A View on the Collapse of State Power from the Perspective of Public Law
Introduction: Terminological Clarification
In this article, the concept of the public power of the state is deliberately used rather than political sovereignty. This linguistic choice is not accidental. The term “state” here does not merely refer to the structure of political power, but to an institution which, in the logic of public law, is responsible for implementing the law, guaranteeing citizens’ rights, and creating legal certainty. The focus of this article is to examine the collapse of the public power of the state and its consequences for the rule of law.
Case Study: The Case of Mohammad Saedi-Nia
The case of Mohammad Saedi-Nia, an elderly and well-known entrepreneur, constitutes a clear example of deviation in the exercise of public power. Following his public support for protests and strikes, he and his son were arrested, his properties were extensively seized and sealed, and affiliated economic enterprises were shut down; an action that resulted in the unemployment of a considerable number of employees.
The declared basis of these measures has been the general attribution of accompanying riots and rioters, a designation lacking precise legal definition, which, without a transparent indictment and without providing the possibility of effective defense, has led to the widespread confiscation of property. The Revolutionary Court has likely relied on Article 11 of the Regulation, yet without establishing a belligerent relationship or proving the illegitimate origin of the wealth, has replaced confiscation for criminal adjudication.
This shift from proving a crime to political labeling signifies a deliberate suspension of the law and the imposition of a form of collective punishment whose effects extend beyond the accused person to family members and employees. It conveys a clear message of the transfer of power from a legal rule to coercive will, and from security of ownership to the possibility of its deprivation, to society as a whole.
Confiscation of Property under Article 49 of the Constitution and Article 11 of the Regulation
Within the legal system of the Islamic Republic of Iran, confiscation of property, in its formal meaning, is exceptional and limited and may only be applied within specific legal frameworks.
Under Article 49 of the Constitution, confiscation concerns properties whose origin is determined to be illegitimate, including wealth derived from usury, usurpation, abuse of power, despotism, oppression, gambling, and similar sources. Within this framework, confiscation is not conceived as an independent criminal punishment but as a mechanism for returning illegitimate property to its rightful owner or to the public treasury, and its realization is subject to adjudication, investigation, and the issuance of a judgment by a competent judicial authority.
The judicial process can only be realized through adjudication, investigation, and proof, within the special judicial mechanisms of the Law on the Manner of Implementation of Article 49 and related regulations, including the establishment of special branches, the requirement to determine the illegitimate origin of the property, and the possibility of objection to judgments. This framework demonstrates that interference with ownership is an exception and requires justification and due process. Confiscations carried out without determining illegitimate origin, without establishing the elements of a crime, and without observing prescribed formalities are not only contrary to international standards but amount to the de facto suspension of the law (practical suspension of the law) to which the authorities themselves refer.
In such circumstances, confiscation is neither the consequence of a valid criminal judgment nor the disciplined implementation of Article 49. Rather, it replaces the entire criminal, legal, and fair trial process. The state, instead of proving the crime and the illegitimate origin of property within the framework of fair adjudication, employs the coercive and punitive act itself, under the appearance of legality, as an instrument of exercising power.
Alongside Article 49, Article 11 of the Regulation on the Manner of Handling Cases Subject to Article 49 has also been invoked in judicial practice. This provision stipulates that the property of persons who have left the country and whose relationship with belligerent groups is established shall be removed from the protection of the law and confiscated by order of the court. Within this framework, the declared basis for seizure of property is not the illegitimate origin of wealth but the claim of removal from the protection of the law due to connection with certain groups.
Accordingly, under the existing legal framework, confiscation of property is justified either on the basis of establishing the illegitimate origin of property or on the basis of the claim of removal from the protection of the law pursuant to Article 11 of the Regulation. Each of these bases rests upon a distinct legal logic and produces different legal consequences.
Historical Background and the Reproduction of a Pattern
To understand the present situation of confiscation as a model of governance, it must be situated within the historical context of contemporary Iran.
The logic of confiscation is not new. It has roots in the widespread confiscations following the 1979 Revolution, when ideological and general concepts replaced fair adjudication. Many capitalists and entrepreneurs lost ownership of their assets through judgments of the Revolutionary Courts under titles such as affiliation with the former royal court, being designated as taghut-affiliated, a designation referring to association with the former royal court and monarchical regime, or under the heading of lack of religious legitimacy of property.
What is observed today represents the reproduction of the same pattern in new language. This historical continuity demonstrates that the issue concerns not exceptional or temporary decisions but a recurring pattern emerging at moments of crisis of authority.
