The restrictive authority of the administration is a guarantee of the rights and freedoms of persons

Prepared by the researcher : Dr. Zeenah Sahib Gawzan – Imam Al-Kadhum College (IKC)

Democratic Arab Center

Journal of Afro-Asian Studies : Sixteenth Issue – February 2023

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin.

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Abstract

The aim of determining the administrative decision is to know the nature of the activity practiced by the administration as a work in which the latter plays a major role, as the administration is not limited to carrying out a certain type of work, but its activity varies according to the objectives and areas and also according to the circumstances concerned with the nature of this activity, and this diversity in the activity is reflected in the decisions taken by the administration.

Based on this type of management activities, it can be said that if administrative decisions are characterized by being effective decisions due to their unilateral character that gives them the character of public authority, this capacity may be absent with regard to some of the actions carried out by the administration, as the scope of the restricted authority of the administration in the administrative decision in embodying the principle of legality represents a balance between the requirements of protecting the rights and freedoms of persons and the requirements of preserving the public interest.

Introduction

First: the subject of research

There is no dispute that the restricted authority forces the administration man not to underestimate and disregard the rights and freedoms of persons, because the legal rules order him to issue the decision if certain circumstances, conditions and procedures are available, and if they exist and he did not take it or take it in the way and manner that the legislator did not approve, his decision was subject to the control of the annulment judge, and he did not have the right to pay his discretionary freedom to cover deviation and violation of the law.

The reason for the legislator’s tendency to expand the resort to restricted authority is to ensure the stability of transactions on the one hand, and on the other hand, the rigid rule embodies justice, equality and satisfaction in most cases between persons, for their knowledge of them and the method of implementation and their effects, the area of restricted authority of the administration in the administrative decision in the embodiment of the principle of legality represents a balance between the requirements for the protection of the rights and freedoms of persons and the requirements of preserving the public interest.It is known that the administrative decision has five pillars: the pillar of competence, the form and procedures, which are among the means of external legitimacy of the administrative decision, the corner of the place and the reason and purpose of the means of internal legitimacy of the administrative decision. Therefore, we will address in this research the restriction in the means of legality of the internal and external administrative decision in two requirements.

Second: The importance of research

The restricted authority of the administration in the administrative decision is the best way to protect public rights and freedoms as a result of the legislator defining its competencies accurately, while restricting its will to prevent its deviation and transgression, and this is the biggest guarantee for people in the stability of transactions, justice and equality, and the restricted authority is necessary for the administration for its continuity and proper functioning, so that the text is implemented by it in a simple and easy way, that the restricted authority in the administrative decision has a great importance and role in stabilizing the conditions and legal centers that produced it in addition to He pointed out that the restricted authority is one of the legitimate requirements that the administration must be subject to, and its importance has increased due to the increasing role of the state and its expansion, which made it issue many administrative decisions that can be canceled if it is legitimate in its broad sense.

Third: the problem

The problem here lies in several things, including: –

First: The administrative decision in order to implement it correctly needs to take several steps that put it in the right position through these steps are also determined the stages of implementation of the administrative decision and the individuals who will implement it

Second: Determining the ways and means of implementing the administrative decision, determining preventive measures to prevent deviations in the issuance of the administrative decision, and determining the responsibility of each person towards the decisions issued.

Third: Determining the effectiveness of the administrative decision, indicating its legal foundations and foundations, and the extent of its impact in terms of pledging to abide by its provisions and judicial means, assessing their effectiveness, their legal nature, and their impact on the conduct of the judicial process and its subordination to the judiciary.

Fourth: The hidden psychological motives of the administration and the matter of proving them requires that the judiciary examine the existence of these motives, which is elusive

Fourth:  Methodology

       This study will depend on the method of descriptive research of the content of this study, through the statement of legal texts and the opinions of jurisprudence and the administrative judiciary in some of the vocabulary of this study.

Fifth: Plan

We divided this research into two requirements dealt with in the first (adherence to the means of external legitimacy of the administrative decision) in two branches we showed in the first branch the restricted authority and the corner of jurisdiction, and we clarified in the second restricted authority and the corner of form and procedures, and we devoted the second requirement to the statement (adherence to the means of internal legitimacy of the administrative decision) in three branches, we dealt with in the first branch the restricted authority and the corner of the shop, and we showed in the second restricted authority and the corner of the reason, while we devoted the third to the statement of the restricted authority and the corner of the end

The first requirement: adherence to the means of external legality of the administrative decision

The subordination of everyone to the provisions of the law in its broad sense leads to ensuring the rights and freedoms of persons, and is achieved by determining the obligation to legalize rulers and governed, which arranges the prevention of tyranny and control and enables everyone (management and individuals) to exercise their functions and perform their functions according to rules known to all.

