Can a Zoroastrian be a representative of Muslims in Iran?

Majlis, the Iranian Parliament, has five separate reserved seats for religious minorities out of a total of 270 seats. Iranian Christians have three of these reserved seats, while Zoroastrians and Jews have one each.  Sunni Muslims are not considered a religious minority and they can run for all seats of the Majlis. Non-Muslims cannot run for the general seats in the Majlis as they do not believe in the ideology (Islam or Shiite Islam) of the Iranian state. High officials of the state have to be Muslim.

Source: Radio Farda

However, non-Muslims have participated in elections at the local level and been elected to the general seats (i.e. seats not reserved for minorities). One such election is now causing controversy in Iran as the conservative judiciary and moderate politicians fight to prevail. An excerpt from an article on the controversy is given below:

The election of Sepanta Niknam, a Zoroastrian, as a city council member in the central Iranian town of Yazd has become the topic of hot debate on the country’s political stage. While the Guardian Council says religious minorities cannot be representatives of Muslim-majority constituencies, the administration of President Hassan Rouhani and the parliament think otherwise.

It should be noted that Niknam has already served one full term as city councilor in Yazd from 2013-2017. However, following his re-election in the May 19 municipal polls, a defeated conservative candidate filed a complaint on the grounds of Niknam's religion, arguing that it was against Iran's constitution for a member of a religious minority to make decisions on behalf of the whole population of a Muslim-majority city. The complaint prompted the Court of Administrative Justice to issue an order suspending Niknam’s membership to the city council, basing its decision on an earlier letter by Ayatollah Ahmad Jannati, the ultra-conservative head of the Guardian Council, which is the clerical body that vets candidates for elections.

So where did the story begin? On April 15, about one month before Iran’s local and presidential elections, Jannati issued a directive demanding that non-Muslims be disqualified from running in the then-upcoming city and village council elections in localities where most of the population are Muslims. His order was met with different reactions from Iran’s political groups, with many voicing opposition to such a measure.
However, since city council elections — contrary to presidential and parliamentary polls — are not supervised by the Guardian Council and a parliamentary delegation oversees the vetting of the candidates for these elections, Jannati’s directive was never implemented. Thus, many religious minorities participated in the May 19 municipal vote and won, including Niknam.

A few months later, on Oct. 9, Yazd City Council Chairman Gholamali Sefid said he had been ordered by the governor of Yazd to suspend Niknam’s membership to the city council in accordance with a ruling by the Court of Administrative Justice. However, Sefid announced his refusal to implement the order two days later, on Oct. 11, and insisted that he would resign from his post if the suspension was not revoked.
Reformists strongly criticized the Guardian Council decision, calling it illegal. Many political figures asked that parliament step in and revoke Jannati’s order. Even parliamentary speaker Ali Larijani, himself a Principlist, opposed the decision.

In a meeting with Yazd city councilors on Oct. 18, Larijani said, “I said from the start that we do not approve of this method. In my talks with Ayatollah [Ahmad] Jannati, the honorable secretary of the Guardian Council, I emphasized that local councils should be handled according to the law. … The Court of Administrative Justice getting involved in the matter has not been a timely move either, and I mentioned this point to the judiciary as well.” Larijani added, “If this matter is not resolved, we have no choice other than to refer it to the Expediency Council for a final resolution.”

Also on Oct. 18, Guardian Council spokesman Abbas-Ali Kadkhodaei said that Jannati’s ruling was unchangeable and its implementation mandatory: “Anytime one of the Guardian Council jurists sees a measure that is against Islamic law [Sharia], he can step in and say so. Those who object to this have no knowledge of the laws and want to look at the issue from an expediency perspective.”

This was not the end of the story. On Oct. 24, hard-line cleric Ayatollah Mohammad Yazdi, Iran’s former judiciary chief (1989-99) and a current member of the Guardian Council, announced that “the jurists in the [Guardian] Council have unanimously voted for the suspension of Sepanta Niknam, the Zoroastrian member of the Yazd City Council. This is a decision that is lawful, in accordance with Islamic laws, definite and nonretractable. No one can revoke this law.” He then warned that any attempts to overturn this ruling would be “a fight against the principle of the Islamic Republic of Iran, which the establishment surely would not tolerate.”

