e Iran: 1990, p.41)

          Women's Rights

          "The exclusion of women from professional life after the revolution occurred primarily in government administration and especially in the judicial system. Information released on 26.5.93 by the official in charge of women's affairs in the Ministry of the Interior indicates that women's participation in professional life is decreasing every year at a rate of 2%. Women have also been forced out of professional life by denying them admission in several fields of study. At least this was the case up until the end of November 1993. In 1988, the Ministry of Higher Education, in a letter to the periodical Zan-e Ruz, suggested that female university graduates would do better to use their learning in running the household and raising their children." (p.141)

          Women's Rights - Hijab

          "Sometimes the lack of a veil or an insufficient veil is defined as prostitution, or even as an expression of conspiracy against the Islamic government, and appropriate punishments are threatened." (Ettela'at, 8 and 28.3.83 (quoted from Liga: 1988, p.III/10 f.)(p.141).

          Regime's Idea of Freedom

          `Freedom in humanistic culture stands as the antithesis to freedom in religious culture.` Freedom in humanistic culture `is based on taking distance from God's glory and breaking off religious ties,` whereas freedom in religious culture rests on `complete conformity to religious doctrine and closeness to God's glory.` Shahriyar Zarshenas writing in Kayhan 15.4.92 COMMENT: OK but why do you call it freedom? Why not just call it "right path" or "Godly behavior"? Is this attempt to appropriate one of the west's terms (freedom), even as you completely pervert its meaning, a sort of subconscious envy of the West? If the West is so fucked, why try to be thought as virtuous in its language?

          Three characteristic of Western freedom:

        19. Leads to unbridled behavior ... material pleasures... lowers man to the level of animals.
        20. Is really only freedom for capitalists.
        21. Show no regard for revealed truth ... based exclusively on reason.

          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!`


          "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)


          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

          "Khomeini determined the content of the highly disputed Labour Law by deciding to bypass the Shari'ah and to have it formulated as a modern law, rather than on the basis of Islamic laws governing tenant farming, as the Guardian Council had wished." (p.67)

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

          "In dealing with a moot point of religious law - whether the Islamic state had the right to oblige citizens to pay taxes - Khomeini drew the attention of the conservative members of the clergy to the fact that the war with Iraq, for example, could not possibly be finance by the sahm-e emam (the portion of the khoms i.e. the Shi'i one-fifth tax - contributed to the Imam). He consequently concluded that the state, in its quality as `a primary Islamic ordinance (hokm-e avvaliyeh)`, does have the fundamental right to impose taxes. [source: see Ayatollah Mohammad Yasdi's series on articles on interpreting the Constitution in resalat Part 152, 5.10.86, as well as Bayat: 1986. p.299. According to Ayatollah Azari Qomi, taxation is only a secondary ordinance. See his series of articles on the subject of hokm-e bokumati (state ordinance) in Resalat: Part 31, 28.10.87 ....] This interpretation, however, release the faithful from the obligation of paying the khoms as well, which is a tax that primarily benefits the clergy. (p.67)

          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)
          "Once the Islamic state came into existence, however, it was immediately clear that its financial needs could not be secured through the religious taxes. In any case the ayatollahs and the religious academies were not prepared to give up their revenues from khoms on which their independence was traditionally based.
          [source: MM 20.12.84, p.28 Only after Khamene'i had become the Leader and he had experienced difficulty in establishing himself as the religious leader in face of the religious authorities in Qom and Najaf, did several of his protectors demand that these revenues be passed on to the leader, but even so, not for the sake of the state but for the running of the religious academies. See Ayatollah Azari Qomi in Resalat, 10.6.88, 12.6.88, 18.7.88.] There was no alternative but to abandon the shari`ah and demand that Muslims pay several forms of taxes, direct and indirect, in the tradition of the illegitimate rulers. To justify this about-face, both rational and religious-sounding arguments were used and reference were made to state ordinances based on considerations of interest as well as to the rule of emergency and the secondary contractual conditions." (p.238)

          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
          "In his book (Tahrir al-Vasila), Khomeini says of music:
          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
          Given the impossibility of eliminating music completely from the life of the people ... the ground was prepared for an about-turn in policy enshrined in the indispensable fatva from Khomeini.

