The Status of Unlawful Administrative Decisions

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.