Majid Mohammadi

The disputed presidential election and its violent aftermath have led members of the Iranian religious establishment to question the moral, legal and religious foundations of the Islamic Republic. Prior to the election, Shi’a clerics mostly debated the relative balance of the Republic’s Islamic and democratic aspects. Now debate has shifted to the fundamental nature, pillars and theoretical justifications for the regime itself – centered on the Shi’a concept of the guardianship of the jurist (velāyat-e faqih).

Shari’a Chiefship
The guardianship of the jurist did not appear in the original draft of the Islamic Republic of Iran’s constitution, which prescribed virtually no role or authorities for clerics.  In 1979, the Assembly of Experts for Constitution, dominated by religious elite and convened to review the constitutional draft, added the Shi’a principle of an Islamic jurist providing guardianship of the people.  Almost a decade later, Ayatollah Ruhollah Khomeini imbued the jurist – or Leader – with absolute power, arguing that the jurist can discard the basic decrees of Islam to protect the Islamic regime.  Since then, the dominance of the jurist, in the position of the Leader, has evolved such that coercive power has become more important than social or religious authority.  The Leader now holds the power to abrogate laws as well as ordinances of shari`a.

In the wake of the June elections, Iranian clerics are now debating the source of the Leader’s legitimacy: does it come from God or from the people? Is his position a shari’ chiefship (qaimumat) or shari’ deputation? The clerical opposition advocates deputation, in which the guardian jurist monitors state affairs and gives counsel to authorities.  The religious establishment sides with chiefship, allowing the Leader to interfere in legislative, executive and judicial affairs whenever he deems appropriate. Based on deputation, the jurist should consult with the reference groups and political elite, consider public opinion and work within the legal framework.  Under a chiefship, he is above the law and unaccountable to the people.

Guardianship of Unjust Ruler
In the 1970s and 1980s, Shi`a clerics understood democracy as the people’s power to select a leader and put him into office.  Now opposition clerics are looking at the flip side of the coin – how to change the leadership, without resorting to revolution, through the power to disqualify and remove a leader from office.  Though the Iranian constitution, in Articles 109 and 111, provides criteria and the process for the dismissal of the Leader, in practice his removal is virtually impossible within the framework of Iran’s power relationships. The Assembly of Experts, which on paper has the authority to supervise the Leader, is formed by direct election from a closed list of candidates vetted by the Guardian Council.  The Leader directly or indirectly appoints the members of the Guardian Council, giving him significant influence over the selection of his own oversight body.  Any member of the Assembly of Experts who dares criticize the Leader is likely to be disqualified from running in the next election, providing a strong disincentive for members to hold the Leader accountable.

However, taboos against criticizing the Leader are breaking down among the broader elite.  In an unprecedented July 10th posting on his website, Husein Ali Montazeri, a senior Islamic scholar and grand marja (source of emulation), pointed to three characteristics of unjust rule (velayat-e jowr) based on Islamic shari`a: intentional opposition to shari`a ordinances, breaking benchmarks of wisdom and norms and violating national contracts. According to Montazeri, religious experts, political elite, legal experts and the population at large all have the authority to evaluate – and hold accountable – the Leader against these criteria.  And increasingly political and religious leaders are demanding that Leader Ali Khamenei answer for the regime’s actions during and after the elections.  Shi’a clerics in an anonymous letter on Aug. 15 called for his removal, labeling him a dictator, while a group of former parliamentarians and political science students called upon the Assembly of Experts to investigate Khamenei’s actions and qualifications in line with the constitution. For many Iranians – including protesters who shout “death to the dictator” – the position of Leader is no longer sacrosanct.     

Due Process
Public and clerical outrage has been fueled by reports of brutality at the Kahrizak detention facility where hundreds of protestors and activists were held.  Families of the detained, held incommunicado for weeks, have been returned the bodies of their loved ones with crushed teeth, fractured skulls and bruises. Reports have also surfaced that some detainees, male and female, have been savagely raped. Other detainees have apparently been coerced into making televised confessions through torture and solitary confinement. High-ranking clerics, including Montazeri, Yusof Sane`i, Asadullah Bayat and Mostafa Mohaqqeq Damad, have issued letters, statements and fatwas condemning the brutality and forced confessions. Their basic demand is that detainees should have the same access to due process in Iranian courts as afforded in liberal democracies.

Hardliners, however, are making the argument that Iranians arrested in the post-election unrest have no right to due process as characterized by opposition clerics.  Their rationale is based on four premises: 1) non-believers are not equal to believers and do not benefit from the same set of rights; 2) people who do not follow the decrees of the guardian jurist are not true believers; 3) the protesters, in line with Khamenei’s June 19 Friday prayer sermon, are responsible for all illegal actions and killings; and 4) the guardian jurist is allowed to suspend laws when the regime is at risk. Therefore, their argument proceeds, the guardian jurist not only is not violating his mandate, but he actually has a shari’a obligation to defend the regime against these protestors by any means, including denying their access to due process.

Denial of due process, the raising of the guardian jurist above the law and his diminishing need for popular authority have brought Shi`a clerics to a crossroads where they seem forced to decide whether to side with a chiefship – supported by the armed forces and above the legal code – and work as ideological agents of the current regime or to side with the people and hold the jurist accountable to the legal code and shari’a ordinances. Which path clerics ultimately choose will shape the future of Islam in the Iranian public sphere. For the time being, the Islamic Republic is on trial in the people’s court and the clerical opposition is making the case against the establishment.

Majid Mohammadi is a visiting scholar at Stony Brook Institute for Global Studies and is the author of more than two dozen books on Iran.

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Published on September 1, 2009