On May 18, Iran held both a presidential election and local council elections. In Yazd, a city on the edge of Iran’s central desert, people voted in Sepanta Niknam, a Zoroastrian, to serve in the city council. It was to be his second term, and he won by 21,000 votes. But soon after the election, local judicial authorities informed Niknam that he would not be able to take up his position as councillor, leading to widespread criticism. On November 4, Interior Minister Abdolreza Rahmani Fazli said he had met with the heads of the three branches of government in an effort to resolve the matter. Will Supreme Leader Ayatollah Khamenei also feel moved to step in?
After the election, Ali Asghar Bagheri, an unsuccessful candidate for the Yazd’s city council electoral race, lodged a complaint with the Court of Administrative Justice — and that is when the court suspended Sepanta Niknam from the council. The board that had supervised the city council election in Yazd, however, challenged the court and re-qualified Niknam to take up his position. The controversy, which might have gone mostly unnoticed four years before, had become something of a constitutional impasse for the Islamic Republic.
The dispute then made its way to the Guardian Council, which has the authority to judge whether the laws passed by the parliament meet constitutional and religious standards. Officially, the Guardian Council plays no role in qualifying local candidates. Instead, candidates are vetted by supervisory boards composed of the members of parliament that represent the provinces. Despite this, the council upheld the court’s decision, citing a directive issued by Ayatollah Ahmad Jannati, who chairs both the Guardian Council and the Assembly of Experts, a month before the elections. It stated that non-Muslims cannot run for election in jurisdictions where the majority of people are Muslims. Considering that in all Iranian cities the majority of residents are Muslims, the Guardian Council directive effectively banned all non-Muslims from running for city council positions.
But, unlike in the past, parliamentarians did not quietly let the Guardian Council decision stand. Many members of parliament protested, including Reza Rabbani, an MP from Yazd, who remarked that the decision to suspect Niknam “paves the way for more manipulation of people's votes.” The most prominent figure to criticize the move was the Speaker of the Parliament Ali Larijani, who also happens to be the brother of Sadegh Larijani, the head of the judiciary.
“Letter of the Law”
Ayatollah Ahmad Jannati’s April 18 statement triggered an immediate — mainly negative — response from around the country, despite attempts from the Guardian Council’s Spokesman Abbas Ali Kadkhodaei to quell tempers. He tried to do this by explaining that Jannati’s directive only applied to towns and villages where the Muslim population is in a majority, but of course in most places, Muslims do make up the bulk of the population. On April 19, Ali Larijani rejected [Persian link] Jannati’s directive and ordered the supervisory boards to follow “the letter of the law” — meaning that non-Muslim candidates must not be disqualified solely on the basis of their faith. He has stood by his position since then.
On Saturday, November 4, Interior Minister Abdolreza Rahmani Fazli reported [Persian link] that he was taking steps to resolve the dispute, and that he met with the heads of the legislature Ali Larijani and the judiciary Sadegh Larijani, as well as discussing the matter with President Rouhani. He confirmed that all three agreed with his approach, without providing an explanation of exactly what his “approach” actually is.
On the same day, the newspaper Farhikhtegan reported [Persian link] that, according to Masoumeh Ebtekar, the Vice President for Women and Family Affairs, President Rouhani had written to the Supreme Leader Ayatollah Khamenei about the controversy, although Ebtekar denied she had said this.
Khamenei could play a deciding role in settling the dispute — either by intervening directly or by referring it to a body that has the constitutional power to arbitrate among the branches of the government.
Prior to this, Ali Larijani said he was considering pursuing the case at the High Commission for Settling Disputes and Regulating Relations Among the Three Branches of the Government [Persian link]. The members of this commission are appointed by the Supreme Leader and the commission must receive an order from Ayatollah Khamenei to act.
When “Conventional Methods” Fail
The commission was set up based on Clause 7 of Article 110 of the Islamic Republic Constitution [Persian PDF]. The article gives the Supreme Leader the power to settle “differences between the three branches [of government] and regulation of their relations.” But Clause 8 of the same article states that the Supreme Leader can refer “the problems that cannot be solved by conventional methods” to the Expediency Council. In fact, over the last few days, several Expediency Council members have said the Council should handle the dispute.
