The process for becoming a presidential candidate in Iran is both maddeningly simple and maddeningly complex.
Two rules apply: anyone can sign up and anyone can be disqualified.
As Iran prepares for a presidential election slated for May 19, the former president Mahmoud Ahamdinejad tested convention: He registered to run despite the wishes of the Supreme Leader Ayatoallh Ali Khamenei, the country’s ultimate political authority.
As it was widely speculated, Ahmadinejad was disqualified from running for presidency by the Guardian Council, a conservative watchdog body whose twelve members are directly appointed by Ayatollah Khamenei, or the parliament endorsing nominees, chosen from a small pool provided by the head of judiciary (himself the leader’s appointee).
Ahamdinejad was the second former president to suffer this fate. In the last election, Akbar Hashemi Rafsanjani (president from 1989 to 1997) became the most high-profile casualty of the Guardian Council’s vetting process.
Iranian Reformists, the primary targets of this process, have for years drawn public attention to this issue through myriad editorials, academic debates, legal analyses, public speeches, political cartoons, and the like. The job of lampooning this process has been made easier by the absurdity of the numbers involved. In 2005, 1014 people signed up to be considered. In the last presidential election, in 2013, a nine-year-old “presidential candidate” from the city of Bushehr was only one of 678 candidates who failed to pass muster (this number rose to over 1,600 for the upcoming election).
The political faction led by current President Hassan Rouhani has joined the chorus of dissent in recent years. These ‘moderates’—a loosely defined alliance best defined in negative terms ‘neither Reformist nor Conservative’—became particularly vocal following the disqualification of Rafsanjani.
Hashemi Rafsanjani tried to draw a historical parallel to illustrate what was happening to him: he compared his fate to the tragic end of Amir Kabir, the 19th century reformist prime minister of the Qajar era, once instrumental in securing the succession of the young Qajar king, Naseraddin Shah.
“But [the proponent] of authoritarianism showed ingratitude to Amir Kabir,” said Rafsanjani in 2015 nodding to his own disqualification. “Because it was Amir Kabir who [had] brought Naseraddin Shah from Tabriz to Tehran and put him at the helm.”
Later, in a statement that fueled conspiracy theories about his death a year and a half later (Rafsanjani died in early 2017), he directly addressed the members of the Guardian Council:
Where did you get your ‘qualification’ from?…Who has allowed you to sit somewhere and pass judgment [on candidates]?
There was something ironic about Rafsanjani’s criticisms: his opponents were quick to remind the former president that, in 1989, when Rafsanjani ran for president, the Guardian Council disqualified all of his rivals save one, Abbas Sheibani.
“Mr. Rafsanjani not only didn’t object to the disqualifications, but was in fact perfectly happy,” noted Mohammad Reza Yazdanpanah, a former Reformist journalist now in exile. “Apparently Mr. Sheibani himself voted for Mr. Rafsanjani so that everything would end well. As the saying goes, ‘You reap what you sow.’”
President Rouhani, who is politically aligned with Rafsanjani, also ratcheted up his rhetoric during the two national elections that took place under his watch, at one point provoking the Council’s former spokesman to publicly respond with a veiled threat:
The officials who taint the public perceptions about the Guardian Council should not forget that they have themselves passed through the Council’s filter.
This was in response to the President’s insistence that the Guardian Council’s supervisory role was merely intended by the drafters as a safeguard against electoral fraud.
“The respected Guardian Council is a ‘supervisor’ not the ‘executor,’” Rouhani said in a pithy summary of his position. “The Guardian Council is the eye, and the eye cannot do what the hand does. ‘Supervision’ and ‘execution’ should not be intermixed.”
This statement also drew a sharp retort from a former minister of guidance:
The Guardian Council has eyes as well as hands in order to do things, but they [Reformists and moderates] believe the Guardian Council must merely ‘supervise’ and that the executive bodies [should] be in charge of everything.
