Ayatollah Hadavi Tehran is a prominent scholar giving lectures at the highest level of jurisprudence and legal studies in the Islamic Seminary of Qom. He has authored the invaluable book titled "Governance and Religiosity" in which he has conducted extensive research on various legal themes including political jurisprudence. He is definitely one of the most competent teachers in this regard.
What follows is an interview conducted with him about governmental orders and their jurisprudential and legal status.
Generally speaking, what is the position of governmental orders in Islamic Shari'ah and in Iran's constitution as well as political structure?
Based on what is explained in jurisprudential discussions related to an Islamic government, one of the powers of the Islamic ruler is to issue an order in the sense that he can forbid or declare as mandatory some of those things which are permissible and lawful in Islamic Shari'ah. He may, under specific circumstances, change a rule which is primarily haram. There is no doubt that there are specific rules in Islamic Shari'ah for changing an Islamic law. These rules apply to binding laws i.e. those which are either obligatory or forbidden. An Islamic ruler can exercise his power and issue a governmental order where there is an existing state of dichotomy. That is to say, if there is a situation where two dichotomous religious obligations cannot be fulfilled together, the Islamic ruler is responsible to take action to resolve the dichotomy by preferring one side over the other. To make such a decision, he should adhere to certain principles. For instance, if the Islamic ruler is going to declare something as either obligatory or haram, a thing which is not binding but it is only permissible, there must exist a general expediency which should necessitate or require such a rule. It is only under this specific circumstance that an Islamic ruler can issue a governmental order. Obviously, the infallible Imams are the Islamic rulers in their own times but during the period of occultation, the Islamic ruler is a just and qualified jurisprudent, i.e. one who is capable of handling and running governmental affairs and who has been referred to in the constitution as "Vali-e Faqih". As per the statement of the constitution, the Vali-e Faqih should be just, eligible, qualified and should possess managing and administrative capability.
Who are supposed to abide by governmental orders?
When a governmental order is issued by a qualified Islamic ruler, it is necessary for every individual in society to obey it irrespective of whether he is a muqallid (follower) or a jurist. All those who are addressed should act upon the rule, though they themselves may be qualified jurists. Hence, it also includes the ruler himself. Being a ruler does not mean that he himself is excluded or he is an exception. It is stated in the constitution of the Islamic Republic of Iran that the leader is like other individuals of society versus the law. This article of the constitution is general and, therefore, it includes every aspect of the law even though it may have gained its legitimacy from the leader himself. When an order is issued by a qualified source, it is mandatory on every individual of society including the leader himself and other religious authorities to act in accordance with it. This is the position of a governmental order which is overrides a fatwa (edict).
What is the difference between a governmental order and a fatwa?
A fatwa is valid for the Mujtahid who issues it and for his followers; hence, it is authoritative and binding for them and they should act upon it. As for a governmental order, every individual of the society even the jurists and those who are not the muqallid of the ruler should comply with it.
Can you give some examples of governmental orders during the period of the Holy Prophet (pbuh) and the Infallible Imams (a.s)?
During the period in which the Prophet (pbuh) was in Medina, he issued a lot of orders including those that are related to the wars, peace treaties and appointments. For example, it has been narrated that during the time of Ali bin Abi Talib (a.s.), the Commander of Faithful levied Zakat (poor due) on horses also whereas Zakat is not applicable to horses as they are not one of the objects on which Zakat may be paid. Owing to the special circumstances which Imam Ali (a.s.) was in, he deemed necessary to levy Zakat on horses. There are many such instances in respect of the infallible Imams (a.s.).
At a certain period of time, the Imams (a.s.) analyzed Khums and said that it was not necessary upon Shiites to pay Khums. It was a time when the Imams (a.s.) realized that if the Shiites were to pay Khums, they would face difficulty. So, they were allowed not pay Khums for a period of time. However, later during the time of Imam Reza (a.s.), he emphasized that Khums should be paid. In fact, the order that had been issued as a governmental order changed and returned to normalcy. There are many such instances in the history of the Holy Prophet (pbuh) and the infallible Imams (a.s.) some of which the scholars have difference about.
Do you think the constitution has stated all the powers of Vali-e Faqih? Has the power to issue a governmental order been mentioned as a part of Vali-e Faqih's authority or may it have been accepted conventionally only?
