Reflections on the indicators of good governance in the jurisprudence of the Court of Administrative Justice

Document Type : Original Article

Authors

• Mazaher Khajvand ¹
• Mojtaba Lotfi Khachak ²
• Davood Soltanian ³

¹ Faculty member of Law Department, Nowshahr Branch, Islamic Azad University, Nowshahr, Iran

² PhD Student in Private Law, Sari Branch, Islamic Azad University, Sari, Iran

³ Phd of Private Law and Lecturer of Tonekabon Branch, Islamic Azad University, Tonekabon, Iran.

Abstract

Highlights

Good governance is one of the modern concepts of administrative law, which is enshrined in the Charter of Fundamental Rights of the European Union as one of the fundamental rights of citizens, and is then explained in detail in European law of good administrative behavior and some approvals of the Committee of Ministers of the Council of Europe. This concept includes the most prominent and advanced rights and principles governing the administrative law systems of the EU member states, which are reflected in the legal system of this international organization, and their implementation in government offices can play an important role in securing citizenship rights. Principles of rule of law, principles of proportionality, transparency, speed in administrative processes and accountability with the aim of holding the office accountable for its actions and activities are the most important components of good governance. Administrative acts governing the tenure or prediction of judicial oversight bodies are influenced by the legal system of some European countries. The main question that is raised and examined in this article is what is the place of good governance in the Iranian legal system and how can the principles governing the services of the administrative system be evaluated in the light of the theory of good governance? In order to study and answer the question, good governance in Iranian administrative law is explained, then the principles governing the services of the administrative system in the light of the theory of good governance is examined. In this paper, a descriptive-analytical method is used. The results indicate that in the administrative law of Iran, the concept of good governance has not been considered as it should be. Scattered in various laws, traces of good administration can be seen, but in many cases, sufficient executive guarantees have not been provided, and this is one of the violations of good administration in the Iranian legal system. However, in its rulings, the Court of Administrative Justice has paid attention to many components of good administration and has been able to largely address the shortcomings in Iran's administrative law in practice.

Administrative authorities must act not only within the framework of laws and regulations, but also in a fair and just manner, so public officials must follow a set of principles of administrative law in exercising their discretionary powers. In implementing these principles, the requirements of good and efficient governance, as well as the interests of third parties and the public interest, must be properly considered. These principles apply to the protection of the rights, freedoms and interests of individuals against administrative acts adopted in the exercise of voluntary powers. One of the principles of good governance is equality before the law. The purpose of this principle is to prevent unfair discrimination by ensuring that persons in the same practical or legal situation are treated fairly in the exercise of their discretion. The principle of proportionality applies, in particular, to the extent that an administrative action taken in the exercise of a discretionary power adversely affects the rights, freedoms or interests of an individual; In this case, ensuring a reasonable balance between the interests in question, for example the public interest on the one hand and the private interests of individuals on the other, it is necessary to emphasize that If the administrative officers who are supposed to perform their legal duties by exercising discretionary jurisdiction, while performing this duty, pay attention to the criteria that the court (law) is not disproportionate for the exercise and guidance of discretionary jurisdiction. Legally, they have not in fact exercised their discretion, so the courts should exercise judicial oversight if the bureaucrats do not use appropriate tools and methods in exercising their discretion. Finally, this principle requires administrative authorities to refrain from any action in any case that may lead to discrimination and harm to individuals. Most European administrative law systems recognize the principle of reasonable proportionality between the intended purpose and the means to achieve it. This is known as the "principle of proportionality". Many components of good governance are not explicitly addressed in the Iranian legal system, but the explanation of the Court of Administrative Justice's approach indicates that the Court has tried to take steps towards good governance in various cases.

Keywords

• administrative system
• public services
• good governance
• speed of response
• legality

Main Subjects

• Other topics