Authority of Wali-Faqih and the Religious Precepts (Primary and Secondary Judgments)
There is no doubt that every Muslim should follow the primary and secondary religious rules. These rules are the external form of the commitment to the religion that determine the religious oughts and ought nots. On the other hand, establishing a state in a particular period of time, requires different methods and expertise. Thus, a religious ruler apart from dealing with religious rules, should tackle the state rules as well. In certain cases a state rule is meant to execute the primary rules or secondary rules, distinguish their subjects or take care of certain religious issues. Here a jurisconsult can use his authority. But in certain cases the primary or secondary laws deal with lawful or unlawful matters, like the obligatory of Hajj pilgrimage and unlawfulness of usury and so on. The question is that whether a wali-e faqih can pass a decree against such rules for the interest of the Muslims and prevent their execution?
In his argument, Imam Khumayni held that the governmental authority of a wali-e faqih and infallible Imams (a) is identical. Only in certain cases infallible Imams enjoy particular authority which has nothing to do with their guardianship over society like the case of early jihad which is probably related to only infaliable Imams (a).[95] In his book, he did not refer to the governmental jurisdiction of the infaliable Imams (a) and only he has cited some examples as:
The Prophet (s) used lashing as a punishment measure for hundred times. Similarly the Imams (a) and a wali-e faqih can practice this punishment. They collect charities in a similar way and use them for the benefit of the people and it is for people to obey them.[96]
Of course there is a reference to absolute and general guardianships[97] in his book al-Bay`(book of sale). But there is no explicit explanation of the relations between the authority of a wali-e faqih and the primary and secondary rules.
In a letter to the then labor minister, Imam Khumayni clarified the jurisdiction of a faqih concerning religious precepts and the authority of the government in laying necessary conditions for the contractors.
Following such a statement, a discussion started among high ranking officials. Then the Imam in a letter wrote:
"It is said that I held that government has authority but within the framework of Divine rule. Such assertion is against my ideas. If the authority of state is within the Divine derivative commandments, then, divine rule and absolute guardianship of the Prophet (s) should be meaningless ... State is a branch of the Prophet's absolute guardianship. It is one of the primary rules of Islam and is prior to all derivative commandments, like prayer, fasting and Hajj pilgrimage ... State can stop any issue whether ritualistic or non-ritualistic if it is against the interest of Islam."[98]
This statement suggest that the authority of a wali faqih is unlimited to the extent that he can temporarily suspend the primary and secondary rules if he realizes that it is in the interest of the Muslims. While elaborating on the authority of wali-e faqih, in his book al-Ba`y, Imam Khumayni stresses that the authority of wali-e faqih is unlimited. Indeed Imam's latest explanation on the jurisdiction of wali-e faqih as already explained in the said book.
In Imam Khumayni's views, governmental rules are not secondary rules but are primary rules.[99] Therefore, guardianship over governmental rules does not depend on necessity, emergency cases, etc., but on the interests of Muslims.[100]
However, Imam Khumayni did not forward any particular formula for ascertaining the interest of Muslims, but in his political career he considered the Expert Assembly as an authority for identifying this interest. He used to consult experts but he was the man to pass the final decree.
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Authority of Wali Faqih and the Law
Civil laws are of two kinds: constitutional and conventional laws. Constitutional laws are superior to conventional laws. If we elaborate on the relations between authority of wali-e faqih and constitutional law, relations between wali-e faqih and the conventional laws will be also cleared.
In the Constitution (of the Islamic Republic of Iran) the authority of the wali-e faqih is limited (Article 110). Before the amendment of the constitution, the term absolute guardianship was not mentioned anywhere in the Constitution. But in Imam's views, constitution is not higher than religious rules. As wali faqih has an authority over the derivative rules, he has the same authority over the constitution. Of course, in an Islamic society constitution is based on Islamic rules. The Fuqaha, particularly Imam Khumayni, have approved the Constitution of the Islamic Republic of Iran as compatible with Islamic teachings.
During his ten years of the leadership of the Islamic Republic of Iran, Imam Khumayni in certain cases did not abide by the Constitution. For instance, he ordered the formation of a Special Court for the trial of the clerics and also set up the Expediency Council. It is quite clear in these cases that wali-e faqih's jurisdiction overlaps that of the constitution.
When that Expediency Council violated constitutional laws, a group of Majlis representatives wrote a letter to Imam Khumayni and protested the council's decisions. In response, Imam said:
"What you have written is correct. I hope an atmosphere would be created in which everyone would act according to the constitution. What has happened during the past few year, has been related to emergency of war time. The interests of Islam and the system demanded that we settle the problems quickly."[101]
The reason behind the violation of the constitution is that Imam Khumayni considered governmental rules higher than the primary and secondary religious rules. Even in his letter, Imam Khumayni says that he intends to do so and so, he does not talk about the necessity of abiding by the constitution. We can infer from his practical life and speeches that at the time of an emergency he considers governmental rules higher than the constitution. But normally, violation of the constitutional laws is not permissible. What are the criteria for identifying the interests of the Muslims? What is an emergency situation? These are the questions that were never attended by Imam Khumayni.
Of course, the aforementioned authority of the wali-e faqih is valid when the wali-e faqih is appointed by an infallible Imams (a). If the wali-e faqih is elected by people, i.e., his legitimacy is drawn from the people's vote his authority will not be probably as much as the one appointed by an infallible Imam. His authority in this case will be determined on the basis of the people's allegiance to him.
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95. Kitab al-Bay`, op. Cite., vol. 2, p. 496.
96. Ibid., vol. 2, p. 467.
97. Ibid., vol. 2, p.
98. Sahifa-Nur, op. Cite., vol. 20, pp. 170-171.
99. Ibid., vol. 10, p. 138.
100. Ayatullah Makarim Shirazi, Anwar al-Fiqaha, Kitab al-Bay`, part one, p. 550.
101. Sahifa-Nur, op. Cite., vol. 21, p. 57.
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