According to the constitution of the Islamic Republic of Iran, followers of Judaism, Christianity and Zoroastrianism are each allowed to have a representative in parliament. But what does the Iranian Constitution say about city councils? Based on Article 91 of the constitution, the Guardian Council is responsible for examining the compatibility of the legislation passed by the Islamic Consultative Assembly (parliament) with Islam. However, Article 94 of the constitution sets a time frame for how long the Guardian Council has the liberty to comment on a piece of legislation. Based on this article, “All legislation passed by the Islamic Consultative Assembly must be sent to the Guardian Council. The Guardian Council must review it within a maximum of 10 days from its receipt with a view to ensuring its compatibility with the criteria of Islam and the constitution. If it finds the legislation incompatible, it will return it to the assembly for review. Otherwise, the legislation will be deemed enforceable.” This is while city council elections were held on May 19, 2017, with results being announced a few days after.

With rising controversy, the Rouhani administration was soon pulled into the issue as well. On Oct. 25, Shahindokht Molaverdi, the president’s special aide on citizens’ rights, said, “There is no legal prohibition against Sepanta Niknam’s membership of the Yazd City Council — neither from a citizen’s rights point of view nor in regard to any other law.”

Rest of the article can be read here. 

Guardian Council, 12 Holy Men

The Council of Guardians or Guardian Council of the Constitution (Shoraye Negahban-e Qanun-e Assassi) is the most powerful constitutional body in the current Iranian political system, much more important than the Iranian elected legislature (Majlis: Islamic Consultative Assembly). Guardian Council has been called Iran’s most powerful body (that controls Iranian democratic framework), most influential body, one of the most significant institutions under by the Supreme Leader, and de-facto Upper house of the Iranian legislature (p-41). Why the Guardian Council is so powerful when there are a host of other constitutional bodies, such as Majlis, Expediency Council, Assembly of Experts, etc?

Let's first see how the Guardian Council is constituted.

According to the Iranian Constitution of 1979, the Council has 12 members. Six of these members are Islamic jurists and are selected/nominated by the Supreme Leader. The other six civil jurists are specialists of other branches of law and are elected by the Majlis from among the list of Muslim jurists provided by the Head of Judiciary (Article 91). The term of the Guardian Council is six years (Article 92).

It appears that at least six members of the Guardian Council are (indirectly) elected and, therefore, they would be more concerned about the popular opinion. However, this is a facade as the six "elected" members are also from the list provided by the Head of the Judiciary, who is in turn selected by the Supreme Leader (Article 157). The Majlis cannot independently elect even one member of the Council. Hence, one can safely say that the Supreme Leader has almost complete control on who serves on the Council.

Source: Iran's Guardian Council

Why Guardian Council is considered so powerful?

First, the Iranian Constitution gives the Guardian Council many powers. Some of its most important powers are the following:

• Vetting all the candidates for the President, Majlis and the Assembly of Experts before the elections: This means that one cannot become a member of the Majlis or the Assembly of Experts or become President without the approval of the Guadian Council. Even if all the Iranian voters want to elect a particular person as President, they cannot do it unless the Guardian Council approves. The Guardian Council can and has not allowed many popular candidates to run in the elections. Furthermore, the Guardian Council also supervises any referenda or any other direct recourse to the public opinion  (Article 99);
• Approving every piece of legislation passed by the Majlis: All legislation passed by the elected Majlis needs the approval of the Guardian Council to become law. The Council judges all legislation on basis of its conformity with the official religion (Islam- Twelver Shia sect) and the Constitution. If Council does not approve, a draft law, even if it is passed by all members of the Majlis, will remain a draft law. There is no provision to bypass the Guardian Council. Majlis itself cannot overrule Council's rejection by a two-thirds or three-fourths supermajority. In fact, according to the constitution, the Majlis does not hold any legal status if there is no Guardian Council in existence. If there is disagreement between the Council and the Majlis, the case goes to the Expediency Council, which like the Guardian Council is a body nominated by the Supreme Leader and usually has all the members of the Guardian Council as its members (Article 4, 72, 91, 93 and 96);
• Sole interpreter of the Constitution: Like the Supreme Court in many countries, the Guardian Council has the power to interpret the constitution and its judgment is final (three-fourths majority required). The Council is also part of the constitution-amending process (Article 98 and 177).

Source: Deep-Seated Entanglements, RAND

Second, the Guardian Council consists of only twelve members. Comparing it with the membership of Majlis (290 members), Expediency Council (usually 30+ members) or Assembly of Experts (usually 80+ members), one can fathom how much more power an individual member of the Guardian Council would have, even if powers of all these constitutional bodies were equal. The fact is that the Guardian Council has greater powers than all these bodies and it is smaller then all of them, making it extremely powerful.

