Feasibility of Judges’ Citation to the Constitution in the Non-Implementation of Laws Contrary to It

Abstract

The Constitution, as the highest legal-political instrument of the country, must be immune from any kind of intervention, for which special institutions are usually formed or appointed; otherwise, the rights and freedoms of the people in the constitution will be abandoned and the existence of the constitution will be invalidated. In the Islamic Republic of Iran, the Guardian Council is responsible for the protection of the Constitution in the legislative phase, and all the enactments of the parliament become law after the approval of the council. The challenge that exists in this connection is whether the judges of the courts have the discretion, by insisting on the principle of the supremacy of the constitution and the need to cite to the valid law, as well as the constitutional review entity, not to implement the laws that they consider to be contrary to the constitution and refuse to implement them?; this research aims to analyze and respond to this issue using a descriptive-analytical approach. The findings show that although it is not possible to comment on the absolute rejection or acceptance of the judges' competence in this regard, in relation to the laws passed before the formation of the Guardian Council (both pre-revolutionary laws and laws approved by the Revolutionary Council) and the enactments that became law due to ending the legal deadline for the council’s comments, and also some enforceable legal norms that are not under the review of the Guardian Council, the courts can be given the authority not to implement them.

Keywords

• citation to the constitution
• review of laws
• judicial control
• constitutional review
• article 166