TEHRAN – Mohsen Ismaili, 37, is an Iranian lawyer. But not just any lawyer. He is the youngest of the 12 members of the powerful Council of Guardians. Ismaili was appointed by the National Consultative Assembly, or Majlis (parliament), in 2001 for a six-year tenure, and he can be (indirectly) re-elected by the head of the judiciary.
The Council of Guardians – created by Ayatollah Ruhollah Khomeini – is one of the key institutions of the Islamic Republic of Iran and it was established to protect both Islamic laws and the constitution. The 12 members are split into six ayatollahs and six jurists. The real power brokers, though, are the ayatollahs – selected by the supreme leader himself, Ayatollah Ali Hoseini Khamenei.
Ismaili graduated from Modarres University in Tehran. He proudly admits that at the time he was considered the best university student in Iran for years. He has published five books – on the constitution, civilian law, press law and force majeure in Iran-US relations. He is now a visiting professor at the Imam Sadeg University – built during the Shah’s reign as a sort of Iranian Harvard in northern Tehran. Its current dean is a reformist-inclined ayatollah, Mahdavi Kani. Ismaili received Asia Times Online at the Imam Sadeg University for the first interview ever granted by a member of the Council of Guardians to a foreign publication.
ATOL: What are the main functions of the Council of Guardians?
Ismaili: The Council of Guardians has three main functions. The first is to be a watchdog over the ratified verdicts of the parliament. This screening of laws and verdicts means that they should not be against the constitution and Islamic laws. The second function regards the interpretation of the constitution. There should be no ambiguity. The third function is to act as supervisor of the referendums held inside the country.
ATOL: How were you nominated?
Ismaili: The six jurist members of the Council of Guardians are nominated by the head of the judiciary and approved by the parliament. The head of the judiciary acts in consultation with the Supreme Court, which proposes the candidates.
ATOL: But who selects the candidates in the first place?
Ismaili: Some institutions announce two or three times the names of the final candidates to the judiciary power. The judiciary power introduces these names to the parliament. And after the parliament the head of the judiciary approves the final six jurists.
ATOL: But which institutions present these names in the first place?
Ismaili: Any university, any faculty of law can do this.
ATOL: How are the tasks divided inside the council between the six ayatollahs and the six jurists?
Ismaili: We have the same functions except in one case, regarding Islamic laws. In this case, it is the faqih – the clerical Islamic canonist – who is the only one in a position to deliver a verdict. Otherwise, everybody is equal.
ATOL: Let’s have a practical example. Suppose the Majlis wants to vote a new press law – to allow more freedom of the press. The Council of Guardians could rule that the new press law is against Islamic law. Based on which criteria does the council establish if a new law is anti-Islamic or not?
Ismaili: The function of the Council of Guardians is to impose the legal recognition of laws which are not against Islamic laws. It is not necessary to ratify or reject any new laws.
ATOL: This is a bit confusing.
Ismaili: I’d like to give an example. Regarding freedom of the press, the council believes that we should not prevent freedom of the press, because this freedom belongs to the journalists. But at the same time it is considered to be against Islamic law if these journalists trespass legal borders – against national security or against public order or against private individual rights.
ATOL: But if you are an Iranian journalist and you write an article criticizing the Islamic Republic’s regime, is it considered as trespassing the limits?
Ismaili: At the very outset, I’d like to tell you that I also have a journalistic background. Press law Article 3 says that publishing a report is a legal right of the press. But you are not allowed to trespass private or family individual rights.
ATOL: But it’s the same in any democracy. The question is about criticizing a regime, not criticizing people. Newspapers and publications are routinely closed down in Iran because they criticize the Islamic regime.
Ismaili: In our laws and regulations we have two kinds of criticism. The first is constructive and the second is destructive. This is also mentioned in the press law. Constructive criticism does not disrupt public order and does not offend the feelings of the people.
ATOL: Coming back to the question: to criticize the regime is destructive or not?
Ismaili: Of course constructive criticism is allowed. If you take a look at daily newspapers, it shows that this kind of criticism has been totally accepted. Last week I delivered a lecture in Mashhad. They asked me a question regarding the banning of some newspapers. Unfortunately on that occasion one journalist misinterpreted my speech. He said the Council of Guardians supports the permanent closure of publications. Fortunately before the news was published, IRNA [the Iranian news agency] said that this mistake has been made by them – not us. Only one newspaper printed the offending article in the first page. They wanted to take advantage of this news. Some foreign radios – for example Israeli radios – also took advantage of this speech. So I ask this question: is this kind of criticism constructive?
ATOL: Of course not. But we are talking about intellectual, philosophical criticism of the system that at present is not tolerated in Iran.
Ismaili: The Council of Guardians does not have the executive power to limit or ban the press. At the same time, we are watching an increase in the number and circulation of the press.
ATOL: Let’s turn this around. Everybody we talk to in Iran, young people mostly, the first thing they say is that there is no freedom of the press because the regime does not allow criticism.
Ismaili: I don’t know what kind of young people you have talked to. I do not agree with this kind of belief among some of our young people. The students of this university – I mean Imam Sadeg University – are also young. With students in some other universities, they do not share this same idea. Yesterday students had a gathering in front of the Ministry of Culture and High Education. They said they wanted to ask why did the government tolerated so much criticism by the press.
ATOL: But the government does not keep quiet. Publications are closed all the time. Anyway: how do you explain the fact there are so many disillusioned people in Iran at the moment?
Ismaili: There is also a great number of people who show their loyalty to the government.
ATOL: So do you consider this to be a viable Islamic democracy – and therefore the system does not need any improvement?
Ismaili: We believe there is still a far cry from here to an optimized point. Definitely we need some outstanding changes in our viewpoints and methods. This is not something in contrast with our regulations and Islamic laws. We had been tolerating an unbearable autocracy for centuries. What you call Islamic democracy we call religious, or public democracy. Twenty years is not enough to accomplish this national religious democracy – especially with those difficulties we have experienced in the last few years, like the eight-year imposed war [against Iraq], and the bad effects after the war. We are trying to do our best to achieve a very modern pattern of thought under the protection of democracy, not only here but all over the world.
We expect Western countries to not deprive people from these new experiences. For example, the Islamic Republic of Iran is trying to execute its own objectives and purposes. We believe that we need experiences set forth by the West and also by our people to establish a national religious democracy inside our country. By the West, I definitely mean the heads and officials of the US government. Of course we don’t have any problems with Western people, especially from other countries, like in Europe. We do not feel any difficulty with the people of the United States. We think that if the heads and officials of the United States do not interfere in the country’s ruling and do not interfere with our methods, Iran can continue its humankind civilization caravan in its own way.