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10 R the Advisory Role of the Guardian Council 13 The Advisory Role of the Guardian Council 13 February 2010 Mehrangiz Kar Since 1997, when Mohammad Khatami became the President, the conservative faction has labeled the critics of approbative supervision as the enemies of the system. From the perspective of conservatives, who have always monopolized security, intelligence and police institutions, approbative supervision is a divine revelation that cannot be altered. All people and groups that have insisted on ending approbative supervision are accused of misleading public opinion and attempting to overthrow the regime. But a demand, such as the elimination of approbative supervision, does not violate the Constitution in any way. The critics base their demand for the annulment of approbative supervision on the Constitution of the Islamic Republic. They point out that the undisputed right of the Guardian Council to disqualify candidates is not specified in the Constitution, but is an obvious infraction of it. This issue will be examined from two angles in this article: 1-If approbative supervision does not exist in the Constitution, where has it come from?; 2-Why do the security institutions consider the removal of approbative supervision as a scheme to topple the system? Issuing a statement on the occasion of 31st anniversary of Islamic Revolution, the National Trust Party (Hezb-e Etemad-e Melli) has announced a number of political and social demands. The central demand in this statement is the execution of Article 59 of the Constitution with the intention of holding a referendum to eliminate approbative supervision. 1 The National Trust Party reminds the regime of the capacities that exist in the Constitution for reducing the tensions and dissatisfactions that have shaken Iranian society. Considering the current sensitive political and security situation, the statement tries to contain the government’s violent behavior by not giving those who use violence any excuse to accuse the National Trust Party of attempting to bring down the system. Can such political tactics persuade the conservatives to utilize the Constitution’s legal strengths and capacities to improve their relations with the protesting people? Since 1997, when Mohammad Khatami became the President, the conservative faction has labeled the critics of approbative supervision as the enemies of the system. From the perspective of conservatives, who have always monopolized security, intelligence and police institutions, approbative supervision is a divine revelation that cannot be altered. All people and groups that have insisted on ending approbative supervision are accused of misleading public opinion and attempting to overthrow the regime. But a demand, such as the elimination of approbative supervision, does not violate the Constitution in any way. The critics base their demand for the annulment of approbative supervision on the Constitution of the Islamic Republic. They point out that the undisputed right of the Guardian Council to disqualify candidates is not specified in the Constitution, but is an obvious infraction of it. This issue will be examined from two angles in this article: 1-If approbative supervision does not exist in the Constitution, where has it come from?; 2-Why do the security institutions consider the removal of approbative supervision as a scheme to topple the system? To answer this question, we must first examine the Constitution. The only article in the Constitution that describes the supervisory powers of the Guardian Council over various elections is Article 99. According to this article, “The Guardian Council has the responsibility of supervising the elections of the Assembly of Experts for Leadership, the President of the Republic, the Islamic Consultative Assembly [Parliament], and the direct recourse to popular opinion and referenda.” In Article 99, the word “approbative” is not mentioned alongside “supervision.” Therefore, the compilers of the Constitution have defined supervision in a customary fashion as “informational supervision.” According to this conventional definition of supervision, the Constitution has invested the Guardian Council with the responsibility of preventing vote-rigging and ensuring that no candidate can violate the right of other candidates who wish to compete in elections and launch electoral campaigns. Therefore, the 2 Guardian Council’s main task is to guarantee the people’s rights to elect their favored candidates in fraud-free elections. Not only does the Constitution of the Islamic Republic, at least in respect to Article 99, not negate democratic elections, it also safeguards their mechanisms. Therefore, all people and groups that regard Article 99 as the basis of the Guardian Council’s limited power, and view approbative supervision as an addition that does not exist in the Constitution, wish to prevent infringement on the Constitution. But this question immediately comes to mind: if approbative supervision does not exist in the Constitution, where has it come from? How has it been consolidated? And why has it gained executive power? To answer these questions, we must refer to the text of the Constitution. Article 98 asserts, “The authority of the interpretation of the Constitution is vested with the Guardian Council, which is to be done with the consent of three-fourths of its members.” By manipulating Article 98, the conservative faction decided to block other religious– political groups from entering electoral competitions. They said they had the right to interpret the Constitution and they were the only institution which could interpret the Constitution. It was a justifiable claim. What could not be justified was the fact that they mistook their right to interpret the Constitution for the right to change it. They violated the law. By relying on their right to interpret the Constitution, they began to conspire with the majority in Parliament. The Parliament made amendments to the Election Law, a move that altered the Constitution radically. According to Article 99, the Guardian Council was responsible for ensuring fair and healthy elections. But the 3rd Amendment to the Parliament’s Election Law, which was approved on June 27, 1995, transformed the Guardian Council into an obstacle against free elections: “The supervision over the Islamic Consultative Assembly is entrusted to the Guardian Council. This supervision is approbative and total and is carried out in all stages and affairs related to a current election.” Contrary to the spirit of the Constitution, this law gives the Guardian Council the power to approve or disapprove the qualification of candidates according to its own factional interests. The Guardian Council can disqualify any candidate even if that candidate has no criminal record or is not prohibited from engaging in social and political activities by the country’s acknowledged courts or judicial authorities. 3 The protests of jurists and experts on fundamental rights were dismissed and the conservative faction, under a legal guise, succeeded in transforming elections into “appointments.” Although this law was an outright violation of the Constitution, the Guardian Council refused to veto it and preferred to trample on people’s rights. The jurists agree that “approbative supervision” is not what the compilers of the Constitution and the people who voted “yes” on the Constitution in the referendum had intended. This law contradicts the spirit of the Constitution. Article 72 of the Constitution prohibits the Parliament from passing the bills and proposed statutes that infringe on people’s rights, but the Parliament’s majority did not hesitate to approve this law. Article 99 allows the Guardian Council to supervise only the actions of the Interior Ministry to prevent fraud in elections. But this responsibility does not empower the council to determine the “qualification” of candidates and people’s representatives. The second question, like the first one, is significant and of key importance. The fact that the security institutions consider the opposition to “approbative supervision” as a prelude to the overthrow of the Islamic Republic is rooted in the power struggle among the factions within the regime. Without surveying the history of political crises after 1995 (the year in which the law, which undermined Articles 72 and 99, was approved by the Parliament), we cannot answer this question. In the final years of revolution’s second decade, various conservative groups were faced with a critical force within their own ranks which they could not easily silence. This force was loyal to the principle of velayat-e faqih (rule of the jurisprudent); and it still is. But it was determined to gain a larger share in political power. This critical faction began to blast Hashemi Rafsanjani’s economic policies, but it did not confine its activity to this sphere only. Its proponents, gradually and cautiously, entered theoretical discussions about the velayat-e faqih and the necessity of supervising its performance. These debates, which were kept secret from people, took place in closed circles and among the forces that were devoted to the system. Nevertheless, the clash with a more moderate force prompted the conservatives to secure their total control over elective institutions and block their political rivals from entering the centers of power and decision-making. Two years before Khatami’s Presidency, the conservative groups inside and outside the Parliament carried out a coordinated operation to transform the supervisory responsibility of
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