The debate between proponents and opponents of a constitutional referendum to secure change in Iran is in key respects is a debate over the constitutional legitimacy of the Islamic Republic itself, and its potential to become more democratic. My argument is that all sides of the debate are prisoners of what I call the circular constitutionalism of the Islamic Republic of Iran.
This is illustrated by the way that most contributors to the debate provoked by Mohsen Sazegaras openDemocracy essay Irans road to democracy appear to disregard the relevant fact that the Islamic Republic of Irans constitution is in reality two constitutions: the peoples rights constitution and the divine clerical rights constitution. Any debate about the constitutional legitimacy of the state hinges upon how this dichotomy is addressed.
Shahram Koldi is responding to Mohsen Sazegaras proposal for a referendum on a new Iranian constitution, Irans road to democracy
See also the articles by Mehrangiz Kar, Mehdu Hosseini, Afshin Molavi, Kaveh Ehsani, Mansour Farhang, Farideh Farhi, Bezhad Yaghmaian and Bahman Kalbasi in our Iran debate, Democracy & Iran
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In his response to Mohsen Sazegara, for example, Bahman Kalbasi criticises the referendum strategy as unrealistic and contradictory. He advises Iranians to take part in the June presidential election in large numbers, implying support for reformist candidate Mostafa Moin as the only alternative to a conservative president. This critique is based on a major assumption: that hope for change in the present system relies on extending the presence of reformists at the head of the executive branch.
But Kalbasi and other pro-Moin commentators miss the fact that conservative clerics, led by the Guardian Council and the supreme leader, have consistently used the constitution to block reform. The ruling clerics, in short, privilege the divine clerical rights constitution over the peoples rights constitution in order to undermine and marginalise the principle of popular sovereignty.
The Islamic Republic of Irans constitution gives the supreme leader power (directly or indirectly) to appoint members of the Guardian Council, which in turn acts as an electoral and constitutional watchdog. During the entire eight-year reform period since Mohammad Khatami was elected president in 1997, the council has consistently blocked both reformist legislation and reformist candidates from standing in elections.
The constitutional amendments of 1988, which appeared to consolidate presidential authority, in fact granted the supreme leader and institutions associated with him unhindered power at the expense of directly elected institutions. The leader (according to Article 110) has the right to dismiss the president, as well as retaining control over the armed forces, judiciary, and the Expediency Council (a body supposed to resolve the differences between the Guardian Council and the majlis).
The leaders appointment of the Guardian Councils members (both clerics and jurists) allows him also indirectly to control nominations for the Assembly of Experts, the only institution that in principle can check his exercise of power. The present incumbent has used this power to appoint like-minded clerics to the Guardian Council who in turn have filled the Assembly of Experts with their conservative allies.
This circular power-structure, sanctioned by the constitution, has permitted the supreme leaders fundamentalist and conservative agenda constantly to undermine the reformist movement. The absolute, constitutionally-entrenched supremacy of the supreme leader is a bulwark against the reformist enterprise.
In this light, it is impossible to see the election of Mostafa Moin (or any other candidate) or the proposed referendum as in practice a better path towards popular sovereignty in Iran. No referendum can guarantee that the ensuing change in the constitution will bring the ideal democracy all wish for; yet Moins election to the presidency cannot ensure any restriction on the supreme leaders or the Guardian Councils power.
From a secular and liberal democratic perspective, the call for a referendum is a reminder that the divine clerical powers component of the constitution has been successfully used to undermine the peoples rights component, especially during the years since 1997. The constitution has been used as an earthly medium of legitimising the leading institutions divine powers to suppress assertions of popular sovereignty.
The call for a referendum seeks to break through the process that ensures the circular constitutionalism of power in Iran by challenging its unaccountability in thought, word, and deed. In doing so, it hopes to resolve the fundamental question of whether the Islamic Republic of Iran can any longer be considered legitimate by the Iranian people.
