Iran’s Expediency Discernment Council of the System is an institution with perhaps no other counterpart in the world. It is a council made up of the Supreme Leader’s trustees, and its main task and raison d’être is to decide whether or not to circumvent the constitution or sharia laws. Former judiciary head Sadegh Larijani has recently become the chairman of the council.
For the first eight years of the Islamic Republic, the Expediency Council did not exist. According to the constitution of the Islamic Republic, which was adopted after a referendum was held in late 1979, the 12-member Guardian Council decides whether or not bills the parliament passes are in agreement with the constitution and sharia laws. The council has veto power over the bills and no bill becomes the law of the land unless it has the Guardian Council’s seal of approval.
Not unexpectedly, disagreements between the parliament and the government on one hand, and between the parliament and the Guardian Council on the other, started early on. In 1981, when the council rejected labor laws the parliament passed, the speaker of the parliament wrote to Ayatollah Ruhollah Khomeini and pleaded with him to use his position as the Supreme Leader and the “Guardian Jurist” to give his approval to the bill. Khomeini approved the bill and allowed it to “temporarily” have the force of law. This was the first of many disagreements over how to set laws in the Islamic Republic.
In 1984, disagreements between the parliament and the Guardian Council regarding labor laws resurfaced, this time over the “Urban Lands Law.” The government and the parliament both objected to the council’s decisions and again appealed to Ayatollah Khomeini to intervene. In response, Khomeini told the members of the council: “You must not behave in a way that would be interpreted as you standing against the parliament and the government…Stand firmly on Islamic principles but not in a way that would be seen as you interfering in everything.”
In addition to labor and land laws, the Guardian Council has opposed numerous bills, including proposed legislation over foreign trade and mines, both of which it judged to be against sharia laws. In both cases, the government and the parliament insisted that they must be approved as laws.
Eventually Guardian Council members felt that Khomeini’s support for the government and the parliament was weakening their council. Khomeini tried to mollify them. “It is God, and only God, that the Guardian Council must take into consideration, and nobody else,” he said.
The situation continued in this way for another three years. In 1987, Ali Khamenei, who was then the president, Akbar Hashemi Rafsanjani, speaker of the parliament, Abdolkarim Mousavi Ardebili, head of the Supreme Court, Mir Hossein Mousavi, the prime minister, and Khomeini’s son Ahmad wrote a letter to Ayatollah Khomeini, asking him to take urgent action and set up a body that could solve these chronic disagreements. “We have learned that your excellency intends to decide on an authority to make a ruling, based on the Holy Sharia, the constitution or the expediency of the system and the society, if a disagreement between the parliament and the Guardian Council persists,” the letter said. “Considering that right now many of the issues facing the society remain unresolved, if you have reached a decision in this regard, it would desirable if swift action is taken.”
Just to Be on the Safe Side
Finally, in response to this letter, on February 6, 1988, Ayatollah Khomeini gave in and ordered the creation of a new institution, the Expediency Discernment Council of the System. The tone of the letter makes Khomeini’s reluctance clear. [Persian link]. He wrote that, in his opinion, after laws have gone through various phases of inspection by the “experts,” there was no need for another “phase” — meaning yet another supervisory body — but just to be “on the safe side,” he would order the creation of the Expediency Council, which was to be made up of the Faqih [Islamic jurist] members of the Guardian Council plus Ali Khamenei, Hashemi Rafsanjani, Abdolkarim Mousavi Ardebili, his close associate Ayatollah Mohammad Reza Tavassoli, Mohammad Mousavi Khoeiniha and Mir Hossein Mousavi. He instructed them to invite other experts, when needed, to consult and assigned his son Ahmad to take part in the meetings so that he could promptly report the proceedings to him.
In this way, an institution was ushered in that was not enshrined in the constitution. Importantly, in contradiction to the constitution, the body was given the authority to bypass the Guardian Council and approve bills that the council rejects because it has the power to decide whether they violate the constitution or sharia.
Today that the council has about 50 members, but when it was first established, it was made up of 13 men. Its authority was limited to deciding the fate of bills that were passed by the majority of the parliament but had been rejected by the Guardian Council.
On July 28, 1989, the Islamic Republic approved a revised constitution following a referendum. After 18 months of existence, the Expediency Council finally found a place in the laws of Iran. By that time Ayatollah Khamenei had succeeded Khomeini as the Supreme Leader and he became the one who appointed members of the council.
Khamenei appointed Akbar Hashemi Rafsanjani as the chairman of the Expediency Council and added a number of political figures including Mohammad Reza Mahdavi Kani, Mohammad Ali Movahedi Kerman, Hasan Sanei, Abdollah Nouri and Mir Hossein Mousavi, who by then was no longer the prime minister because the revised constitution abolished the position. Three years later Khamenei added Hassan Rouhani and Hasan Habibi to the council and these members were all in place until 1996.
Under Ayatollah Khomeini, the council did not have a chairman. In 1989, Ayatollah Khamenei ordered a chairman to be instated, and for nearly eight years the president of the country also held the role of council chairman. That president was Hashemi Rafsanjani — but he actually remained the chairman for almost 20 years, until he died in January 2017.
The Second “Guardian Council”
The Expediency Council is the only institution of the Islamic Republic where the president of the republic is simply a member and does not function as its chief or head. An institution that was reluctantly created by Ayatollah Khomeini and started out with only 13 members today has more than 50 people and/or legal entities as members. In addition to arbitrating between the parliament and the Guardian Council, it also recommends general policies of the regime to Ayatollah Khamenei and adapts the bills approved by the parliament to these policies. Ayatollah Khamenei granted the council these powers and for this reason it is referred to as the “second” Guardian Council [Persian link].
At least two-thirds of the members must be present for the Expediency Council sessions to have quorum. Two-thirds of votes are also necessary when the council decides about bills that the Guardian Council has rejected. For this reason, bills such as ones regarding the Islamic Republic joining the Financial Action Task Force on Money Laundering (FATF) or the United Nations Convention against Transnational Organized Crime (UNTOC) have stalled. To pass other measures, such as general policies, a simple majority or 51 percent is sufficient. After the measures are passed, they are sent to the Supreme Leader, who is the ultimate authority to approve or reject them.
In the hierarchy within the council, the secretary holds the most power after the chairman. It is the secretary who sets the agenda and invites legal entities to the meetings, depending on the subject at hand. The secretary is also the liaison between the Supreme Leader and the Expediency Council. Certain articles of the council’s internal bylaws are vague about the duties of the secretary [Persian link], giving him the chance to act according to his own preferences. For instance, when former chairman Mahmoud Hashemi Shahroudi was ill, and up until his death, Mohsen Rezaei, the current secretary, used his powers to oppose a number of bills passed by the parliament, giving the excuse that the bills violated the general policies of the system.
Today the Expediency Council is an all-powerful body and functions as the Supreme Leader’s top advisory board in all general policies of the country. If the current Supreme Leader is removed or dies, it is the Expediency Council that has the power to approve some of the duties of the Temporary Council of Leadership and, if a member of the latter council is unable to carry out his duties, it has also the power to choose a replacement.
Ayatollah Khamenei who, in any case, enjoys absolute power under the constitution, has yet to exercise all his powers in connection with the Expediency Council [Persian link]. But there might still be time for him to do so.
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