Formal and Substantive Defects in Reliance on Article 11 in the Criminal Sphere
Reliance on Article 11 of the Regulation as a basis for confiscation in cases of criminal or security nature presents fundamental defects from the perspective of criminal law and fair trial.
First, there is a defect in the legal element of crime. Article 11 is a regulation, not a law enacted by Parliament, and from the standpoint of normative hierarchy cannot serve as the basis for creating a criminal title or punishment. The use of a regulatory provision as the basis for confiscation undermines the principle of legality of crimes and penalties.
Second, the inherent ambiguity of the concepts employed in Article 11 makes criminal application problematic. Concepts such as relationship with belligerent groups or removal from the protection of the law lack precise definition and objective evidentiary standards and are therefore susceptible to expansive interpretation, contrary to the principle of strict interpretation of criminal laws.
Third, Article 11 effectively replaces the criminal adjudicative process. Instead of first presenting a specific charge, establishing the elements of the crime, and then determining punishment, mere reliance on the regulation becomes the basis for confiscation. Confiscation thus becomes the starting point rather than the outcome of adjudication.
Fourth, the principle of individual criminal responsibility is compromised. In practice, the effects of confiscation extend beyond the accused person to family members, heirs, and employees, conveying a broader message of deterrence to society. Such extension of punitive consequences, without establishing personal responsibility, is incompatible with fundamental principles of criminal law and the prohibition of collective punishment.
Fifth, there is a conflation of the administrative-security sphere with the criminal sphere. A regulatory instrument intended for special handling of property assumes the function of a criminal sanction without adhering to the formal and substantive safeguards of criminal law, thereby weakening effective judicial oversight and defense guarantees.
Public Law Foundations: Public Power and Its Collapse
In public law, the state is not merely an institution of force or political control. It possesses public power only insofar as it implements the law, protects citizens’ rights, and creates legal certainty. The legitimacy of public power derives from adherence to law and accountability, not from the mere capacity to exercise coercion.
Public power functions properly when decisions are taken on the basis of clear rules, predictable procedures, and the possibility of oversight. If the law is set aside or applied selectively, the state may retain power, but it no longer exercises public power in its legal meaning.
The collapse of public power does not imply weakness. The state may continue to arrest, confiscate, and punish. What collapses is the connection between power and law—the balance and structure that law provides to power. In such a condition, law ceases to restrain power and instead becomes an instrument invoked when convenient and disregarded when restrictive. The result is erosion of legal certainty and public trust in the stability of rights and ownership.
Confiscation of property under such conditions is not merely an economic or judicial act; it is a clear sign that the state has retreated from its role as protector and guarantor of the rights of individuals and society, and that its public power has been eroded to the point of collapse.
Conclusion: A Structural Warning
The case of Mohammad Saedi-Nia is not an isolated incident but a warning sign of the consolidation of a confiscatory pattern of governance. In this pattern, regulation replaces statute, political labeling replaces fair adjudication, and confiscation becomes an instrument of authority.
The continuation of such a pattern leads not merely to the violation of individual rights but to the structural suspension of the rule of law. It transforms ownership from a legally protected right into a conditional status, dependent on interpretation and designation.
What is collapsing is not merely a procedural safeguard but the very public power of the state as a law-bound authority. The institutionalization of such a pattern entails long-term consequences that extend beyond any single case and pose a profound legal risk to the structure of the legal order itself.
Sara Ghoreishi
Attorney at Law
Master of Public Law
Human Rights Researcher
References
1. Article 49 of the Constitution of the Islamic Republic of Iran and the laws and regulations governing its implementation, including the Law on the Manner of Implementation of Article 49 of the Constitution of the Islamic Republic of Iran (1984) and related directives and regulations.
2. Historical reports and analyses concerning post-1979 confiscations, including the practice of the Revolutionary Courts and confiscations under titles such as affiliation with the former royal court, being designated as taghut-affiliated (referring to association with the former royal court and monarchical regime), and lack of religious legitimacy of property.
3. Reports and news materials concerning the case of Mohammad Saedi-Nia, including statements of the Judiciary and media reports regarding seizure of property, attributed charges, and economic and social consequences.
4. Sources in international human rights law and international humanitarian law concerning the prohibition of collective punishment and the principle of individual responsibility, including discussions of collective punishment in humanitarian law and interpretative practice under the Geneva Conventions.
5. Public law and criminal law literature on the rule of law, legal certainty, the principle of legality of crimes and penalties, and the requirement of fair trial in seizure and confiscation of property, including domestic analytical works on confiscation practice and Article 49 courts where available.