          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.
          Music is permissible `when` it is established that
          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]
          This is from the man who "a year and a half earlier" had "declared before the advocates of music broadcasts on radio and television that the Imam had forbidden music in his book and laid down the relevant guidelines on this issue. [source: Resalat 26.6.86]

          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.

        22. Chess - The question which led to the rehabilitation of this game was: How would matters stand with regard to chess `if it completely lost its character as game of chance, and if as [is customary] nowdays it were only enjoyed as an intellectual game`? Khomeini replied that chess was allowed on the condition that it was not practised as a game of chance. [source: Howzeh, no.28 (1988a) p.20)] The fact that no one had previously come up with the idea of allowing chess under this condition can only be explained the same way as the music broadcast by the Saudi Arabian radio.
        23. Moreover, inappropriate forms of dress from an Islamic point of view were permitted in the case of actresses and athletes such as wrestlers and football players when their performances were transmitted on television. `Watching these kinds of films and theatrical performances is in no way contrary to the shari'a. Indeed, many of them are instructive. Broadcasting them is not a problem from the standpoint of the shari'ah. The same is true of sports broadcasts.` (p.242)[However he did specify two conditions with regard to actresses. Firstly, the makeup artist of the actresses must be close members of their family (maharm. Secondly, viewers must not watch the film in question with erotic intentions. (Resalat 22.18.87).]
        24. "In 1993, a further practice previously considered immoral was transferred to the category of permissible actions because [of] the interest of the ruling system. The guardians of public morals had fought a fierce but hopeless battle against the trade in radio and video cassettes. The unstoppable flood of smuggled video films finally forced the rulers to rethink their policy in this area. Instead of forbidding videos, they have now switched to building up their own distribution network which is meant to lend out censored versions of films. The deputy of the minister for Islamic guidance and culture announced on 15.8.93 that 4000 such centres would soon be opened. [source: Salam 15.8.93] In this case maslahat led to the decision that if `an immoral practice` cannot be stopped completely, the Islamic state itself will undertake a controlled propagation of the immoral practice. (p.242)
        25. World Dominance of Islam

          Khomeini: `We have often proclaimed this truth in our domestic and foreign policy, namely that we have set as our goal the world-wide spread of the influence of Islam and the suppression of the rule of the world conquerors ... We wish to cause the corrupt roots of Zionism, capitalism and Communism to wither throughout the world. We wish, as does God almighty, to destroy the systems which are based on these three foundations, and to promote the Islamic order of the Prophet ... in the world of arrogance.` (Bayan, No.4 (1990), p.8) `Establishing the Islamic state world-wide belong to the great goals of the revolution.` (Resalat, 25.3.88) (p.69)

          Khomeini - Influence of His Writings

          The Guardian Council, in its legal ruling no. 6782 (20.11.82), declared that any law that contradicted Khomeini's Tahrir al-Vasila and his Towzih al-Masa'el would not be permissible. (see Madani: 1986-90, Vol. IV, p.299. Towzih al-Masa'el is in fact a shortened version of Tahrir al-Vasila.) (p.68)

          Khomeini - Iran-Iraq War

          `Our war is not aimed solely against Saddam, but against all unbelief.` The war is `a blessing... a form of worship... an essential element in the Islamic revolution` and the revolution's `philosophy of human existence.` (p.70) (source: Payam-e Enqelab, No.93 (1983), p. 12 ff.)

          "Although the constitution confers on the leader the power to declare war and make peace, it stipulates that he is to make such decisions on the advice of the Supreme Defense Council. In practice, however, Khomeini's powers were not subject to any limits of this kind. Thus, when Khamene'i was asked in 1988 whether it would not have been better to have ended the war after the liberation of the border city Khorramshahr [which happened in May 1982, less than 2 years into the almost 8-year-long war] he replied: `Permission to end the war or the refusal to give such permission belong to the powers of leadership based on velayat-e faqih.` Indeed Khomeini's authority to pursue the war was so undisputed that one of the leading functionaries from among the conservative legalists felt moved to say: `The goal of the war was to obey the Imam.` (p.71)

