UPDATE: The Legal System and Research of the Islamic Republic of Iran

By Omar Sial

Update by Farah Khan

Farah Khan, BA.LLB.MSC (Criminology) is an Advocate of the High Courts in Pakistan, associate at M/s M. Ilyas Khan & Associates, a law firm in Pakistan known for the practice in Criminal Law.

Published April 2019

(Previously updated by Omar Sial & Ershadul Karim in February 2011)

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1. Background

Iran, also called Persia, is a Middle Eastern country located in Southwest Asia. It borders Armenia, Azerbaijan, and Turkmenistan to the north, Pakistan and Afghanistan to the east, and Turkey and Iraq to the west. In addition, it shares the Persian Gulf waters with Kuwait, Saudi Arabia, Bahrain, Qatar, and the United Arab Emirates. Known as Persia until 1935, Iran became an Islamic Republic in 1979 after the ruling shah was overthrown by a popular revolution led by the eminent marji' al-taqlid, Ayatullah al-Uzma Imam Khumayni. The official name of the country is Islamic Republic of Iran. Islam is the official state religion and the dominant school of law is the Jaafari School, which is the largest branch of Shia jurisprudence. The majority of the population is Shi’a Muslims. There are also Sunni Muslim, Zoroastrian, Jewish, Christian and Ba’hai minorities though Ba’hai is not a formal religion according to article 13 of the Constitutional of Iran, 1979.

Read Pars Times, Encyclopedia Britannica and MidEast Web for further information

The sources of law in Iran include Islamic principles, constitutional law, legislation, government bylaws, custom and revolutionary principles. Constitution of Islamic Republic of Iran in Article 4 of the Constitution provides that all laws should adhere to Islamic criteria, including all the articles of the Constitution, and other laws and regulations.

2. Administrative Divisions (or Provinces)

Iran is divided into 31 provinces (the capital of the province is shown within the brackets). These are: Alborz (Karaj), Ardabil, (Ardabil) Azarbaijan-e Gharbi (also known as ‘West Azarbaijan’) (Orumiyeh), Azarbaijan-e Sharqi (also known as ‘East Azarbaijan’) (Tabriz), Bushehr (Bushehr), Chahar Mahaal and Bakhtiari (Shahr-e-Kord), Esfahan (Esfahan), Fars (Shiraz), Gilan (Rasht), Golestan (Gorgan), Hamadan (Hamadan), Hormozgan (Bandar-e-Abbas), Ilam (Ilam), Kerman (Kerman), Kermanshah (Kermanshah), Khorasan-e Jonoubi (also known as ‘South Khorasan’) (Birjand), Khorasan-e Razavi (also known as ‘Razavi Khorasan’) (Mashhad), Khorasan-e Shomali (also known as ‘North Khorasan’) (Bojnurd), Khuzestan (Ahvaz), Kohkiluyeh and Buyer Ahmad (Yasuj), Kurdestan (Sanandaj), Lorestan (Khorramabad), Markazi (Arak), Mazandaran (Sari), Qazvin (Qazvin), Qom (Qom), Semnan (Semnan), Sistan va Baluchistan (Zahedan), Tehran (Tehran), Yazd (Yazd), Zanjan (Zanjan).

3. System of Government

Iran is a constitutional Islamic Republic, whose political system is laid out in the 1979 constitution called Qanun-e Asasi, Basic Law. Iran's makeup has several intricately connected governing bodies, some of which are democratically elected and some of which operate by co-opting people based on their religious inclinations. The concept of velayat-e faqih (guardianship of the jurist) plays an influential role in the governmental structure. It is vital to understanding some of the inspiration, basis, and institutions such as the position of the Supreme Leader and the Council of Guardians.

The government is based upon the constitution that was approved in a national referendum in December 1979. This republican Constitution replaced the 1906 Constitution, which, with its provisions for a Shah to reign as head of state, was the earliest constitution in the Middle East. Soon after the revolution, however, on March 30 and 31, 1979, the provisional government of Mehdi Bazargan asked all Iranians sixteen years of age and older to vote in a national referendum on the question of whether they approved of abolishing the monarchy and replacing it with an Islamic republic. Subsequently, the government announced that a 98-percent majority favored abrogating the old Constitution and establishing such a republic. Based on this popular mandate, the provisional government prepared a draft Constitution drawing upon some of the articles of the abolished 1906 Constitution and the French Constitution written under Charles de Gaulle in 1958. Ironically, the government draft did not allot any special political role to the clergy or even mention the concept of velayat-e faqih.

