Chapter 12 – Constitutional Revision and Limits of the Constitution

Rationale of Article 111 – Unamendable Principles and Anti Authoritarianism

Article 111 is established so that the principal pillars of the country’s free and democratic order remain preserved even against temporary majorities, powerful governments, military command, or political and security crises. If these foundations were open to ordinary change, a government might, through formal mechanisms, remove the very rules that limit its power. By recognizing unamendable and anti authoritarian principles, this Article seeks to close the path to lawful authoritarianism and to prevent the Constitution from being hollowed out from within.

The emphasis on the fundamental principles of this Constitution is intended to ensure that certain foundations are not made the subject of ordinary political bargaining and negotiation. Principles such as the sovereignty of the people, territorial integrity, secularism, the equality of citizens, the exercise of sovereignty through free and periodic elections, the separation and balance of powers, judicial independence, the prohibition of concentration of power, and Article 6 – the right of armed self defense are precisely those parts which, if weakened, would leave only the outward form of the Constitution standing. This Article seeks to make clear that the country’s liberty, limited government, and anti authoritarian order depend upon the preservation of these very foundations. The express statement that no individual, institution, branch, assembly, government, court, military command, or majority has the right to infringe these principles exists so that no center of power may place itself above the boundaries of the Constitution. The danger of authoritarianism comes not only from the government or only from the army. At times, a parliamentary majority, at times a compliant court, and at times an expanded security structure may become instruments for the destruction of the free order. This Article deliberately closes all of these paths so that any assault upon the foundations of the system, from whatever source it may arise, is recognized as unlawful and without validity. The part concerning war, state of emergency, security threat, insurrection, or public crisis exists so that the classic pretexts for the concentration of power are rendered ineffective. In the experience of many countries, liberty and law have disappeared not in ordinary times, but precisely in the moment of crisis. For that reason, Article 111 declares that even danger and disorder are not grounds for the suspension of the foundations of democratic order. That is, the country may adopt exceptional measures in difficult circumstances, but it may not, in the name of security, abandon its anti authoritarian character. The phrase null and void from the outset and without legal effect is also included so that violation of Article 111 is not treated merely as a political impropriety or a matter for indulgence, but is considered invalid from the very moment it occurs. This formula has a deterrent function. It means that officeholders know in advance that they cannot circumvent these principles by passing a law, issuing an order, or reaching a hidden agreement and then later seek to manufacture legitimacy for it. Here the Constitution does not merely offer moral advice. It lays down a definitive legal boundary.

The further provision of removal from office, disqualification from public office, and legal responsibility exists so that an assault upon this Article does not remain without consequence. If no enforcement exists, the principle of unamendability becomes a slogan. This part declares that an attack upon the foundations of the Constitution is not merely a political disagreement, but a direct assault upon the free order of the country and therefore deserving of a grave legal and political response.

In summary: Article 111 is intended to ensure that democracy does not depend only upon voting, but rests upon boundaries that no power may cross. By entrenching unamendable and anti authoritarian principles, this Article closes the path to the return of authoritarianism even if it comes clothed in the form of law, the vote of a majority, or the pretext of security, and it safeguards the free and secular core of the country’s political order.

Rationale of Article 112 – Amendment of the Constitution

Article 112 exists so that the Constitution may remain both capable of amendment and yet not be easily altered. If its amendment is made too easy, every government or temporary political majority may change the fundamental rules of the country in its own favor. And if its amendment is made impossible or excessively difficult, the legal order of the country becomes rigid, closed, and incapable of adapting to future needs. For this reason, this Article chooses a middle path: amendment is possible, but only through a formal, weighty process and with broad political and popular support. Entrusting the initiation of amendment to a proposal by the Government is intended to ensure that the process of constitutional revision begins through a responsible, recognized, and accountable channel, and does not become an instrument of political disorder or a permanent game for dispersed forces. Likewise, the requirement of approval by two thirds of the legal members of Parliament exists so that amendment of the Constitution is not possible by an ordinary and fragile majority, and takes place only where broad agreement exists. The requirement of approval in a public referendum likewise guarantees that the Constitution is not changed only by political officeholders, but that the people themselves also take part directly in the final decision. The second part of the Article, which states that no amendment may violate the unamendable principles of this Constitution, exists in order to preserve the anti authoritarian core of the system. That is, amendment is permissible, but the destruction of the foundations of the free order is not permissible. This limitation exists so that no government, majority, or political wave may, under a lawful appearance, hollow out the Constitution from within. The final sentence, which also prohibits every change outside the prescribed procedure, closes the way to the circumvention of the Constitution and prevents anyone from effectively suspending or nullifying the Constitution through political pressure, governmental decree, or arbitrary interpretation.

In summary: Article 112 is established to create a balance between stability and the possibility of amendment. Its rationale is that the Constitution may, where necessary, be amended, but that such amendment must take place only through a difficult, lawful, and controlled process, and must never become an instrument for the destruction of the fundamental and anti authoritarian principles of the country.

End of the Proposed Constitution of Iran

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