Document Type : Original Article
Highlights
Summary of the article:
The current research purposes to emphasize the importance of the theoretical and philosophical dimensions of civil disobedience and the findings obtained in this field, to discuss the issue of "civil disobedience" and "resistance" from a "practical perspective" in the field of administrative law and it is going to be investigated under the title "Employee's Right to Disobey" which is one of the topics Iran administrative law. It has to be said that although the competent management of public orders requires the implementation of the administrative hierarchy principle and obedience to superiors, and although it is necessary for the officer to follow the orders of his boss in order to establish safe legal discipline, is it possible to use on the same justifications to say as a citizen has the right to disobey the "unfair law" and "wrong law", so an agent has the right to disobey the superior's orders as well? In other words, can an employee violate the command in some cases to demonstrate the illegitimacy of cammand and request its correction. It is clear that in the recent approach, the right of disobedience and resistance is raised at the level below the law and against the decisions taken by the commander or superior.
It should be mentioned that in this article, the purpose of rebellion is a form of resistance, which can be done by relying on fundamental principles and in defense of the idea of "ethical, creative and law-oriented administration" and can be a solution to get rid of passivity in a system. Based on this, apart from analyzing the articles related to the responsibility of the commander and the agent in the internal laws and their challenges, and in addition to necessity of paying attention to topics such as administrative democracy, healthy and efficient administrative system, development of participation and promotion of discourse culture, and acceptance of the expanded concept of legality principle in the field of administrative law we have to deal with the possibility of an agent disobeying the orders of his superiors.
Regarding the background of the research, it should be mentioned that most of the available sources related to the issue of "illegal orders of superiors" often focused on articles 158 and 159 of the Islamic Penal Code and article 96 of the Civil Service Management Law. However, this study is going to present a new explanation of the mentioned articles and refer to other legal articles related to the issue of "illegal orders of superiors", especially Article 91 of the Public Accounts Law, which has received less attention in this regard, and the purpose of this study is to address the philosophy of employee's right to resist obeying his superior.
In addition, the reflection of this right in foreign law will also dealt with.
The limits of the responsibility of the employer and the employee for orders that seem illegal have long been an issue in different legal systems, and jurists have adopted different approaches in answering this question. some believes that public order and administrative discipline require that the employee obeys the orders of his superiors in any situation and has no right to evaluate the order and check the legitimacy and illegitimacy of the content of the order. In this case, the employee is obliged to execute the orders of his superiors and the responsibilities resulting from the execution of the orders are with the commander (absolute obedience theory).
In another approach, it is believed that the employee should execute the orders of his superiors within the framework of the law, and the mere fact that the commander is superior is not a license to execute orders inconsistent with the law. Based on this, the employee is obliged to check in each case that the superior's order has been issued in accordance with the law (theory of duty to evaluate the order). Some jurists have also put forward a third theory according to which, if the employee recognizes the appearance of the order as legal and legitimate, he must execute it (conditional obedience theory).
The legal system of Iran has not adopted a single procedure in explaining the limits of the responsibility of the superior and the agent, and the legislator has used all three theories according to the subject and different situations. However, what seems certain is that according to Article 159 of the Islamic Penal Code, as a general rule, it should be accepted that the execution of the superior's criminal order does not exempt the employee from punishment. In other words, the employee is obliged to disobey when faced with criminal orders. Therefore, even with regard to Article 96 of the Civil Service Management Law, which obliges the employee to obey if his superiors insist on carrying out an order, it is related to orders that do not have a criminal description.
In addition to such a conclusion, one should not neglect the case-by-case approaches of the legislator regarding the determination of the limits of the responsibility of superiors and employees. This is because sometimes the legislator has considered the agent to be submissive to his superior in any case, and in this way, he has given a distinct and special position to the general ruling of the Islamic Penal Code. Like what is observed in Article 91 of the Public Accounts Law and some articles of the Islamic Penal Code and some of the articles of the Armed Forces Crimes Law. It means that a kind of hierarchical obedience prescription is considered in these cases.
Another important question that this research seeks to answer is whether the right of the employee to resist is only against illegal decisions or whether it is possible to use such a right in the case of unethical, non-Sharia decisions and against the fundamental principles. Also, this research intends to express concepts that support the right of the employeeb to disobey against illegal decisions.