Although the provisional government initially had advocated a popularly elected Assembly to complete the Constitution, Khomeini indicted that this task should be undertaken by experts. Accordingly, the electorate was called upon to vote for an Assembly of Experts from a list of names approved by the government. The draft constitution was submitted to this seventy-three-member Assembly, which was dominated by Shia clergy. The Assembly of Experts convened in August 1979 to write the constitution in final form for approval by popular referendum. The clerical majority was generally dissatisfied with the essentially secular draft Constitution and was determined to revise it to make it more Islamic. Produced after three months of deliberation, the final document, which was approved by a two--thirds majority of the Assembly of Experts, differed completely from the original draft. For example, it contained provisions for institutionalizing the office of supreme religious jurist, or faqih, and for establishing a theocratic government.

The first presidential elections took place in January 1980, and elections for the first Majlis were held in March and May of 1980. The Council of Guardians, a body that reviews all legislation to ensure that laws are in conformity with Islamic principles, was appointed during the summer of 1980. Presidential elections were held again in 1981 and 1985. The second Majlis was elected in 1984.

3.1. The Supreme Leader

According to Iran's Constitution, the Supreme Leader of Iran, appointed for life by the Assembly of Experts, is responsible for the delineation and supervision of "the general policies of the Islamic Republic of Iran." In the absence of a single leader, a council of religious leaders is appointed. The Supreme Leader is Commander-in-Chief of the armed forces and controls the Islamic Republic's intelligence and security operations; he alone can declare war. He has the power to appoint and dismiss the leaders of the judiciary, the state radio and television networks, and the supreme commander of the Islamic Revolutionary Guard Corps. He also appoints six of the twelve members of the Council of Guardians. He, or the council of religious leaders, are elected by the Assembly of Experts, based on their qualifications, and the high popular esteem in which they are held. Read more at Office of the Supreme Leader of Iran.

3.2. The President

After the Office of Leadership, the President of Iran is the highest official in the country. The president is elected for a term of four years and is eligible for a second term and third nonconsecutive term (Article 114, the Constitution of Iran, 1979). He is the responsibility for implementing the Constitution and acting as the head of the executive, except in matters directly concerned with (the office of) the Leadership (Article 113, the Constitution of Iran, 1979). Article 115 of the Constitution heralds that the President shall be elected from among distinguished religious and political personalities having the following qualifications: He shall be of Iranian origins, have Iranian citizenship, be efficient and prudent, have a record of good reputation, honesty and piety, and be true and faithful to the essentials of the Islamic Republic of Iran and the official Faith of the country. According to the law, all presidential candidates must be approved by the Council of Guardians prior to running, after which he is elected by universal suffrage to a 4-year term by an absolute majority of votes. After his election, the president appoints and supervises the Council of Ministers (the Cabinet), coordinates government decisions, and selects government policies to be placed before the parliament. Eight vice presidents serve under the president, as well as a cabinet of 21 ministers. See more at Cabinet Information.

According to the Constitution of Iran, 1979, the President of Iran, shall;

Unlike many other states, the executive branch in Iran does not control the armed forces.

Read more the website of the President.

3.3. The Parliament (The Majles)

The unicameral Iranian parliament, the Islamic Consultative Assembly or "Majles-e Shura-ye Eslami," consists of 290 members elected to a 4-year term. The members are elected by direct and secret ballot. It drafts legislation, ratifies international treaties, and approves the country's budget. The Council of Guardians must review all legislation from the assembly. Candidates for a seat in the Majles require approval by the Council of Guardians (read more at Iran Data Portal).

3.4. The Assembly of Experts

The Assembly of Experts, which meets for one week every year, consists of 86 "virtuous and learned" clerics elected by the public to eight-year terms. Like presidential and parliamentary elections, the Council of Guardians determines eligibility to run for a seat in this assembly.

Members of Assembly of Experts are elected by popular vote for an eight-year term; last election was held 15 December 2006 concurrently with municipal elections. The 86 members of the Assembly are elected from 36 constituencies across Iran. From Tehran sixteen (16), Khuzestan six (06), Khorastan Razavi six (06), Fars five (05), Isfahan five (05), Eastern Azarbayjan five (05), Gilan four (04), Mazandaran four (04) representatives and from the remaining provinces between one (01) and three (03) representatives are elected. Women are eligible to run for the Assembly of Experts, as they are for any elected office in the Islamic Republic. However, they must also meet the qualifications for the office, such as having acquired the authority to interpret religious law or achieved the highest degree of Islamic teaching. Few women in Iran have those qualifications. In 1998, nine women submitted their candidacy to the Assembly of Experts. The Guardian Council rejected them all. Members of the Assembly of Experts in turn elect the Supreme Leader. The assembly has never been known to challenge any of the Supreme Leader's decisions, although according to the Iranian Constitution it has the authority to remove the supreme leader from power at any time. The Assembly of Experts of Iran is comparable to the Vatican's College of Cardinals. Read more at the Durham University’s Center for Iranian Studies Policy Brief 1 on Understanding Iran’s Assembly of Experts.