          Khomeini - Obedience to Islamic government is obedience to the Shari'a

          There was considerable dispute over the government of prime minister Mir Hosein Musavi, and his radical populist economic policies. He had the support of Khomeini though and "in March 1987, Khomeini declared that support of the government was a commandment of the shari'a, and once again scolded its opponents." (p.71)(source: Kayhan 15.3.87)

          Khomeini - Governmental Power of Clergy

          `The nation have bestowed its trust on the clergy and does what the clergy says.` (source: Khomeini Balagh. Sokhana-e Mawze'i-ye Emam Khomeini, vol.III 1987 p.387)

          Khomeini - Governmental Power

          Although the constitution confers only supervisory powers over the government on the leader, in practice the whole of the state apparatus was geared to carry out his orders.... Officially, the representatives of the Imam only exercised a supervisory function, but in practice, as Bazargan writes, they decided on everything in the government agency where they were posted. The fact that there is no mention of these representatives in the constitution caused at least in the Guardian Council, many headaches, and the council insisted that they be legally recognised in the revision of the constitution. (p.73)

          Khomeini and his Power - Is the Islamic Republic a republic?

          MPs made extravagant displays of their devotion to the Imam. "The plenipotentiary powers of Khomeini were finally so thoroughly established as a principle that belief in them became the standard for loyal profession of the true Islam. Whoever did not accept his exercise of such powers was either no longer a Muslim or was an adherent of so-called `American Islam. Consequently, opposing camps among the ruling Islamicists regularly reproached one another for not believing in this principle. This tendency went so far that the idea was publicly aired as to whether it was actually necessary to retain the concept of republic in the name of the Islamic state." (p.76)

          COMMENT: Was this then the conversion of the "Republic" into Khomeini's original idea - an Islamic State as Guardianship of the Jurist, where the jurist not the people are sovereign? Was the idea of a republic just a hold over from the 1979 revolution where a temporary compromise with the useful idiots who wanted a democracy was necessary?

          Khomeini - Governmental Power - Orders that never came true

          As an excuse for not obeying the Imam Ayatollah Azari Qomi gave a list "several cases where the government authorities had not carried out Khomeini's orders. According to Qomi, such cases included the creation of a Ministry for Enjoining the Good and Forbidding the Evil, free water and electricity, the construction of houses for everyone, the annihilation of Israel, the appointment of a chief authority over the radio and television by the presidents of the three branches of the government, turning over agriculture, industry and trade to the private sector and interrupting the broadcast of speeches in parliament if they contradicted the constitution." (source: Resalat, 14.5.91)(p.80)

          Khomeini - Taqiyeh - BS on how important Parliament was

          `The Islamic parliament is the sole centre which all must obey.` `Parliament is the starting point for whatever happens in the state.` `Submission to the parliament means submission to Islam.` `The parliament stands above all other institutions.` `Parliament is the embodiment of the people and the very crystallization of the people in one particular place.` (p.102)(source: Sahifeh-e Nur cited in M. Arezumand Elections and Parliament in the Words of the Imam in Ettela'at,, 3.4.92)

          Khomeini - Changing the Constitution to allow non-Marja-e taqlid to be vali-ye faqih

          Although Montazeri's dismissal took place shortly before Khomeini's death, there was time enough for Khomeini to determine who would be his successor. By writing a letter to the president of the Assembly for Revising the Constitution, which was in session at the time, Khomeini made the necessary arrangements to designate Khamene'i, a low-ranking member of the clergy. Specifically, this involved eliminating Article 109 from the constitution which required that the leader be `a source of imitation` (Marja-e taqlid). Likewise Khomeini personally assured Rafsanjani and Emami Kashani of Khamene'i's suitability for holding this office." (p.73)

          "Khomeini is supposed to have written a letter to the Chairman of the assembly of Leadership Experts on 29.4.89 in which he emphasised that he had always been of the opinion that the marja'iyat was not a requirement for the office of leader. Indeed, it would be sufficient if the leader were an honest mojtahed. [source: Ettela'at 10.6.89] This assertion contradicts the relevant passages in Khomeini's book on the Islamic state. There (p.52) it is maintained that `the ruler must possess the highest scholarly rank (afzaliyat-e `elmi)`, which amounts to making the marja'iyat a necessary requirement. Moreover, Khomeini put his signature to the constitution in 1979 without raising any objections to the expressly mentioned requirement of the marja'iyat in Article 107 and 109..."

