جستجوی مقالات مرتبط با کلیدواژه « local councils » در نشریات گروه « فقه و حقوق »

Regulatory regulation is now a tool in the hands of public institutions to achieve their goals and competencies. Local councils also among these institutions within the scope of their competence in local affairs. But just as any regulator is required to adhere to some principles in enacting regulations to achieve efficiency, transparency, supervisability and promotion of accountability; local councils, considering their nature and scope of action, are required to observe some criteria in which ameliorate the regulation by these institutions and judicial review of their regulations. Therefore, the problems of the decentralized system are also avoided as much as possible and the goals of such a system are realized. The present article seeks to examine the specific requirements for the regulation of local councils by a descriptive-analytical approach. In this regard, the present article, by exploring the Constitution and the views of the Constitutional legislator and other laws and regulations and legal doctrine, has presented principles that can significantly meet the goals of good local regulation.

The supervision over the councils has been anticipated in Articles 105 and 106 of the Constitution. However, there is not any specific name of authority or reference for such supervision and monitoring. According to Article 173 of the Constitution, to investigate the complaints, grievances, and objections of the people against governmental officials, units, and protocols, and for the people to restore their rights, a court named the Court of Administrative Justice will be established under the supervision of the head of the judiciary. The law shall determine the responsibility and the mode of operation of this court. As mentioned, the legislator has confirmed the supervision over the performance of councils. However, the question raised here is about mechanisms that should be used by the Court of Administrative Justice to monitor actions of local councils and their members by considering the regulatory model of the court on governmental officials and protocols as well as the independence of local councils from three powers. There are several legal theories about the competency of the Court of Administrative Justice for investigation and nullification of approvals of Islamic councils. Some of these theories include lack of jurisdiction of the Court of Administrative Justice to join in councils’ ratifications, competency of Court of Administrative Justice for investigation of councils’ approvals, competency of Court of Administrative Justice for investigation of city councils’ approvals, lack of jurisdiction of this court for investigation of approvals of other councils, and competency of public trials for investigation of other councils’ ratifications. Results of the practical procedure of the Court of Administrative Justice confirm the competency of this court for nullification of councils’ approvals. However, the impendent investigation of councils’ approvals by the Court of Administrative Justice is a kind of violation of purpose by legislator considering the existence of boards of the settlement of the dispute. Hence, the monitoring responsibility should be assigned to boards of the settlement of dispute due to the certain mechanism of approvals nullification predicted by the legislator, lack of explicit anticipation of the court interference in previous rules, and the amendment of the Court of Administrative Justice and Councils Act. This assignment, however, depends on choosing the Court of Administrative Justice as the appeal or final deciding court for decisions made by boards of the settlement of the dispute. This is because, despite the independent and specialized nature of boards of the settlement of disputes, they are independent administrative commissions and quasi-judicial institutions. Nevertheless, an investigation by the Court of Administrative Justice is a kind of investigation in a judicial and specialized forum.

Local councils in each country are considered to be the examples of decentralization, minimizing the government, public participation in local governance, improving the local administration, increasing the role of people in decision making, and formation of local institutions. The number and competency of these councils are different in each country, and its comparative studies give more information about their strengths and weaknesses. Therefore, the Provincial Council of the Islamic Republic of Afghanistan and the Islamic Council of the Islamic Republic of Iran will be implemented and compared in this paper. Reviewing the constitution and the normal rules related to this issue in both countries shows that, local councils in Iran are older than local councils in Afghanistan, and in terms of authority, the local councils, including the Islamic Council of the Islamic Republic of Iran, have more jurisdiction. According to Article 139 of the Afghan Constitution, the principle of supervision is not recognized as one of the competences of Provincial Councils; while the legal rights of councils, including the Islamic Council of the province, have been recognized in Article 100 of the Iranian Constitution. At the same time, in accordance with Article 106 of the Constitution of the Islamic Republic of Iran, if the Islamic councils are dissolved, the councils have the right to object that in a competent court, but this right has not been given to the council in accordance with Article 11 of the Provincial Council Law. Finally, the Council's closure in emergency situations has not been foreseen in the constitution of the Islamic Republic of Iran, but, in accordance with Article 9 of the Provincial Law, the Provincial Council of Afghanistan, will be shut down until the problem is over, in province or provinces in which an emergency situation is declared, in accordance with Article 143 of the Constitution.

According to article 106 of Constitution, the authorities that have jurisdiction in respect of the dissolution of the local councils, are: An authority that detects the deviation that leads to the dissolution and the authority that handles the objection to the dissolution. The first authority can be either judicial or quasi-judicial. But, by virtue of the legislator initiative, the boards in charge of dispute resolution and complaints handling (the provincial and the central) are competent and suitable bodies for detecting the deviation of local councils from the statutory duties. However, according to Article 106 of Constitution, the “Competent court” is the entity that has jurisdiction to handle the objection to the dissolution. Due to legal precedent, the “competent court” is interpreted to public courts, but it seems that with regard to the expertise of the judges of Administrative Justice Court, this court will be more suitable authority for it.

Legislation in specific sense, is a functional that is the legislature power's exclusive jurisdiction. But in the legislation in general sense, this function placed in authority of the various institutions, because of social and political realities. In the Islamic Republic of Irans legal system, according to Article 58 of constitution, legislative power apply via parliament. But along with parliament, other institutions have competencies in the field of legislation. Local councils is one of these institutions in accordance with principles 6 and 7 and of chapter VII of the constitution. Guardian Council in their views, limited's the function of this institution to supervision. But in In cases such as the “establishment, functions and elections of Islamic councils and municipal elections Act” and the “VAT Act”, recognizes the legislative function by adopting a broad approach to the interpretation of the constitutions articles that related to local councils, implicitly. Also the court of administrative justice , based on legislation in this area, with excepting this function for local councils, take some limit in this connection.