The administration’s commitment to the provisions of the law in all its actions and actions means the rule of law prevails in that State, that is, all its legal and material actions are subject to the law, taking into account the gradation of legal rules, and in the event of the opposite, its actions are illegal and subject to annulment. , to resolve the issue of the scope of authority restricted in the pillars of the administrative decision, the means of its external legitimacy should be highlighted, and the means of external legitimacy of the decision are those related to the competence, form and procedures of the source of the decision.(1)

Subchapter I: Restricted Authority and Element of Jurisdiction.

The rules of jurisdiction are at the heart of the legislator’s work, and therefore he determines the executive authority its competence and field of work, including many central, local and attached administrative bodies, and therefore the rules of jurisdiction are the work entrusted to the legislator, as he determines the tasks and functions and determines the roles, and this results in considering them as public order.So that it is not permissible to agree to violate the rules of jurisdiction, and the plea of lack of jurisdiction may be raised at any stage of the dispute, and the annulment judge may raise it on his own initiative, and it may not be waived. Competence also means the legal capacity or authority of a particular administrative authority to carry out a particular administrative act.(2)

Therefore, the rules of jurisdiction are the ones that determine the legal licenses of public bodies, in order to practice a certain activity in a way that guarantees the legitimacy of this activity and confirms its legal validity, so it was said that what is meant by jurisdiction is to determine the set of actions and actions that the public employee or public authority may exercise legally and in a manner that is legally reliable.

There is no doubt that the legislative source of the rules of jurisdiction ensures the good functioning of the administrative apparatus, by distributing tasks to the administrative bodies in a way that maintains non-overlap, conflict in their powers and avoid the issuance of conflicting decisions, and give the decisions issued by them a picture of legitimacy and safety that preserves the rights and freedoms of persons, and the rules of jurisdiction on the other hand work to determine responsibilities, avoid their disappearance in the administrative hierarchy, and allow in advance to those who have the capacity and interest to know the administrative authority that is Litigation before the annulment judge in the event of an administrative dispute. For this reason, the authority of the administration is restricted in the corner of competence so that there is no room for discretion in this regard, because the rules of competence are enacted by the legislative authority and determine how powers are distributed among the various central, local and utility administrative bodies, the administrative body is either competent or not competent.  Accordingly, the jurisdiction pillar has several forms, including(3)

I.Personal jurisdiction

       It means the statement of the individual or entity that may exercise the legal competencies only, and this element is based on its existence on the correct administrative decision in the appointment if it is an employee and the correct decision issued to form if it is a body.  However, it happens at other times that the law organizes the competence and entrusts it to a specific department, and therefore this department or its head has the competence to issue a decision, and in all cases that the law when entrusting a specific administrative employee or entity to exercise a certain competence, this competence is considered personal exercised by the employee or entity only, unlike some cases in which practical necessity requires the evacuation of the competent employee to others, as is the case in delegation, delegation and subrogation.(4)

As for the impact of the presidential authority in the case of taking over the law to determine the personal jurisdiction, we can say briefly that the administrative head can not directly exercise the jurisdiction made by the law of the subordinate’s competence, and finally it must be noted that the law when it regulates the rules of this jurisdiction, it puts it in several forms, it is either to make the jurisdiction an impediment, by making an individual and one administrative face the authority to make the decision, and it is based on this that the cancellation of this decision is limited to that body, or to make it In it, the law gives several administrative bodies the power to make decisions, and then the administrative decision can be issued by any of these bodies)5)That determining the jurisdiction is consistent with the interest of citizens and even the interest of the administration itself and that it enables the administration and the competent person to master his work due to the large number of exercises, and at the same time leads to the completion of his work quickly and improves the public facility and therefore the competence is the authority or legal authority enjoyed by the decision-maker in issuing his decision in terms of temporal and spatial quality.(6)

1. Ratione Mares:

            The subject matter jurisdiction to determine the extent and scope of the powers granted to the competent personally, by indicating and mentioning the legal actions or acts vested in the person or administrative body, it is the other side of the personal jurisdiction, as it is intended to determine certain and specific types of works, and distribute them by the legislator to the various administrative bodies central, local and attached, and draw the boundaries between them and oblige the administrative official to take them into account when issuing administrative decisions, in order to avoid overlap and conflict of competences(7)

Third: Spatial jurisdiction

It means the geographical framework for the exercise of the administrative member of his legal powers, the legal rule often determines for the administrative man a spatial framework for the exercise of his legal powers, and this framework is either comprehensive extends to include the territory of the entire state, as is the case in the competence of the head of state and ministers, and may be partial according to the administrative divisions of the territory of the state (governor, mayor, district manager(8).