          Khamene'i - the New vali-ye faqih

          Trying to continue the power and authority of the VF following the demise of its founder Khomeini

          "During the period that he has held the office of leader of the Islamic Republic, Khamene'i has attempted many times to obtain the position of Marja'-e taqlid, to issue fatvas, to intervene in legalisation, to dominate the executive and to exercise judicial functions. On 20.2.92, it was announced that he declared it permissible to use the organs of brain-dead persons for transplantation. On 27.10.92 Salam reported that the Supreme Court had asked him for a fatva concerning a criminal offence. However, the court had simultaneously made the same request of the Grand Ayatollah Golpaygani. (p.79)

          Khamene'i - Trying to continue the power and authority of the VF placing himself above the constitution

          "... on 14.2.94, he dissolved the Board of Directors of the radio and television" in violation of "Article 175 of the constitution - his first attempt to place himself above the constitution." (p.79)

          Khamene'i - Trying to be a Marja'-e taqlid even though he didn't have to be to be leader

          "... On 28.5.94 he declared that the use of a dish-antenna to receive foreign TV broadcasts was permissible as long as it `caused no harm` although a few days earlier the dishes had been declared forbidden by the Grand Ayatollah Araki. This contradiction was in accordance with Khamene'i's intensified efforts to obtain recognition as a `source of imitation.` ... The lectures which Khamene'i gave in his Tehran home for select students on subjects usually reserved for advanced seminars could also be interpreted as preparations for obtaining the position. (p.79)

          Khamene'i - What Marja'-e taqlid Thought THEY Ought to be the Ruler (vali-ye faqih) instead of Khamene'i?

          "In particular, the Grand Ayatollah Golpaygani must have felt he had a rightful claim to be the leader." (p.85)

          Khamene'i - Doesn't have the full authority of Khomeini

          "After the death of Khomeini, representation of the spirit of the constitution was not transferred to his official successor but to the totality of influential members of the clergy who held various top positions in the government or who controlled life in the religious academies in Qom and elsewhere. On the other hand it is clear that Khomeini's death did not have the effect of restoring sovereignty to the people. The absolute power of the ruling jurists prevails throughout the whole country now as before, even if that power is not wielded solely by the leader." (p.80)

          HOW THE IRI GOVERNMENT WORKED - How Mullah Network Kept Undesirables Out of Government

          Disqualifying candidates from running from office

          COMMENT: The restrictions on who could run for office where first used against secularist, then liberal Muslims who didn't believe in the VF and finally after Khomeini died by the insiders (Khomeini supporters) against each other, so that the conservatives could elbow aside "radical populists."

          "The first regulations were decided upon by the Revolutionary Council and regulations for elections to the 1st Majles were issued on 6.2.80. Already in these, the eligibility of candidates depended on a series of conditions that were open to arbitrary interpretation and set in order to prevent unwanted people from being elected or even running as a candidate. For instance, a candidate must not be `suspected of dishonesty or moral depravity` and his `allegiance to the government of the Islamic Republic` must not be in doubt. In addition numerous officials who had held government posts in the pre-revolutionary period, right down to the level of municipal councils, were forbidden to present themselves as candidates."
          Later amendment placed yet more drastic restrictions on parliamentary candidates. Thus an amendment passed on 28.2.84, required them to have made a `practical commitment` or `an authentic religious profession and commitment to Islam.` Large landowners who had had barren lands registered in their name, people condemned by the courts as apostates or sentenced to hadd-punishments and whose repentance had not been confirmed, or who fell under the sanctions stipulated by Article 49 of the constitution" [a laundry list of offenses like gaining money from embezzlement, usury, misuse of funds, etc.] were "disqualified from standing in an election." (p.86-7)

          Hojjat al-Esalm Khalkhali pointed out that the `practical commitment... to Islam` would excluded many jurists who did not accept the Khomeini interpretation of velayat-e faqih. `Certainly we cannot say they are not practicing Muslims.` [MM8.2.91, p.21 ff.]

