A Comparative Overview of the Iranian Constitutions of 1906-07 and 1979

Brill, Leiden, 2006 Iran and the Caucasus, 10.2

A COMPARATIVE OVERVIEW OF THE IRANIAN CONSTITUTIONS OF 1906-07 and 1979

DARIUSH BORBOR

Institute of Humanities, Tehran

Abstract

The history and the essential and important articles of the constitutional laws of Iran and its immediate neighbours are elucidated and compared. The article includes an analytical com-parison of the 1906-07 and 1979 Constitutions of Iran. A brief analytical synoptic overview of world constitutions is also presented in order to obtain a balanced view of the process of con-stitutionalism and popular suffrage for men and women.

In 1979, the Islamic Republic of Iran became the first country in the world to include a dec-laration for the preservation of the environment in its Constitution.

Having compared the 1906-7 Constitution of Iran with a good number of others, it is very evident that the transformation of an autocratic monarchy into a constitutional one was in itself a great leap forward, at a time, when most of the world still lived under dictatorship.

In Iran, a number of civil institutions have played their role for a whole century thanks to the 1906-07 Constitution, though far from perfect, nevertheless more or less accepted and functioning. These include a hundred years of direct parliamentary elections, and several years of presidential, municipal and other popular suffrage.

The propagation of the 1906-07 Constitutional Movement of Iran has been paramount; it had greatly influenced the awakening of many other peoples of the neighbouring and re-gional countries. The 1908 re-institution of parliament in the Ottoman Empire, the 1911 Chi-nese Revolution, and the 1917 Revolution in Tzarist Russia were undoubtedly influenced by the Constitutional Movement of Iran. A hundred years have passed since the ratification of the 1906 Con-stitution of Iran, the first attempt of its kind not only in the Middle East, but also for very many other countries of the world.

Neither the ideologies of the ensuing Pahlavi dynasty, nor the Is-lamic Republic were very conducive to this movement. There has been a new awakening of the importance of the occurrence this year worldwide, remembering, celebrating and discussing many still un-discovered facets of this significant happening with at least two im-portant international academic conferences,1 and a photographic exhibition in Tehran.2

1 At Oxford, organised by the Iran Heritage Foundation, the Oriental Institute of

the University of Oxford, and the Persian Cultural Foundation, 30th July to 2nd

DARIUSH BORBOR

264

Previous studies on the Constitutional Revolution of Iran have fo-cused mainly on the political and diplomatic aspects that sur-rounded the proceedings. The aim of this paper is to make a brief comparative study of constitutions with a special accent on the 1906-07 Constitution, as a turning point for the history of constitutional-ism in Iran and the region. CONSTITUTIONAL LAWS OF IRAN AND ITS IMMEDIATE NEIGHBOURS Most commonly, the term constitution refers to a set of rules and principles that define the nature and extent of government. Most constitutions3 seek to regulate the relationship between institutions of the state, in a basic sense the relationship between the executive, legislature and the judiciary, but also the relationship of the institu-tions within those branches. Most constitutions also attempt to de-fine the relationship between individuals and the state, and to es-tablish the broad rights of individual citizens. It is thus the most ba-sic law of an area from which all the other laws and rules are hierar-chically derived; in some instances it is in fact called “Basic Law.” Whereas every state claims to have a constitution, not every gov-ernment conducts itself in a consistently constitutional manner.

An elemental distinction between constitutional laws is codifica-tion versus lack of codification. A codified constitution is one that is contained in a single document, which is the single source of consti-tutional law in a state. The classic example of this is the constitution of the United States. An un-codified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten. The constitution of Australia is an example of a constitution in which constitutional law mainly derives from a single written document, but other written documents are also considered part of the constitution. The consti-

August 2006; at Washington D.C., organised by the Centre for Persian Studies of the University of Maryland, 21st to 24th September 2006. Certain aspects of this paper were discussed in both conferences.

2 Aptly exhibited at the Sāhabqarānieh Palace from where Muzafar ad-dīn Shah had signed the Constitution.

3 IMPORTANT NOTE: the opinions expressed in this paper are based purely on the contents and provisions of the constitutions, and not in the way they are used or abused. The Judicial Branches and the Court Systems are not included or compared in this study due to obvious difficulties associated with the subject, and the limita-tions of space.

A COMPARATIVE OVERVIEW OF THE IRANIAN CONSTITUTIONS

265

tution of the United Kingdom is an example of an un-codified consti-tution which consists of both written and unwritten sources and has no single written fundamental document.

Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty: fed-eral, unitary and confederated. A federal government will inevitably have a constitution that recognises the division of sovereignty be-tween the central and peripheral/provincial governments of the state. The Canadian constitution is illustrative of such a system, di-viding power between the federal and the provincial governments. A unitary constitution recognises that sovereignty resides only in the centre of the state. In the United Kingdom, the constitutional doc-trine of parliamentary sovereignty dictates that sovereignty is ulti-mately contained within the central government.

Confederated constitutions are rare, and there is often dispute to whether so-called confederated states are actually federal. In a con-federacy, sovereignty is located in the provincial governments, lim-ited power given to the central government. This is probably the most advanced system of government, as the people of each state have the maximum power over their own destiny.

Some national constitutions are a façade for authoritarian sources of power. While such documents may express respect for human rights or establish an independent judiciary, they may be ignored when the government feels threatened. An extreme example was the Constitution of the Soviet Union that on paper supported freedom of assembly or freedom of speech, but citizens who acted accordingly were summarily imprisoned. The example demonstrates that the protections and benefits of a constitution are provided less through its written terms, but more through deference by government and society to its principles.4 IRAN In the early days of the 20th century several factors coalesced to provide an impetus to create a constitution. The two major aims were to get rid of dictatorship by curbing the power of the king, and

4 Incidentally, this led to a famous joke by the Armenian Radio: “what is the differ-

ence between the constitutions of the USA and USSR? Both guarantee freedom of speech” – the Armenian Radio commentator replied: “in principle yes, but the Constitution of the USA also guarantees freedom after the speech”.

