How Can We Change the Constitution
The sixth issue of Gozaar focuses on the Constitution and rule of law in Iran. We posed the following questions to Mohsen Sazegara, Mehrdad Mashayekhi, and Hormoz Hekmat:
• What possible and/or probable means exist for changing or amending the of the Islamic Republic's Constitution?
• Is it necessary (and possible) to change the Constitution through the legal mechanisms outlined in the Constitution itself?
• Is a public referendum an appropriate way to bring about constitutional reform?
• What solution(s) would you offer?
Mr. Mashayekhi's answers appear below:
With the election of Mahmoud Ahmadinejad in June 2005, the internal configuration of the Islamic regime experienced drastic changes when the balance of power was tipped in favor of neo-fundamentalists, traditional conservatives, and clerics advocating for the Velayat-e faqih. From the perspective of this faction of the Islamic Republic regime, the document that is called the Constitution of the Islamic Republic is the foundation of a truly Islamic state and an ideal society. In their view, not only is this document the surefire solution to the main problems in society, which are supposedly the remnants of the Pahlavi era, it is also a cure for the social, cultural, moral, and political malaises and deficiencies of human society in general. From the point of view of this ruling faction, the topic of “changing the Constitution” is irrelevant and reflects a conspiracy by the enemies of the Islamic Revolution.
Since the beginning of the revolution, the authoritarian faction has adopted an ultra-conservative position and has consistently rejected certain western values and institutions such as “national governance,” “republic,” the “Consultative assembly,” and “referendum.” This is despite that these values are articulated in the Constitution. According to this extremist faction, such values undermine Sharia law. In their view, if the Constitution is to improve in any way, this improvement should transpire only in the form of purging “alien concepts” from it.
The other Islamist factions within the system, such as the reformists, the moderate pragmatists (in economic and cultural respects), and the traditional clerics who are against the Velayat-e Fagih and are now pushed to the margins of power, all defend certain changes within the Constitution. Undoubtedly, the most pressing concern of this faction is the role of the Velayat-e Fagih and the extent of the powers it bestows on the Leader. In the place of the absolute rule of the Islamic jurist, the reformists and pragmatists propose various modified forms and alternatives that include the transformation of the institution of the Velayat-e Fagih into a consultative assembly, subjected to election and with term limits and limited powers.
Although these modifications will require changes in the Constitution, the reformists and pragmatists have rarely employed the phrase “change of the Constitution” in their political language directed to the fundamentalist faction. These forces have never been in a position that could affect a radical change in the structure of power. The progressive reformist faction of the regime, which is worried about current problems and political conditions and the strategic alliance of Khamenei with military and security forces, still hopes to curb the powers of the Velayat-e Fagih. The attempts of the reformists to achieve this goal have assumed two forms. The first is the promotion and spread of the discourse of reformism in society, a strategy that should eventually lead to the assertion of “the element of republic” and the ideas of democracy and rule of law in the Constitution. The second is connected to the prevalence and increase of reformists and pragmatists in elective institutions such as the presidency, the Islamic Consultative Assembly, and the Assembly of Experts, an action that will shift the balance of power within the regime. The next logical question is why, in the eight years of Khatami’s reform era which created a proper “political opportunity” for change, such alternatives have failed to become institutionalized. One could even draw a contrary conclusion by arguing that the “element of republic” lost its momentum during the reform era.
For most democratic and secular opponents of the Islamic Republic, the current constitution is, at best, a collection of contradictory and unstable ideals that derives its legitimacy from two, often contradicting, concepts of “people” and “God.” What these concepts embody cannot actively coexist in the long term. That is why this contradiction has been suppressed today to the disadvantage of “people.” Asghar Shirazi, an expert on the Iranian Constitution said, “The process of eliminating [democratic elements in the Constitution] took place during the practical management of government, especially through the concentration of power in the hands of the Supreme Leader, the weakening of elective institutions, the suppression of basic democratic rights, and taking of the concept of the Velayat-e Fagih to its logical conclusion.” (1)
Perhaps the following formula could better describe the Constitution as a document that, either in a straightforward fashion, through vague laws, or by means of the loopholes that are necessary to the survival of the Velayat-e Fagih, has institutionalized discrimination and inequality among various social groups. The discriminatory quality of the Constitution has privileged men over women, the Shiite majority over other religious minorities, Muslims over secularists and alternative thinkers, and the central government over ethnic minorities.
Even in cases in which the Constitution describes the democratic rights of the citizens, various loopholes are provided for the legal and supra-legal violation of these rights. Accordingly, key governmental institutions, such as the Velayat-e Fagih and the Office of Leadership, the Council of Guardians, the Assembly of Experts, the Revolutionary Guards, Ministry of Intelligence, Ministry of Interior, parallel security organizations, the National Security Council, the judiciary branch, and other unofficial institutions are free to violate the rights of Iranian citizens. As an example, Article 28 of the Constitution asserts that “the formation of parties, societies, political or professional associations, as well as religious associations, whether Islamic or pertaining to one of the recognized religious minorities, is permitted provided they do not violate the principles of independence, freedom [and] national unity.” But, in practice, the secular and alternative- thinking political groups, even moderate Islamist parties which have declared their loyalty to the Velayat-e Fagih, have never received permission for official public activity from the Ministry of Interior.
