Dissecting the Islamic Republic of Iran’s Constitution: (Part 1)

a socio-legal analysis

Mojdeh Shahriari, B.A., M.F.A., LL.B

http://www.mojdehshahriari.com/

In the advent of the recent protests in Iran, two camps have emerged.
The first camp continues to support the Islamic Republic of Iran’s Constitution (the “Constitution”) in the ongoing protests against the more fanatic side of the government, which protests started with Ahmadinejad winning the recent presidential elections against Mousavi. Many “progressive” voices also argue that in order to keep the unity of the movement, the very framework of the regime must not be put into question at this time. Rather, they argue, all progressive people must continue to press for reforms within the framework of the Constitution.

In contrast, slowly but increasingly a second camp of protestors are questioning the very foundation of the current regime. In many protests in the streets of Tehran and specifically on July 30, 2009, people have been chanting:

“Independence, Freedom, Iranian Republic” [1]

This is in contrast to the slogan of the Islamists thirty years ago that led to the establishment of the Islamic regime in Iran. At that time, the chant was: “Independence, Freedom, Islamic Republic”.

The introduction of a Republic in Iran without Islam speaks to the fact that there are secular voices in Iran that are questioning the legal foundation of the current regime and are demanding not for a reform in the system, but for a fundamental change in the whole Iranian legal structure.

In a series of articles, I will try to demonstrate why the progressive individuals and groups must not support the Constitution as it runs contrary to the most basic notions of universal human rights. More particularly, in dissecting the Constitution, I will show that the Constitution is full of contradictions between claims to such notions such as freedom and equality on the one hand, and conditioning each and every right to the supremacy of religion on the other hand.


Preamble
In any constitution or charter, the preamble sets the overall context of what is to come in the specific articles. In this instance, the preamble summarizes the framework and the objectives of the Constitution.

It starts by stating the following:

“The Constitution of the Islamic Republic of Iran sets forth the cultural, social, political and economic institutions of the people of Iran, based on Islamic principles and rules, and reflecting the fundamental desires of the Islamic people... ” (bold added for emphasis)


The supremacy of Islamic principles and rules over all cultural, social, political and economic institutions and by inference all laws is therefore set out in the preamble itself. The logical arising questions to those who want to keep the movement within the confines of the Constitution include the following:

· How can the Constitution protect the rights of all Iranian people when in its preamble the supremacy of one religion is declared over all institutions of the country?

· How can the democratic project advance in any meaningful way when the state is not only intermingled with religion but it is declared inferior to the rule of religion in the Constitution’s preamble?

· How can the rights of religion, ethnic, political and other minorities be in any way protected or reformed within the confines of the Constitution, when the preamble demands that they all obey the supremacy of the Islamic principles and rules?

The Constitution’s preamble itself violates the principles articulated in the 1948 Universal Declaration of Human Rights (the “Human Rights Declaration”) [2]. For example, the preamble violates article 2 and article 18 of the Human Rights Declaration which read as follows:


Article 2.
· Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. (bold added for emphasis)

Article 18.
· Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (bold added for emphasis)

The Constitution’s preamble continues with statements such as:

“The unique characteristic of this Revolution, as compared with other Iranian movements of the last century, is that it is religious and Islamic . . . But now the nation's conscience has awakened to the leadership of an exalted Authority, His Eminence Ayatollah Imam Khomeini, and has grasped the necessity of following the line of the true religious and Islamic movement. This time the country's militant clergy, which has always been in the front lines of the people's movement, together with writers and committed intellectuals, has gained new strength (lit: impetus) under his leadership . . . “(bold added for emphasis)

Throughout the preamble the religious and Islamic nature of the government and the Constitution is emphasized. Furthermore, there is reference made to the militant clergy in the above quoted excerpt which in my view gave the legal legitimacy to militant activities of the revolutionary guards (pasdarans) and the Basijis. After all, the Constitution itself is glorifying the militant clergy, which seized power in Iran thirty years ago and continues to rule in Iran based on the Constitution that it drafted in October 1979 and became effective on December 3, 1979. Isn’t it time for a fundamental change in Iran towards a democracy built on universal human rights?

To be continued

Mojdeh Shahriari is a Vancouver based refugee, immigration, and human rights lawyer

Endnotes:

[1] For example, see http://www.youtube.com/watch?v=e0zquYsjE6k
[2] For the full text of the Human Rights Declaration, go to

http://www.un.org/en/documents/udhr/

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