Vol-7, Special Issue-Number2-April, 2016, pp1106-1116 http://www.bipublication.com
Case Report
Study and Criticism of Performance Bond of Laws in
Governmental Devices and Organizations
Hossein Izadpanah Dehvasati Ei1and Mohammad Javad Rezaeizadeh2
1Student Of Public Law, Department Of Law, College OfHumanities, Bandar Abbas Branch, Islamic Azad University, Bandar Abbas Iran
Email:[email protected]
2associate professor, Department of Public Law, College of Humanities , Tehran Branch, Islamic Azad University, Tehran, Iran
ABSTRACT
The necessity of law and the rule of law have always been considered as an important topic from the early days of human life. Throughout the history, some people have been enacted to the rule of law and its sovereignty in order to creation the order in society or other purposes . But human experience has shown that in the height of history, human has been unable for creating the legal community that mark the human’s happiness , as totally . And executors of this rules have not attempted to safeguard the privacy of law and practice to these laws . Only the rules which can provide a healthy society and rule of law are the inspired laws and only those who put the inspired rules on their agenda , practice and protection of privacy law to them . So , this research is trying to provide , firstly, a definition about law concept , governmental devices and guarantee execution by using the collected data which is based on descriptive procedure and then , it discusses deals with sovereignty of law principle and finally , supervising on law enforcement and also , state regulators have been studied in final chapter . And by summing up the materials, concluded that some of the approved rules on devices and governmental organizations due to lack of proper enforcement and lack of adequate monitoring will not run implemented or incomplete for implementation .
Keywords:Guarantee , Enforcement , Law, Government Devices monitoring
1 .INTRODUCTION
Performance bond is one of the attributes of legal rules and consists of :<< The power which is used in order to applying the law or court order >> .The first time that performance bond was introduced in the international law was related to the issue of fishing On the Atlantic coast . After the First World War , performance bond was predicated for international law in Article 16 of the Covenant of the Nation Leagues of Nations for international law and by this conviction all nations which were members of League of Nations enforced to observe some points prior to the war courtesy and in case of violation, financial
common conscience of human society . Now, if one country violated the principles and rules of international law counted as an offense that demands responses rules, so, legal regulations is required to performance bond to ensure the enforcement of them. Implementation of performance bond in each legal system depends on two elements:
Legal element is the same foreseen measures in the context of the law that is considered against the legal regulations.
The superior executive power on forces of society (whether domestic or international community) which is required to a power dealt with any wayward power in the broader society and can be able to cover the anticipated punishments in community to ensure enforcement of the rights.
In constitution of some countries known the basic rules of international law above domestic law , for example , in America's constitution , contracts that one parties is the government has been declared as superior to domestic law . Generally, it can be said that most countries observe the international law in terms of international practices and or in terms of international contracts such as domestic rules . In this research, we intended to the recognition of performance bond of rules and then we are intended today and citric of such performances on governmental devices and organizations .
2 .Literature Review 2.1 Performance Bond
Performance bond of any law is based on two foundations: one is fear of embarrassment to others, and another for fear of retribution .But if in some cases, none of these two foundations can not be found, a human incentive will no remain for law enforcement .If violation the law occur in hidden, lawbreaker will be release from view of society criticism and public embarrassment. Also , if lawbreaker has authority and social influence can the released him from punishment and save himself for punishment by his power. Although
these two basic foundations are usually the most important of law enforcement guarantees, but many examples indicates that exceptions to the mentioned rule so not rare. Now, this question arises that if these two founders are missing, what is performance bond in law? Which motivation can be deterrent the breaking the law in hidden? Which factor can be prevent the powerful and influential people from breaking the law? It clears that law enforcement needs to motivation. Naturally, breaking the law is beneficial in the view point of human since personal interests, passions and pleasures will be provided. On the other hand, the legal system without performance bond is not worth, because it is sufficient to opening the discharge way in order to involving everywhere and everyone. In the meantime, the legal system of Islam has the most proud of the workbook. So , all heavenly laws, especially Islam have a message to people that law enforcement is needed and should be loyal to it only by the intention of closeness to the God and everywhere and all the times because embarrassment is painful only near to God , it is God who gives eternal punishment to sinners, God is permanent witness and looks the human and his works in everywhere and all the time . << He is with you and Allah is seeing what you do. On this basis , anybody will have no without motivation for enforcement the law and always hear this voice in the world ; <<Does he not know that God sees ?'' .