It has been stated in the constitution that Vilayat-e Faqih (governance of the jurist) is the source of legitimacy of the government because according to Shari'ah, it is only a qualified jurisprudent who has been granted ruling power. In fact, the constitution is a symbol devolving part of the powers of Vali-e Faqih to other institutions which have been defined and introduced in the law. That is to say, legislation is a part of the duties of Vali-e Faqih of which he has relegated and assigned partially to the Assembly of Islamic Council. Similarly, Vali-e Faqih has the administrative and executive power but part of his power is relegated to the executive branch of the country. Leadership and commandership of the armed forces is a responsibility of Vali-e Faqih which may be transferred to another individual at a period of time. Likewise, judgment (legal decision) is a part of the governmental duties falling within the powers of Vali-e Faqih and which, according to the constitution, has been relegated on behalf of the leader to the judicial branch. Thus, the judicial branch has the responsibility to make legal decisions subject to certain conditions.
To put it simply, the constitution actually distributes the powers of Vali-e Faqih among other institutions. As for those responsibilities and duties which have not been devolved to a special institution according to the constitution, they are considered to be a part of the powers of Vali-e Faqih. The legitimacy of the constitution comes after the leader accepts and ratifies it. It would then be obligatory on all individuals of the society including Vali-e Faqih to adhere to it and remain faithful. Of course, if a process has been considered for changing or modifying the constitution, it is possible to change it in accord with that process. When the constitution is modified and the new constitution is ratified by Vali-e Faqih, it is necessary for everyone including the leader to hold fast to it.
You pointed out that judgment is a duty of Vali-e Faqih, generally speaking, what is the difference between judgment and governmental order?
That is a jurisprudential and technical question. Judgment is where the ruler issues a judicial order in civil and penal issues on the basis of certain rules and principles which have been explained in legal discussions. It is explained in Fiqh (jurisprudence) that governmental orders are different from judicial orders and jurisprudential orders and the difference is technical. Judgment differs from a governmental order. When two people have a dispute over something, it has been stated in Shari'ah that the plaintiff should present evidence. That is, he should present two witnesses to prove his claim and if he could do so, the ruler will issue a verdict in his favor; otherwise, the denier can take oath (qasam) and the judgment will be passed to his benefit. In case the denier passes the oath to the plaintiff (this act of passing the oath is called "nokool" (refusal) in jurisprudential terms), and if the plaintiff takes the oath, the judgment will be passed to his benefit. The legal decision made by the judge means that he decides on the basis of legal rules i.e. available evidence or oath in favor of either the plaintiff or the denier. Of course, it should be noted that if the decision is not in accordance with the reality and if a mistake has taken place in the decision, it does not mean that the actual ordinance has changed. The only effect of the legal decision is that the person against whom the decision has been made cannot sue him and he can no longer follow up the legal case. The immediate effect of the legal decision is "dissolution of dispute". That is to say, legally the case has come to an end and there is no possibility of carrying it on. Of course, it should be noted that in jurisprudential terms, jurisdiction conforms with civil discussions and if it is expanded, it will include penal discussions because executing penal laws is part of guardianship aspect of the ruler not of his judicial aspects.
When it comes to penal law also, there are rules according to which the judge decides. If a person pleads guilty, the judge will decide either on the basis of the criminal's confession or on the basis of evidence. This order which is a penal verdict is in fact a kind of discernment which takes place on the basis of certain rules, and when the punishment is to be carried out, the execution of the penal verdict comes into the duty of Vali-e Faqih and it falls in his authority. The concept of judicial rules is very different from governmental and jurisprudential rules.
Sometimes, it is argued that governmental orders on the part of the Vali-e Faqih amount to meddling with the affairs of other powers. What is the answer to this spurious argument?
The source of the authority of all powers is the ratification of Vali-e Faqih which takes place on the basis of certain rules and standards in relation to the constitution and other laws. When something is ratified, it is necessary upon all to comply with it. Hence, if some powers are given to the judiciary chief according to the constitution and Vali-e Faqih ratifies it, those powers will be with him as long as the ratification exists. If Vali-e Faqih has divested himself of power in some areas, he cannot interfere in those areas and it is the judiciary chief in whom the power is vested and who can make legal decisions. In case, he has not divested himself of power, in this case Vali-e Faqih can interfere because all powers are under his jurisdiction; there would be no problem in it as per the Islamic law.[1]
Office of Ayatollah Mahdi Hadavi Tehrani
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Tehran Today Newspaper (Opinion Section)
[1] - Interview with Ayatollah Hadavi Tehrani conducted by Muthallath Weekly (related by Tabnak News Agency)