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III. THE CONSTITUTIONAL IMPASSE
The Constitution of the Islamic Republic of Iran, promulgated in 1979 and amended in 1989, locates its source of power in two realms. It speaks of the sovereignty of the will of the people and simultaneously enshrines the principle of the velayat-e faqih (rule of the supreme jurist), whereby the most learned Islamic scholar interprets and applies divine law. It creates both religiously-guided and popularly-elected political institutions. Since the earliest days of the republic, a tension has existed between the appeal to popular sovereignty, which united the many diverse groups that came together to overthrow the autocratic rule of the Shah, and the commitment of many of these same forces to rule in accordance with divine law. The constitution gave ultimate authority to religious rule in what was seen as a political triumph for Ayatollah Khomeini, the first Supreme Leader. Constitutional articles upholding and protecting basic rights and freedoms were vitiated by qualifying clauses stating that such rights and freedoms can only be exercised in accordance with Islamic principles. The primacy of Islamic principles is asserted repeatedly throughout the Constitution, while the practical meaning of these directives is left vague. Similarly, Iranian criminal law includes such loosely defined offenses as "endangering Islamic principles," or "waging war on God." Authoritative interpretations are necessary to give meaning to these charges and directives. The constitution provides for certain institutions and bodies to make these interpretations. At the top of the pyramid is the Supreme Leader of the Islamic Republic, the Faqih, whose interpretations of how divine law should be applied in any given circumstances carries the most weight.1 The position of Supreme Leader is rooted in the Shi'a Muslim tradition of emulation of a marj'a taqlid, a senior religious scholar recognized by his followers as a source of guidance for the faithful in resolving questions of how to live an observant religious life in the world. Traditionally, at any one time there have been a handful of Grand Ayatollahs to whom the Shi'i faithful have looked for guidance. These learned jurists have produced books offering guidance for their followers in many areas of personal life. They have traditionally been based in seminaries in the great centers of Shi'i religious learning in Qom, Mashad or Najaf, where they have educated generations of clerics who have devoted their lives to study or have gone out into the world as preachers in mosques throughout the Shi'i Muslim world. The essence of the tradition ensured diversity within mainstream Shi'i teaching. If a believer did not find the directives of one marja'a to his or her liking, then he or she was free to choose another. The creation of a kind of "state marja'a" with the establishment of the position of Supreme Leader of the Islamic Republic was a radical departure from this tradition, in that it fused spiritual and temporal power in an unprecedented manner, and it greatly increased the temporal power of one marja'a over that of his fellows. There were eminent dissenters to this during the ten years that Ayatollah Khomeini occupied the position he had created for himself,2 but his prestige and political acumen, and the need for national unity during the bloody war with Iraq, ensured that he was easily able to override such opposition. The problems inherent in the position of Supreme Leader of the Islamic Republic became more apparent with the selection by the Assembly of Experts of Ayatollah Khamene'i as Khomeini's successor. Ayatollah Khamene'i was not widely regarded as one of the leading Islamic jurists of his day, and his status as a Grand Ayatollah was questioned by many. Some saw his appointment, therefore, as an essentially political choice, understandable for a position exercising the political authority of the Supreme Leader of the Islamic Republic but detracting from his prestige as the supreme spiritual guide. As time passed, the Leader's overt political role, often seeking to balance antagonistic conservative and reformist political forces, became apparent. Inevitably, questions arose that if this was a temporal political office like any other, in fact more powerful than any other, then why should it not be filled by direct popular election? Some questioned the need for the position of Leader at all, or advocated a symbolic, politically neutral role for the Leader. Such discussions took on considerable momentum in the independent print media after President Khatami's election in 1997, providing conservatives with great incentive to close down the media. A second body created by the constitution with the explicit purpose of safeguarding the Islamic character of the state, and therefore in determining what that character should be, is the Council of Guardians. The council has the power to vet all laws passed by the parliament, a power that it has exercised liberally throughout the history of the republic. This has taken on particular importance since the parliamentary election of May 2000, which resulted in the reformists gaining a majority for the first time. The council has acted repeatedly to block parliamentary attempts to advance reform measures. The council exercises a second powerful influence over the legislature in vetting the fitness for office of prospective candidates for parliament and other elective offices in the Islamic Republic, including the president. The council is charged with assessing their piety, and may reject candidates without providing reasons. These powers have ensured that elections in Iran have been largely limited to competitions among those supporting the clerical leadership. Secular politicians and opponents of clerical rule have consistently been barred from seeking office. Prior to the February 2000 parliamentary elections, there was considerable concern among reformists that the council would exercise its powers to block reform supporters from standing as candidates. Some called for the council's powers over electoral candidates to be diminished, or at least for their deliberations to be made more transparent. In fact, the council vetoed relatively few reform candidates in the 2000 elections, thus heading off a conflict on that issue, but the council's position as a counterweight to the legislature ensures that it will be a target for reformist criticism in the future. The third body charged by the constitution with carrying out its functions in accordance with Islamic principles is the judicial branch. The Supreme Leader directly appoints the Head of the Judiciary to a five-year term, and the latter appoints half the members of the Council of Guardians, all members of the Supreme Court, and the chief judges in all Iran's provinces. Islamic judges are empowered to apply the law in accordance with their interpretations of Islamic law. Much Iranian criminal law leaves broad scope for interpretation both in the definition of crimes and in devising remedies for victims and penalties for offenders. In recent years, the judicial branch has emerged as the major weapon in the hands of the conservatives in their fight against the reformists. It used the Press Court under its jurisdiction to imprison editors, publishers and journalists for "offending Islamic values." Reformists who are clerics can also be tried in Special Clergy Courts if they are accused of deviating from Islamic orthodoxy. The judicial branch has also become a target for much criticism for reformists. Thus conservative clerics exercise control over the major state institutions that have the power to impose authoritative interpretations of Islamic law. They are thus in a position to interpret the constitution and the law to their advantage. Conservatives also control the security forces, enabling them to enforce their rulings. Their domination of the broadcast media provides them with an advantage in the battle of ideas, although many Iranians are able to overcome the state broadcast news monopoly by listening to broadcasts in Farsi from overseas, and increasingly viewing satellite television broadcasts as well. Reformists, for their part, now have control over the state institutions elected by popular vote, principally the presidency and the Islamic Consultative Assembly or Majles, the Iranian parliament. The president appoints ministers (except the Head of the Judiciary) and has a responsibility to ensure that the constitution is upheld. In practice, the powers of the presidency and the legislature are limited by conservative control of the judiciary and the Council of Experts. The main source of power for the reformists is the support they receive from the electorate. Thus, reformist rhetoric makes frequent reference to the importance of public opinion. For example, on February 12, 2001, addressing a conference at the Ministry of the Interior, President Khatami stated:
Conservatives counter such criticism by emphasizing the importance of promoting public respect for state institutions. Ayatollah Khamene'i responded to President Khatami's speech by asserting:
Over the past year a pattern has emerged of reformists challenging the prerogatives of conservative-dominated non-elected state institutions and being met with increasing repression from these institutions. This is the context in which the mounting incidents of arbitrary detention and restrictions of basic freedoms of expression, association and assembly have taken place. 1 He is chosen as the most learned jurist by a popularly elected group of senior religious scholars and pious laymen, the Assembly of Experts. 2 Eminent dissenters included Grand Ayatollah Shar'iat Madari, and also traditional figures like Grand Ayatollahs Golpaygani and Araki. 3 BBC News, "Supreme Leader attacks reformists", Feb. 13, 2001. 4 Ibid.
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