DARIUSH BORBOR

266

a deep-rooted desire to eradicate foreign intervention and pressure.5 The will of the nation was propagated by two main groups, the in-tellectuals and the enlightened clergy who succeeded in the final es-tablishment of the first Constitution of Iran in 1906-07.

This largely incomplete document of 51 articles, dealt with no other constitutional matter than the establishment and the func-tioning of a bicameral legislature. A single article at the end obli-gated the king to respect and uphold the legislature.6 Consequently, a Complementary Annex of 107 articles was added in 1907.

The combination of the two documents, which basically followed the Belgian constitution of 1831, was based on the concept of the constitutional monarchy with three independent branches, the execu-tive, the legislative, and the judiciary.7

The king became the head of the executive branch,8 appointed the Ṣadr-e a‘z�a m (Prime Minister) who in turn appointed the minis-ters. The prime minister and the ministers were subjected to vote of confidence from the elected National Assembly. The king became the commander in chief of the armed forces,9 and he was not deemed ac-countable.10

The legislative branch comprised of an elected Maǰles-e šawrā-ye mellī (National Consultative Assembly)11 and a partially elected and partially appointed Senā (Senate).12 Both assemblies were given the constitutional right of general supervision and control of all sectors of the government and society, excepting the king.13 Regional and city councils were to be formed by direct local elections.14

Shi‘ism became the state religion,15 and provided for the creation of an ecclesiastical committee, which was delegated to ensure that no legislation contradicted the norms set down by Islam.16 The Constitution instituted judicial tribunals for the redress of public

5 Mainly Great Britain and the Tzarist Russia. 6 Iran Constitution of 1906, article 51. 7 Iran Supplementary Constitution 1907, articles 27-28. 8 Ibid., article 27. 9 Ibid., article 50. 10 Ibid., article 44. 11 Iran Constitution of 1906, articles 1-42. 12 Consisting of 60 members, 30 appointed by the Shah and 30 by popular elec-

tion; Iran Constitution of 1906, articles 43-50. 13 Iran Supplementary Constitution 1907, article 33. 14 Ibid., article 90-93. 15 Iran Constitution 1906, article 1. 16 Ibid., articIle 2.


267

grievances, while judgment in all matters falling within the scope of the ecclesiastical law was vested in moǰāheds (mullahs) possessing the necessary qualifications”.17

All individuals, including Christians, Jews, and Zoroastrians were recognised as citizens and given equal rights before the law.18 All individuals (including foreigners) were safeguarded in respect to their lives, property, homes, and honour, from every kind of inter-ference.19 The authority and the legitimacy of the king was bestowed or vested by the will of the people.20 Further protection was offered to individual private ownership.21

Freedom of expression, assembly,22 press and publication was guarantied, except heretical books and matters harmful to the edicts of Islam.23 Censorship was prohibited.24 Women did not have the right of vote. The Constitution was entrenched in disallowing the suspension of the Constitution.25 Whatever the shortcomings, it established the framework for a democratic constitutional monar-chy.

In 1979, the current Constitution of the Islamic Republic of Iran was adopted by a nationwide referendum. The amendment of the Constitution in 1989, abolished the post of the Prime Minister, strengthened the position of the President, and bestowed further authority on the Velāyat-e faqīh (Supreme Leader). Originally, the Constitution had required the Velāyat-e faqīh to enjoy the support of “a decisive majority of the population”, as Imam Khomeini, for in-stance; if such a person was not available by consensus, the function would pass to a Leadership Council of three to five recognised faqīhs,26 which would constitute the Supreme Authority in replacement of the Supreme Leader. The Leadership Council was also eliminated in the amended Constitution.

17 Ibid., articles 27, 71-89. 18 Iran Supplementary Constitution 1907, article 8 ff. 19 Ibid., articles 6, 8, 9. 20 Ibid., article 35; the Arabic word vad ī‘a “deposit, trust” is used; articles 36, 37

and 38 were amended to replace the Qājār dynasty by the Pahlavī in 1925. 21 Ibid., articles 15-17. 22 Ibid., article 21. 23 Ibid., article 20. 24 Ibid., articles 22, 23. 25 Ibid., article 7. 26 Applied to a mullāh who has made a personal canonical contribution to [Is-

lamic] jurisprudence.

DARIUSH BORBOR

268

The popularly elected Assembly of Experts has the constitutional authority to appoint, supervise, and dismiss the Velāyat-e faqīh. The rights of the Supreme Leader and an ordinary citizen are the same before the law.27

The assets of the Supreme Leader, the President, the deputy-presidents, and ministers, as well as those of their spouses and chil-dren, are to be examined before and after their term of office.28

The Constitution stipulates three independent branches of gov-ernment, the executive, the legislative, and the judiciary.29 It stipulates that all affairs of the country be administered on the basis of public opinion expressed by means of elections, including the post of the President, the Assembly of Experts, the representatives of the Is-lamic Consultative Assembly, and the members of the Provincial, District, City and Town Councils, or by means of referenda in matters specified in other articles of the Constitution.30

The Supreme Leader appoints the Chief Justice, the head of the State Radio and Television networks, the Commander of Police, Armed Forces, and six of the twelve members of the Council of the Guardians.

