فهرست مطالب مرتضی نجابت خواه

During the revision of the Constitution of the Islamic Republic of Iran, due to the developments that took place in the management of the executive branch, article (130) mentioned the issue of the resignation of the president, only in short terms. In this paper, it is stipulated that "the president submits his resignation to the leader and continues to perform his duties until his resignation is accepted." Therefore, there was no specific reference to the terms and procedures for the president's resignation. It was also not mentioned that the law determines the details of this issue. Although there has been no case of the resignation of the president in the Islamic Republic of Iran, we cannot ignore the research on the terms and procedures for the resignation of this political official. Based on this, this paper, using a descriptive-analytical method and adopting a comparative approach, discusses the subject of the terms and procedures for the resignation of the president and, inspired by the constitutions of different countries, triesto present a clear outline regarding the above-mentioned subject.

Employing competent and capable forces in a fair and equal process is a necessary condition for the realization of the desired administration and optimal performance of public services, which is realized through the implementation and recognition of the principle of equality of opportunities and employment justice. These principles have been recognized in the third and twenty-eighth principles of the Constitution and Article (41) of the Civil Service Management Law. The contrast of employment quotas in public jobs with the principle of equal opportunities in entering the service is the subject of this article, and in this article it is discussed that according to the judicial approach of the General Board of the Administrative Justice Court, in what way employment quotas in entering public jobs contradict The concept of employment justice and the principle of equal opportunities? Although the expansion of quotas, especially towards the martyrs, as well as the selection of localities, is the dominant practice of the legislator in recent years; But the findings of the research indicate that according to the procedure of the General Board of the Court, it can be concluded that the establishment of any type of quota should be based on strong grounds and arguments that justify the difference in treatment in order to reduce inequalities and in line with the public interest. Every quota should be interpreted narrowly so as not to restrict the way to equal opportunities in employment.

Legislative initiation, in the sense of presenting a proposal for a new law or amending existing laws, is considered the first stage in the legislative process in any legal system. Based on the theory of separation of powers, the exercise of legislation power belongs to the legislative branch. However, nowadays it is accepted in parliamentary and semi-parliamentary systems that the executive branch can also play a role in initiating legislation. The legal systems of Iraq and Egypt are among the systems that have recognized the joint competence of the legislative and executive powers in the process of initiating legislation. In this context, Article 74 of the Iranian Constitution is worthy of attention as it is devoted to the issue of legislative initiative and the joint role of the legislative and executive powers in presenting draft laws. Using a descriptive-analytical method, this paper has tried to evaluate the evolution of the constitutional laws of Iraq and Egypt on this issue. The Paper aims to draw lessons from the Iraqi and Egyptian systems in terms of reforming the process of legislative initiative in Iran.

In a system of administrative decentralization, the central government delegates the right and authority to the local or professional institutions to make decisions. In our country, the government authorities are delegated to local institutions in the form of the Town and Village Councils and delegated to the Public Non-Governmental Organizations in specialty matters. Given that the Social Security Organization is run as a public non-governmental organization in the system of administrative decentralization framework and provides social security public services instead of government, it is essential to examine the requirements of the decentralized administrative system in the structure of this organization. In practice, it can be seen that some of the requirements of the administrative decentralization system in the social security organization are not properly met. In this research, after introducing the system of administrative decentralization, its requirements in social security organization have been studied and analyzed

The Covid-19 virus pandemic in the country created a special emergencysituation that affected all health, economic and social sectors. Public affairsmanagement in health emergencies requires special administrative laws andregulations, and for this reason, the administrative law of the country shouldhave taken precautionary measures to establish necessary mechanisms tomanage these affairs in these circumstances. Although public healthmanagement is a category of health administrative police, however, Iran’sadministrative law has several legal gaps in this area; such as the lack of acomprehensive public health management law, ambiguity in the legal systemgoverning emergencies, lack of a specialized council in the field ofcoordination of public health management, fragmentation and organizationalparallelism, ambiguity in standards of the public service delivery, lack ofmechanisms to anticipate and prepare for future health crises. Therefore,reforms in the administrative legal system and the development of healthadministrative law are necessary for the proper management of health crises.

