abstracts
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1.
Current overview of constitutional law |
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1.
The French Constitutional Council and the
Iranian Council of Guardian: A question of composition |
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2.
Supra-constitutionality and sovereignty(Translation) |
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3.
Right of knowledge as a constitutional right |
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From political philosophy to constitutional law |
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3.
La rédaction
du premier « projet constitutionnel » de l’Iran |
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4.
A Legal analysis of the Iranian Guardian
Council’s decision concerning the law on the election of Members of
Parliament |
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5.
Guarantees and limits to the independence
and the impartiality of judges in the |
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6.
parliamentary immunity in comparative law |
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7.
Analysis of the voting right in the Iranian law compared to French
legal system |
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8.
Penal responsibility of the President of the Republic in the French
legal system |
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9.
Judicial power or jurisdictional authority |
Current overview of constitutional law
Leader-writer
The present note gives an inventory of
constitutional law by putting an emphasis on the recent evolutions realised in
this domain and, at the same time, tries to localise its actual position in the
general context of public law.
The concept of the “Etat de Droit”, as a paradigm dominating in the modern constitutional law, has been briefly analysed. Furthermore, the question of guarantee is considered as an important characteristic having the potential of creating a cleavage between traditional and modern constitutional thoughts.
Key words:
Constitutional law, state of right, guarantee constitutional, jurisdiction constitutional, constitutional paradigm.
Supra-constitutionality and sovereignty
Louis FAVOREU and Georges VEDEL (Debate
GORJI,
Ali-Akbar(Translation and analysis)
The « Revue française
de pouvoirs », in 1993, published a debate
between two French scholars of constitutional law, professors G. Vedel and L. Favoreu, on the
theme of supra-constitutionality and sovereignty. This debate presents two
divergent positions regarding the concept of supra-constitutionality. If
Professor Favoreu, by presenting the related
definitions and the principal elements at stake, is strongly for the existence
of supra-constitutionality, Professor Vedel, with
equal force, denies it’s existence in the French
positive law.
The question discussed in this debate has been recently at the core of
different debates in the Iranian legal and political contexts. The present work
is the translation of this debate, added with some comments by the translator,
with an emphasis to the case of
The French constitutional Council and the Iranian Council of Guardian: A
question of composition
GORJI, Ali-Akbar
The composition of the constitutional
jurisdictions has always been a central theme having provoked divergent
positions, and it doesn’t seem as though it has been definitively resolved to
date.
The principal objective followed by
this article is to compare the French Constitutional Council with the Iranian
Council of Guardian by presenting the related appointment authorities and the
different categories of the members composing each of them.
In the present study, the author also
discusses the question of the guaranteeing status designed for each of the
institutions at stake, in order to protect their autonomy and independence,
through an emphasis on the institutional status and the status of their
members.
Right of knowledge as a
constitutional right
HABIBI,
Mohammad Hassan
The Right of knowledge, is one of the
rights attached to the notion of citizenship. This right could be studied from
different aspects. It is comprised of
the right of having access to information considered as an essential key to the
concept of freedom of expression, and the destiny of democracy depends on this
notion.
There are two different notions of the right of knowledge: the strict
and the vast notions. The first contains freedom of looking for information,
and the second one is based on the right of having access to information and to
its reception.
Despite the restricting efforts made by certain States and public
authorities, the right of knowledge is recognized by some national and
international documents as one of the fundamental human rights.
The objective followed by this article
is to emphasis the notion of “right of knowledge”, and to verify its actual
position in the disposition of national and international laws.
From political philosophy
to constitutional law
HASHEMI, Mohamad
In one part, political philosophy
is a sphere of the profound reflection over the political society and the
different social phenomenons. Its principal objective is to study societies
and their political and governmental life.
On the other hand, constitutional law, in its principal sense, plays the
role of organizer and conciliator between freedom and power. Power is
identified by dominance, whereas freedom is manifested through emancipation.
Political society is a phenomenon in which the notions of freedom and power are
always in conflict. The final aim of law is to establish justice, and
government’s aim is to realize order.
In this article, the author tried to study the different political
thoughts in order to describe the birth of constitutional law.
Key words:
Political philosophy, constitutional law, power, freedom, political
society, civil society, democracy.
An overview of the first drafting of the Constitution ofthe Islamic
KATOUZIAN, Nasser
History is
one of the most efficient instruments for better understanding the objectives,
causes and situations surrounding the appearance of a social phenomenon.
Law, as a
social phenomenon, has to be studied through a historical approach. The
formulation of the first project of the Constitution dates back to the period
before the revolution of 1979, so every study about this instrument has to take
into account all the circumstances surrounding this period.
Professor Katouzian,
carried out his historical study of the Constitution through a division of its
principles into the two following categories:
Principles
upon which a consensus was reached amongst the different political tendencies;
Principles having given rise to a number of divergent
opinions.