The Council of the Guardians is created to examine the compati-bility of the legislation passed by the Consultative Assembly with the ordinances of Islam and the Constitution, and the supervision of the elections of the Assembly of Experts, the President, the Consultative Assembly, and the referenda.31 The members of the Council will in-clude, six learned religious men to be selected by the Supreme Leader, and six jurists to be proposed by the Chief Justice (who is also appointed by the Supreme Leader) and approved by the Consul-tative Assembly.32

The President is responsible for the implementation of the Consti-tution,33 while the Council of the Guardians is responsible for its adherence with the Constitution and the ordinances of Islam. Minis-

27 Iran Constitution 1979, article 107. 28 Ibid., article 142. 29 Ibid., article 59. 30 Ibid., article 6. 31 Ibid., article 99. The Council of the Guardians, quite contrary to the authority

bestowed on it by the Constitution, has made itself responsible for the filtering of the candidates’ “eligibility” in recent elections, even though this had not been done in the first few years after the Revolution.

32 Ibid., article 91. 33 Ibid., article 113.


269

ters are appointed by the President, subject to vote of confidence by the Consultative Assembly34 which has the right to examine and investigate any public matter.35

Provision is made for locally elected self governing councils at various levels, including provinces, districts, cities and towns.36 Al-though locally elected councils were foreseen in both the 1906-7 and 1979 Constitutions, they did not begin to function for the first time before 1999.

All the people of Iran, whatever their ethnicity or tribal grouping, enjoy equal constitutional rights.37 All citizens of the country, both men and women, equally enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in confor-mity with Islamic values.38 The dignity, life, property, rights, resi-dence, and occupation of the individual are inviolate, except in cases sanctioned by law.39 The benefits from social security with respect to retirement, unemployment, old age, disability, absence of a guard-ian, and benefits relating to being stranded, accidents, health serv-ices, and medical care and treatment, provided through insurance or other means, is accepted as a universal right for all citizens.40

The rights of non-Muslims are safeguarded in the following terms: “The government of the Islamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights”;41 “Zoroastrian, Jewish, and Christian Iranians are the only recognised relig-ious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education”.42

The rights of women in all respects must be upheld by the gov-ernment, in conformity with Islamic criteria, and the following goals must be accomplished: 1) create a favourable environment for the growth of woman’s personality and the restoration of their rights, both the material and intellectual; 2) the protection of mothers, par-

34 Ibid., article 133. 35 Ibid., article 76. 36 Ibid., article 100. 37 Ibid., article 19. 38 Ibid., article 20. 39 Ibid., article 22. 40 Ibid., article 29. 41 Ibid., article 14. 42 Ibid., article 13.

DARIUSH BORBOR

270

ticularly during pregnancy and child-rearing, and the protection of children without guardians; 3) the establishment of competent courts to protect and preserve the family; 4) the provision of special insurance for widows, aged women, and women without support; 5) the awarding of the guardianship of children to mothers,43 in order to protect the interests of the children.44

The investigation of the beliefs of individuals is forbidden, and no one may be molested or taken to task simply for holding a certain belief.45 The inspection of letters and the failure to deliver them, the recording and disclosure of telephone conversations, the disclosure of telegraphic and telex communications, censorship, or the wilful failure to transmit them, eavesdropping, and all forms of covert in-vestigation are forbidden, except as provided by law.46

Public gatherings and marches may be freely held, provided arms are not carried and that they are not detrimental to the fundamental principles of Islam.47 The right of assembly for societies, political parties or professional associations, as well as religious societies, whether Islamic or pertaining to one of the recognised religious mi-norities, is permitted provided they do not violate the principles of independence, freedom, national unity, the criteria of Islam, or the basis of the Islamic Republic. No one may be prevented from partici-pating in the aforementioned groups, or be compelled to participate in them.48

The proclamation of martial law is forbidden. In case of war or emergency conditions comparable to war, the government has the right to impose temporarily certain necessary restrictions, with the agreement of the Consultative Assembly. In no case can such restric-tions last for more than thirty days; should the need persist, new authorisation of the Consultative Assembly is mandatory.49

Both parties to a lawsuit have the right in all courts of law to se-lect an attorney, and if they are unable to do so, arrangements must be made to provide them with legal council.50

43 With the exception of proved incompetence. 44 Iran Constitution 1979, article 21. 45 Ibid., article 23. 46 Ibid., article 25. 47 Ibid., article 27. 48 Ibid., article 26. 49 Ibid., article 79. 50 Ibid., article 35.


271

All forms of torture for the purpose of extracting confession or acquiring information are forbidden. Compulsion of individuals to testify, confess, or take an oath is illegal; any testimony, confession, or oath obtained under duresse is devoid of value and credence. Violation of this article is liable to punishment in accordance with the law.51 All affronts to the dignity and repute of persons arrested, detained, imprisoned, or banished in accordance with the law, what-ever form they may take, are forbidden and liable to punishment.52

The preservation of the environment, the right of which belongs to the present, as well as the future generations, is regarded as a public duty in the Islamic Republic. Economic and other activities that inevitably involve pollution of the environment or cause irrepa-rable damage to it are therefore forbidden.53

The multi-party system, which is still in its initial stages, is be-ginning to take root. Since the 1906-07 Movement many minor par-ties of very limited support were set up, none of which, except the Communist Party, were of any consequence. The Ḥezb-e Jomhūrī-ye es-lāmī (Islamic Republic Party) was Iran’s [government supported] dominant political party until its dissolution in 1987. Iran had no worthwhile political parties until the Ḥezb-e kārgozārān-e sāzandegī (Party for the Promotion of Reconstruction), which was formed in 1994 to compete successfully in the fifth parliamentary elections, mainly out of executive body of the government close to the then-president Akbar Hashemi-Rafsanjani. After the election of Mo-hammad Khatami in 1997, more parties started to function, mostly of the reformist movement. This led to the incorporation and official activity of many other political parties, including hard-liners. Many of the political parties include a strong clerical participation or di-rection. The most important parties include: Jebhe-ye mošārekat-e Īrān-e eslāmī, Jāme‘e-ye eslāmī-e mohandesīn, Jāme‘e-ye rūḥānīyat-e mobā-rez, and Maǰma‘-e Rūḥānīyūn-e Mobārez. The most important and ac-tive political organisations, however, are several student associa-tions.

