Document Type : Original Article
Highlights
Critique of the system of duties and powers of the Islamic councils of the country in the light of the rule of law
More than five periods have passed since the formation of Islamic councils in Iran, although our country has a history of more than one hundred years in the field of drafting laws related to councils. But legislatures have spent a great deal of time arguing over the authority of local councils. But since then, legislation has shifted to failing to provide a clear and concise framework for the tasks and decisions of local institutions. The source of these shortcomings also stems from the Iranian constitution. Legislative authorities, including the Islamic Consultative Assembly, have not taken any serious action to use their legal capacity to remove these obstacles and cover these shortcomings. Frequent legislative reforms have not only failed to clarify these ambiguities. It has added to the complexity and ambiguity. And it also seems that Iranian legislation in determining the powers and duties of local councils has failed Islamic councils are an important strategy and step in the direction of decentralization and administrative and executive decision-making authority by the central government to local units and local affairs management by elected representatives of local people in cities and villages and reduce the burden of government responsibility. In the seventh principle of the constitution: It is stated: According to the order of the Holy Quran: The Islamic Consultative Assembly, the provincial council, the city, the city, the place, the district, the village and so on are among the pillars of decision-making and administration of the country's affairs. The cases, the manner of formation and the limits of the powers and duties of the councils are determined by this law and the laws resulting from it.
The low status and status of local councils is defined in the seventh principle and the functions of this institution are defined in the principles of the seventh chapter. Undoubtedly, the seventh principle has been the basic structure of the position of local councils in the Iranian legal system, which has facilitated public participation in the areas of decision-making and management and administration of cities and villages. Which indicates the formation of councils based on the idea of legalism, the sovereignty of the people to determine their own destiny and the entry of people into decision-making and management of urban affairs and regions and villages. However, the seventh principle of the constitution has ambiguities and legal obstacles in order to determine the inherent competence and regularity of the councils and is the basis of serious challenges in the field of inherent competencies of Islamic councils. Because the position of authority and power of the councils in front of the parliament and the government as one of the decision-making pillars in front of other pillars of governance is not clearly stated. And this has led to serious damage to the limits of the powers and functions of the councils. While in the specific principles related to other pillars of governance, the issues of their powers and competence have been discussed in detail. Among the ninth chapter of the constitution, the issue of the executive branch, which deals with the duties of the executive branch, while examining the scope of duties and responsibilities of the executive branch in the constitution, shows the most interaction of the said branch with the councils. Which expresses a wide range of public and executive policies and the powers and duties of the executive branch in the administration of the country, especially shows the responsibility of implementing the constitution at the highest level, with wide and long bodies in different parts of the country that have duties and responsibilities. The nature of this power is addressed. Without mentioning the connection between these tasks and the functioning of the councils. This is one of the important shortcomings and damages in this area, which originates from the constitution. The constitutional legislature's commitment to the principle of one hundred and third to oblige state officials to comply with the decisions of local institutions, without adopting appropriate legal mechanisms and legal solutions, has not opened any knot in the challenge of determining the powers of councils in this area. Chapter 7 - The Constitution, which deals in detail with the councils, Only in the one hundredth principle has it specified the purpose of the formation of the councils, which is the competence of the oversight, and the other powers and authorities of the Islamic councils have been neglected. According to some, the meaning of this supervision is the supervision of the councils over each other and not over the government, and there is no mention of the supervision that is exercised in the constitution over the administration of the regional affairs of the country.
One of the important challenges in the field of determining the inherent competence of Islamic councils is related to the lack of care of the Iranian legislator in determining the field of national affairs from local affairs; What is evident in the comprehensiveness of the principles of the constitution related to local institutions is that the Iranian constitution does not address one of the most important requirements in order to provide the basis for delegating administrative and executive decision-making power to local councils, ie the component of separation between national and local affairs. Is. According to the seventh principle of the constitution, councils are considered in the ranks of the Islamic Consultative Assembly and as the decision-making and governing body of the country. The legal implication of this principle is that, just as the Islamic Consultative Assembly legislates at the national level, the councils also legislate in the field of local affairs and at a lower level than the laws passed by the Assembly. Whereas the Constitution does not address the issue of the separation of national affairs from local affairs, which is an important indicator of the determination of the inherent competence and powers of local councils; In Article 71, it has delegated legislative authority to the Islamic Consultative Assembly in general and in all national and local issues. Without mentioning the inherent competence of Islamic councils, which is local affairs. Or in the seventh chapter, which deals with the detailed principles of the councils, this is mentioned. While in the specific principles related to other pillars of governance, the issues of their powers and competence have been discussed in detail. One of the pillars of governance that has been independent of the other three powers. The result of this process is the lack of anticipation of legal mechanisms and structures and the lack of attention of the government to the position of local government in the structure of the legal system. The challenge has been the lack of separation between national and local affairs, the lack of proper communication between local organizations and central government institutions, and, among other consequences, the lack of funding for local institutions and the failure to delegate local affairs and delegate relevant powers. Contrary to what is stated in Article 7 of the Constitution, contrary to expectations, Islamic councils do not have the authority and decision-making authority in local affairs, which is the inherent competence of the councils.
The Guardian Council's approach is to monopolize the powers of local councils over oversight functions. The Council, in its comment No. 350/30/82 dated 14/4/1382, has explicitly stated that the councils subject to Article 100 of the Constitution have a supervisory duty. This attitude of the council seems to have limited and narrowed the powers of local councils. It will also take the councils away from their real position and question their philosophy of existence. This approach of the council has persuaded government officials to see the role of councils only as guiding and advisory bodies in their decisions or to oversee decisions alone, which does not seem to be based on the Guardian Council's approach to council decision-making authority. Which the constitution has prescribed and recognized for them.
The present article is organized in six speeches. In the first speech to examine the challenges of the duties and powers of councils in the constitution, in the second speech to the disadvantages and weaknesses of the duties and powers of Islamic councils from the perspective of ordinary legislation, in the third speech to the challenge of local governance approach to democratic mechanisms in local government It is discussed that the contents of this speech are presented in three paragraphs, including paragraph (1) the challenge of institutionalization of independence of action and expansion of councils, paragraph (2) challenges of lack of financial independence of Islamic councils and paragraph (3) to examine the inability of Islamic councils Has dealt with the possibility of filing a lawsuit.
The present article is organized in six speeches. In the first speech to examine the challenges of the duties and powers of councils in the constitution, in the second speech to the disadvantages and weaknesses of the duties and powers of Islamic councils from the perspective of ordinary legislation, in the third speech to the challenge of local governance approach to democratic mechanisms in local government It is discussed that the contents of this speech are presented in three paragraphs, including paragraph (1) the challenge of institutionalization of independence of action and expansion of councils, paragraph (2) challenges of lack of financial independence of Islamic councils and paragraph (3) to examine the inability of Islamic councils Has dealt with the possibility of filing a lawsuit. In the fourth speech to the position of lack of institutionalization of council approvals in the state of the country's administrative structure and related laws, in the fifth speech to the damage caused by government restrictions on the authority and authority of Islamic councils, and finally in the sixth speech to obstacles and challenges within the organization In the legal system, the decisions of the councils are addressed.
In the present study, the author has tried with a new approach to explore, analyze and pathology the powers and functions of councils in the Iranian legislative system and related laws and regulations, as well as the damage to the mechanisms of democracy in local government in Iran as much as possible. To pay.
