Document Type : Original Article
Highlights
The Guardian Council is one of the institutions that are provided in the Constitution of the Islamic Republic of Iran with specific powers and duties. The most important duties of this council are to review the approvals of the Islamic Council in terms of non-contradiction with the Sharia and the Constitution and to monitor the elections. The powers assigned to the Guardian Council are very important, in such a way that this council has become a powerful and influential institution in the field of macro-decisions of the country and in political-social currents.
At the present time, on the one hand, due to the position of the Guardian Council and the type of supervision of this institution, sometimes doubts are raised about the great influence of this institution and the fact that it has significant powers, and those who say these issues conclude that in addition to reducing the powers This institution should also be monitored. On the other hand, in the legal literature, monitoring government institutions and members of institutions that use public power is considered important and necessary as a pillar of the democratic government. In the matter of supervision of the Guardian Council, a distinction should be made between the institution of the Guardian Council and its members. There is no doubt about the supervision of the members, and in any case, everyone is equal before the law, but about the principle of supervision of the Guardian Council, which is actually the supervision of its decisions and votes. There are two assumptions: the first is that the Guardian Council is not exempted from the supervision of legal authorities and is subject to supervision, and the second assumption is that it is appropriate that the Guardian Council is not subject to external supervision.
Now we will face the question that such an institution with such power that exists in the legal system of the Islamic Republic of Iran, is it accountable for its actions and decisions? In other words, is it possible to monitor this institution? So far, there have been many investigations related to the Guardian Council, but none of them have addressed the Guardian Council from this point of view. In the upcoming research, it will be tried after examining the institution of the Guardian Council and the matter of supervision and even comparing it with similar institutions of other legal systems, to determine whether it is possible to supervise the Guardian Council in principle, according to the constitution and the existing procedure.
Therefore, what strengthens the hypothesis of this article is the separation between the political and administrative actions of the Guardian Council. Based on this, the political acts of the Guardian Council, such as monitoring the elections or monitoring the approval of laws in terms of their non-contradiction with the Constitution and Sharia standards, are inherently political acts that are outside the scope of judicial and administrative supervision. However, regarding the judicial and financial monitoring of matters that are administrative in nature, the monitoring of these actions does not conflict with the status and independence of this institution.
In any case, from a basic point of view, the principle of the rule of law requires that all institutions and authorities be included in the scope of the law. The law with a component of justice and fairness creates such a general requirement in the field of optimal governance; Otherwise, compliance with any law cannot indicate the formation of fair and impartial administrative institutions in the field of law enforcement. The principle of separation of powers, which guarantees the prevention of an institution from gaining power in governance and prescribes the prohibition of abuse of power, is a re-emphasis on the controllability of the Guardian Council. According to the progressive principle of separation of powers, power must be stopped by power, and one of the fundamental elements related to stopping power is to prevent monopolization and accumulation of unbridled power in the hands of an institution. The principle of legitimate expectation also requires that the approvals and decisions of this institution can be monitored. It is right and legitimate to expect that the Guardian Council will accept its supervision in the light of adherence to the principle of obligation to state reasons. By examining the exemplary examples of supervision of the Guardian Council, arguments can be theorized on the necessity of accepting this body under supervision. In any case, the recommendation of high government officials, including the leadership in Iran, which emphasizes the inevitability of supervision and the specialization of supervision, is a proof of this claim. According to the author, no part of the government can be immune from supervision and supervision is the main supervision over all decisions; which will have results such as transparency, effectiveness, responsibility and efficiency. When the circle of people's rights is brought up; The protection of these rights is linked to the guarantee of human dignity. In order to preserve the dignity of human beings, it is not possible to put institutions that monitor their relations and rights and exclude them from the monitoring process. Finally, according to the results of this research, the following suggestions are presented:
The first suggestion is to formulate a general administrative law of supervision and its methods and describe the general supervision mechanisms of all institutions. This method helps to disambiguate the issue of supervision in a general way, and every institution including the Guardian Council will be subject to the generality of this law.
The second suggestion is that the interpretations of the legislator specify the exempted items from supervision and also the exempted organizations in the law by mentioning the reason. So put the principle on monitorability and inclusiveness of all kinds of supervision and specify in an exceptional way why, for example, the Guardian Council is not included in this type of supervision. Also, devices excluded from the subject of monitoring should be identified separately.
The third suggestion is to determine the reasons for exclusion from supervision by conducting comparative research. For example, the French Constitutional Council can be one of the institutions that is close to the Guardian Council in terms of function. Therefore, the institutions similar to separation and the cases excluded from supervision are explained with reasons so that a specific position can be taken into account for the cases that are excluded due to the unity of the criteria.