It is this question—whether the Guardian Council has “eyes and hands” or just “eyes”—that has been at the center of a contentious, divisive, and consequential constitutional debate for nearly three decades…and which was at the center of the debate over Ahamdinejad’s fate.
Supervisers, or Executors?
On May 12, 1991 the Guardian Council, which among other things, enjoys the right to interpret the constitution, was asked to interpret the word “supervision” as it appears in Article 99 of the Iranian constitution. This article tasks the Council with the responsibility to oversee all national elections and referenda. Famously characterizing this supervision as “Estesvaabi” (an esoteric term, literally ‘approved-based’), the Council interpreted the word to mean a broad surveillance over “all executive phases of election, including the qualifying and disqualifying of candidates,” i.e. mass vetting of candidates.
Accordingly, during the run-up to the Fourth parliament in 1992, the Guardian Council disqualified a large number of candidates, some of whom had already served terms in the parliament.
“We had the most bitter circumstances,” recounts Mehdi Karoubi, the former Reformist chairman of the parliament and the most vociferous opponent of the Council’s supervision among the high-ranking officials. “[The disqualified candidates] had all gathered around us. One was laughing; another was crying; a third one was sad. We were just sitting around and had no recourse to anything.”
(Karoubi is currently under house arrest.)
Things took an absurd turn when four years later—during the Fifth parliamentary elections in 1996—some previously disqualified candidates were approved while some who were previously approved found themselves disqualified.
Critics charged that this inscrutable process was certainly not what the drafters had in mind; the Guardian Council, they said, had been conceived simply to safeguard the actual voting process, not to determine who could run and when. Such safeguards were necessary—there has been meddling in elections since the advent of constitutionalism in Iran in the early 20th century—but this was something different.
“Our historical experience in Iran [shows] that the government interferes,” said the left-leaning fist post-revolutionary foreign minister of Iran, Ebrahim Yazdi, himself disqualified on grounds of apostasy. “At the time of Shah, [the government] would provide a list to the army saying, ‘these people must be elected’… In order to prevent government interference … [the drafters] said, ‘The Guardian Council must supervise the process of elections.’ But now the Guardian Council has come up with a wackadoodle interpretation.”
The ‘founder’s intent’ is the common thread in all the criticism laid at the door of the Guardian Council. According to Mehdi Karoubi:
This idea was present in the minds of the drafters of the Constitution. Some of [the drafters] are [still] alive…I am quoting them…[Their] thinking was that [since] the elections were carried out by the government, they should assign a ‘holy’ place as a supervisor to oversee and observe the execution of elections.
But is this actually true? Not quite.
The oft-repeated notion that the word “supervision,” as mentioned in Article 99, refers only to the casting and counting of ballots does not stand up to close scrutiny.
This is where the case made by the Reformists and more recently by the ‘moderates’ begins to look shaky.
The Guardian Council’s Role
The preliminary draft of the constitution, which the provisional government led by Mehdi Bazargan refused to put to a referendum, eventually wound up at a constitutional assembly dominated by clerics. The original draft did foresee a watchdog body, also called the Guardian Council, designed to prevent fraudulent electoral activity. But once at the constitutional assembly, the preliminary draft underwent a complete overhaul and was more or less discarded.
To the extent that there were discussions about candidates’ qualifications, these discussions took place within the context of presidential elections, as discussed in the section dealing with authorities of the Supreme Leader (Article 110), who must endorse the elected president to finalize the presidency. Later, when Article 99 was approved (the two articles were discussed in reverse order), the debate had already been had, so the nature and scope of the Council’s supervision was not discussed for a second time.
Interestingly, the prevailing view at the assembly was that the Guardian Council (or another clerical body such as the Leadership Council) would provide a list of candidates for voters to choose from.
Some delegates, such as Mohammad Kiavash, went even further, “the Leader himself should interfere and introduce candidate[s] for presidency or be able to influence the presidential elections through the Guardian Council.”
Another delegate, Rashidian, sounded a similar note, “The introduction of candidates must be handled by the Leader.”