          "Recourse to requirements of suitability made it possible, even before the elections for the 1st majles (1980-84), to subject a whole range of unwanted candidates to procedures of exclusion. Marxists were forbidden from standing on the ground that they could not profess faith in Islam. During the elections for the 2nd Majles (1984-88), it was the turn of the liberal-Islamicists of the Liberation Movement. Although they had been represented in the 1st Majles, this time they preferred to stay away from the elections. It is certain that they would have been accused to merely paying lip-service to velayat-e faqih and on these grounds been declared unsuitable as candidates."

          Nobody much was excluded during the 3rd majles (1988-92) but "Exclusion from the elections for the 4th majles [1992-96], which took place three years after Khomeini's death, was practiced on a much greater scale. This was a time when the conservatives, in alliance with the moderates gathered around Rafsanjani, had already succeeded in suppressing the radical-populists in many different areas of power. Out of 3150 persons who applied for permission to present themselves as candidates, 1110 were deemed unsuitable by the Guardian Council. Among their number were almost all the leading spokesmen of the radical populists, including 45 members of the 3rd majles, some of whom had been members since 1980. Moreover, there were a few former ministers from previous governments including Hojjat al-Eslam Hohtashami and Behzad Nabavi. In the elections to the 5th Majles [1996-2000] the council accepted the credentials of only 3276 of the 5365 people who registered as candidates. Again there were, among the rejected candidates, a large number of state functionaries, members of the official and unofficial opposition and even members of the 4th majles.(p.88)

          Candidates Disqualifying from running for President

          Candidates for president examined and approved by the Council of Guardians
          Electoral Year Examined Candidates Approved Candidates
          1980 124 8
          1981 71 4
          1981 45 4
          1985 50 3
          1989 80 2
          1993 128 4
          (source: Menashri, 1990; Kayhan 9.7.87; Salam, , 15.5.93)(p.105)
          "... in all these cases, despite the candidates' request, the reason for their rejection was never announced."

          Annulling Elections

          Further means were used to restrict the eligibility of candidates and thus indirectly the rights of the voter. One of these was to annul the elections in localities which produced undesirable results. This included a refusal to hold elections in particular places, often on the pretext that they would lead to civil unrest. During the elections to the 1st Majles, the results for 30 cities were annulled. In the case of the 2nd Majles, an opposition boycott meant that the field was left free for supporters of the velayat-e faqih and there were only 12 annulments, all due to irregularities such as faulty counts..." (p.89)

          Election Fraud

          "... MP said of the elections in his ward (Borujan) that before even one-third of the votes had been counted the number of votes had exceeded the total number of persons entitled to vote. When the citizens protested against this obvious electoral fraud, they were fired upon with machine guns and a great number of them were massacred." (p.90)(source: Salam 15.4.92)

          Physical Intimidation

          "On the opening day of the 5th Majles, Hezbollah, in a letter to MPs, threatened to search out any `liberals` among them, drag them into the streets and there [sic] bring them before a revolutionary court.(source: Resalat, 1.6.96) [whose sentences were often the death penalty] Exactly the same threat had been made by President Khamene'i a few weeks earlier. (Jomhuri-ye Islami 17.4.96) (This is the same parliament that Rasanjani had declared in 1989 to be the freest in world history." (source: Resalat, 5.4.89) (p.91)

          How Undemocratic Was the Legislative Process? - Bill Rejected by Council of Guardians

        26. 1st Majles the Guardian Council raised objections to 102 out of 370 (27.5%) of the bills or proposals approved by parliament, and sent them back to be amended.
        27. 2nd Majles this figure rose 118 out of 316 (37.3%)(source: Majles-e Showra-ye Eslami: 1986 and 1990.)
        28. 3rd Majles 96 out of 245 (39.9%)(source: information provided by its president (Salam, 4.5.92) and MM (parliament minutes).)
        29. 4th Majles 128 bills were returned. (source: MM (Minutes of Majles-e Showra-ye Eslami.))