      In fact, cases of lack of jurisdiction related to the spatial element are rare because the spatial competencies to exercise jurisdiction are clear enough to make it difficult to imagine this defect, but nevertheless the discussion here focused on the decisions issued by the administrative member, which is far from his place, and jurisprudence and the judiciary have settled in this regard on the validity of these decisions issued by the administration man who is far from his work area, unless the law requires that they be issued from the workplace itself, and the applications of these The picture when establishing activities and projects on the borders between administrative units.(9)

Fourth: Temporal Jurisdiction:

     The temporal jurisdiction of the employee is determined from the date of his appointment and ends with his dismissal, retirement, transfer or annual leave, because the employee in this case will be outside the framework of the exercise of jurisdiction, as for the decisions taken during official holidays, they are often legitimate because they relate to the internal organization of the facility. From the foregoing, the administrative member must take into account the time period for exercising jurisdiction. (10)

Subchapter II: Restrictive Authority and Form and Procedures.

The form and procedures pillar is a set of formalities and procedures that make up the template or external framework, which shows the will of the administrative authority to take and issue a certain administrative decision in a known external appearance, in order to produce legal effects and invoke it against its addressees, as the administrative decision requires announcing it in an external appearance that reveals and shows the content of this internal will of the administrative authority through the form and procedures corner(11).

     The general rule is that the administrative decision is not required to be issued in a specific form or procedure, and to strengthen the principle of legality in the state, the administration is obliged to follow formalities and procedures approved by laws and regulations, and the provisions of the administrative judiciary, as well as general legal principles play an important role in creating formal rules that are not stipulated in the law and regulations based on the spirit of legislation and the dictates of reason, and aims on the one hand to protect the public interest from lapses, slips, improvisation and haste, and give it a kind of calm and positive weight.(12) And deliberation and insightful gaze, through which the will emergesThe hidden management in issuing the administrative decision in an external form visible to persons, in order to protect their rights, freedoms and private interests on the other hand.(13)

 Among the essential formalities and mandatory procedures that have settled jurisprudence and the judiciary by urging the need to respect them during decision-making, the formality of editing the decision in a written document and in the national language, and also there is the formality of history, the formality of the signature, the formality of causation and the preliminary procedures prior to its issuance, and the formality of publication and notification, all of which are necessary due to the value of the interest and the purpose that aims to protect it, it is noted here that all these forms affect the legitimacy of the administrative decision(14)

     Also, among the procedures that have an impact on the legality of the administrative decision, and in the event of its failure, it may be canceled, the conduct of binding consultation, respect for the legal deadline, the conduct of voting and deliberation in some decisions, and therefore if the legislator intervenes or the administrative judiciary approves specific formalities or procedures that the administration must adhere to in taking administrative decisions, the administration has its authority limited by that formality or that procedure, and it lacks its freedom to choose the appropriate form or procedure.(15)

Accordingly, the will of the administration is also restricted in the field of problems and procedures, it does not have to violate it or replace a rule with another rule, or a procedure with another procedure, or increase or decrease in duration, this on the one hand, and on the other hand, not all forms affect the legitimacy of the administrative decision, it has settled the elimination of the distinction between the essential forms and secondary forms and the order of invalidity on the first without the second, we will clarify this by putting forward the following opinion ” (16) The distinction between the essential forms and secondary forms is a matter of discretion as it is decided in the light of the provisions of the law and the opinion of the judiciary, and in general the form is essential if expressly stipulated by law, or if the invalidity is arranged as a penalty for violating it, but if the law is silent, the form is essential if it has a decisive effect, and on the contrary, it is a secondary form and therefore ignoring it is not a defect that affects the legitimacy of the administrative decision, on the other hand, the administrative judiciary settled that secondary procedures Violation of which does not entail the invalidity of the administrative decision of two types, the first is the forms and procedures prescribed for the benefit of the administration,(17)

The second requirement: restriction in the means of internal legality of the administrative decision.