Participatory monitoring on performance refers to the form of monitoring in which citizens, service users, or civil society organizations participate in the process of monitoring and evaluating the provision of services and public functions. The process of participatory monitoring on performance is applied in different ways. Citizens' reporting card, community scoring card, and social auditing are the most common of them. One of the main goals of participatory monitoring is to monitor the performance of governments in relation to progress towards achieving the goals of sustainable development and pave the way for more public participation in increasing the quality of public services provided by governments. The present study is in answer to the question of how citizens can monitor the performance of the government in order to achieve sustainable development through participatory mechanisms? This research using descriptive-analytical methods show that this process is done using citizen-centered data. In fact, this form of monitoring is based on the analysis of information that citizens themselves have collected in various ways and the government or its organs have not intervened in this matter and the results are far more accurate and transparent than normal or government data-based monitoring.

Error is instances of illegality,although there is a strong belief in the validity of the act,but judicial review of it can be accompanied by enforcement and judicial remedies.The court,in addition to the Certiorari in error of law  cases in the verdict,can replace the true decision.The prohibitory order can only be made after the decision has been made by the public authority in order to prevent its execution.The mandatory order is best when public officials,as a result of inaccurate interpretation of their legal jurisdiction,disqualify them from exercising their jurisdiction,requiring their judicial authority to enforce or refuse to enforce legal jurisdiction or to re-examine it.The injunction for preventing a public official Use of the action in an illegal manner or out of the scope of his authority or obligation to perform his duty.The judicial declaration be used to declare that a decision or action by an official is illegal and outside of the scope of the mandate,including the announcement of a forward-looking judicial statement indicating the correct meaning of the legal regulation,Preventing the receiver from making similar errors in the future.Compensation has been imposed on the General Court after the occurrence of the violation.

The theory of public choice is the study of politics based on economic principles. Today, the application of this theory has expanded into issues such as judicial behavior that has been widely accepted in the field of order. Studies have shown that the concept of general selection theory in judging has practically proved a kind of interdependence between the personal interest of the judiciary and its effects on the outcome of the lawsuit. The nature of the proceedings, the difficulty of an agreement between judges, the inequality of judges, the uncertainty in judgments and the influence of superior justices on the other judges, is one of the disadvantages of this type of judgment that is judged in the light of the structure and functioning of the full bench and specialized chambers of the Administrative Justice Court. The purpose of this study is to examine the possibility of the existence of a personal judicial interest in administrative justice. The present study, with a descriptive-analytic approach, explains this relationship and proves that these chambers are not exempt from the constent pressures and material temptations of interest groups, the non-judicial ethics and the culture of expediency stemming from the practices of the Administrative Justice Court.

In the Arab Republic of Egypt, the Supreme Constitutional Court is established to protect the constitution. Granting this jurisdiction to the Supreme Constitutional Court, requires adequate provision of institutional independence of the Court and individual independence of the judges of this court. In a descriptive-analytical way, this paper seeks to answer the question of whether the Supreme Constitutional Court's independence has been secured. The legal measures taken to ensure the institutional independence of the Supreme Constitutional Court of Egypt are: determine the court judges by the General Board, examination of the responsibility of the court judges by the general board, the financial independence of the court and the administrative independence of the court; whereas the irremovability of judges, their long-term membership in the court, the maintenance of their jobs, the prohibition of more than one occupation and the provision of adequate salaries for judges, provides the individual independence of the Supreme Constitutional Court judges. By defining these rules in the Egyptian constitution and ordinary laws, the independence of the court is guaranteed in order to perform its duties and powers correctly and impartially.