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

        30. (During the 1st Majles, 17 resolutions were rejected twice and five were rejected three times.
        31. During the 2nd Majles 8 were rejected twice and only one was rejected three times.
        32. The Labour Law was sent back and forth between parliament and the Guardian Council five times. see Madani: 1986-90, vol. IV and M. Alef in Resalat, 6 and 7.6.87.
        33. In the case of the 4th Majles 18 bills were rejected more than once. (source MM) The formation of the Assessment Council kept the number of repeated rejections from increasing further." (p.92)

          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"

        34. 1979 June - Revolutionary Council passes a law "providing that the regional administration of the country, from the village level to the level of province, be under the authority of showras" (p.111)
        35. 1979 April 20 - Ayatollah Talegani announced that `at the command of Imama Khomeini the local councils will soon be formed.`(source Ayangdegon21.4.79)
        36. 1979 Oct. 6 - the prime minister issues a decree announcing that councils would be set up in government administration and in certain industries.
        37. 1979 Oct. 12 - elections for city councils are held in 140 cities. However, the preparation and organization are "so inadequate that they either produce no results or the results could not be recognised." The minister of the interior, however, sees "the cause of this failure the low level of participation of the electorate." (notes p.123, source: Kayhan 15.10.79) No tangible results from these decrees and bills on local government
        38. 1982 Nov. - Parliament passes the Law on the Government Organisation of Islamic Councils, which orders "the founding of councils on every level of Iran's administration." Passes Guardian Council 8 days later. Calls for Ministry of the Interior to frame an election law and present it parliament within two months. Elections to follow two months after approval
        39. 1983 October - Bill presented to parliament. Debate and minor modifications ensue for several years.
        40. 1986 July 23 - Amended law, along with it relevant electoral regulations "approved by they Guardian Council and sent 9 days later to the Ministry of the Interior for implementation." "Framing and approval of the law's statutory instruments" is only hurdle left.
        41. 1988 Sept. 4 - Resalat reports that "an assembly of provincial governors" are discussing the matter. At this assembly the Prime Minister announces that he is "dissatisfied with the law" and demand revisions in or replacement of the law.
        42. 1990 [Jan-Feb] - Changes in Local Election law decided on by Parliament or Council of Guardians. Some MPs immediately complain that regulations affecting the central commission will give advantages to their opponents. Changes demanded. Parliament to rework bill.
        43. 1991 April 23 - Bill back at Ministry of the Interior to work out the relevant statutory instruments within one months and carry out the elections.
        44. 1991 April 22 - Secretary of the Ministry of the Interior, Haqiqi declares his ministry has made all the preparations for the elections for councils.
        45. 1991 April or May - elections postponed until after May 1992 parliamentary elections.
        46. 1992 - new parliament changes election laws yet again. massive revolts in the cities of Mashhad and Arak in 1992 against unelected local government.
        47. 1993 May 15 - Proposed law drawn up by the government published in Resalat. Law would impose "far-reaching restrictions on the administrative jurisdiction of local councils" highlighting "the fact that the government had all along been set on refusing to put the relevant provisions of the constitution into practice."
        48. 1994 May 24 - Proposed law would have heads of provinces and chief district cities appointed by the central government. Lower level villages and towns would have elected councils but "the council have scarcely any decision-making powers. Their function consists chiefly in what the bill describes as cooperation with the authorities." (p.110-112)
        49. As of 1997, almost 20 years after the revolution and initial promise to institute them, "local councils provide for in the constitution still do not exist." (p.300) I think they were added later on but hassled by the Conservatives.