3.5. The Council of Guardians

Twelve jurists comprise the Council of Guardians, six of whom are appointed by the Supreme Leader. The head of the judiciary recommends the remaining six, which are officially appointed by Parliament. See also Global Security.

The Council of Guardians is vested with the authority to interpret the constitution and determines if the laws passed by Parliament are in line with sharia (Islamic law). Hence, the Council can exercise veto power over Parliament. If a law passed by Parliament is deemed incompatible with the constitution or sharia, it is referred back to Parliament for revision.

3.6. The Expediency Council

Created by Ayatollah Khomeini in 1988, the Expediency Council has the authority to mediate disputes between Parliament and the Council of Guardians. Presently, according to the Constitution, the Expediency Council serves as an advisory body to the Supreme Leader, making it one of the most powerful governing bodies in the country, at least in name. The Council also examines presidential and parliamentary candidates to determine their fitness to run for a seat.

4. Constitutional Background

The former monarchy and the Constitution of 1906 were abolished by the revolution of February 1979. The 1979 Constitution dates 24 Oct 1979 and is in force since 3 Dec 1979. Significant amendments were adopted on 28 July 1989.

The 270-member Majlis (Islamic Consultative Assembly) can initiate laws but is subject to a number of restrictions and needs the support of at least fifteen members. The Majlis can hinder the President's policy, veto cabinet appointments, and even impeach ministers. Its speaker is powerful due to his seat on all of the main councils of state.

The Iranian Constitution of 1979 is unique is a sense that the framers of the Constitution frequently referred the verses of Holy Koran in support of setting the provisions in constitutional. For example, article 7 of the Constitution provides that,

In accordance with the command of the Qur'an contained in the verse ("Their affairs are by consultations among them" [42:38]) and ("Consult them in affairs" [3:159]), consultative bodies - such as the Islamic Consultative Assembly, the Provincial Councils, and the City, Region, District, and Village Councils and the likes of them - are the decision-making and administrative organs of the country.

The Preamble is very long, containing a history of the revolution, a description of the new state, and quotes of Koranic verses. The Preamble states that economy is a means, not an end. It also asserts that the home centered role of women in Islam is actually a liberation, assigning women special rights. Iran places no belief in government control.

Iran has an official religion, some recognized religious minorities, and acknowledges rights of non-Muslims. Iran grants a right to work, extensive welfare rights, and a right to fruits of business. The Constitution requires that the taking of foreign aid be approved by the Parliament. Concessions for foreign businesses are forbidden. The Constitution acknowledges committee legislation and features a religious leader as well as a Head of Judiciary. Public officials are subject to an asset control.

Read the present Constitution of Iran, 1979 and the earlier Constitution of Iran, 1906, online.

5. The Judiciary

The powers of government in Iran are vested in the legislature, the judiciary, and the executive (article 57 of the Constitution) and the judiciary is responsible to implement the legislation duly passed by the legislature (article 58 of the Constitution). Article 61 of the Constitution states that the function of the judiciary is to be performed by courts of justice, which are to be formed in accordance with the criteria of Islam and are vested with the authority to examine and settle lawsuits, protect the rights of the public, dispense and enact justice, and implement the Divine Limits [al-hudud al-Ilahiyyah].

The head of the judiciary is appointed by the Supreme Leader, who in turn appoints the head of the Supreme Court and the chief public prosecutor. Public courts deal with civil and criminal cases. "Revolutionary" courts try certain categories of offenses, including crimes against national security, narcotics smuggling, and acts that undermine the Islamic Republic. Decisions rendered in revolutionary courts are final and cannot be appealed.

Article 156 of the Constitution provides for an independent judiciary. According to Articles 157 and 158, the highest judicial office is the High Council of Justice, which consists of five members who serve five-year, renewable terms. The High Council of Justice consists of the chief justice of the Supreme Court and the attorney general (also seen as State Prosecutor General), both of whom must be Shia mujtahids (members of the clergy whose demonstrated erudition in religious law has earned them the privilege of interpreting laws), and three other clergy chosen by religious jurists. The responsibilities of the High Council of Justice include establishing appropriate departments within the Ministry of Justice to deal with civil and criminal offenses, preparing draft bills related to the judiciary, and supervising the appointment of judges. Article 160 also stipulates that the minister of justice be to be chosen by the prime minister from among candidates who have been recommended by the High Council of Justice. The Minister of Justice is responsible for all courts throughout the country.