Third, the Guardian Council is powerful because its decisions, in most cases, are final. Its decisions regarding interpretation of the constitution cannot be contested. Similarly, its decisions regarding the vetting of candidates or election results are legally conclusive.

Finally, Council is powerful because constitution does not bar re-appointment of its members. Therefore, Guardian Council members can stay on for decades, if they retain the confidence of the Supreme Leader. The current Chairman of the Guardian Council, Ayatollah Ahmad Jannati, has been a member of the Council since its first establishment in 1980 (37 years) and has been its chairman since 1992 (25 years). Ayatollah Mohammad Yazdi, another member, has been part of the Council since 1988 (29 years). Ayatullah Sayed Mahmoud Hashemi Shahroudi, another member, was earlier also part of the Council from 1992 to 1999. Then, he was appointed as the Head of Judiciary (1999-2009) and in that capacity was nominating Guardian Council candidates to the Majlis and then he again became a member of the Council in 2009. 

90 years old Ayatollah Jannati, head of the Guardian Council, with the Supreme Leader

Source: ‘Election Violations’ Used Against Rouhani

From the above analysis, it is clear that the Guardian Council plays a crucial role in the continuous clerical control of the Iranian political system. If Islamic Revolutionary Guard Corps (IRGC) protects it militarily, the Guardian Council protects it constitutionally and legally.

Related blog post: Is Iran's Supreme Leader subject to oversight? Constitutionally yes, but...

Music Concerts: Tussle between Reformist Government and Conservative Judiciary

President Rouhani's government has been struggling to keep its promises. Not only the economic benefits of the nuclear agreement have been slow to materialize, the judiciary, revolutionary guards and other levers of government controlled by the hard conservatives have also stymied all attempts to allow a more open cultural space. President's Minister of Culture and Islamic Guidance, Ali Jannati has faced resistance from hardliners from day one. Ali is certainly not an outsider as he is the son of Ahmad Jannati, the ultra-conservative Ayatollah Ahmad Jannati, chairman of both the Assembly of Experts and the Guardian Council. Heading both these bodies at the same time makes Ayatollah Jannati the third most powerful political player (after Supreme Leader Khamenei and President Rouhani) in Iran. Ali Jannati views are, however, very moderate as compared to his father and aspire to lessen religious restrictions imposed on Iranian society and culture. In January 2014, he said to Al Jazeera:

President Hassan Rouhani is making more room for freedom of the press for the publishing sector and the film industry and we are trying to create a more open atmosphere for artists...Certainly there are elements inside Iran who are opposed to any kind of talks with the West, I believe that after signing of the agreement and considering the broad support that the people of Iran have given the president, these elements have retreated to a great extent.

    A concert in Tehran by a Korean pop group in May 2016

The latest controversy in this Iranian culture war is about holding of concerts which the hardliners oppose. The reformists, on the other hand, consider them an innocuous entertainment or a way to revive Iranian music and culture. Minister Jannati has tried to walk a fine line and, unsurprisingly, no one is happy. Rohollah Faghihi writes in Al-Monitor:

During the past decade, concerts have rarely made waves, but ever since Rouhani took office, concert organizers have repeatedly faced obstruction and consequent cancellation. To avoid concert cancellations, which damage Rouhani’s approval ratings, the administration has issued a circular to prevent other state bodies such as the judiciary and the police from calling them off. The circular states that police are not allowed to stop concerts. Jannati has said that based on the new law, singers are to request permission to hold a concert from the Ministry of Culture, while the police are only to deal with traffic around the venue. In response, the deputy head of Iran’s armed forces, Gen. Masoud Jazayeri, ordered police to continue “dealing with ethical and misbehavior anomalies in places, including concert venues.”

Mashhad has led the Iranian major cities in concert cancellations. Many Iranians think Mashhad as the religious capital of Iran because of the mausoleum the eighth Shiite imam Imam Reza, the only mausoleum of a Shiite Imam in Iran (others consider Qom because of its seminaries, Ayatollahs, and the mausoleum of Imam Reza's sister, Fatemeh Masomeh). Jannati was not happy and said on August 8 after the latest cancellations, 'This will be costly for the judiciary...We should talk with high-ranking officials in the judicial system to resolve the issue. It is not possible for a province not to act under the law. A province is not a separate island.' The Interior Minister Abdolreza Rahmani Fazli supported Ali and wrote a letter to the Judiciary questioning the cessation of all music concerts in Mashhad. Addressing the Chief of Judiciary Ayatollah Sadegh Larijani on August 7, he argued, 'We cannot prejudge the intentions [of musicians] and base decisions on the possibility that something will go wrong during all concerts. That would not be right.' 