          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
          Guardian Council vetoes parliamentary bill it considers outside the Shari`ah. Fare enough that's its job. But "only in exceptional cases does the Guardian Council give its reasons for rejecting parliamentary resolutions as contrary to the shari'a. Occasionally, to use Madani's words, it points in `the direction of the contradiction,` or the desired corrections, but often in so vague and brief a form that it is difficult even for experts to understand. Although MPs have insisted on being informed of the council's reasoning, and Montazeri and other authorities have made similar recommendations, the council has not changed its behaviour. There are indications that from time to time it has presented its reasons for rejecting parliamentary resolutions by word of mouth to the president of the parliament, members of the competent parliamentary committees, or to Khomeini; but such cases are in all likelihood exceptions. The Guardian Council has insisted that it will formulate its views on the basis of its own ejtehad and that it is not obliged to give reasons for them. Nor is there any access to these reasons through the minutes of the council because no such minutes exist." (p.248)
          COMMENT: So how the hell is parliament supposed to correct the violations of the shari`a within it's resolutions, if it doesn't know what those violations are?
          "Nevertheless, `The Views of the Guardian Council`, which record its ruling on parliamentary resolutions, make it clear that the criteria on which these view are based are not the Islamic ordinances (ahkam but the so-called Islamic principles (mavazin), the meaning and identity of which are only rarely the object of agreed upon interpretation... There are collections of the Shi'i ordinances, for example in the Tahrir al-Vasila," but "we find almost no case in the rulings of the Guardian Council where its judgment is based on a contradiction between a parliamentary bill and the ahkam (p.248)
          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

        50. presidents of the three branches of government,
        51. chief of the General Staff of the armed forces,
        52. functionary responsible for matters of planning and the budget,
        53. deputies appointed by the leader,
        54. minister for foreign affairs,
        55. minister of the interior, and
        56. minister for security.
        57. whichever minister has authority over the problem being dealt with at a given moment,
        58. highest-ranking officers of the army
        59. highest-ranking officers of the Revolutionary Guards.
        60. President of the Islamic Republic presides over the council. "The council's decisions are binding once they have been confirmed by the leader....
          The Security Council often makes decisions or intervenes in matters which lie far beyond the limits of authority set out for it in the constitution. As the president of the judiciary Ayatollah Yazdi, reports, the council draws up plans for fighting against the `cultural invasion instigated by the West and its allies within the country` and restraining `social immorality`." [source: Resalat 19.10.90 and 20.11.91]
          "It is chiefly in this council that foreign policy is decided. According to the president of parliament, Hajjat al-Eslam Nateq Nuri, the Ministry of Foreign Affairs only carries out the preparatory phase for these decisions. `Consequently, parliament does not play an important role in connection with foreign policy.`" [source: Kayhan 8.2.92](p.96-97)

          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

        61. Supreme Administrative Council Showra-ye `Ali-ye Edari
        62. the Supreme Council for Supporting the War Showra-ye `Ali-ye Poshtibani-ye Jang and a few other economic institutions which are responsible of the leader alone. In addition to these council mention must also be made of mayors who, in the municipalities, make a series of decisions affecting taxation, urban development and other such matters for which they have no legal authority." and have been the source of demonstrations in protest against their "oppressive and arbitrary character." [source: massive revolts in the cities of Mashhad and Arak in 1992, etc.] (p.97-98)

          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)


          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)


          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
          "Their demand for the rule of Islam offered hope to various classes of the population that through Islam they might retrieve a lost, and in their eyes, authentic identity." They offered the political forces that were determined to overthrow [the Shah's regime] by any means and at any cost the prospect of achieving their goal. For these and other reasons the conviction was fostered among the forces of opposition that they should concede the leadership of the struggle to the Islamicists, i.e. the Islamic clergy - or at least accept the clergy as comrades in arms... Given the apparent certainty that the clergy would not be capable of governing the state after the fall of the Shah's regime and would have to hand over power to others, even the opponents of the Islamicists accepted their leadership of the revolution."

          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"

        63. moderates had bad organisation no ambition ...
        64. radicals were just "unrealistic" about the conservatism of the Iranian masses... unprepared to compromise with anti-VF moderates.
        65. moderate Islamicist were "credulous and submissive" towards Khomeini. (p.293-4)


          Islamic vocab


          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)


          maslahat - interest

          esteslah - taking account of interests

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

          zanniyat - conjecture zanniyat


        66. 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)
        67. 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)
        68. 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)
        69. 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)
        70. Kayhan-e Farhangi - dito)
        71. 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)


          "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) *******************************************