Bureaucracy plays a significant role in the behavior of politicians, government officials and agents. Bureaucracy can always be a security for liberalization indicators and at the same time a threat to any of its variables in the event of corruption. The indicators of liberalization studied in this study are taken from the model announced by the Heritage Foundation under ten headings: trade policies, government financial burden, government intervention in the economy, monetary policy, capital flow and foreign investment, banking laws and Tax laws, wages and prices (plus subsidies), property rights protection, business rules and regulations, and informal market activity are introduced. The purpose of the present study is to analyze the consequences of bureaucracy in the liberalization system of the Iranian economic system with emphasis on these indicators, which explains the existing challenges with a descriptive-analytical approach. The findings of this study show that the economic growth of the country and the reduction of corruption, initially requires the reform of the administrative-organizational structure and the relevant rules and regulations.

The US Constitution mandates the President to sign the bills approved by the Congress. The president can, within a deadline of ten days, sign a bill approved by the Congress, which will result to a law. If the President rejects the bill within that deadline for any reason and returns to the House which it was originated, the President's action shall be considered as a regular veto. After reconsideration, the Houses may, with two-thirds of the votes of their members, insist on its previous resolution, in which case the president's veto will be ineffective and the congressional resolution becomes a law without President's sign. If the ten-day deadline passes and the president does not announce his signature or veto, while the congress is at a session, the bill becomes a law; however, if the congress is not in session, the bill will not become a law. In this case, the pocket veto has been taken. Therefore, a pocket veto is possible at the time of the intersession and final session closurs of congress, but it is not feasible and is contrary to the constitution at the time of intrasession closurs of congress. The Supreme Court has unequivocally proclaimed the partial veto of the approved bills as a constitutional violation.

Iran's Labor Law (1990) provides for Dispute Settlement bodies at two levels: the recognition Board and the Dispute Settlement Board. According to Article 157 of the Labor Code, these boards are competent to deal with any individual dispute between the worker and the employer or trainee arising out of the enforcement of labor law and other labor regulations, apprenticeship contracts, workplace agreements, or collective labor agreements. Subject to paragraph (2) of Article 10 of the Law on the Organization and Procedure of the Administrative Justice Court (AJC), certain decisions and judgments of the Labor’s Dispute Settlement bodies may be appealed in the Branches of the AJC. The rules and procedures for dealing with these matters are set out in Article 63 of the said Act. There are some ambiguities and challenges to both the jurisdiction and the procedure of the AJC concerning judicial review of decisions of the Labor’s Dispute Settlement Authorities, in which the answer to these ambiguities can be found in the Court's jurisprudence. Accordingly, in this descriptive-analytical method, this article attempts to study the jurisdiction and procedure of the AJC in judicial review of decisions of the Labor’s Dispute Settlement Bodies concerning the jurisprudence of the AJC.

Administrative regulations are general applicable rules of an administrative agency which effectuates and interprets a law or policy. General Board of Administrative Justice Court (AJC) has the competence to adjudicate the petitions, plaints and objections of citizens against by-laws and other regulations of governmental and municipalities and public non-governmental agencies. The competence of divisions and general board is separated from each other and the substance of administrative actions, under their competence is also different. This article, by scrutinizing on the precedent of the general board, tries to conceptualize the "Administrative regulations" and presents the criteria for clarifying the concepts and instances of those regulations in according to the general board's precedent. Administrative regulations as a body of legal rules have the characteristics of generality and obligatory, and the general board of AJC recognizes it as well. If an administrative enactment includes a specific decision without any general aspect, it is not considered as an administrative regulation. Likewise, if it contains a proposal, consultancy, expert opinion or signification of an enactment, it won't be mandatory and it is not an administrative regulation.

In modern legal systems, government has the power of compulsory purchase of lands for the purpose of fulfilling public goals and laws to preserve owner's rights, define the scope of governmental organ's authorities. The question of this essay is what would be the differences between Iran and U.K's Legal system in the subject of authority and process of land purchasing. In United Kingdom the process of land purchasing includes issuing Compulsory Purchase Order, Notify and Publicity and approving the Compulsory Purchase Order. But in Iran, the process of land purchasing contains the existence of enacted plan, Finance Appropriation and formal declaration of plan by public advertise and notify to owner and registration process. This article by assessing the land acquisition in Iran and U.K, conclude that in Iran's compulsory purchase process, owners and who will be affected by plan, don’t involve in process of enacting and approving the public plan and they can't protest and don’t have the right to appeal to the plan.

