Document Type : Original Article

Highlights

Extended Abstract

The position of Islamic control in various systems depends on their attitude towards the role of religion in governance. After the Iran's Islamic Revolution, one of the upcoming goals has been to enforce religious orders in all fields related to the government. It is clearly seen in all the principles of the Constitution in such a way that the most popular institution in Iran, namely the Islamic Consultative Assembly, has no validity without the Guardian Council one of whose main duties is to protect the orders of Islam. One of the ways to fulfill the Article IV of the Constitution is to file a lawsuit with the Court of Administrative Justice on the pretext that the act of The Executive is inconsistent with the standards of Islam.

The procedure of the Council differs from the governmental regulations. Normally, as long as there is no complaint from the Court of Administrative Justice, it is presumed that the act of The Executive does not conflict with the jurisprudence (fiqhi) criterion (Faver contractus). Before bringing the provision of The Executive into line with the jurisprudential (fiqhi) criterion (substantive), the Guardian Council examines the formal standards of the ability to file a lawsuit in the courts such as non-expiration of the validity of by-law, withdrawal of the claimant, etc. If the petition does not have formal objections, the Guardian Council will announce its decision. This procedure has continued since the beginning of responding to the enquiries of the Court of Administrative Justice until now.

It can criticize the Court of Administrative Justice that this judicial authority should refer only cases to the Guardian Council that do not have any defect in terms of form. Although the law has clearly specified the jurisdiction of each of the institutions, but the process of the Guardian Council's response to the enquiries of the Court of Administrative Justice does not have a clear structure. Islamic control over the resolution of The Executive and Legislative is one of the exclusive duties of the Guardian Council based on the Article IV of the Constitution. The Council has adopted a different practice in bringing regulations into line with the Islamic criterion in various issues referred by the Court of Administrative Justice. The Council's opinions can be divided into two general categories: 1) The regulations of The Executive have been compiled on issues that there is a rich literature on them in traditional jurisprudence (fiqh) such as pious endowment and title to land; and 2) The by-laws of The Executive have dealt with issues that there is no background on them in fiqhi books, but they should be responded by bringing fiqhi rules into line with the issue at hand.

 The range of the influence of The Executive in various issues such as education, health, road and urban development and etc. requires a series of mandatory regulations that fulfil the outlines drawn by The Legislative. Complexity and specialization of many areas of the government activity provides the possibility to make a rule that imposes a right or duty on the people just as the Assembly. Sometimes, instead of a clear opinion about the referred provision, the Council only expresses this sentence, "if it is not against the law, it is not against Islamic law" and referred the decision to the Court of Administrative Justice. One of the important principles of litigation is transparency in declaratory judgments. The parties to a dispute entitle to be fully informed about the fiqhi bases of Muslim judge (qadi). It is especially important for The Executive because it prevents to approve the anti-Islamic (anti-Sharia) provisions with a correct understanding of Islamic (fiqhi) criterion and as a result the rights of the people are less violated. Hence, it seems necessary to explain the point of view of the Guardian Council on the use of this sentence.

The method of this study is: first, it is examined the position of the Article IV and the role of the Court of Administrative Justice in enquiry from the Council. Then, it is explained the concept of law and Islamic law from the point of view of Islamic jurisprudence (fiqh). Finally, it is tried to clarify the Council's meaning in using this sentence.

Control is an inevitable necessity in the Islamic system. There is no area in the culture of governance that does not consider the governor as responsible for his behavior. The application of the Article IV of the Constitution gives the power to the Guardian Council not to allow any mandatory provision to be contrary to Islamic law. The scope of Islamic control is not limited to the laws and regulations after the Iran's Islamic Revolution. The role of the Court of Administrative Justice in cases of contradiction of the act to Islamic law is beyond a passive intermediary; as long as the judicial institution does not declare the annulment officially, the provision has its legal validity. The Council's approach to the law, considering the theory of Guardianship of the Muslim Jurist, is fundamentally different from the conventional thinking. Before the emergence of the phenomenon of law, Islamic societies encounter a series of issues whose judgement was determined in the Islamic law. If the law wants to make law in these issues, the Islamic judgement has only found a new face.

The main problem is referred to the issues whose initial judgement is permissible in Islam. For some reason, the government decides to limit people's freedom. The nature of law has a social obligation. Obligatory of observing the law in Islamic society moves towards Islamic obligation. The law changes its nature to the governmental order. This attitude can be clearly deduced from the response of the Council to the Court. If the by-law is set out against the law, it will be considered as contrary to Islamic law. Muslim jurist is at the head of the Islamic government entitles to issue governmental orders. Government orders are enacted based on the current interests and corruptions of the country. The Legislative in the Islamic system specifies the subject of judgments. The Guardian Council also brings them into line with the fiqhi criterion so that the governmental order does not contradict to the Islamic law. Every members of the nation have the duty to obey the governmental orders.

 If the Court of Administrative Justice decides that the by-law is against the law, it has only confirmed the contrary of one type of Islamic judgment. On the other hand, the decision of the Court of Administrative Justice on the approval or annulment of the act only implies that the act does not conflict with the law (governmental order); it does not follow that it is in accordance with other Islamic judgements. Procedure of Guardian Council in response to the enquiries of the Court of Administrative Justice always shows that the Council has never deviated from its own special jurisdiction. If the claimant considers the governmental act to be contrary to Islamic law, fair litigation requires that a clear response be given to the claimant. To be out of the response, transfer the issue to the law or use ambiguous statements like "If it is not against the law, it is against Islamic law" will make effectiveness of Islamic control difficult. Such opinions are exactly considered as the opposite of The Legislator's goal, because transferring the discretion of contradiction with Islamic law is to concentrate decision-making in one institution. Separation of jurisdictions into two parts of Islamic law and law is one of the things that The founding power emphasized and it is considered as a part of the substantive issues of the legal system

• Administrative proceedings Law