Document Type : Case Study

Highlights

Analysis and criticism of the Decision of the General Board of the Court of Administrative Justice regarding the annulment of the Enactments of the National Headquarters administrating Corona

Short Summary

The main goal of the paper is to emphasize on the analysis and criticism of the recent decision of the General Board of the Court of Administrative Justice in Iran related to corona virus and mandatory vaccination.

According to the official announcement, the first case of Corona in Iran was detected on 30th of February 2018. From the very first days, disorder and confusion in "competency" and rethinking in "legal regulation" in "emergency conditions" such as the Corona epidemic were clearly visible. With the occurrence and aggravation of the corona virus, three assumptions regarding legal regulation in emergency situations were identified in the legal system of the Islamic Republic of Iran; In the first premise, this issue is a clear example of emergency conditions in "Article 79 of the Constitution" and "the government has the right to temporarily establish necessary restrictions with the approval of the Islamic parliament." The second premise is to consider the Corona epidemic as a crisis and its legal justification according to the "Crisis Management Law", approved in 2018, and the third premise is to consider the Corona epidemic in Iran as a security issue and to recognize it under "Article 176 of the Constitution" and to justify the competence of the Supreme National Security Council in it.

The legal premise that was implemented in practice was the formation of the "National Headquarters to Combat Corona" in March 2018 by the "Supreme National Security Council". This issue turned the jurisdiction of the Administrative Court of Justice into a controversial matter in dealing with complaints about the approvals of the institution established by the Supreme National Security Council.

Based on the premise of considering the Corona epidemic in Iran as security and accepting the competence of the Supreme National Security Council regarding security matters and even establishing an institution with binding enactments in order to deal with it, this important question can be asked whether the Is there a possibility of "judicial review" over the enactments of this headquarters by the court of administrative justice?

There are two points of view in this regard: firstly, according to the Article 12 of the Organizations and Procedures of the Court of Administrative Justice Act, and of course with a "positivist" approach, the Judicial review of the Court of Administrative Justice prohibits the Supreme National Security Council. In fact, according to the aforementioned article, the regular legislator has exempted this council from the judicial review of the Administrative Court of Justice. Of course, it can be claimed that according to the article and with emphasis on the phrase "enactments and decisions", only "typical decisions" of the National Headquarters to deal with Corona are excluded from the proceedings in the General Board of the Administrative Court of Justice, and "case decisions" still can be handled by the branches of the court. Even if it is assumed that the branches of the Court of Administrative Justice do not have the competency to deal with such decisions, the general jurisdiction of the judiciary according to Article 159 is still intact, and judicial review of the decisions and enactments of the National Headquarters to deal with Corona is possible.

According to another point of view, we should look at the problem with this approach that basically, the National Headquarters to deal with Corona is an "extra-legal" institution and has no legal legitimacy; Because the Supreme National Security Council, based on the previous two assumptions, did not have the authority to establish such a headquarters that could make certain decisions and directly affect the rights and freedoms of citizens. Therefore, this institution can be identified as a "de facto administration" and the possibility of monitoring this de facto administration is within the jurisdiction of the court (specifically, regarding decisions of a kind within the jurisdiction of the general board).

Therefore, following the first point of view leads to the refusal of the Administrative Court of Justice to review the decisions and enactments of the National Headquarters to deal with Corona, and the second one leads to the possibility of review by this court.

Beyond the aforementioned legal assumptions and justifications, on 11/16/1400, a petition was filed under petition number 140009970905812978 and case number 0002584 by a plaintiff named Moslem Khodaveisi with the request to "nullify paragraph 3 of circular letter number 292228-29/7/1400 Director General of the Development and Coordination of Administrative and Employment Regulations of the Ministry of Oil" was submitted to the General Board of the Court of Administrative Justice. According to the workflow of this decision: " nullifying the aforementioned circular, the plaintiff, by means of a petition, has announced that he is subpoenaing: The Ministry of Petroleum imposed the penalty of expulsion, which is clearly against the articles of 22 and 36 of the Constitution. It should be noted that the said vaccine has an emergency license and does not have the necessary approvals, and therefore, its side effects have not been studied and monitored. There are also many bystander reports of severe complications and death from vaccination, while on the other hand, it is the least immunizing. For example, according to a study by Shiraz University of Medical Sciences, the effectiveness of the Sinopharm vaccine in preventing corona is only 5%.

The General Board of the Court of Administrative Justice was convened on 11/16/1400 with the presence of the President and Vice-Presidents of the Court of Administrative Justice and the heads and advisors and judges of the Court's branches, and after discussion and consideration with the majority of votes, it issued a decision as follows: “… The approval of paragraph 3 of the Circular No. 292228-29/7/1400 of the Director General of the drafting and coordination of administrative and employment regulations of the Ministry of Oil is beyond the authority of the authority authoring the regulation and contrary to the aforementioned resolution of the National Headquarters for the Management of Corona Disease and is documented in paragraph 1 of Article 12 And Article 88 of the Organizations and Procedures of the Court of Administrative Justice act, approved in 1392, is revoked”.

This decision is very important from the point of view that it shows whether or not the Administrative Court of Justice has recognized the authority to deal with the enactments of the National Headquarters to deal with Corona. According to this verdict, the general board does not officially declare that the approval of the national headquarters of Corona can be revoked, but it seems that with this verdict and in practice, the approvals of this headquarters are considered to be revocable. In fact, according to the Court of Administrative Justice, the national headquarters of Corona did not allow the administrative authorities to fire an employee for not injecting the Corona vaccine and only had the words that in case of violation of the employees in this regard, their case should be referred to the violation investigation boards.

Scrutiny in this decision showed that the General Board clearly and officially does not consider the Court of Administrative Justice to be competent in dealing with the approvals of the National Headquarters against Corona and their annulment, but it has accepted the possibility of annulment of the approvals of this body in a secondary way. This issue is consistent with the doctrines of public law regarding the application of judicial review to any authority or institution that affects the rights and liberties of citizens. However, the method of legal reasoning in this judgment seems to be criticized.

In this decision, the General Board of the Court of Administrative Justice has considered "exiting the jurisdiction of the administrative authority" only to review the circular under complaint, while in addition to legality, reference to general legal principles and, in particular, general principles of Administrative law, including the principle of continuity of public services, the principle of freedom, the principle of harmlessness, and the principle of proportionality, are effective in strengthening and justifying this decision, and it was necessary for it to be brought to the attention of the court.

• public Law