The author, first, emphasises the consensual objective
of the Iranian nation to eliminate the Pahlavi’s
dictatorial regime. Secondly, he tries
to clarify the apparent divergences as to questions such as: freedom and
religion; the republic and Islam; Islam and positivist legislation; the
official religion of the country and other religious minorities; the Islamic
municipal councils and territorial integrity.
Legal analysis of the decision of the Iranian Guardian Council in the
matter of the law on the
election of parliament members
KHATAMI, MOHAMMAD
The Iranian Parliament, on March3,2003, reformed the law concerning legislative elections.
These reforms were intended principally to simplify access to the legislative
mandate, by softening the conditions of parliamentary eligibility and by determining
the competent bodies through which these conditions should be verified.
This project has been automatically
addressed to the Guardian Council in order to be controlled on the questions of
constitutionality and religiosity.
The Council, applying a strict
standard, declared the text in question to be in contradiction to the
Constitution. According to the terms of the decision, the numbers of
contradictions are as many as thirty five instances, which is unprecedented in
the jurisprudence of the Council.
In this article, the author responds
to the positions taken by the Council in this decision, on a case by case
basis.
Key words:
Control former, informative control,
control legal, qualified authority, condition ineligibility, electoral of the
Council
Guarantees and limits to the
independence and the impartiality of judges in the
Joseph J. DARBY
SAHRAIIAN, Ali Asghar (Translation)
The right to a fair trial, which among
other things necessitates that the judge be independent and impartial, is
guaranteed by Article 6 of the European Convention on Human Rights. The
Parliamentary immunity in comparative law
TABATABAI MOTAMENI, Manoutchehr
This article examines the question of
parliamentary immunity in its different aspects, as it is manifested in the
constitutions of the countries having a democratic system and in a number of
Islamic countries, with a simultaneous reference to the doctrine.
Contrary to the impression that this
immunity is a kind of the discrimination between the citizens, it is not a
discharge of responsibility. Instead, it should be considered merely as a
postponement of any potential prosecution to the end of their term in office,
or suspending until receiving preliminary authorisation from the parliament.
This immunity is not in contradiction
to the principle of equality of the persons to the laws and, with the aim of
guaranteeing the independence of the parliament, is even a necessary and well
founded measure. At the end of this article, examples of the constitutional
provisions on the matter, from a number of the democratic countries, have been
presented.
The key words:
Parliamentary immunity, legal proceeding,
parliamentary irresponsibility, and parliamentary inviolability.
Analysis of the voting
right in the Iranian law
compared to French
legal system
TAGHIZADEH
DOUGHIKOLA, Javad
The present article analyses the situation of
voting rights in Iranian law. It also offers some comparative reflections
through the French experience. In this regard, the author analyzes,
simultaneously, the electoral provisions and their application in practice.
The first section discusses the
characteristics of the vote. It is characterized by formal and non-formal
criterions. According to the Iranian constitutional and legislative
dispositions, the vote is direct, secret and universal. The optional and personal
characters are recognized informally even though the legislator has not
mentioned them explicitly.
In the second section, the exercise of this right has been studied. The
necessary conditions of enjoyment of the voting right are simple. They are the
following: nationality, electoral majority and the capacity. Nevertheless, the
absence of electoral list, residence, the condition of dignity and the absence
of the possibility of participation of the Iranians residing abroad are
important inconveniences of the Iranian electoral practice.
Key words:
vote, voting right, elections,
electoral law
Penal responsibility of
the President of the Republicin the French legal
system
VIJEH, Mohammad-Reza
The traditional penal responsibility of the head of State in the
exercise of his functions, as the vestige of monarchy, has been perpetuated
from constitution to constitution. Most recently taking form in article 68 of
the fifth Republic Constitution. The provisions of article 68 have been interpreted
by the Conseil Constitutionnel
in its decision of January22, 1999, and the Cour de
Cassation has also established its jurisprudence in this matter in its decision
of
The commission organized by Mr. Chirac
on July 2002, in order to study the penal status of the President, formulated
the propositions as to the revision of the Constitution in the matter.
Judicial power or jurisdictional
authority
TURPIN Dominique
YAVARI, Assadollah (Translation)
The place of justice in the organization of public powers is always of recognized importance. The solution of a radical separation of the powers being aside, it remains a choice between judicial “power” (or an “authority”) and a simple public service of justice. This choice is one between organic independence and functional autonomy of judges toward public powers. In spite of confirmation of the normative power of judges and their independence vis à vis the public powers, judicial authority does not represent a power being at the same level as the executive and the legislative powers.
Today, the majority of the
contemporary legal systems
seek a guarantee of the impartiality of the jurisdictions and
the magistrates, i.e. the guarantee of their independence in the exercise of
their functions. This effort, nevertheless, remains dependant on the historical
evolutions of the judicial and political system and on its formal organization.
The French legal system has not been an exception to this rule.
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