In the late eighteenth century, a feature of modern political societies was of them having a constitution. As a result, the drafting of a constitution gradually expanded to other societies as well. In the past, a written document that outlined legal frameworks, such as the relationship between government and the people, the exercise of political power, the regulation of citizenship rights, and societal mechanisms, was referred to as a constitution. But in a modern and contemporary perspective, the constitution establishes the highest legal principles and rules that form the basis of order and security within a society.
The first attempt to draft a constitution in Iran goes back to the Constitutional Revolution. Despite being composed during a challenging and intellectually turbulent environment, it failed to fulfill the aspirations of the constitutionalists. After the victory of the Islamic Revolution of Iran, its leaders, especially Imam Khomeini, began considering the drafting of a new constitution; because the old constitution had significant differences with the revolutionary foundations and principles, and could not serve as the basis for practical governance. Therefore, the Islamic Republic of Iran put drafting a new constitution high on the agenda. This process went through several stages, which will be discussed below.
Understanding the Constitution
Among the legal and political concepts and terms, one rarely finds a concept more prevalent than that of constitution. Almost all legal and political discussions and studies are formed based on the constitution of a country, because it is this document that outlines the fundamental concepts, institutions, structures, processes and mechanisms of a given society.
Majority of definitions of a constitution, as provided by various authors and jurists, share one common component: “The constitution contains the rules that define the basis of governance and the scope of the authority of the leaders; it regulates the relations of public powers, significant principles of public law and individual rights and freedoms.” In this manner, the constitution includes the regulations and procedures that determine the mutual rights and obligations of authorities and citizens. It also outlines how power should be exercised and how society should be managed. The constitution is the fundamental document that delineates the political structure of the government and ruling powers, as well as their responsibilities and authority towards the nation.
Constitutions are the result of struggles and revolutions that occurred in countries from the eighteenth century onwards. Then, the idea of drafting a constitution, as a document stipulating the authority and freedom of the nation in the face of the rulers, gradually spread throughout the world to the extent that finding a country without a written constitution is very unlikely.
The Foundations and Sources of the Constitution of the Islamic Republic of Iran
In drafting a constitution, legal scholars rely on certain sources. In fact, the origin of writing a constitution is its foundational sources. These can refer to the either intellectual and written structures. In addition, written and tangible resources constitute a main source for the drafting of a constitution.
The Constitution of the Islamic Republic of Iran is rooted in the Islamic Revolution and the views of Imam Khomeini. Moreover, the sources used for drafting the constitution include the Glorious Quran, Prophetic Tradition, i.e., the sayings and narrations of the Noble Prophet (SAWA) and the Infallible Imams (AS), experiences of other countries, as well as international declarations, documents, and charters.
A: Foundations of the Islamic Republic of Iran’s Constitution
1. Islamic Revolution
The Iranian people manifested their heartfelt desires and will during their struggles against the Pahlavi regime. The preamble of the Constitution states that: “The Constitution of the Islamic Republic of Iran…represents an honest aspiration of the Islamic Ummah. This aspiration was exemplified by the nature of the great Islamic Revolution of Iran, and by the struggle of the Iranian Muslims, from its beginning until victory, as reflected in the decisive and forceful calls raised by all segments of the population. The basic characteristic of this Revolution, which distinguishes it from other movements that have taken place in Iran over the past hundred years, is its ideological and Islamic nature. After experiencing the anti-despotic constitutional movement and the anti-colonialist movement centered on the nationalization of the oil industry, the Muslims of Iran learnt that them not having a clear ideological basis was the fundamental reason for their failure. Although, the Islamic line of thought and the direction provided by militant religious leaders played an essential role in the recent movements, nonetheless, the struggles waged in the course of those movements quickly fell into stagnation due to their departure from genuine Islamic positions.”
After the collapse of the Pahlavi regime at the hands of the Iranian people, it was necessary to establish a law that would regulate the mechanisms and relations between the government and the people, organizations, institutions, and their beliefs and culture. Therefore, the Islamic Revolution provided an opportunity for drafting and ratifying a new constitution.
2. Views of Imam Khomeini
The constitution was of such importance to Imam Khomeini that he considered it a guarantee of the nation’s sovereignty and independence. Emphasizing the compliance of the constitution with the principles of Islam he stated, “The main principles in the constitution are outlined based on the Islamic principles expressed in the Quran and Prophetic Sunnah.”
Shortly after the victory of the Islamic Revolution, the provisional government was entrusted with the task of establishing a parliament through holding elections to approve the proposed constitution. Different perspectives emerged during the preparation of the initial draft of the constitution, with some insisting on the formation of a large constituent assembly of over 300 experts, while others believed that the constitution should be subject to a referendum. In this regard, Imam Khomeini decisively stated, “Instead of a large constituent assembly that would take us months and waste crucial moments of the Revolution, a council called the Assembly of Experts should be formed, and a group of Islamic scholars should review the draft constitution and present it to the Iranian people for approval.”
B: Sources of the Constitution
1. The Glorious Quran
The Glorious Quran has been the de facto constitution of the Islamic Ummah for over fourteen centuries. Despite the different views and beliefs among Islamic denominations, nonetheless, they all agree on the authenticity of the Glorious Quran and the necessity of adhering to and implementing its decisive rulings. The general guidelines of the Constitution of the Islamic Republic of Iran are derived from the Glorious Quran. While this law outlines the necessary fundamental structures and their functions for the country in an understandable and contemporary form, it cannot contradict the Glorious Quran in any way, due to its reliance on Islamic teachings.