51 Ibid., article 38. 52 Ibid., article 39. 53 Ibid., article 50.

DARIUSH BORBOR

272

The Majlis-i Šuwrā-yi Millī (National Assembly) building (1906-1979), Tehran

AFGHANISTAN Politics in Afghanistan has historically consisted of power struggles, bloody coups and unstable transfers of power. The country has been governed by nearly every system of government over the past cen-tury, including monarchy, communist based republic, military junta, and Islamic theocracy. Afghanistan obtained independence from the United Kingdom in 1919.

Four years later, in 1923, the first Constitution of Afghanistan (Ni-ẓām-nāma-yiasāsī-i dawlat-i ‘ālīyah-i Afqānistān) was made. In the authoritarian kingdom without a parliament, the King selected and appointed the Prime Minister, the ministers, and chaired the Council of Ministers (cabinet).54 All ministers were solely responsible to His Majesty with regards to the general policy of the government and their individual responsibility and personal conduct.55 A rubber stamp assembly (darbār-i ‘ālī) of the King’s choice gathered every year to lis-ten to the report on the performance of the ministers.56 Half elected-half appointed advisory councils with no executive, legislative or su-pervisory power were anticipated for the capital and the provinces. The appointed members of the State Council were directly appointed by the King.57 Followers of other religions, such as Jews and Hindus, were entitled to full protection, provided they did not disturb public peace.58

54 Afghanistan Constitution 1923, articles 28, 25. 55 Ibid, article 31. 56 Ibid., article 27. 57 Ibid., articles 41, 43. 58 Ibid, article 2.


273

This was followed in 1964 by a constitutional monarchy, which stated that “the King is not accountable and shall be respected by all”.59 He also held the supreme command of the armed forces. The Šawrā (Parliament) consisted of two houses, the Wolesi Jirga (Popular House), and the Mešrano Jirga (House of Elders).60 The members of the Mešrano Jirga were nominated and elected as follows: a) one third of the members were appointed by the King, b) the remaining two thirds of the members were elected as follows: each provincial coun-cil elected one of its members to the Mešrano Jirga for a period of three years, and the residents of each province elected one person for a period of four years.61 The president of the Mešrano Jirga was ap-pointed by the King. The government was formed headed by a prime minister designated by the King and mandated for vote of confi-dence from the Wolesi Jirga.62

In 1973, Daud Khan led a coup that overthrew Zahir Shah. He de-clared Afghanistan a republic with himself as President. A short lived republican constitution was established in 1976 with a president, vice-president[s], a Melli Jirga (National Assembly),63 and the Loya Jirga, which was composed of the members of the Melli Jirga, the cen-tral council of the party, the government and the high council of the armed forces, the supreme court, five to eight representatives from each province, and thirty members appointed by the President.64 On April 27, 1978, however, he was killed in a coup that brought to power a communist government under Nūr Muḥammad Tarakī who was President and Prime Minister from 1978 to 1979. This was fol-lowed by the 1987 and 1990 Constitutions. In 1995 the central gov-ernment in Kabul had united a number of Sunni muǰāhiddīn guerrilla groups who had established a state, a parliament, and a draft consti-tution. In 1996, the ruling members of the government of Burhānud-dīn Rabbānī65 were replaced by members of the Islamic Ṭālibān Movement.

The latest Constitution of Afghanistan was approved by consen-sus in 2004 in a constitutional Loya Jirga (Grand Assembly). The cur-

59 Afghanistan Constitution 1964, articles 9, 15. 60 Ibid., article 42. 61 Ibid., article 45. 62 Ibid., article 89. 63 Afghanistan Constitution 1976, article 48ff. 64 Ibid, article 65ff. 65 He fought against Taliban rule, and served as President from 1992-1996 until

he was forced to leave Kabul because of the Taliban takeover of the city.

DARIUSH BORBOR

274

rent Constitution of Afghanistan, like that of Iraq, suffers from lack of legitimacy due to the reason that it was drawn up and approved while under foreign occupation. The Constitution calls for a strong elected president66 who is also the commander in chief of the armed forces; appoints two vice presidents, the ministers, the attorney general, the director of the central bank, and the justices of the Su-preme Court.67 The Constitution provides for a National Assembly of two houses, and it specifies individual rights of the kind found in many Western democratic constitutions. It declares the country as an Islamic Republic and prohibits laws that are contrary to the ten-ets of Islam, but it also promises that followers of other religions are free to exercise their faiths. It guarantees equal rights for women, requiring at least two female delegates per province. ARMENIA Armenia’s history has been a continuous struggle for independence from foreign occupation, annexation and rule. The 1978 Constitution of Armenia was a replica of the Soviet Union’s 1977 document, and remained in effect until independence from Soviet rule was finally achieved in 1991. The ratification of the Constitution of the inde-pendent Republic of Armenia was approved by a nationwide refer-endum in 1995. The elections of the President, the National Assembly and local self-governing bodies are held by direct suffrage,68 based on a multiparty system,69 the Prime Minister is appointed by the President. The President is authorised to appoint and remove the Prosecutor General upon the recommendation of the Prime Minis-ter,70 and may dissolve the National Assembly and designate special elections after consultations with the President of the National As-sembly and the Prime Minister.71 He is authorised to appoint72 the President and the judges of the Court of Appeals and its chambers, the Courts of Review, the Courts of First Instance and other courts, the deputy prosecutors general and prosecutors heading the organ-

66 Afghanistan Constitution 2004, chapter III. 67 With the approval of the Wolesi Jirga (National Assembly). 68 Armenia Constitution 1995, article 3. 69 Ibid., article 7. 70 Ibid, article 55, 9. 71 Ibid, article 55, 3. 72 In accordance with article 95 of the Constitution.