Even the moderate Mohammad Beheshti, the de facto chairman of the assembly, favored a proposition for the president to be introduced by the “Faqih”: “[the Leader], could for instance say, ‘I confirm these ten or twenty people as the candidates for presidency,’ and of course people will later go and vote, and whoever gets the most votes will be elected.”
Ayatollah Montazeri, the de jure chairman of the assembly and the future favorite of the Left, similarly believed the leader should provide a list of candidates. Evoking the referendum on the Islamic Republic a few months earlier, he said, “On the day people were voting, they didn’t say, ‘a mere republic;’ they didn’t say, ‘democratic republic;’ they said, ‘Islamic Republic,’ meaning ‘within the framework of Islam.’ Therefore the laws are Islamic laws, and the executor must be … knowledgeable about Islamic ideology… Now it’s possible that a ‘Faqih’ pays attention to five or six people and says [to] people, ‘I will approve whichever of these few people whom you vote for.’”
In fairness to him, Montazeri did quickly walk this back when pressed on the issue, “I did not deprive other people’s right. Anyone else who wants to [could] introduce a candidate.”
Just as clearly, the drafters were fully cognizant of controversies which would likely surround the issue. Foreseeing opposition to the mass vetting of candidates, one delegate, Mahmoud Rouhani, presciently said, “[If] the qualification of these candidates were not approved by the Guardian Council, it would turn into a vehicle for the continuation of unjust propaganda about lack of necessary freedoms [in the new regime].”
There was no convergence of minds, and the final agreement was a compromise: anyone could sign up for presidency, but the Guardian Council reserved the right to determine who is qualified and who is not. The scope of this vetting would be limited to the conditions set forth in the constitution.
Article 110 reads: “The suitability of candidates for the Presidency of the Republic, with respect to the qualifications specified in the Constitution, must be confirmed before elections take place by the Guardian Council.”
The views expressed by various delegates at the constitutional assembly show that the drafters’
understanding of the Council’s supervisory role was quite expansive. And even if we were to disregard all these direct quotes and buy into the fanciful notion that the drafters saw no role for the Guardian Council beyond monitoring the “process” of the casting and counting of votes, the clear and unambiguous wording of the article that emerged from the debate leaves little doubt as to the final settlement.
It isn’t that simple
So why all the controversy? Why is there even a debate about the constitutionality of this process in light of the unequivocal wording of Article 110 (paragraph 9)?
It all comes down to one thing: precedent. While the Guardian Council had taken it upon itself to determine candidates’ qualifications in all post-revolutionary presidential elections save the first one (the Council was not yet formed), this process had rarely, if ever, extended to the parliamentary elections.
During the 1980s, the outcomes of presidential elections were so ridiculously predetermined that the vetting of candidates never led to a public outcry. As noted earlier, in 1989, Hashemi Rafsanjani ran against a single sham candidate, who by many accounts, eventually voted for Rafsanjani!
Presidential elections were not expected to be competitive, but people expected something different from parliamentary contests.
Prior to the controversial interpretation in 1991, the candidates to the first, second, and third parliaments (as well as those running in mid-term parliamentary elections) were vetted only by the Ministry of Interior.
Here’s how the process used to work: prospective parliamentary candidates would sign up with the Ministry of Interior. The ministry would then vet the candidates and disqualify a certain number. Some disqualified candidates would appeal their case to the Guardian Council, and in some cases, the Council would reverse the disqualification.
While this basic framework remained intact, the famous interpretation in 1991 added an extra level of direct vetting by the Guardian Council for parliamentary candidates.
The leftists factions (future “Reformists”), most likely to be harmed by this vetting, were aghast. Obliquely attributing the new departure to an odd combination of weak leadership and power grabbing on the part of the new leader, Ayatollah Khamenei, the Left was now nostalgic for Ayatollah Khomeini’s times.
“Some people may be under the impression that that’s how things were from the get go,” said Mehdi Karoubi, “We believe the Guardian Council has made an extraordinary twist since the time of the imminent Imam.”