These arguments led to a serious rebuttal from the hardliners and the Judiciary. Ayatollah Ahmad Alamolhoda, the hardline Friday prayer leader of Mashhad and representative of the Iranian Supreme Leader, compared the sanctity of Rome and Mashhad and said on August 12, 'We should know that we live in the city where Imam Reza is buried. It is not possible to hold concerts in the city of Imam Reza, and we shouldn’t argue with people and some narrow-minded officials regarding this. If you want a concert, go live somewhere else.' Ali Jannati backed out after this comment and said that the ministry was not going to support holding concerts in Mashhad. Now, it was the turn of reformers to criticize Ali. President Rouhani, Deputy parliament Speaker Ali Motahari and the moderate newspaper Jomhuri Eslami all condemned Ali's retreat. President Rouhani said, 'As far as I am concerned, no minister should give in to any pressure...We have the Islamic parliament. If a law is going to be adopted, lawmakers will pass it.' A letter endorsed by five thousand artists and other people in the Iran's music industry was also published which called the ban on concerts in Mashhad as a 'catastrophe that sacrifices music today, and the rest of the culture and the reputation of this country tomorrow.'

It appears that the conservative hardliners have won this battle of the culture war but this may be a temporary victory. 

Is Iran's Supreme Leader subject to oversight? Constitutionally yes, but...

Iran's constitution gives wide powers to the Supreme Leader. The preamble of the constitution states that in the physical absence of Hidden Imam, the nation would be guided by a person, recognized by the people as leader 'under all conditions, so that there shall be security against deviation by various organizations'.

Article 57 states, 'The powers of government in the Islamic Republic are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the absolute vilayat al-'amr and the leadership of the Ummah, in accordance with the forthcoming articles of this Constitution. 

Article 110 enumerates the vast powers of the Supreme Leader:

Following are the duties and powers of the Leadership:

• Delineation of the general policies of the Islamic Republic of Iran after consultation with the Nation's Exigency Council.
• Supervision over the proper execution of the general policies of the system.
• Issuing decrees for national referenda.
• Assuming supreme command of the armed forces.
• Declaration of war and peace, and the mobilization of the armed forces.
• Appointment, dismissal, and acceptance of the resignation of:

a. The fuqaha' on the Guardian Council.
b. The supreme judicial authority of the country.
c. The head of the radio and television network of the Islamic Republic of Iran.
d. The chief of the joint staff.
e. The chief commander of the Islamic Revolution Guards Corps.
f. The supreme commanders of the armed forces.

• Resolving differences between the three wings of the armed forces and regulation of their relations.
• Resolving the problems, which cannot be solved by conventional methods, through the Nation's Exigency Council.
• Signing the decree formalizing the election of the President of the Republic by the people. The suitability of candidates for the Presidency of the Republic, with respect to the qualifications specified in the Constitution, must be confirmed before elections take place by the Guardian Council; and, in the case of the first term [of the Presidency], by the Leadership.
• Dismissal of the' President of the Republic, with due regard for the interests of the country, after the Supreme Court holds him guilty of the violation of his constitutional duties, or after a vote of the Islamic Consultative Assembly testifying to his incompetence on the basis of Article 89 of the Constitution.
• Pardoning or reducing the sentences of convicts, within the framework of Islamic criteria, on a recommendation [to that effect] from the Head of judicial power.

The Leader may delegate part of his duties and powers to another person. 

So with such imperial powers, is supreme leader subject to insight? 

The constitution says yes and gives this power to the Assembly of Experts (Article 111). The current supreme leader also agrees but argues that oversight should be broad and if the supreme leader fulfills that basic conditions of leadership, all of his actions and that of his subordinates should be beyond criticism. Now, what are these broad conditions? According to the constitution (Article 109), there are three conditions:

1. Scholarship, as required for performing the functions of mufti in different fields of fiqh.
2. Justice and piety, as required for the leadership of the Islamic Ummah. 
3. Right political and social perspicacity, prudence, courage, administrative facilities and adequate capability for leadership.

Others have argued that because he is the guardian/Supreme Leader of all, nobody has the capacity/ability to judge/oversight him.

Shahir explains the dynamics of this important issue in his article in Al-Monitor (See http://www.al-monitor.com/pulse/originals/2014/12/iran-ayatollah-ali-khamenei-supreme-leader-oversight.html)