275

isational subdivisions of the office of the Prosecutor General.73 The administrative territorial units of the Republic of Armenia shall be the provinces and districts. Provinces shall include urban and rural districts.74 AZERBAIJAN The first steps for an Azerbaijan Constitution were taken in the year of 1918, which came to a dramatic halt with the 1920 annexation of the Soviet Union. In 1921, the first Constitution of the Azerbaijan So-viet Socialist Republic was adopted, followed in 1924 by the Constitu-tion of the Union of Soviet Socialist Republics, necessitating several changes in the previous document. In 1937, Azerbaijan adopted its second Constitution under USSR Constitution, which became known as the Stalin Constitution. This was followed by the third Constitution in 1978 all of these dictated by Soviet ideology. Like Armenia, the Constitution of the Republic of Azerbaijan was adopted in 1995. It provides for an elected President,75 a Prime Minister appointed by the President and approved by the National Assembly. The Legisla-tive power is vested in the unicameral Milli Mejlis (National Assem-bly),76 while major events are foreseen to be decided by referenda.77 Nationwide municipal elections are also foreseen. Religion shall be separated from the state, all the religions shall be equal by law, and the education shall be secular.78 IRAQ Modern Iraq has had a number of constitutions, beginning with a 1925 document, which established a constitutional monarchy.79 The King appointed the Prime Minister, and upon the recommendation of the latter appointed the ministers,80 civil officials, civil judges, qaḍis (religious judges), and the diplomatic representatives.81 The

73 Armenia Constitution 1995, article 55, 11. 74 Ibid, article 104. 75 Azerbaijan Constitution 1995, article 8. 76 Ibid., chapter 5. 77 Ibid., article 3. 78 Ibid., article 18. 79 Iraq Constitution 1925, Part 2. 80 Ibid., article 26.5. 81 Ibid., article 26.7.

DARIUSH BORBOR

276

Constitution provided for a Chamber of Deputies and a Senate.82 The Senate was composed of not more than 20 members, appointed by the King.83 The King became the commander-in-chief of the armed forces.84 He was not answerable (to anyone or any authority).85

In 1958, following a coup d’état led by Abdul Karīm Qāsim, the monarchy was overthrown, and a new constitution introduced for a republic. After Qāsim was killed in 1963, and the Ba‘ath party took power in a coup, another constitution was issued in 1968. A version of the same appeared in 1990, granting power to the Revolutionary Command Council, whose president automatically became President of the Republic. This Constitution was never ratified, and a constitu-tional referendum planned for the early 1990s never took place, due to the war. A referendum was held in 1995, to vote for Saddam Hussein as President.

The current Constitution, which was drafted by a constitutional committee, was approved by referendum in 2005. The legitimacy of the present Constitution, like that of Afghanistan, is very question-able, because it was drafted under foreign occupation in 2005 by members of the Iraqi Constitutional Committee to replace the Law of Administration for the State of Iraq for the Transitional Period (the “TAL”). The TAL was drafted between December 2003 and March 2004 by the Iraqi Governing Council, an appointed body that was se-lected by the Coalition Provisional Authority after the Iraq War and its occupation by the United States and the Coalition forces. With all the good intentions, which might have gone into it, it cannot be con-sidered as a valid Iraqi Constitution, as it has been prepared entirely under foreign occupation. It describes the state as a “democratic, federal, representative republic”.86

The Constitution divides the federal government into four branches: legislative, executive, judicial, and independent associations.87 The President is not directly elected by the people and his powers are mostly ceremonial or protocol in nature, his main function is to appoint the leader of the majority party in the Council of Represen-tatives to serve as Prime Minister. The latter has direct executive re-

82 Ibid., Part 3. 83 Ibid., article 26.6; 31. 84 Ibid., article 26.8. 85 Ibid., article 25. 86 Iraq Constitution 2005, article 1. 87 Ibid., chapter 3, part 2.


277

sponsibility for the general policy of the nation, is the commander-in-chief of the armed forces, and presides over the cabinet.88 Two legislative chambers are provided, the Council of Representatives that elects the President by a two-third majority, and the Central Council, which is delegated to examine bills related to provinces.89 PAKISTAN There have been several documents known as the Constitution of Pakistan (’Āīn-i Pākistan). The first major step in framing a constitu-tion was the passage by the Constituent Assembly in 1949, setting out the objectives, which defined the basic principles of the new state: “wherein the principles of democracy, freedom, equality, tolerance, and so-cial justice, as enunciated by Islam, shall be fully observed; [and] wherein adequate provision shall be made for the minorities freely to progress and practice their religions and develop their cultures”.

Seven years of debate, however, failed to produce agreement on fundamental issues, such as regional representation or the structure of a constitution. This impasse prompted the dismissal of the Con-stituent Assembly in 1954. The revived Constituent Assembly prom-ulgated Pakistan’s first indigenous Constitution in 1956 and reconsti-tuted itself as the national legislature―the Legislative Assem-bly―under the Constitution it adopted. Pakistan became an Islamic Republic. The Governor General was replaced by a President.

