Document Type : Original Article
Highlights
Recognition of Good Faith in Public Law
While Good Faith has been recognized as a common concept in the various branches of law, in public law, it is rather a new concept. In this field, good faith is a necessary and fundamental concept based on the modern right-based approach, particularly for citizens to be supposed trustworthy and confident, along with loyalty of state to its administered people. Furthermore, assuming good faith for the state plays an important role to promote efficiency in political society.
This article seeks to consider the concept of good faith and recognize it in public law, especially based on its application in administrative laws and related cases. Although the meanings and definitions of good faith in public law are not far from other fields, their applications are different. So introducing this new concept can gradually lead to an evolution in Iran’s public law system.
Honesty, loyalty, and fair measures, or justifiable ignorance and forgivable error are two meanings propounded for good faith, as opposed to malice, abuse of authority, and fraud. Like Justice, Fairness, and Good morals, the definition of good faith which has been regarded as a subjective and relative concept, is difficult and with ambiguity. Of course, this concept is better explained by its oppositions and applications.
Good faith in some applications is presented as a legal principle and standard of behavior, while in others as a legal presumption, facilitate the burden of proof and repudiators must prove their claims. The application of this concept can be divided into two categories: the state or citizen operations; each can be examined in the fields of constitutional law, administrative law, or human rights.
In constitutional law, the obligation for the officials to implement the laws faithfully and honestly is an example that some constitutions explicitly remark it. Moreover, officials can rely on good faith in cases of violation of fundamental rights so as to justify actions and exonerate themselves of liability. Another application of good faith can be found in the field of human rights. For instance, the good faith criterion restricts freedom of speech for whistleblowers and for attorneys in front of the courts and judicial system. The former is necessary for a political system like Iran which has been confronted with systematic corruption.
In administrative law, good faith as a principle of judicial review is being used in the assessment of discretionary power to deny the abuse of authority by an administrative official. Also, good faith in cases of civil liability of the state justifies actions and omissions of the state. Furthermore, the administrative procedure according to good faith or the duty to give the reasons of administrative decisions sincerely, indicate the significant role of this concept in public administration.
On the other hand, good faith in administrative law sometimes supports citizens and protects them. For example, the legitimate expectation of citizens arising from good faith is protected against the administration. Also, the right to make mistakes when dealing with the government is recognized for citizens and they will not be deprived of their rights, provided that the actions and statements are expressed in good faith to cause legal protection.
In public economic law, such as labor law, tax law, or competition law, good faith plays an important role. It should be noted that as same as in administrative contracts in which the parties do not have an equal position, the interpretive function of good faith can assure equity in labor contracts too. In tax law, the good faith of the government agents is presumed and the opposite must be proven. In competition law, application of good faith and equity and preventing from abuse of right, through a commitment to transparency and providing information, protect consumers.
Therefore, functions of good faith in public law that would be inferred from the aforementioned applications, can be classified into five categories: Obligatory, Justificatory, Interpretive, Restrictive, Protective. These functions in public law have been raised to some extent in statutory law and judicial precedents, however, it is necessary to extend this concept as the citizen’s right to establish a democratic society based on trust and honesty. Needless to say that it must be the subject of an independent article.
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