Article 161 provides for the Supreme Court, whose composition is based upon laws drafted by the High Council of Justice. The Supreme Court is an appellate court that reviews decisions of the lower courts to ensure their conformity with the laws of the country and to ensure uniformity in judicial policy. Article 162 stipulates that the chief justice of the Supreme Court must be a mujtahid with expertise in judicial matters. The faqih, in consultation with the justices of the Supreme Court, appoints the chief justice for a term of five years.

In 1980, Khomeini appointed Ayatollah Mohammad Beheshti as the first chief justice. Beheshti established judicial committees that were charged with drafting new civil and criminal codes derived from Shia Islamic laws. One of the most significant new codes was the Law of Qisas, which was submitted to and passed by the Majlis in 1982, one year after Beheshti's death in a bomb explosion. The Law of Qisas provided that in cases of victims of violent crime, families could demand retribution, up to and including death. Other laws established penalties for various moral offenses, such as consumption of alcohol, failure to observe hejab, adultery, prostitution, and illicit sexual relations. Punishments prescribed in these laws included public floggings, amputations, and execution by stoning for adulterers.

The entire judicial system of the country has been desecularized. The attorney general, like the chief justice, must be a mujtahid and is appointed to office for a five-year term by the faqih (Article 162). The judges of all the courts must be knowledgeable in Shia jurisprudence; they must meet other qualifications determined by rules established by the High Council of Justice. Since there were insufficient numbers of qualified senior clergy to fill the judicial positions in the country, some former civil court judges who demonstrated their expertise in Islamic law and were willing to undergo religious training were permitted to retain their posts. In practice, however, the Islamization of the judiciary forced half of the former civil court judges out of their positions. To emphasize the independence of judges from the government, Article 170 stipulates that they are "duty bound to refrain from executing governmental decisions that are contrary to Islamic laws."

For more information on Iranian judicial system, see Tahmineh Rahmani & Nader Mirzadeh Koohshahi, Introduction to Iran’s Judicial System, 45 J. Law, Polc’y & Globalization 47 (2016). Further, additional information on the Islamic Judiciary can be found at Hadi Ghaemi, The Iran Primer: The Islamic Judiciary, United States Institute of Peace (last visited March 26, 2019).

The Courts are functionally classified according to their area of jurisdiction into civil or criminal, and according to the seriousness of the crime or the litigation (i.e. value of property under dispute or the level of punitive action involved).

The judiciary in Iran follows Islamic Law. There are basically three types of courts in Iran: (a) public courts, (b) clerical courts and (c) Revolutionary Courts. The regular courts in Iran, known as public courts, are classified into:

These courts mainly deal with the civil and criminal matters of the common public in Iran. In the first instance, family matters, including marriage, divorce and custody, come under the jurisdiction of the Special Civil Court allocated to family affairs, whereas personal status matters such as citizenship and probate come under the jurisdiction of the Public Civil Courts. All non-financial matters and financial affairs evaluated at above 2,000,000 RI from these courts can be appealed to the appellate courts. Criminal courts fall into two categories: first and second level criminal courts. The first level courts have jurisdiction over prosecution for felony charges, while the second level courts try cases that involve lighter punitive action. There are nearly 600 Public Courts in Iran.

The Clerical Courts are entrusted with the task of trying and punishing misdeeds by the clergy although it has also taken on cases involving lay people. A Special Clerical Court holds operations independent of the regular judicial system and is accountable to the Supreme Leader of Iran. Judgments handed down by the Clerical Courts are final and cannot be appealed.

The Revolutionary Courts rule on serious offences related to the country’s security, drug trafficking, etc. There are two Revolutionary Courts in Iran. The judgments given by these courts cannot be challenged in any court in Iran. The Revolutionary Courts do not allow for the involvement of defense attorneys in Court proceedings related to various legal matters addressed by these Courts.

The judges of these courts fulfill additional roles as prosecutors and mediators. All judges in the courts have received a higher education in Islamic Law and most of them are also members of the group of ruling clergies.

Besides, there is Administrative Court of Justice, which, under the supervision of the head of the judicial branch, is authorized to investigate any complaints or objections by people with respect to government officials, organs, and statues and a Disciplinary Court for Judges was established in 1987.

The Constitution requires all trials to be open to the public unless the court determines that an open trial would be detrimental to public morality or public order, or in case of private disputes, if both parties request that open hearings not be held.

To have a comprehensive idea about the judicial system of Iran, read the article by Ehsan Zar Rokh,Iranian Judicial System (Court’s Structure), Islamic Law & Law of the Muslim World Paper No. 07-02 (Nov. 14, 2007). Further, for more information on Iranian judicial system, see Tahmineh Rahmani & Nader Mirzadeh Koohshahi, Introduction to Iran’s Judicial System, 45 J. Law, Polc’y & Globalization 47 (2016).

6. Laws of Iran

7. Iranian Law Books

The following site(s) may be helpful: