Document Type : Original Article
Authors
1 PhD Student, Islamic Azad University, South Tehran Branch, Tehran, Iran
2 Associate Prof.,Department of Law, Faculty of Law and Political Science, Islamic Azad University, South Tehran Branch, Tehran, Iran
3 Assistant Prof- Faculty of Law and Political Science- Islamic Azad University, South Tehran Branch, Tehran, Iran
Abstract
Highlights
People's participation in local affairs and the granting of legal personality to local units and the recognition of the general competence of decision-making in local affairs by Islamic councils, constitute the main structure of the administrative decentralization system. Therefore, the recognition of local units requires a legal entity independent of the central government that It’s necessity to maintain this feature is being independence in decisions and to determine the limits of the competencies of local councils.
The principles of the Constitution of the Islamic Republic of Iran regarding Islamic councils and the subsequent adoption of the ordinary law on councils after the Islamic Revolution are such that there is no single opinion on the scope of action of local councils and this situation is clearly reflected in the laws of the parliament after the Islamic Revolution. In addition, it is worth pondering that recent laws have departed from the concept of administrative decentralization envisaged by the constitutional legislature And even the scope of powers and operational scope of the councils changed somewhat in the following years that In this regard, the main challenge is the legal personality of local units because the recognition of legal personality for local units will lead to the granting of administrative and financial independence for them. It should be noted, however, that granting legal personality to local units alone does not lead to the desired independence of action and freedom in the context of decentralization, but to achieve it, it must be accompanied by financial independence, independence in manpower and independence in having facilities and equipment. Also, having independence and normalization of decentralization are conditions in the deepest sense of the word. Of course, we do not mean the deconstruction of the unity of political power, rather, it is the independence of local affairs management and realization of this independence first requires the identification of legal personality for local units in the true sense of the word and the separation of local affairs from national and the transfer of local affairs to local units and failure to separate and assign it to these units will cause irreparable damage to the independence of local units. Therefore, on the one hand, a correct understanding of the concept of local affairs and its separation from national affairs, and on the other hand, considering the independence of local units in order to advance their goals, in case of doubt about the competence of local units, Given the general conditions of competence, councils have a kind of public law authority to deal with all local affairs that are not explicitly delegated to another authority to ensure the administrative freedom of local units In this way. Considering the granting of administrative and financial independence to local units and the existing legal gaps, the role of the General Assembly of the Court of Administrative Justice is important in terms of judicial control over the approvals of local councils or the establishment of regulations by supervisory authorities that the lawsuits issued regarding the independence of local units are a guarantee of proper implementation to guarantee the independence of these institutions.
In recent years, the mentioned the General Assembly of the Court of Administrative Justice has issued very important judgments regarding the independence of local units within the jurisdiction and authority of the city's Islamic councils that by examining the extent of their compliance with the principles, concepts and principles of administrative law, the growing importance of this judicial institution is shown. As a procedural judicial body, the said body should take the necessary measures to resolve the challenges and harms related to the independence of local units that the above-mentioned institutions will use their legal authority to fulfill the duty of realizing and protecting civil rights in the society.
Considering the judgments issued on the financial independence of local units, what is clear is that the criterion of the Court in the issued judgments is the distinction between national and local affairs that this lack of separation can raise serious doubts about local decentralization and it is precisely the approaches of the General Assembly of the Court in deciding judgments that can be understood and deduced regarding the determination of the powers of local units. The General Assembly, considering the two components of national and local affairs regarding the imposition of levies on banks and economic actors, has applied both approaches in the issued votes, which led to the issuance of conflicting votes.
To find the boundaries of these matters with national affairs and especially to determine the competencies of local units, two procedures can be imagined. First, the scope of competencies of the councils can be defined as follows: The councils have all the competencies mentioned in the text of the laws and in return are deprived of all the competencies that are not explicitly stated in the law. Also, the scope of action of local units can be determined based on the general condition of competencies. According to these two procedures, councils have a kind of public law authority to deal with all local affairs that are not explicitly delegated to another authority. In other words, full authority is given to the councils to make the necessary decisions to ensure the economic, social and cultural development of the region. Of course, it is clear that the general condition of powers does not mean that councils have the power to take any action, but that, in these two stages of delegation, one is not necessarily a substitute for the other; That is, the legislature can provide for the general condition of powers in the law, while also explicitly providing for specific powers for local units.
By examining and studying the opinions of the General Assembly of the Court of Administrative Justice regarding the independence of local units, while distancing itself from the concepts, rules and principles of administrative law, it has taken on the color and smell of the rules of private law. On the other hand, the jurisprudence of the Court of Administrative Justice needs to be seriously reviewed, although in recent years the Court of Administrative Justice regarding taxes on banks (lawsuits No. 1052 dated 10/19/1396 and 355 dated 1/3/1397) and economic activists (Lawsuit No. 933-935 dated 12/4/1397) has followed a new approach, which can promise a review of the rulings of the Court of Administrative Justice. But the jurisprudence in separating the national from the local and presenting a concept of local affairs has not explained a specific criterion and only pointed in some judicial rulings, those issues related to the imposition of fines for non-compliance with parking or its deficit, taxes related to the use of water, electricity, gas and sewerage and telephone points, as well as the activities of banks and loan institutions and economic activists. .. in terms of collecting tolls that have no local aspect and believes in separation on these issues that in order to achieve the independence of local units, only this separation cannot be a good guarantee for the independence of these units because considering the issued votes, a certain criterion and model for separating the national matter from the local matter is not inferred, which caused the General Assembly of the Court of Administrative Justice to issue conflicting opinions in similar cases. Therefore, it is suggested that the said General Assembly of the Court of Administrative Justice, while seriously reviewing the issued opinions, in the first step, should take action through judicial control to eliminate the existing legal gaps and enjoy the same judicial procedure until then, relying on all aspects of decentralization, including the principle of administrative freedom of local units, the principle of distribution of competencies, the principle of equality, etc. as the most appropriate scientific and practical solution to separate national and local affairs, Consider the glorious model for achieving the independence of local units.
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