Therefore, there is no doubt that the Constitution of the Islamic Republic is the major obstacle to the establishment of “national governance” and the democratization of Iranian society. The only way out of this situation is to wholly transform the Constitution in its entirety. But how? And is this the main question that the system’s political opponents should focus on?
Different Approaches to the Constitution
Changing the System from Within
In 1989 the Council for Revision of the Constitution was formed by order of Khomeini to study the succession to Leadership and define the attributes of the Supreme Leader in the Constitution. From the very beginning, this council was based on the principle of “appointment” because all of its members were handpicked by Khomeini. This council then approved a law according to which 50 of its 66 members were assigned to their position by “appointment.” This group included the members of the Council of Guardians, the permanent members of the Nation’s Exigency Council, three representatives from the Council of Ministers, three representatives from the judiciary branch, and three representatives who were university professors. The other 16 remaining members were elected by the people, but not in direct manner. According to Article 77 of the Constitution, the Council for Revision of the Constitution was prohibited from approving new laws that would doubt and question the Islamic attributes of the government. The Constitution also emphasized that, after the approval of new laws by the Council for Revision of the Constitution, people should vote in a referendum to ratify them.
Given this framework, it seems impossible to imagine that the “structural” changes demanded by the democratic and secular opponents of the system will ever happen. Among these demands are free elections, freedom of opposition parties, the elimination of the institutions of the Velayat-e Fagih, the Council of Guardians and the Assembly of Experts, freedom for women, and the transformation of the Islamic Republic into a secular republic. Of course, all these demands are hopelessly unrealistic within the parameters of the current Constitution, especially when the Council for Revision of the Constitution is only a means by which the ruling faction can brush aside “inappropriate” laws.
Changing the Constitution through a Democratic Referendum
In autumn 2004, some political activists demanded a referendum to change the Constitution. This idea had already been suggested a few times by different politicians both inside and outside Iran. In his writing and interviews, Mohsen Sazegara on different occasions tried to provide the necessary political and theoretical justifications for what gradually became known as the “movement for referendum.” He believed that a referendum would include five stages: posing the problem; spreading the idea of referendum; organizing people around this idea; civil resistance and disobedience; and finally, holding the referendum to determine whether people would reject or reaffirm the existing Constitution.
In an article titled “The Critique of Referendum from the Perspective of Civil Society” (the Internet site of Iran Emrouz, January 27, 2004), I accused the referendum of being subjective and simplistic. It was simplistic because it assumed that a single idea would shape all stages of the political movement until the final change. The approach of this view to Iranian society was also simplistic because it regarded this society as a “coherent and homogenous entity that could be mobilized around the rather simple idea of referendum.”
This idea was also subjective because those who defend a “referendum” would offer a thorough analysis of the objective conditions of the Iranian society, and these defenders were not clear either about the data and facts on which they had established their theory. At the end of my critique, I pointed out that the “slogan of referendum can, of course, play a positive role; but only at the end of a democratic process, and after certain necessary preconditions, can the issue of transition from the current system assume priority. However, the plan of referendum deals with all these issues in a topsy-turvy manner as it becomes both the starting point of this process and its ultimate destination.”
The Formation of Iran’s “Rainbow Civil Movement” and the Transformation of Discriminatory Structures
As previously mentioned, the referendum’s emphasis on the “mobilization of masses” against the system and the Constitution is one of its weak points. I object to this view because this plan reduces the demands and interests of different social groups within Iranian society. I have called these groups, which demand a referendum on the Constitution, the “Rainbow Civil Movement.” This merely translates into voting for the rejection or acceptance of the Islamic Republic and the creation of the future system by people. From one perspective, this would be a repetition of the paralyzing populism of the 1979 revolution that had mobilized the masses around the single slogan of “Down with the Shah,” a slogan that Khomeini had described as the essence of a “unity of vision.” The question, however, lingers as to how we can mobilize the “Rainbow Civil Movement” of the Iranian society between now and when the referendum takes place.
As long as women, students, youths, workers, private business owners, ethnic minorities, and the middle classes continue to remain engrossed in their own isolated struggles and do not engage in “social and political movements,” the slogan of referendum will not lead to a strong, permanent democracy. Within this framework, certain issues such as current discriminatory laws—in relation to women, for example—will remain untouched. Women’s rights movements emerge after long social and political struggles in which they become familiar with its short-term and strategic political demands.
The question of “referendum on the Constitution” should not be the central issue for democratic and secular opponents of the Islamic Republic. If a broad-based democratic and civil movement is formed in Iran, the balance of power in society will completely shift. This shift will probably affect the balance of power in the power structures within the regime. In that case, the slogans of “free elections” and the “change of the Constitution,” depending on the circumstances, could assume priority. The final form (and degree of non-violence) of these structural changes depends on the growth and maturity of an organized “rainbow civil movement,” the reaction of government’s forces, and the sufficient support of the international community.
Today, the energy from political and civil rights activists should be directed toward shaping a civil movement that aligns itself with democratic political groups and human rights organizations.
The question is then how do Iranians organize a civil movement in an environment of political oppression. The short answer to this question is: holding a referendum in the present environment has the same (or less) chance of success as the mobilization of a civic movement.
1. Asghar Shirazi, The Constitution of Iran, p.294