To prove this point, Karoubi unearthed numerous documents during his tenure as the chairman of the Sixth Parliament (2000-2004), and for this, the constitutional scholars of Iran will be forever grateful to him. These documents, he believes, corroborate the argument that only a handful of candidates were disqualified by the Guardian Council in years prior to the controversial 1991 decision (which is not argued) and that those few cases, if anything, prove the unconstitutionality of the Council’s vetting. One example is the case of Communist intellectuals running for seats in the midterm elections to the First Parliament in the early 1980s.
The Council of Guardians disqualified the Communists on grounds that they did not belong to any of the constitutionally recognized religious minorities. The constitution mandates that the Muslim members of parliament must take an oath on the Quran, while non-Muslims should take a similar oath on their own holy books. The Communists were neither Muslim nor a religious minority.
“The Guardian Council did not base [the disqualifications] on Article 99,” Mehdi Karoubi argues, “[The Council] didn’t base it on ‘supervision’… The Communists have no holy book, unless they want to swear on Marx’s The Capital, which is not possible!”
Two points are in order here.
First, in discussing the 1980s, Karoubi and other Reformists make no mention of the fact that the Guardian Council engaged in mass disqualification of presidential candidates (which they believe to be just as unconstitutional).
Secondly, Karoubi conveniently confuses the grounds on which the Communists were disqualified with the source of legitimacy of the disqualifying body. What authority conferred legitimacy to the Guardian Council to make binding decisions on candidates’ qualifications? The Ministry of Energy or the Department of Environment, for instance, cannot make binding decisions on candidates’ qualifications on any grounds. Whatever the grounds, the source of legitimacy (what makes the decision binding) was Article 99, which allows the Guardian Council to oversee all national elections.
By Karoubi’s own reckoning, it was not at all uncommon during the 1980s for the Guardian Council to receive and act on appeals from those initially disqualified by the Ministry of Interior. In many cases, the Council reversed the disqualification, overriding the Ministry of Interior.
“There were numerous instances in the Second Parliament,” says Karoubi, “and we may have had them in other parliament[ary elections] as well.”
On what authority was the Guardian Council reversing the disqualification?
Karoubi believes the Guardian Council was simply following the law “because that’s what the law says. In this section of the law, it explicitly says that the executive board [of the Ministry of Interior] could disqualify [candidates], but even then there is a recourse for complaint, namely … the Guardian Council.”
Here Karoubi is referring to the Parliamentary Elections Act, which allows the disqualified candidates to appeal their case to the Guardian Council. But this assumes that if a certain provision in a certain legislation had not allowed for this process (or if the law were to change), the Guardian Council would have no supervision over the parliamentary electoral process.
So what about Article 99, which specifically says the Council enjoys ‘supervision’ over all national elections? The patent Reformist response to this dilemma is that, as the drafters saw it, the word “supervision” in the context of Article 99 refers only to the actual “process” of elections, i.e. monitoring the casting and counting of votes.
This brings us full circle to the patently untrue premise on which the Reformists’ opposition is based, one easily rubbished by the minutes of the constitutional assembly.
There is much to object to about the arbitrary and unfair process of vetting Iran’s presidential candidates, but relying on the ‘drafter’s intent’ and the precedent of the supposedly lively political life of the 1980s will only serve to kick the proverbial can down the proverbial road.
Selective memory and analytical jujitsu are not the solution to the woes of the Iranian election process, and as the two camps prepare to face off in a contentious election viewed by many to be a referendum on the 2015 nuclear deal, the disqualification of many current and former prominent figures, most notably Ahmadinejad, once again reminded us that the Guardian Council has “eyes as well as hands.”
Because that’s the way the constitution was written.
Amir Faress’ research at New York University focused on the constitutionality of the supervision of the Guardian Council. He is currently working on a book on the impact of the First World War on the Fall of the Qajar dynasty in 1925.