Abstract:
Despite the principle of the rule of law, sometimes administrative agencies, in exercising their authority, make decisions that are contrary to the law although such decisions take a legal form like other lawful administrative decisions. This paper seeks to answer the question whether such decisions are invalid and ab initio void, or they are valid and merely voidable. Among the various theories presented, the principles of the rule of law and ultra vires support the theory of nullity of illegal administrative decisions at the time of their adoption. On the other hand, the principles of acquired rights and legal certainty support the theory that such decisions are valid but voidable. Nonetheless, although the principle of the rule of law is in conflict with fairness to individuals, maintaining order and the rule of law requires that an illegal administrative decision be considered invalid ab initio, and in order to protect the rights of individuals, the prescription of action for judicial review of such decisions, as well as reparability and a compensation system should be provided. The case law of the [Iranian] Court of Administrative Justice seems to advance both theories. The Court’s chambers, however, tend to favor the invalidity theory while its general council prefers the voidablility theory.
Machine summary:
Among the various theories presented, the principle of the rule of law and lack of jurisdiction on the one hand support the theory of nullity and ineffectiveness of the administrative decision from the time of its adoption, but acquired rights and legal certainty are the most important foundations of the theory of validity of the decision until annulment and the possibility of revocation relating to the future.
In this regard, although the principle of the rule of law is in conflict with individual justice and fairness, maintaining order and the rule of law requires that an illegal decision be declared null and void with retroactive effect to the time of its adoption, and to protect the rights of individuals, statutes of limitations for judicial review, the possibility of remedying administrative actions, and a system of compensation for damages should be foreseen.
Declaring an illegal administrative decision or action void, although consistent with the principle of the rule of law, leads to a lack of flexibility of the administration and consequently the courts in supporting citizens affected by the annulment of the decision, because the nullity of the decision implies the absence of it from the beginning of its adoption and paves the way for its generalization.
Declaring an illegal administrative decision or action void, although consistent with the principle of the rule of law, leads to a lack of flexibility of the administration and consequently the courts in supporting citizens affected by the annulment of the decision, because the nullity of the decision implies the absence of it from the beginning of its adoption and paves the way for its generalization.
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