The 1973 Constitution provided for an elected parliamentary sys-tem with a President as the head of state, including an elected Prime Minister as the head of government. This Constitution represented a compromise consensus on three issues: the role of Islam; the sharing of power between the federal government and the provinces; and the division of responsibility between the President and the Prime Minister, with a greatly strengthened position for the latter. In order to allay fears of the smaller provinces concerning domination by Punjab, the Constitution established a bicameral legislature with a Senate, providing equal provincial representation, and a National Assembly, allocating seats according to population. Islam was de-clared the state religion of Pakistan. With regards to provincial rights the 1973 Constitution was in fact the most centralised of Paki-stan's various constitutions.

88 Ibid., chapter 2. 89 Ibid., chapter 3, part 1.

DARIUSH BORBOR

278

The Constitution of the Islamic Republic of Pakistan adopted in 1985 provides for a federal parliamentary system with a President as head of state and a popularly elected Prime Minister as head of gov-ernment. However, in 1988 the eighth amendment made Pakistan’s government a semi-presidential system. TURKMENISTAN Turkmenistan was initially established in 1921 as Turkmenskaya Oblast’ of the Turkestan ASSR. In 1925, it was transformed into Turk-men Socialist Republic. In 1991, it declared independence and was re-named the Republic of Turkmenistan. The much amended90 current Constitution was approved in 1992. The executive power in Turk-menistan is divided between the President with constitutional im-munity, the cabinet of ministers, ministries, and local self-govern-ment units. The Mejlis (Parliament) is the permanent legislative body, established by Article 62 of the Constitution. TURKEY The Ottoman Constitution of 1876 is considered the first comprehen-sive document of its kind in the Islamic world, except for a so-called Organic Law in Tunisia in 1861. The 1876 Constitution, however, was nothing more than the expression of the will of the ruler, who re-tained full executive power and to whom ministers were individually responsible. In legislation the Sultan was assisted by a two-chamber parliament, the lower house elected indirectly, and the upper house entirely nominated by the Sultan. Rights of the ruler and the ruled were set out, but the system established might best be described as attenuated autocracy. The final result of the Constitution was not of any significance, so great were the Sultan’s power that the Parlia-ment was dissolved in less than a year and the liberals were either exiled or put to death. It did not reconvene until 1908.

The period of the Ottoman Empire’s final dissolution began with the onset of the Second Constitution era (İkinci Meşrûtiyet Devri) 1908-1922. This era is dominated by the Committee of Union and Progress (İttihâd ve Terakkî Cemiyeti) and the Movement that would become known as the “Young Turks” (Jön Türkler). The so-called Young Turk Movement began in 1908 and spread throughout the Empire, re-

90 In 1995, 1997, 1998, 2000, 2001, 2002, 2003, and 2005.


279

sulting in the Sultan’s announcement of the restoration of the 1876 Constitution and the reconvening of the Parliament.

In 1920, a Grand National Assembly was elected to act both as a constitutional convention and as an acting parliament, following the de-facto collapse of the Ottoman Empire in the aftermath of the First World War.

A young energetic intellectual Mustafa Kemal was the major driving force behind the preparation of a new constitution that de-rived its sovereignty from the will of the nation and not from the Sultan. This relatively short text comprised of 23 articles, the first nine articles laying out the principles upon which the state would be founded. It delegated the executive and legislative prerogatives to “the only true delegate of the sovereignty of the Nation” or the National Assembly that was to be elected by direct popular vote.91

After the proclamation of a Republic on October 29, 1923, the ex-ecutive powers were to be exercised by the President and the Coun-cil of Ministers on behalf of the National Assembly. Thus the first Republican Constitution (Teşkilât-ı Esasiye Kanunu, or Türk Anayasası) was ratified in 1924 and remained in force until the adoption of a new constitution in 1961.

Mustafa Kemal, titled later as Atatürk (Father of Turks) was a sol-dier, statesman, and reformer who became the founder and First President (1923–38) of the Republic of Turkey. One of the prominent figures of the 20th century, Atatürk rescued the surviving Turkish remnant of the defeated Ottoman Empire at the end of World War I. He galvanised his people against invading Greek forces who sought to impose the Allied will upon the war-weary Turks and repulsed ag-gression by British, French, and Italian troops. Through these strug-gles, he founded the modern Republic of Turkey, for which he is still revered by the Turks.

Consequently, the system of Caliphate,92 which went back to the early 16th century, was finally abolished in 1924, followed by the dismantling of the religious schools and the abolishment of the re-ligious courts. In 1926, the Swiss civil code, the Italian penal code, and the German commercial code were adopted wholesale. In 1928, Latin alphabet replaced the Arabic script. Women obtained the right of vote and election in 1934. As a result, women’s emancipation was

91 Modern Turkey has had four constitutions, the 1921, 1924, 1961, and 1982. 92 Ottoman Sultans had laid claim to the title of “Caliph of the Muslims”.

DARIUSH BORBOR

280

strengthened by the abolition of polygamy, marriage was made a civil contract, and divorce was recognised as a civil action.

The 1961 Constitution fully separated the judiciary, the executive and the legislative branches. It introduced an elected bicameral par-liament; the National Assembly consisted of 450 deputies and the Senate 150 members. Additionally the Senate would include 15 members appointed by the President.

A new constitution, modelled on the French Constitution of 1958, was approved by referendum in 1982. It provided for a strong Presi-dent who appointed the Prime Minister and senior judges and could dismiss parliament and declare a state of emergency. A unicameral parliament replaced the bicameral system of 1961. This Constitution was amended in 1987 and 1995. The 1995 amendments abolished about 20 articles and the preamble that stated the people’s will to accept military rule.