The Egyptian Constitution of 1971 addressed the issue of the necessity of protecting the Constitution and established the Supreme Constitutional Court for this task. This body is currently is protecting the Constitution of 2014, as stipulated in Article 192 of the Constitution and Article 25 of the Supreme Constitutional Court of Egypt, as the task of "monitoring the constitutionality of statutes and regulations". While the laws in the Egyptian legal system are diverse, the effectiveness of the constitutional review system requires the adoption of ordinances to expand the scope of the Supreme Constitutional Court. One of these ordinances is that all laws are subject to the constitutional review of the Court. Accordingly, ordinary laws, Supplementary Constitutional Laws, laws approved by the referendum, abolished laws, parliamentary internal regulations, international treaties, and decisions of the president are subject to the constitutional review of the Supreme Constitutional Court. This is a mark of the effective and genuine constitutional review system in Egypt. However, the Constitutional Amendment rule is out of the constitutional review scope of the Supreme Constitutional Court. In this article, the efficiency of the constitutional review of statutes in the law of Egypt has been investigated.

The Supreme Constitutional Court of Egypt was established as constitutional supervisor and a court out of hierarchical structure of ordinary courts in 1971. This court is responsible for multiple tasks to protect the constitution 2014. Some of the most important of these powers are: controlling the constitutionality of statutes and regulations, interpretation of legal texts, resolve positive and negative dispute in competence between courts and judicial organizations, and resolve claims about execution of contradictory final verdicts. Controlling the constitutionality of unilateral administrative acts by the Supreme Constitutional Court doesn't include all of them. Regulations governing the private sector and personal unilateral administrative acts are out of control by the court; while executive regulations, public service arrangement regulations, discipline regulations and emergency regulations are under the control of constitutionality by this court.

A “signing statement” is a written pronouncement issued by the President of the United States upon the signing of a bill into law. The signing statement has a particular importance in the US constitutional order because the Supreme Court and Federal Courts have useditasa source to issue judicial verdicts. Signing statements are grouped into three categories: Rhetorical, Interpretive and Constitutional statements. The signing statement can be used as a subsidiary and helpful tool for other powers and relative bodies for a valid understanding of ordinary law and protect the Constitution. There are debates about whether a signing statement is lawful and in compliance with the Constitution; however, the Presidents have used it as rhetorical, interpretive and constitutional tools, due to the lack of clear reference in the Constitution about the impossibility of applying it.

According to Articles 12 (2) and 89 of the Act on Organization and procedure of Administrative Justice Court (1392), the legislator has identified the uniform judicial precedent as a competence of General Board of AJC, in cases where conflicting of judicial decisions issued by one or more branch of this court. Therefore the question arises: What is meant by inconsistency of judicial decisions and when conflict arises? This paper, by case- study of the precedents of the General Board of AJC, aims to explain the concept and conditions (formal and substantive) of the inconsistency of judicial decisions, as well as the various factors that have led to differing interpretations among the branches of AJC.

The term “System's Dilemmas Settlement" is used in the Article 110 (8) of the Constitution as one of the duties and powers of the Supreme Leader. There are some uncertainties regarding this clause, such as the official body and the criterion for declaring and identifying the dilemma, as well as the final entity to provide the solution in respect of that dilemma. These ambiguities will be examined with a descriptive-analytic method in this article. In this regard, due to the detailed deliberations of the Revision Council of the Constitution, it becomes apparent that any dilemma unresolvable through ordinary ways, will be solved by the Leader through the State Expediency Council. Besides, in accordance with the standing order of the State Expediency Council and its practical precedent, in case the Supreme Leader identifies an issue as a dilemma, it will be referred to the State Expediency Council. Hence, the Council cannot directly interfere in a subject as a dilemma settlement, unless the subject is referred to it. The State Expediency Council based on the standing order is recognized as a supreme advisory council for the Leader in solving the dilemmas. Furthermore, the practical precedent indicates the Supreme Leader acts in the manner in which the State Expediency Council presents; although, in some cases, he may conditionally enforce it.

