1. THE CONSTITUTION OF 1907

By “Constitution” is meant the Fundamental Law and its Supplement which were promulgated respectively on 8 January and 7 October 1907. As is well known, these documents, like many others in the region, were based on the Belgian Constitution of 1831.¹⁰⁵ The way and the time-sequence in which they were prepared are extremely revealing; they clearly show how the political and tactical considerations affected the technical and structural aspects of these laws.

Substantively, the Constitution represented the most radical departure, in both structure and content, not only from the age-old absolute monarchy in Iran but also from the constitutional doctrine of Shiism. Unlike the doctrine of the caliphate which had found at least some practical application from the Abbasid through the Ottoman Empires, the Shii theory of imamate and its derivative velayat-e faqih (rule by the faqih) had rarely found any concrete expression beyond the textbooks or polemics of the theology students.¹⁰⁷ Thus when the century-old campaign for reform reached its climax in 1906 it was the desire for the Western model of government which set the intellectual mood, and to this model the Shii constitutional theory had very little, if anything, to contribute.

But, as we said, these measures were concessions wrung gradually from the traditional sources of power, the ulama and the Shah's court. The most fundamental point in the 51-article Fundamental Law was that “The Majlis is the representative of all of the Iranian people and a medium of their participation in the economic and political affairs of their country.” (FL, art. 2) Following this principle, the Fundamental Law considered the Majlis as the only authority on making law, on allocation of the budget, on levying taxes, on granting concessions, on establishing companies, on assuming (foreign) loans, on ratifying treaties and on the approval of government programmes (FL, arts. 15–26). The rest of the Fundamental Law dealt with such matters as parliamentary immunity of the deputies, hearing of complaints from the public, initiation of laws to be enacted, the internal and procedural matters of the Majlis, and the establishment of the Senate as a subordinate body (FL, arts, 32–47). In all, the Fundamental Law was aimed at one single target: the curtailment of the power of the Shah and his government and the transfer of national decision-making to the Majlis as a representative of the people.¹⁰⁸

Although of tremendous significance, the Fundamental Law was only a first step. Under pressure from the government, provisions were made in it for the accountability of the ministers solely to the Shah (FL, art. 28), and for the creation of a senate half of whose members were to be appointed by the Shah (FL, art. 45). These were concessions which the revolutionaries had to give. Besides, the most fundamental questions concerning the structure of power, the rights of the citizens, etc., had yet to be faced.

These and many other questions were taken up on the Supplement, of whose 107 articles 102 were translated directly from the Belgian Constitution.¹⁰⁹ As such the Supplement best reflected the ideological conflict which characterized the whole constitutional movement and the Majlis which it created.

At the core of this conflict lay the tension between religion and Western-inspired secular nationalism. The Supplement began with a clear victory for the former, and hence its most important deviation from the Western model on which it was based. Whereas the Belgian Constitution had taken a completely liberal stand on religion and its relation to the state (BC, arts. 14–16), the Supplement took a completely opposite position: �?The official religion of Iran is Islam of the rightful Ithnaashariyyah rite which the Shah of Iran must always uphold and promote.” (S, art. 1) Furthermore the Majlis, whose very establishment was said to have been enhanced “... by the Attention of His Holiness, the (Hidden) Imam... should at no time legislate laws which disagree with the Sharia.” But how to implement this “eternal principle”? After a heated debate and controversy, it was finally agreed that from among a group of twenty mojtahids to be introduced by the ulama, the Majlis should select a committee of five, and these would have the final say, with veto power, on all legislation of the Majlis and the Senate.¹¹⁰

Except in the first Majlis, where the presence of a great many of the ulama, including two renowned mojtahids, among the deputies constituted a de facto implementation of this rule (cf. pp. Ill and n. 73) this principle was never heeded in the subsequent sessions of the Majlis.¹¹¹ It was even violated in the Supplement itself by granting “equal rights to all people of Iran” (S, art. 8; cf. BC, art. 6) which meant the Moslems and non-Moslems alike and which was contrary to the Sharia; that the qualifying phrase, “on governmental laws,” in the same article was only a face-saving device for the proponents of the Sharia is seen by the fact that this very issue was among the major points of conflict with the ulama which delayed the ratification of the Supplement for seven months and ended only after massive public support for the nationalists outside the Majlis (cf.

Following this, the Supplement lists a number of rights, directly borrowed from the Belgian Constitution, which “cannot be abridged without the special permission of the law.” These include the right to security; to immunity from summary arrest and punishment; to the judges assigned by law; to sanctity of domicile; to residence; to ownership of property (S, arts. 9–16; cf. BC, arts. 6–12); to learning, teaching and publication of what is not forbidden by or inimical to the religion; to peaceful assembly; and to secrecy of correspondence (S, arts. 18–23; cf. BC, arts. 17–22).

The anti-Sharia mood found an even clearer expression in the discussion of the nature and basis of political power and sovereignty. In sharp opposition to the imamate theory of Shiism it explicitly states that “All powers of the State stem from the people and shall be exercised in accordance with the provisions of the Constitution.” (S, art. 26; cf. BC, art. 25) Following this principle, monarchy is described as a “divine trust confided by the people to the person of the Shah;”¹¹² the Shah is accepted as the chief executive; but he is inviolable and his ministers are responsible to the Majlis individually and collectively; he has the right to initiate laws and his signature finalizes the acts of the parliament, but he cannot legislate. Legislation and interpretation of law are among the exclusive prerogatives of the parliament (S, arts. 26, 36, 44, 60–70; cf. BC, arts. 26–30, 89–90). The Shah cannot assume the responsibility of another state without the consent and approval of the parliament, nor can his relatives of first degree – sons, brothers and uncles – be appointed as ministers (S, arts. 43, 59; cf. BC, arts. 62, 87).

Although the adoption of these principles signified a measurable advance in the struggle against the age-old absolutism of the Shah and his government, the task was far from over. As we recall, a differentiation of the legislative and executive had been known and even experimented with since the middle of the nineteenth century.

Thus came to a climax the move which began in the early nineteenth century. Except for its secondary features, the whole legal structure of the Constitution and its key concepts are borrowed from the West: equality of all before the law, popular sovereignty, constitutionalism, the trichotomous model of government, and the independent secular judiciary.

In subsequent years, though political despotism made a full come-back, especially under Reza Shah, religious absolutism increasingly lost ground and made its most vivid reappearance after the 1978 revolution.