PROPERTY LAW UNDER THE IRANIAN CONSTITUTION
The Iranian Constitution was adopted in 1979[614] by a referendum and was then amended in 1989. The institution that drafted the Constitution consisted of high-ranking Muslim clerics (mainly Shia) and lawyers.
It is arguable that the Constitution of Iran is the only written Constitution in the world that is based on theocracy. It provides, under Article 4, that ‘all criminal, civil and administrative laws and policies relating to the economy, finance, military, culture, and politics must be based on Islamic principles’. The same Article further provides that the principles of Islam would prevail over all provisions of the Constitution and other laws of the country. It also gives the highest authority and significant powers to the vali faghih, who must be a person able to issue fatwas on all matters of Islam.[615]The issue of ownership is covered in Articles 44, 46, and 47 of the Constitution. These articles recognise three types of ownership: private ownership, co-operative ownership, and state ownership. Article 44 provides that:
The economy of the Islamic Republic of Iran is to consist of three sectors: state, cooperative, and private, and is to be based on systematic and sound planning. The state sector is to include all large-scale and mother industries, foreign trade, major minerals, banking, insurance, power generation, dams and large-scale irrigation networks, radio and television, post, telegraph and telephone services, aviation, shipping, roads, railroads and the like; all these will be publicly owned and administered by the State. The cooperative sector is to include cooperative companies and enterprises concerned with production and distribution, in urban and rural areas, in accordance with Islamic criteria. The private sector consists of those activities concerned with agriculture, animal husbandry, industry, trade, and services that supplement the economic activities of the state and cooperative sectors.
Ownership in each of these three sectors is protected by the laws of the Islamic Republic, in so far as this ownership is in conformity with the other articles of this chapter, does not go beyond the bounds of Islamic law, contributes to the economic growth and progress of the country, and does not harm society. The [precise] scope of each of these sectors, as well as the regulations and conditions governing their operation, will be specified by law.This article of the Constitution outlines of two types of ownership that have been recognised in traditional Islamic law. These are private ownership and public/state ownership. However, the cooperative ownership, although not inconsistent with Islamic principles, is a new category of property ownership that is recognised by the Iranian Constitution. Further, this article gives the ownership of certain major industries, such as banking, insurance, and communications, to the state. The private ownership is considered to be supplementary to the economic activities of the state and cooperative sectors. According to a leading Iranian constitutional lawyer, these provisions in the constitution are similar to the law in socialist countries, such as the constitution of China.[616]
Since the adoption of the Constitution in 1979, the process of privatisation of certain state industries has led to an expansion of the private sector, particularly following the end of the Iran-Iraq war in 1988. The private sector is now involved in foreign trade, mining, banking, aviation and various other industries.
Article 47 provides that private ownership is protected as long as it is legitimate. Article 45 is concerned with public ownership that is known in classical Islamic texts as anfal. This article provides that:
Public wealth and property, such as uncultivated or abandoned land, mineral deposits, seas, lakes, rivers and other public water-ways, mountains, valleys, forests, marshlands, natural forests, unenclosed pastureland, legacies without heirs, property of undetermined ownership, and public property recovered from usurpers, shall be at the disposal of the Islamic government for it to utilise in accordance with the public interest. Law will specify detailed procedures for the utilization of each of the foregoing items.
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