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JUNE 16, 2009 9:41AM

Mousavi Rallies Test Gov't Adherence to Constitution

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Supporters of opposition leader Mir Hossein Mousavi allege the official results are electoral fraud, and accuse Pres. Ahmedinejad of an effective "coup d'état". Such language has led some to believe the supreme leader Ayatollah Ali Khamene'i has been pressured by other political heavyweights to acknowledge that wrongdoing may have occurred.

Others allege the Khamene'i investigation will be nothing but a whitewash of what really transpired. The Council on Foreign Relations says there is no way the votes could have been tallied Friday evening. Over 40 million people are thought to have voted, in record turnout, in a nation where ballots are on paper and must unsealed and counted one by one.

According to CFR:

The timing of the thing suggests if in fact there was a record turnout, 85 percent to 86 percent of the population voting, the fact that they could announce the results about the time the polls closed or not very long afterwards, obviously, even if they had the world's best voting machines, they would not have been able to do that. And they don't use voting machines-they have people dropping their ballots into boxes which have to be opened and counted. The fact that this was a stolen election is not in doubt at all. The kind of information they put out-and then the fact that as the polls were closing they deployed police and military forces and paramilitary all over Tehran-they surrounded the Interior Ministry-they closed down Facebook sites, Twitter, mobile phones were all turned off, and regular news sites were blocked. Those things don't happen instantly-they had to be planned, they had to be organized. And the reality is that they were expecting a severe reaction, which is what they got, and they were fully prepared to meet force with force. And that is what they have done.

Khamene'i appears to have shown his hand. It is clear the regime had a preferred candidate, and it is clear that the announcement of the results did not permit time for even a fraction of the total votes cast to be counted accurately. The crackdown, which had reportedly begun before the vote, suggests a decision to essentially void the election and declare Ahmedinejad winner, so the uncertainty of a democratic process would not have to be dealt with. 

Reports from the pro-Mousavi demonstrations have been suggesting some in the crowd are chanting "down with the dictator", accusing Ahmedinejad of oppression. Though the regime is known for its hardline stance and authoritarian tendencies, the Iranian Constitution of 1979 explicitly bans all forms of "oppression". Article 2, Section c) establishes as a foundational principle the "negation of all forms of oppression, both the infliction of and the submission to it, and of dominance, both its imposition and its acceptance". 

Article 3 lists as one of the principle goals of the state "the elimination of all forms of despotism and autocracy and all attempts to monopolize power", as well as "the participation of the entire people in determining their political, economic, social, and cultural destiny". Article 8 establishes on religious grounds a community principle, a "universal and reciprocal duty that must be fulfilled by the people with respect to one another, by the government with respect to the people, and by the people with respect to the government". 

Article 24 establishes freedom of the press, a right famously ignored by the regime. The wording is as follows: "Publications and the press have freedom of expression except when it is detrimental to the fundamental principles of Islam or the rights of the public. The details of this exception will be specified by law."

Clearly, in the administration of the republic, laws have been enacted to strengthen the role of the supreme leader, and acts potentially "detrimental to the fundamental principles of Islam" have been defined liberally. It would appear, however, that in the case of this election, the efforts of Iranian press to defend the rights of the people might carry some weight, even in judicial proceedings alleging wrongdoing by the government. 

Article 27 establishes freedom of assembly: "Public gatherings and marches may be freely held, provided arms are not carried and that they are not detrimental to the fundamental principles of Islam." The Mousavi marches have been peaceful and have not in any way challenged Islam. In fact, they have, if anything, called for upholding the values of the Constitution, a defense of the right of all Iranian citizens to "equality before the law" (Article 20).

The Constitution also establishes a universal and "indisputable" right to access the courts (Article 34): "It is the indisputable right of every citizen to seek justice by recourse to competent courts. All citizens have right of access to such courts, and no one can be barred from courts to which he has a legal right of recourse."

That this election contest could end up before an independent court is not unthinkable. Many observers have cited the likelihood of manipulations and the possibility that a challenge would be forceful enough to push the regime into allowing a hearing in court. Much of what is taken to be the absolute truth of Iranian politics, the vast power of the supreme leader, is more an issue of what is true de jure versus what is true de facto

While the role of the supreme leader is invested with a wide range of highly powerful offices, the language of the Constitution suggests that in fact, the supreme leader does not wield "limitless power" as many have suggested. His term as supreme leader is in law determined by his responsible service to the people, in accordance with the rules laid out by the Constitution. 

Much of his power appears to stem from a feeble legal twist of meaning, where what is harmful to the supreme leader is harmful to the republic and what is harmful to the republic is harmful to Islam. In that way, his powers are vastly expanded, due to his embodying the 1979 revolution's self-fashioning as a singular establishment of the Islam as the governing principle for civic community, or Ummah.  

He is "elected" by a council of experts, as laid out in Articles 5 and 109, by the method specified in Article 107. The trick occurs in the formation of the body of experts, which are chosen by the Guardian Council, half of which is named by the supreme leader himself. So Khamene'i can secure his power by filing the Guardian Council and the body of experts with loyal allies. 

Nevertheless, it is the job of those experts to "elect" the supreme leader, and the Guardian Council itself sits for a term of six years. Every post is political and has some form of check against its authority. Article 107, Section 2, specifies that "The Leader is equal with the rest of the people of the country in the eyes of law". This week's rallies may in part be driven by the understanding that Khamene'i acted beyond his authority by declaring an election victory Friday night, before the votes had been counted.

More on the Iran election, from CafeSentido:

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As a practical matter, it is an oligarchy of the clerics and security services, who, as in any government, have to have some level of legitimacy to govern, and it would seem like they are tempting fate, although, they also could be throwing Ahmadinejad under the bus too; Persians are subtle.
Yes. For me, it's less a matter of "some level of legitimacy to govern" than of how precarious their claim on "limitless power" is. In reality, only the fact of effective control of security forces allows Khamene'i to assert such dominance; but that is a vast exaggeration of his constitutional authority.
I remember studying the Iranian Constitution in law school, and thought it was a rather good document in a number of respects. It seems that entrenched power will do what it will in order to maintain power.