Executive power is divided between the President and the Prime Minister. The President who is elected by the Büyük Millet Meclisi (Grand National Assembly) holds a symbolic role as head of state, but has considerable powers, notably calling or dissolving parliament, approving the appointment of the Prime Minister, returning legisla-tion to parliament for reconsideration, referring laws to the consti-tutional court, and submitting proposed constitutional changes to referendum. The Prime Minister, elected by the parliament, selects the ministers (subject to parliamentary approval) and is responsible, along with the cabinet—the council of ministers—for carrying out government policy. Cabinet actions may be referred to a constitu-tional court for a ruling on their legality.

The main legislative body is an elected Grand National Assembly, the members being chosen by a modified system of proportional representation based on political parties. Extremist parties of both left and right are banned, as are any parties founded on an overtly religious basis. Freedom of religion is guaranteed, provided that the exercise of this right does not threaten the “indivisible integrity of the state”.93 SYNOPTIC OVERVIEW OF WORLD CONSTITUTIONS Historically, the ancient East and Africa, namely Iran and Egypt, were pre-eminent in the affairs of the state, and emancipation of

93 Turkey Constitution 1982, article 24.


281

women, and in their active participation in responsible posts of gov-ernment. In the middle ages, Queen Amina of Nigeria (1560-1610) and Queen Mbande Nzinga (1582-1663) of ancient Angola compete in time with the oldest of European women rulers. Even in modern times Asian and African elected women presidents and prime minis-ters lead the list.

The modern student of constitutions and institutions of govern-ment confronts an endless change. In many parts of the world, in countries as different as France, Pakistan, Argentina, and Tanzania, there have been continuing experiments with new constitutions. All systems, moreover, even without formal constitutional change, un-dergo a continual process of adjustment and mutation as their insti-tutional arrangements respond to and reflect changes in the social order and the balance of political forces.

Few countries in the modern world have on-going constitutional protocols that are more than a century old. Great Britain and the United States of America are almost alone among contemporary na-tion-states in possessing ongoing constitutional arrangements that predate the 20th century.

The adoption of new constitutions is also a major aspect of politi-cal change in almost all of the states of Eastern Europe and in the successor states of the Soviet Union. This is the case, such as Ger-many, Italy, and Japan that were defeated in World War II, and Spain, China, and Iran that have experienced civil war or revolutions in the course of the century. The colonies of the British Empire, including Australia, Canada, India, South Africa and others, achieved inde-pendence in the 20th century.

In 1945, there existed only four independent states in Af-rica―Ethiopia, Liberia, Egypt, and the Union of South Africa. The at-tempts for freedom of the Africans from colonisation started in 1960 when seventeen states achieved independence. This rapid transfor-mation of the political structure of Africa from colonial dependence to independence led to the development of a wide variety in the types of governments and political systems. These ranged from monarchies to new republics, from oligarchies to fledging democra-cies.

With the enactment of apartheid laws, which systematically de-nied equality of the African and other non-Europeans in 1948, racial discrimination was institutionalised. Race laws touched every aspect of social life, including a prohibition of marriage between non-

DARIUSH BORBOR

282

whites and whites, and the sanctioning of “white-only” jobs. In 1950, the Population Registration Act required that all South Africans be racially classified into one of three categories: white, black (African), or coloured (of mixed decent). It was finally effectively demolished as late as 1993.

Although the earliest constitutions of South America appeared in Venezuela, Chile, and New Granada as early as 1811–12, written con-stitutions were not, however, sufficient to enforce order in the new countries of the region. Particularly in the 1825–50 period, Latin America experienced a high degree of political instability. National governments changed hands rapidly in most areas, which only pro-longed the weakness and ineffectiveness of the emerging political systems. In Mexico, to take but one Latin American example, the years 1825–55 saw 48 turnovers in the national executive. Neither those in power nor those seeking office evinced consistent respect for the often idealistic provisions of constitutions.

The first decades of the second half of the 19th century repre-sented the beginnings of a fundamental shift in the still-young na-tions of Latin America. For much of the 19th century Britain was the predominant power in the region, followed by the United States, France, and Germany. By the end of the 1870–1910 period the United States managed to supplant Britain. Brazil, the biggest and the most important federal republic, has had universal suffrage since 1934. In 1988 Brazil promulgated a new constitution―the eighth since the country’s independence in 1822. In South America, hopes for a new and stronger government only rarely centred on the idea of monar-chy.94

The Southeast Asian countries95 include the nine independent states of the Union of Burma/Myanma, the Kingdom of Thailand (Siam), the Federation of Malaysia, the Kingdom of Cambodia, Lao People’s Democratic Republic, the Socialist Republic of Vietnam, the Republic of Philippines, and the Republic of Indonesia. The British dependencies of the Republic of Singapore, the colonies of Sarawak and North Borneo, and the Sultanate of Brunei, as well as the Portu-

94 Leaders in Argentina and Chile discussed the possibility of introducing a constitutional monarchy with a European king at its head. Mexico had emperors, first with Iturbide and then in 1864–67 with the Austrian Emperor Francis Joseph’s brother Maximilian, and Brazil enjoyed relative stability in a constitutional monar-chy that lasted from independence until 1889. Still, such initiatives were temporary and exceptional.

95 Known in the past mainly as Indies or the East Indies.


283

guese overseas province of Timor also are included. With the excep-tion of Thailand, which was never a colony, all the independent states gained their sovereignty from diverse European colonialists after 1945, followed by a long period of instability.

Although in most countries of Western Europe, North America, and Iran adult male suffrage was in force by 1920, women suffrage was not ensured until later: limited municipal suffrage in Italy, 1925; in Uruguay, 1934; in Great Britain, 1928; in El Salvador, 1939; in Cuba, 1940; in France, 1944; in Belgium, 1949; in Iran, 1963; and in Switzer-land, 1971.

