Historijski pogledi (May 2021)
Transformacija države i prava u Iranu nakon Iranske revolucije 1979. godine // Transformation of the State and Law in Iran after the Iranian Revolutionin 1979
Abstract
With the overthrow of the regime of Reza Pahlavi in 1979, the Iranian revolution ended the existence of the 2,500-year-old Persian Empire and built the Islamic Republic of Iran on its foundations. The revolution was the product of three independent social structures that merged at one point. One was the structure of constitutionalism that grew out of a century-long struggle for democracy supported by modernists; the second was Islamism as a movement to set Sharia law as the primary law supported by rural elements in society in response to Western urban elites and accepted by merchants; and the third is the nationalist structure, driven by rage fueled by Iran's long subordination to European powers. The basic principle of the Islamic Republic of Iran, proclaimed by the new constitution from 1979, is the positioning of God as the supreme bearer of people's sovereignty and people who are only marginal representatives of his power on Earth. Ayatollah Homenini, the supreme leader of the Islamic Revolution and the Iranian state, in this regard created a thesis about the Islamic State as a political representation, created on the basis of the people's will, in order to enforce God's laws. In practice, such system meant setting up Sharia (religious) laws as the only source of law in regulating social, legal and other relations within the community. A dichotomy has been created in the management of the state, so there are two groups of authorities. The first, the conciliar, consists of the Supreme leader, the Council of Guardians (Shora-ye Negahban-e Qanun-e assassi), the Council of Experts (Majles-e Khobragan Rahbari) and the Judgment Council. The task of these councils is to oversee the activities of all levels of government in order to preserve the unity, sovereignty and integrity of the Iranian political system. The conciliar government supervises and advises the republican part of the government, ie. its legislative, executive and judicial aspects. In addition to conciliar government, there is a republican government that creates laws and political decisions in accordance with religious teachings and under the supervision of theocratic political institutions. All laws and court decisions must be based on the principles of the Qur'an, and their proper interpretation requires an understanding of religious principles. On the basis of the constitution, a special High Judicial Council was established, which amended the pre-revolutionary laws (criminal, commercial, civil and procedural), thus creating the so-called “Transitional law”. The biggest changes affected the area of criminal law, where the principle of talion revenge was introduced (“an eye for an eye, a tooth for a tooth”) and the strict punishment of extramarital relations and same-sex relationships. In the domain of marital and family law, a man is given a number of rights, thus putting the woman, as a marital partner, in a more unequal position. Husbands were facilitated in divorce, temporary marriages with more than one woman were allowed, while on the other hand women were allowed the right to divorce only if it was explicitly allowed by her husband during the marriage. The revolution also introduced new sources in the regulation of legal relations. Thus, by an order of the Supreme Judicial Council of 23 August 1982, judges were ordered to use direct authoritative Islamic texts or sources on which to base their judgments in resolving disputes. Judges are required by this Order to address the Council of Guardians of the Constitution if they cannot determine with certainty whether a regulation is in accordance with Sharia law or not. If the judge does not know which law to apply, he must contact the Office of Ayatollah Khomeini for further instructions. In addition to the internal one, the revolution caused radical changes in the foreign policy field, positioning Iran as an important participant in numerous international processes at the regional and global level.