2. Sunnah
The Sunnah is another specific source for outlining and determining the constitution. Even though the sources of Islamic jurisprudence (Quran, Sunnah, consensus, and reason) act as the basis for deriving the fundamental law, nevertheless, they all are rooted in the Glorious Quran. Prophet Muhammad (PBUH), with his divine knowledge, would present Islam to the people. He did not speak of his own desire, rather all his words were divine revelations. Therefore, according to Allah’s command, people must follow him. The rightful successors to the Prophet (PBUH) also held the authority with respect to interpreting Islamic laws and regulations, and their views and sayings are also reliable and authentic, and demonstrate divine rulings. Therefore, the sayings, conducts and actions of the Prophet (PBUH) and the infallible Imams (AS), known as the Sunnah and Seerah, constitute one of the sources of the constitution in the Islamic Republic. Furthermore, many constitutional principles are directly based on the Sunnah.
3. Hadiths and Narrations of the Prophet Muhammad (PBUH) and the Infallible Imams (AS)
Hadiths and narrations, especially the sermons and sayings of Imam Ali (AS) collected in Nahjul Balagha, play an important role in the field of fundamental rights. For example, Imam Ali (AS) has stated about Islamic governance, “It is the duty of Muslims to choose a pure and virtuous leader who is pious and knowledgeable about divine decrees and the Sunnah.”
C: International Declarations and Documents
Most countries of the world, as members of the international community, consider themselves committed to implementing international laws and regulations, including international declarations and documents. These declarations and documents are the regulations that have been drafted and approved by an international body (such as the United Nations and its affiliated organizations) in accordance with international consensus and requirements and most countries have accepted and endorsed these declarations and documents. After the Islamic Revolution of 1979, the Islamic Republic of Iran sought to employ many of these international declarations and documents and voted in favor of them. In drafting the Constitution of the Islamic Republic of Iran, the contents of these international declarations and documents were also taken into consideration.
The Constitution of Other Countries
One of the features of a constitution is its compatibility with the religious, social, political, and economic foundations of the country in which it is intended to be implemented. Therefore, the constitution of any country cannot be a mere imitation of another country’s constitution. In other words, it cannot be a copy of the constitutions of other countries or simply a translation of the principles outlined by them. An imitative constitution will never have stability, because it neither follows the beliefs prevailing in a particular society, nor is aligned with its social, political, and economic conditions. A significant part of the constitution drafted during the Constitutional Movement in Iran was a mere imitating of the constitutions of other countries, such as Belgium and France, which never corresponded to the needs and requirements of Iran. After the Islamic Revolution of Iran, various proposals and suggestions were put forward by different segments of the population and scholars. Consequently, this left no room for mere imitation, and efforts were made to ensure that the content of the Constitution of Iran was in line with Islamic teachings and the demands of the Iranian people, while also taking into account the country’s economic, political, and social conditions, as well as its historical background.
Stages of Drafting and Ratifying the Constitution of the Islamic Republic of Iran
1. Preparation of the preliminary draft of the constitution was done by Islamic scholars. This was done using Islamic principles and the constitutions of other countries that were successful in this regard.
2. Formation of the Assembly of Experts. This was achieved through elections with a very high turnout. This is an influential body consisting of experts in various fields, representing various political interests.
3. Reviewing, revising and finalizing the preliminary draft of the Constitution of Iran and approving each item and provision by the elected members of the Assembly of Experts. This was done on November 15, 1979.
4. Holding a referendum on the drafted Constitution of the Assembly of Experts.
5. High voter turnout for the referendum on the Constitution of the Islamic Republic of Iran held on December 3, 1979.
6. Endorsement of the Constitution by the founder of the Islamic Republic of Iran, Imam Khomeini, as the Supreme Leader and Ruling Jurist.
With the emphasis of Imam Khomeini on the establishment of the Assembly of
Experts to review the Constitution, the necessary regulations for holding the election of this council were approved. This election was held on August 3, 1979. 75 people were elected. The Assembly of Experts was inaugurated on August 19, 1979, accompanied by a message from Imam Khomeini. In this message, he addressed important issues, some of which are as follows:
“A- The motivation for starting the Revolution and the secret of its victory was Islam, and our people all over the country demanded and recognized the Islamic Republic for which they had sacrificed their lives.
B- The laws should be completely Islamic, and if even one article is against the rules of Islam, it is seen as disregarding the votes of the vast majority of the nation.
C- Only the eminent scholars who are present in the Assembly of Experts are qualified for and have the authority to recognize the agreement or disagreement of a law with the rulings of Islam; yet the expertise of other representatives in legal, administrative and political fields should also be used.
D- Those who want to follow the Western or Eastern schools of thought, should separate themselves from this deviant path, because the prosperity and happiness of our nation lie in avoiding such schools of thought, which are facing backwardness, failure and decline. These people should refrain from interpreting Islamic texts based on their personal opinions, given that profound Islamic teachings cannot be elaborated and presented with superficial arguments and interpretations without taking into account the opposing evidence and studying comprehensively the jurisprudential arguments.”
Chaired by Ayatollah Sayyid Muhammad Husayni Beheshti, the Assembly of Experts finished drafting the Constitution of the Islamic Republic of Iran on November 15, 1979, after three months of continuous effort and activity. Eventually, the people of Iran approved the proposed Constitution on December 3, 1979.
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