M. A. Ansari-Pour'
A GENERAL INTRODUCTION
Al SOURCES OF LAW
The sources of Iranian law are legislation, case-law, Islamic law sources and doc- trine, and custom as a subsidiary and indirect source with some qualifications.
Al.1 Legislation Legislation is the cornerstone of the sources of law. The core of the legislation is the Constitution. After the Constitution the main body of legislation is found in the Acts of the Parliament. In addition, there are some other authori- ties, whose decisions in certain areas can be regarded as legislation. The present Iranian Constitution came into force in December 1979. After a decade it was amended and ratified by referendum in 1989. Interpretation of the Constitution and control of constitutionality of statutes have been vested in the Council of Guardians (hereinafter cited as the CG). The Constitution provides that the official religion of Iran is Islam and the Twelver Ja'fari school. Other Islamic schools, including the Hanafi, Shafi'i, Maliki, Hanbali, and Zaydi schools, are to be accorded full respect and their followers are free to act in accordance with their own law in performing their religious devo- tions. These schools enjoy official status in religious education and in matters of personal status and litigation in court. In areas where the followers of one of the above schools constitute the majority of the population, local regulations, within the limits of the authority of the local councils, are to be passed in accordance with the school concerned. However, the rights of the followers of other schools must be respected (Art. 12). The recognized religious minor- ities, including Zoroastrians, Jews, and Christians, are free to perform their religious ceremonies and to follow their own law in the field of personal status
* Currently working towards a Ph.D. at the School of Oriental and African Studies (SOAS), University of London; former member of the Iranian judiciary. and religious education (Art. 13). The Constitution stipulates in Article 1 that the form of Government of Iran is that of an Islamic Republic. Following this principle, Article 4 of the Constitution requires that all Laws and Regulations in force must be based on Islamic criteria. Such a provision, however, did exist in the previous Constitution (Art. 2 of the Supplement to the Constitution 1907) but it never materialized. Statutes, and especially Codes, enjoy a pre-eminent status among the sources of law under the Iranian legal system. Statutes include pre-Revolution statutes which are not inconsistent with Islamic law (as understood from Arts. 4 and 170 of the Constitution), and post-Revolution statutes. The Civil Code (1928-1935), the Commercial Code of 1932, the Civil Procedure Code of 1939 (hereinafter cited as the CPC), the Criminal Procedure Code of 1290 (1911), and the Islamic Punishment Code of 1370 (1991) are the most important documents among the Parliamentary statutes. Statutes are made by the legislature. The Islamic Consultative Assembly, i.e. the Parliament, is the main body of the legislature under Article 58 of the Constitution. But Laws enacted by Parliament must be sent to either the CG or the Nation's Expediency (or Exigency) Determining Council (hereinafter cited as the NEDC) for ratification. Parliament consists of 270 members (Art. 64) who are.elected in a general election by secret ballot (Art. 62) for a period of four years (Art. 63). For enactment of Laws, Parliament has been empow- ered to delegate the power of legislation to one of its committees if there exists a necessity under certain circumstances (Art. 85, para. 1). The Council of Ministers provides draft Laws (layihah). After ratification in the Council these Bills are sent to Parliament for debate and enactment. The draft Laws relating to the judiciary are provided by the head of the judiciary (Art. 158 of the Constitution) and are sent to the Council of Ministers through the Minister of Justice. However, the members of Parliament can also provide a Bill (tarh) and present it to Parliament for discussion and enactment if it is sponsored by at least 15 members (Art. 74 of the Constitution). In addition, the Supreme Council of Provinces can prepare a legal plan or Bill and send it, directly or indirectly, through the Council of Ministers, to Parliament for consideration under Article 102 of the Constitution. The CG has been established in order to safeguard the Islamic ordinances and the Constitution through the consideration of Laws enacted by Parliament (or in some cases for consideration of Government legislation). If the enacted Laws are inconsistent with Islamic precepts or the Constitution the CG does not ratify these Laws and sends them back to the Parliament for appropriate amendments (Art. 91 of the Constitution). The CG consists of 12 members who hold office for a period of six years (Art. 92 of the Constitution). Six members are Islamic jurists (faqih) who are appointed by the Leader, and the other six members are secular lawyers who are experts in different areas of law and who are elected by the Parliament from a list of lawyers who are presented to Parliament by the head of the judiciary (Art. 91). The decisions are taken by a majority vote. There is a difference of authority between the members of the CG. The determination of the inconsis- tency of legislation passed by the Parliament with Islamic precepts rests with the majority of the Islamic jurists (fuqaha) of the CG (Arts. 4 and 96), and the