Document Type : Original Article
Highlights
An attitude on the approach of Iran's administrative and constitutional Judge on the freedom of association in the light of Habermas' public sphere theory
The public sphere is an arena in which the participants, through understanding and reasoning, in conditions free from any pressure, emergency, and based on interactive freedom and awareness, and in equal conditions for all participating parties, produce a set of behaviors and value orientations. These factors ultimately act as an effective tool to influence the behavior and performance of the government, especially in rationalizing the government power. Freedom of association, as one of the essential procedures of discourse ethics, is one of the fundamental processes of the mentioned field, which provides participation in the construction of legitimate norms. According to Habermas, in today's societies, the system, through the tools of power and wealth, has replaced the instrumental action with the communicative action, thus colonizing the world's life as one of the necessary foundations of the public sphere. Juridification of the world-life is one of the methods of the system in the realization of the aforementioned domination. In this way, under the titles of protecting the welfare of the lower classes or guaranteeing freedom, equality and prohibition of exclusion, governments enact affirmative laws and regulations and enter the public sphere. In this regard, the heavy burden of defending public freedoms and consequently guaranteeing the transfer of official (ascending) power from the public sphere to the government is the responsibility of administrative and constitutional judges. By guaranteeing the ethical procedures of the discourse (freedom, equality and prohibition of exclusion), the constitutional and administrative judges protect the public sphere from government encroachments. One of the basic challenges of the public sphere in the legal system of the Islamic Republic of Iran, which has led to the fundamental weakness of the public sphere, is the Juridification of the world-life through the establishment of laws that has led to the expansion of the government's sphere of influence in this sphere and, as a result, the domination of the government sphere over the public sphere. The examination of the freedom of association in Iran's legal system shows that although the freedom of association is guaranteed with minimal restrictions in the deliberations of constitutional experts, like other leading legal systems, the constitutional and administrative judges procedure has led to the expansion of the mentioned restrictions. The need to obtain a permit to hold gatherings from the Ministry of Interior is a perfect example of the conflicting and damaging procedures of the aforementioned institutions on the public sphere. The Guardian Council, as the constitutional judge of Iran, in its initial procedure in safeguarding the above-mentioned freedom, declared obtaining permission to hold gatherings contrary to the constitution, but in a critical turn, by approving the party law, it laid the groundwork for the Juridification of the world-life. On the other hand, the Court of Administrative Justice, as the administrative court of Iran, although it has opposed the government's decision in which specific places for gatherings and marches were specified, and in its general procedure, the government's regulation in the field of freedom of association but, the second paragraph of the reasoning of the general board of the court also shows that the court of administrative justice has considered the organization of gatherings as well as parties to require permission from the Ministry of Interior. While it was more correct that the Administrative Court of Justice separated the holding of gatherings from political parties and organizations, and by providing a narrow interpretation of the exceptions of Article 27 of the Constitution, obtaining a permit for the purpose of holding gatherings is not subject to the restrictions in the Law of Parties. These circumstances show that Iran's constitutional and administrative judges have recognized the government's regulation and Juridification of the world-life without paying attention to the fundamental conditions of the public sphere. This procedure leads to the presence of the government in the public sphere, usurpation of power tools over the public sphere, disruption of the processes of norm-making and reproduction of legitimacy in the constitutional and administrative system, and finally the dissolution of this sphere in the government domain. According to these approaches, at least regarding the freedom of association, the approach of the Guardian Council and the Court of Administrative Justice is contrary to the principles of the public sphere and discourse ethics, which provide the grounds for the realization of the principle of participation in public affairs. The way out of this situation is that the constitutional and administrative judges, in order to create a public sphere free from the tools of the system (money and power), reach negative interpretations of public freedoms that prevent the legalization of the life-world and the government's influence in public sphere. Solving some of the contemporary crises of the Islamic Republic of Iran system, including the problem of legitimacy, requires a review of constitutional and administrative judges procedures and an understanding of the importance of defending the public sphere as the source of creating legitimate rules.
