JOURNAL OF PUBLIC LAW KNOWLEDGE
Year:2017 | Volume:5 | Issue:16 |Papers Count:6

Public properties are the national wealth of a country and belong to all generations. The economic value of these properties requires to specially preserve and protect them. Several strategies such as the use of modern technologies, strengthening of supervisory bodies and etc. are proposed to prevent the damages from private entities against public properties and to prevent abuses of power by the state and public entities. Nevertheless, the most important mechanism in this regard is to provide legal strategies to basically solve the problems. Legal capacities to protect public properties should be used effectively and in case of legal gap or defect, it is necessary to use the experiences of the other countries so as to provide appropriate legislative measurements. This article examines the current legal mechanisms used in the field of administrative law to preserve public properties and clarifies the legal status of Iran in this regard. Although the legal system of Iran has provided a required legal basis to protect the public domain, but there are some legal defects in some spheres. Therefore, the problem in the first section is the lack of understanding the law or failure to execute it and in the second part is that there is no rule to be implemented.

One of the most important issues of the legal systems is legislation and mechanisms to make law. According to the Article 85 of the Constitution, the Islamic Consultative Assembly is permitted to delegate the competence of making provisional laws to its internal commissions in necessary cases. Hence, the necessity is one of the conditions of delegated legislation. Therefore, the main question is to clarify the approach of the Islamic Consultative Assembly and the Guardian Council regarding the concept of necessity and its requirements including the responsible entity. This research through a descriptive-analytic method seeks to answer the aforesaid question with emphasis on the rules regarding the issue of necessity set forth in Article 85 of the Constitution. The Assembly restricts the concept of necessity to the necessity of passing laws and this is obtained whenever the Assembly finds it for any reason useful for the better advancement of the affairs. Therefore, the standing order of the Islamic Consultative Assembly has recognized this entity as the competent authority to discern the reasons and necessity of delegated legislation. Nevertheless, the Guardian Council has in recent years issued some comments which necessitates the Council to confirm the ascertainment of necessity recognized by the Assembly. The Guardian Council considers the necessity due to the legal order and in fact, in the format of the necessity to make law.

From the perspective of legal status, public law is based on the concept of competence. Accordingly, the incapability of the political and executive officials is the principle unless it is stipulated in the letter of the law or is essential to exercise the competence. The Constitution, as a national covenant and legal document, is the origin of all the competences. The Article 138 of the Constitution expressively restricts the competence of rule-making into three officials; the council of ministers, each of ministers and the commissions composed of some ministers, and therefore the president isn’t mentioned in this Article. Beside this, the other Articles of the Constitution like 113, 126 and 134 do not prove the president's competence implicitly. The president is not competent in framing regulation individually in the legal system of the Islamic Republic of Iran, hence. He can just reflect his opinions and approaches in the format of the decisions of the council of ministers. This research, first examines the concept of competence and rule-making and then, scrutinizes the issue of the incapability of the President for Rule-Making in accordance with the aforesaid Articles in the format of implicit and explicit competence.

Central to a precise understanding of the stance of the Constitution in a country is to scrutinize the scopes and restrictions of the Constitutional review of the ordinary laws. The Indian Constitution is an interesting adaptation of the British parliamentary sovereignty and American judicial sovereignty. The main question is to clarify the areas of Constitutional review of the ordinary laws of the parliament and its limitations. The review of the Constitutionality of the laws is implemented based on two concepts: First, the fundamental rights regarding the ordinary laws, and second the basic structure regarding the Constitutional amendments. The restrictions imposed on the Indian Constitutional review are composed of two general classes: Constraints due to the exceptional circumstances and restrictions regarding the legal structure of India. Proceedings without legal ceremonies, military rule and declaration of necessity are subject to the first exception, and power of the parliament to amend the Constitution and the posteriori review relate to the second limitation which have an insignificant impact on Constitutional review due to being provisional and exceptional. Therefore, despite the relative sovereignty of the Parliament in India, the vast scope of the provisions subject to Constitutional review has created a great status for the Constitution against the enactments of the parliament and the Supreme Court develops this supremacy through its well-founded decisions.

One of the apparent principles of budgeting is annuality also reflected in the Constitution of Iran. But what is the foundation of this principle despite its clarity? This article as a library research is based on the methods of historical and comparative analysis to find the origins of the annual budgeting principle and to clarify the amount of preservation and survival of those origins in the actual era and to consider the efficiency of the annual budgeting principle to provide the goals. This study indicates that the annual budgeting principle is on the basis of two main foundations: the annual revenue of the government and the impossibility of auditing in less than a year which is nowadays not mattered. Beside this, the subsequent consequences of annuality like comparative insight and strategic targeting would be provided by other means such as long-term financial planning. The annual budgeting principle is in practice implemented with numerous exceptions. Although the increase in budgeting intervals makes the governments not to appropriately react in front of changing people’s will and power rotation, every government in the actual situation is somehow involved with the consequences of previous policy-makings. Due to the facilities and requirements of the present era, there is no need to emphasize on the annuality of the budget as a principle.

Undeniable and unrestrainable is the absolute right to access to Judiciary guaranteed with the Article 34 of the Constitution of the Islamic Republic of Iran. Beside this, Articles 170 and 173 of the Constitution are the institutional guarantees of the right to petition by means of the Administrative Justice Court. Following issues would be raised in this regard: would the Law on the Organization and Procedure of the Administrative Justice Court provide the absolute right to access to justice or the current mechanism needs essential amendments? Would the Comments of the Guardian Council regarding the legislative process in the area of Articles 170 and 173 of the Constitution strengthen the right to access to justice or undermine it? This research through collecting data from various legal sources and with a descriptive-analytic method seeks to answer these questions. It seems that the Law on the Organization and Procedure of the Administrative Justice Court can’t fully provide the right to access to court and administrative justice. Therefore, the structure and jurisdiction of the administrative justice system necessarily should be amended toward a result-oriented approach by means of changing the attitude and by cooperation of the related entities; the Judiciary while preparing the judicial bills set forth in Article 158, the Islamic Consultative Assembly and if necessary, the State Expediency Council while enacting bills and the Guardian Council while reviewing the Constitutionality of the enacted bills. It seems the ideal status of the administrative justice system requires the Articles 170 and 173 of the Constitution to be amended.