    The restriction of the administrative decision is not limited to the means of external legality, but extends to the means of internal legitimacy, when we try to search for the restricted authority in the means of internal legitimacy of the administrative decision, we are in the process of restricting the legitimacy of the content or content, we are the imam of restricting the corner of the shop, or restricting the legality of the reason, so we are the imam of restricting the corner of the reason, or restricting the legality of the goal, the restriction is on the corner of the end, and for this what is meant by the means of internal legitimacy of the administrative decision are those related to the corner of the shop, the corner of the reason, and the corner of the end. (18)

Subchapter I: Restricted Authority and Shop Corner.

The corner of the shop in the decision is the direct legal effect and the situation resulting from the issuance of administrative decision, which leads to a change in the prevailing legal structure, by creating a new legal status and modifying or abolishing an existing legal status.

The place of the administrative decision also means the legal effect of its issuance immediately and directly, and the place of any administrative decision lies in its subject matter, which is a public or private legal status, in terms of establishment, amendment or cancellation.

 It is worth noting that the place of the administrative decision is distinguished in the individual decision from the organizational decision, in the first its impact does not exceed the person himself, but in the organizational decision, its effect is general affects a group of people not by themselves, but by their qualities, and they share that both when taken produce legal effects called the name of the place of the administrative decision, which is required to be possible is not impossible and legitimate, that is, its legal effect does not contradict with the legal system in the state.(19)

It should be noted that the administration has its authority restricted in the corner of the shop, when the legislator does not leave it the authority to choose and choose between several hypotheses presented to it, and therefore the authority restricted to the administration in the corner of the shop is determined when the legislator stipulates certain facts that constitute the corner of the shop, and it has certain legal effects, such as the case of an employee who has reached the legal age and is referred to retirement, as the authority of the administration is limited by the events of the effect stipulated by the law.(20)

     Therefore, the authority of the administration is restricted in the corner of the shop if it adheres to the application of the law directly, such as if the decision to appoint a person is issued to embody the methods, conditions and procedures for joining or entering the public service as stipulated by the law, or the promotion of an employee from one rank to another, or from one grade to a higher grade in the administrative hierarchy, as stipulated in the law, and even in the case of termination of a legal position, the appointing authority must abide by the law in taking Decision to dismiss or dismiss a public employee The administration must also work to apply the law, even indirectly, especially if it is ambiguous, so it adheres in issuing administrative decisions to the application and proper interpretation of the content of the legal text in a manner consistent with the prevailing legal system in the state to embody the principle of legality and the rule of law, and the decision violates the legal rules takes several forms, including – direct violation of the legal rule – error in the interpretation (21)of the legal rule – error in the application of the legal rule, and here it takes two forms, the first is in the case of the decision issued without reliance to material facts that support it, and the second is the case of non-justification of the facts of the administrative decision. Therefore, the administration has restricted authority in the place of the administrative decision to directly apply the legal text that did not put in its hands several options, or to apply indirectly to abide by the legal system in interpreting the content of the ambiguous text.(22)

 Subchapter II: Restrictive Authority and Element of Cause.

      By the reason corner, we mean the factual or legal situation that prompted the administration to issue its decision, so the facts must be achieved and their existence proven so that the administration’s decision is based on a valid reason to be added, to that the correct legal adaptation of the facts so as not to produce a wrong legal status, and the corner of the reason in the administrative decision is the idea, order or external incident that is far and independent of the mentality, mentality and will of the employee of the administrative authority, and moves him and pushes him to make a decision An administrator appointed to confront this matter or incident.(23)

      The control of the administrative judiciary has extended to the administration’s assessment of the appropriate decision to take it to affect the authority of the administration by assessment, if the jurisdiction of the administration is restricted, the administration must here abide by the restrictions imposed by the legislator, including the necessity of the physical and legal incident, but if the administration has discretionary power, we find that the administrative judiciary in France refrains from intervening to control the administration’s assessment of the facts and evaluate the appropriateness of the decision on the basis of which it is taken for the public interest being a judge of legality and the explanation for this abstention was based on Several considerations – that the error in the facts or in their assessment does not constitute a breach of the law, – that the administrative judge does not monitor only the legality of the administrative decision, i.e.(24) not violating the law, so it does not interfere in the assessment of the facts , but the administrative judiciary in France since the beginning of the twentieth century began gradually expands the scope of its control over the cause of the administrative decision, as it has become exercising three forms of control over the facts, namely – control the physical existence of the facts – control the adaptation of facts and whether they justify making the administrative decision – Control of the appropriateness of the decision to the facts adopted as its basis (25 )From the foregoing, the determination of the element of reason in the administrative decision is not based on the will of the source of the decision nor on how he personally perceives the circumstance and facts on which his decision is based, but it is based on those circumstances and facts in an abstract manner, that is, in terms of their legal and material reality.

