July 28, 2009

THE FINAL SAY RATHER THAN A DAILY PRESENCE:

Iran, Islam and the Rule of Law: Islamic political movements have been one form of revolt against arbitrary government. (FRANCIS FUKUYAMA, 7/27/09, WSJ)

The Iranian Constitution is a curious hybrid of authoritarian, theocratic and democratic elements. Articles One and Two do vest sovereignty in God, but Article Six mandates popular elections for the presidency and the Majlis, or parliament. Articles 19-42 are a bill of rights, guaranteeing, among other things, freedom of expression, public gatherings and marches, women’s equality, protection of ethnic minorities, due process and private property, as well as some “second generation” social rights like social security and health care.

The truly problematic part of the constitution is Section Eight (Articles 107-112) on the Guardian Council and the “Leader.” All the democratic procedures and rights in the earlier sections of the constitution are qualified by certain powers reserved to a council of senior clerics.

These powers, specified in Article 110, include control over the armed forces, the ability to declare war, and appointment powers over the judiciary, heads of media, army and the Islamic Revolutionary Guard Corps. Another article lays out conditions under which the Supreme Leader can be removed by the Guardian Council. But that procedure is hardly democratic or transparent. [...]

So what kind of future should we wish for Iran, in light of the massive demonstrations? My own preference would be for Iran to some day adopt a new, Western-style constitution guaranteeing religious freedom, a secular state, and sovereignty vested firmly in the people, rather than God.

But a considerable amount of anecdotal evidence (we don’t have anything better) suggests this is not necessarily the agenda of the protesters. Many of them, including opposition candidate Mir Hossein Mousavi, say they want Iran to remain an Islamic Republic. They look at the radical regime change that occurred in next door Iraq and don’t want that for themselves. What they seem to wish for is that the democratic features of the constitution be better respected, and that the executive authorities, including the Guardian Council, and the military and paramilitary organizations, stop manipulating elections and respect the law.

Iran could evolve towards a genuine rule-of-law democracy within the broad parameters of the 1979 constitution. It would be necessary to abolish Article 110, which gives the Guardian Council control over the armed forces and the media, and to shift its function to something more like a supreme court that could pass judgment on the consistency of legislation with Shariah. In time, the Council might be subject to some form of democratic control, like the U.S. Supreme Court, even if its members needed religious credentials.


Ideally the Council/Grand Ayatollah would be limited to a veto over legislation and high court rulings and a right to call national elections. Thus it would act as a final brake on the democratic portions of the Republic but be removed from daily affairs.

Posted by Orrin Judd at July 28, 2009 12:20 PM
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