In spite of the silence of the constitution regarding the power of regulation-making by the Guardian Council, this constitutional institution directly, or through being committed by ordinary legislator, takes action in regulation-making. Despite this issue, the competence or incompetence of the regulation-making by the Guardian Council is one of the most significant matters in Iran's constitutional law. This article seeks to investigate the opponents’ and proponents’ positions on the Guardian Council's regulation-making power and deal with whether the Guardian Council has the regulation-making power. Some of the reasons for verifying this power include recognition of regulation-making power by ordinary laws, competence of similar constitutional institutions for regulation-making, recognition of regulation-making by interpreter of the constitution, regulation-making power to ensure the independence of the Guardian Council and regulation-making power based on constitutional custom. Through the analysis of these reasons and the responses of the opponents of Guardian Council's power, the research question has been answered. The findings of the present research study suggest that despite the necessity of recognizing the regulation-making competence of the Guardian Council (such that it can desirably perform its duties and powers), this competence cannot be defended in light of public law principles and the Constitution of the Islamic Republic of Iran.

The public services management Act, has recognized various types of public employment in executive bodies. According to foregoing law, public employees are individuals that employed in agencies based on administrative authority's decision or contract. But a different sort of employment that has not indicate in the law is a status that individuals as public volunteers called by administrative authorities or voluntarily serve in public services or public order field, in particular conditions. However, the main subject of this study is analyzing and examining the legal status of public volunteers including the wage situation and the civil liability arose from volunteer's acts.

According to the Act of determining the wells without license, after reviewing of individuals’ complaints against the state in “Commission of matters relating to groundwater”, the sentence will be issued by a judge, a member of the Commission. The sentences issued by this Commission are reviewed by the Administrative Justice Court within 20 days after the notification. While, according to Articles 10 and 63 of AJC Act, this court is basically a judicial authority that firstly, the sentences of other courts are not within the competence of it; and secondly, it follows a different order for reviewing the commissions. Therefore, this paper seeks to define the supervisory jurisdiction of AJC on aforesaid Commission is a specific jurisdiction and it varies from AJC’ jurisdiction under paragraph 2 of Article 10 of the AJC Organization and Procedure Act. It includes the appellate jurisdiction of AJC against the sentences of a particular judicial authority.

The issue of this study is the structure and competence of administrative specific tribunal with specific pathological approach with respect to their claims referred to the Administrative Justice Court. The authors of this research contemplate that in addition to the mechanisms in Articles 16 and 63 of the Organization and Procedures of the Administrative Justice Court, to reduce the amount of the vote and a final decision claims against the administrative specific institutions (tribunals) in Administrative Justice Court, present other solutions for organizing administrative specific tribunals such as reforming the statute of administrative specific institutions (tribunals), codifying the specific procedures for these institutions, controlling on proper implementation of the principles of fair trial and Formation of hearings correctly in administrative specific institutions (tribunals), designing and codifying some training programs, including apprenticeship programs and retraining, writing the booklets and brochures for the members of administrative specific tribunals, reviewing the structure of administrative specific tribunals in terms of membership composition with reform approach, pathological and exactly reviewing about the necessity or non-necessity of the existence and continuation of administrative specific institutions (tribunals) activities in the administrative structure of the country.

The word "law" in legal texts reminds us several concepts. This word is used five times in the principle 138 of the Constitution without having the same meaning. Determining the meanings of this word in the principle 138 can contribute to formulate an appropriate strategy for providing the rule of law in the field of government regulations and review them. This article argues that the word "law" in terms such as "the executive regulations of principle laws" and "providing of execution of laws" and the last sentence of the principle 138 of Constitution means ordinary laws, but this word in terms "spirit of law" and "within the laws" means both the constitutional and ordinary laws.