Subchapter III: Restrictive Authority and Element of Purpose.

It means the final goal that the administration seeks to achieve, and this goal is the public interest in general or that the law has entrusted to the authority to achieve and is known as the rule of allocating goals, and the pillar of the goal in administrative decisions is the far, final and indirect impact that the administrative decision maker targets in his decision, and the objectives of administrative decisions all revolve and revolve around achieving the public interest, which are the goals of ensuring the proper functioning of facilities regularly, steadily and in the best way, and the goals of maintaining public order.(26)

     The element of the purpose in the administrative decision is the far-reaching, final and indirect effect that the administration seeks to achieve by issuing it, as it is an expression of the intention, intention and will of the source of the decision and therefore it is characterized by a subjective nature, and the public administration deviates from the authority when it abuses it through its pursuit of illegal goals, purposes and objectives.

Therefore, the administrative decision issued by the competent administrative authority must aim to achieve a legitimate goal, embodied when the legal rule stipulates a specific goal, so the management man must target it in particular and not others, and this is what is known as the rule of allocating objectives, especially in administrative control decisions that aim to achieve public order with its traditional elements: public security, public health, public tranquility, in addition to public order with its modern elements:  Congenital public order, economic.(27)

     If the law does not stipulate a specific specific goal, the administration is obliged to achieve the public interest, because when the law recognizes the administration to follow certain mechanisms, and obliges people to implement the administrative decision, the purpose of this is to embody the public interest and avoid arbitrariness, bias and deviation in the use of power, and does not expose the act to cancellation in addition to other penalties.

      And because this defect is related to the hidden psychological motives of the administration sourced from the administrative decision, and proving it requires that the judiciary examine the existence of these motives is far-fetched, so the judiciary has given this defect the reserve character, so it does not look at its existence as long as there is another defect that has marred the administrative decision, such as the defect of violating the law or the defect of lack of jurisdiction, and the purpose of the administrative decision can be determined through three considerations, namely – targeting the public interest – respecting the rule of allocating goals – respecting Planned actions(28)

Results

1. It is impossible to say that an administrative decision contains absolute discretion or exclusive restrictive power, because they constantly overlap.
2. .The discretionary power is the asset, while the limiting power is the exception, since the activity of the administration may be restricted only by the existence of a legal rule.
3. The activity of the administration on the basis of its restricted authority is almost identical to that of the annulment judge, since they ensure the application of the law as an embodiment of the principle of legality.
4. The restricted authority is the optimal legal model for the protection of rights and freedoms.
5. The reason for the legislator’s tendency to expand the recourse to restricted power is to ensure the stability of transactions in the public interest on the one hand, and on the other hand the rigid rule embodies equality and satisfaction in most cases between persons for their knowledge of it and the way it is implemented
6. The element of the goal in the administrative decision is the far, final and indirect impact that the administration seeks to achieve by issuing it, it is an expression of the intention, intention and will of the source of the decision and therefore it is characterized by a subjective nature
7. The determination of the element of reason in the administrative decision is not based on the will of the source of the decision nor on how he personally perceives the circumstance and facts on which his decision is based, but it is based on those circumstances and facts in an abstract manner, that is, in terms of their legal and material reality.
8. Distinguishing between essential forms and secondary forms is a matter of discretion as it is decided in the light of the provisions of the law and the opinion of the judiciary, and in general the form is essential if expressly stipulated by law, or if the invalidity is arranged as a penalty for violating it, but if the law is silent, the form is essential if it has a decisive effect, and on the contrary, it is considered a secondary form.
9. The determination of jurisdiction is consistent with the interest of citizens and even the interest of the administration itself and that it enables the administration and the competent person to master his work due to the large number of exercises, and at the same time leads to the completion of his work quickly and improves the public facility.

Recommendations

1. The state must oblige all administrations to justify their administrative decisions, this matter leads to narrowing the scope of the legal presumption of the validity of administrative decisions in order to take into account the weak party in the relationship who does not have the papers that are often present with the administration and leads to difficulty in proving
2. We recommend setting conditions that the administration is obliged to follow when issuing administrative decisions that are consistent with the goal or interest to be achieved, all in order to reduce the deviation of the administration and its abuse of the authority granted to it
3. We recommend narrowing the discretionary power of the administration by amending the laws in force related to the work of the administration, which helps in imposing control over the administrative decisions issued.

References

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