Article 112 of the constitution also establishes the Expediency Council as the arbitrator between the Guardian Council and the legislature when the Guardian Council and the parliament cannot come to an agreement. As such, it has a better claim to its constitutional powers than the High Commission for Settling Disputes. Again, the process requires an order by the Supreme Leader.
But the mechanism for prompting the Expediency Council to intervene is not clear. The usual scenario is that when parliament passes a bill that the Guardian Council rejects, the legislator sends the bill to the Expediency Council for a decision. In the case of Sepanta Niknam, this process does not apply. The Court of Administrative Justice reached a verdict — that Niknam should be suspended — based on the Guardian Council’s interpretation of the law.
What complicates the matter is that the law in question seems to have been interpreted in two different ways. Niknam served one full term under the same law that is now being used to ban him. Article 26 of the City and Village Election Law specifically refers to recognized religious minorities, clearly stipulating that people who follow “their own faith...instead of Islam” are entitled to run for public office.
“We Just Realized We Were Wrong”
When Ayatollah Ahmad Jannati issued the directive on April 18, he also announced that Article 26 of the City and Village Election Law was “against sharia.” The laws governing city and village councils were passed in 1996 and have been amended twice, in 2007 and 2013. So the Guardian Council had three opportunities to reject Article 26 on grounds of being “against sharia,” but it chose not to do so. Since 1996, a number of non-Muslims have been elected to city councils around the country and have been able to complete their terms.
If it wants to, one way parliament can bypass this constitutional impasse is to pass a new bill regarding local council elections, and when the Guardian Council rejects it, refer the bill to the Expediency Council. There have been recent reports that Speaker Larijani supports reforms to the laws in a way that would both please the Guardian Council but at the same time not be retroactive, thereby ensuring that Sepanta Niknam can return to Yazd City Council. But it would also mean future candidates from religious minority communities would not be able to run for office.
A shortcut could be for the Supreme Leader to directly order the Expediency Council to tackle the issue. But Ayatollah Khamenei has so far not indicated that he is willing to intervene, directly or indirectly. His reluctance might well be due to the fact that the majority of sharia jurists in the Guardian Council agree with its ruling to suspend Niknam and disqualify candidates coming from minority religions, and prominent members of the council have defended the decision on TV and elsewhere.
Another possible solution rests with the executive. The governorship of Yazd is responsible for enforcing the verdict of the Court of Administrative Justice. As the representative of the executive power, the governor can announce that, based on legal opinion that it has obtained, the court has no jurisdiction over this matter. But such an action puts the government in direct confrontation with the court and up to now neither President Rouhani nor the interior minister have shown any inclination that they might take this course of action.
A Simpler Way? Not Likely.
Of course there a simpler way: The Court of Administrative Justice can rescind its verdict, which was temporary in any case. According to Article 40 of the bylaws governing the court, it can rescind a temporary order if has reasons to do so [Persian PDF]. The head of the Iranian judiciary, Sadegh Larijani, appoints the head of the court and its judges, and in recent days there have been reports that Larijani does not agree with the Guardian Council on this matter and considers the verdict to be harmful to the interests of the Islamic Republic. Nevertheless, it does not appear that he wants a confrontation with the Guardian Council by ordering the Court of Administrative Justice to rescind its ruling.
So is it a hopeless impasse? On November 4, Abas Ali Kadkhodaei, the Guardian Council’s spokesman, announced that “if another authority which is qualified to rule on the issue of Mr. Niknam comes to a lawful and prudent conclusion then the Guardian Council would accept it.” This statement signals that either the Supreme Leader is about to order the High Commission for Settling Disputes or the Expediency Council to intervene, or that the Guardian Council wants to pull itself out from under political pressure. The council does not want to lose its dignity or its status by giving in to the interior ministry or the parliament, so only a direct or indirect intervention by the Supreme Leader can convince the Guardian Council to let go of its embarrassing and awkward position.