The years 1950-1990 constituted a wave of elections of Asian women to important governmental positions. Vijaya Lakshmi Nehru Pandit, of India, became the first female President of the United Na-tions General Assembly in 1953; Sirimavo Bandaranaike, of Sri Lanka, became the world’s first elected woman Prime Minster in 1960; In-dira Ghandhi, became the first woman Prime Minister of India, in 1966; Golda Meir, became the first woman Prime Minister of Israel, in 1969; Isabel Martinez Perón, of Argentina, became the first woman President of the world by consensus in 1974; Elizabeth Domitien, of Central African Republic, became the first woman Prime Minister of Africa in 1975; Margaret Thatcher, became the first woman Prime Minister of Great Britain in 1979; Simone Veil, of France, became the first woman President of the European Parliament in 1979; Benazir Bhutto, became the first woman Prime Minister of Pakistan in 1988. The second wave of elected women presidents or prime ministers, mainly in Europe and the Americas began in the 1990s.

The 20th century has also seen the demise of most of the heredi-tary monarchies of the non-Western world. Thrones have toppled in Turkey, China, Iran, in most of the Arab countries, in the principates of India, in the tribal kingdoms of Africa, and in several countries of Southeast Asia.

In 50 years, the number of sovereign states with a parliament has increased seven-fold. The percentage of women members of parlia-ments world-wide has increased four-fold.96

96 “Men and Women in Politics: Democracy Still in the Making”, Inter-Parliamen-

tary Union Study, No. 28, 1997.

DARIUSH BORBOR

284

Islamic Consultative Assembly, Tehran, 2006

CONCLUSION Having compared the 1906-07 Constitution of Iran with a good num-ber of others, it is very evident that the transformation of an auto-cratic monarchy into a constitutional one was in itself a great leap forward, at a time, when most of the world still lived under dictator-ship.

Furthermore, the 1906-07 Movement must not be considered in isolation, and must not be judged as a failure, because of certain shortcomings. If we accept the fact that the path to democracy is slow and step by step, then we can consider some of the relatively advanced articles of the 1979 Constitution in the evolutionary proc-ess of the 1906-07 Constitution as progress in the right direction.

Perhaps the greatest weakness of the 1906-07 Constitution was the non-incorporation of the millennia old system of the confeder-ated kingdom.97

Although the non-granting of the rights of vote and other rights to women is regrettable, judging by the period of the event this was understandable as women’s rights were hardly recognised even in the more politically advanced countries of the world.

97 We admit that the adoption of a central government had certain advantages at

the time, but it also had its disadvantages, in the meagre participation of the pro-vincial population in decision making.


285

Another failure generally associated with the 1906-07 Constitu-tion is the fact that, although the general substance of the Constitu-tion was secular, it did not reconcile certain elements of conflict be-tween religion and secularism.98

The simple compilation of a constitution is not the means to the end, but it requires the parallel institutions to go with it. Then again, these institutions must function for a reasonable period of time, on the one hand, in order to put right their weak points, and on the other hand for the population to get used to and broadly accept their functioning.

In Iran, a number of civil institutions have played their role for a whole century thanks to the 1906-07 Constitution, though far from perfect, nevertheless more or less accepted and functioning. These include a hundred years of direct parliamentary elections, and sev-eral years of presidential, municipal and other popular suffrage.

Some of the important matters, which were not taken care of in the 1906-07 Constitution, either due to neglect or due to the fact that it was still too early for them to be incorporated, were enacted in 1979, and they include the following: the acceptance that all affairs of the country be administered on the basis of public opinion ex-pressed by means of direct popular elections, including the post of the President, the members of the Assembly of Experts, the repre-sentatives of the Islamic Consultative Assembly, and the members of the Provincial, District, City and Town Councils, or by means of ref-erenda in matters specified in other articles of the Constitution; the President is mandated for the implementation of the Constitution; provisions are made for the establishment of equal constitutional rights for all the people of Iran; the protection of the dignity, life and property; the rights of residence, and occupation of the individual are deemed as inviolate; the rights of non-Muslims are safeguarded; the rights of women in all respects must be upheld; the investigation of the beliefs of individuals is forbidden, and no one may be mo-lested or taken to task simply for holding a certain belief; censorship is strictly forbidden, including eavesdropping, and all forms of cov-ert investigation; the right of assembly for individuals, societies, po-litical parties or professional and religious associations is granted; the proclamation of martial law is forbidden; both parties to a law-suit have the right in all courts of law to select an attorney; all forms

98 Janet Afary, “Civil Liberties and the Making of Iran’s First Constitution”, Com-

parative Studies of South Asia, Africa and the Middle East, 25:2 (2005): 341-359.

DARIUSH BORBOR

286

of torture for the purpose of extracting confession or acquiring in-formation are forbidden. Compulsion of individuals to testify, con-fess, or take an oath is illegal; all affronts to the dignity and repute of persons arrested, detained, imprisoned, whatever form they may take, are forbidden and liable to punishment.

The preservation of the environment, the right of which belongs to the present, as well as the future generations, is regarded as a public duty in the Islamic Republic of Iran. At the time of Khatami presidency, a woman Vice-President was responsible for the enact-ment of the provisions of the Constitution on environmental issues.

The propagation of the 1906-07 Constitutional Movement of Iran has been paramount; it had greatly influenced the awakening of many other peoples of the neighbouring and regional countries. The 1908 re-institution of parliament in the Ottoman Empire, the 1911 Chinese Revolution, and the 1917 Revolution in Tzarist Russia were undoubtedly influenced by the Constitutional Movement of Iran.

A Comparative Overview of the Iranian Constitutions of 1906-07 and 1979

Documents

Transcript of A Comparative Overview of the Iranian Constitutions of 1906-07 and 1979