Types of Performance Bond Consists of ;
Performance bond of law in law system of Islam
Performance bond in religious
Performance bond in law
Performance bond in national and international law
Types of performance bond at international laws
2.2 The Concept of the Governance of the Law Principle
public laws. The meaning of the governance of the law principle is that measurements and actions of rulers and governmental officials should be based on a series of principles and legal norms and individual preferences should not be criterion in administration of affairs . In other words, the ultimate goal of this principle is that << authorities and persons are subject to the general and public rules of continuous and non individual and law are regulating the relations with each other and the government .>>
The governance of the law principle is one of the general legal concepts which have historical roots in the past and in recent decades in legal, political and even social circles is more accepted ; although this term has its own meaning in the legal literature but today for its promotion in political and social dialogue , press and magazine has a moral and social value . Naturally, the common use of words and terms in sciences and disciplines and different languages, may be followed by withdrawals and development in the concept of it. Of course, in this perspective, there is also diversity of views and opinions. So , different criteria are expressed in terms of realization of the concept and condition of implementation of the governance of the law . On the other hand, in terms of the domain of the discussion is Iran’s law , therefore, a variety of diverse opinions and views which is raised in other legal systems will not be considered . Also , It should be noted that the legal system of the Islamic Republic of Iran is formed on the basis of Jurisprudence ; Although the term of the governance of the law principle is not used under the same title in Islamic law and in legal texts. However, the special meaning is inferred between the texts and various subjects. Hence, to investigate of this case in Iran’s law , , on the one hand ,it is necessary to consider its principles in the Islamic law and on the other hand, its definition, principles and generalities refresh in Western legal which is its origin . Accordingly, after analyzing the concept of the governance of the law principle and explanationof its different
interpretations measured and evaluated the Iran’s judicial system in this domination .
2.3 Studied Researches
Hamid Nasiri and Makarem ( 2013 ) in their articleentitled “ Theoretical Reflections on Performance Bond of Human Rights in Islam" indicated that the importance of the legal rules depends on a factor that known as the Performance Bond. In other words, the human’s rules and regulations enjoyed of one element as protection and capability of legal obligation to ensure the implementation in compared with other areas such as human ethics . They explained the performance bond in laws , mainly , with the prepared principles and standards and the formulation of findings which is specified according to a certain law and stated that with such a great sense of codified and enacted laws , which is necessary, it is imperative that the culture of commitment is promoted as inner form and based on beliefs and faith to the enacted rules and regulations in order to observing the rules and incentives which comes from their inner conscience and beyond external constraints and the fear of punishment by the authorities . MoshlelGosha ( 2013 ) in his article entitled " Performance Bond of Referee ‘s Vote in Iran’s Law “ examined this question that – Does vote of referee have performance bond as the Court or not ? and also he stated during the article that the referee vote has performance bond and it is essential in order to maintain the public order and rule of respect for the believer .
most countries such as Iran and England in order to providing and security of tax to be able to identify and collect the taxes properly and on time. They divided these performance bond into administrative performance bond , criminal, civil and other performance bond which in this paper, according to the laws and regulations and also , official available documents has been considered to study and implement each of them in Iran and England countries .
Saki ( 2008 ) in his article entitled " Criminal Performance of Offenses against Human Rights and Humanitarian Law", is expressing the materials about the regulations and international conventions on human rights and humanitarian law and also, he stated that whatever is important in this respect is performance bond of the international rules and convictions because of the fact that proper implementation of rules in the absence of non- implementation can not be guarantee the desired purposes of its executors . And also he stated that performance bond has a great importance about human rights and humanitarian law because the guaranty of security, freedom and human’s dignity is considered and has a worldwide origin . Mafi( 2006 ) in an article entitled "Performance Bond in the Public International Law “ knew the international society composed of governments which are enjoyed of national sovereign that the structure of contemporary legal order is based on it . In the following he stated that qualification the international law regulations to discussing the performance bond in national legal systems and compiling ideas as a part of integral has been provided a proper ground to create the position of the international legal system while cohesion and the gradual transformation of national societies was the product of an evolutionary process in historical dynamic on the status of legal rules coupled with performance bond . International law for freshens and its structural weaknesses, shortcomings of multiplicity of rules and diversity of new issues , prosperity and development non-law in the international arena
beyond the traditional subjects has no sufficient enjoyed of performance bond and deal with violation of international standards , affectively. Despite the absence of an appropriate performance bond , the rules governing are binding to applied on international society and their application will be affects on the behavior of governments and also , governments observe the international law in practice ; because requirement of the existence of an international society and the condition of its durability is observation the international law in broad domination .PeykarJu ( 2002 ) in his article entitled “ Study and the Role of Efficiency and Performance Bond of Laws and Regulations in Development of Responsibility Insurance in Iran “ implied that existence of motivated, informed, influential and powerful people in terms of practical points who have concerns the responsibility development and on the other hand , existing the social, economic and political is development of responsibility and insurance . In this context , performance bond of rules and regulations and its transparency, efficiency in implementation and also , informing the people of society about their legitimate rights is a considerable and importance subject . And also in the following , by passing the transparency steps of rules and regulations and improvement in performance bond knows the informing the people of the rights a necessity condition for development of responsibility insurance .
power , Islamic council Parliament, the executive power , the principle of separation of powers, the growing of public awareness has been counted as performance bond and title of executive power Article 669 of the constitution has been further considered .
3 . METHODOLOGY
Method of this research is a library that required data has been collected after the bibliography and collecting the scientific resources of the library and prestigious sitesand after the use of questions and hypothesis of research which has been raised the issue of performance bond of rules in devices and governmental organizations . Due to the title of research , chapters and materials in different sections is analyzed .
4 . Analysis of Collected Data 4-1 Types of Supervision
Supervision is performance bond of law-based government , ie without the proper mechanisms of regulatory , essentially , the realization of the first two elements ( limitation of power and hierarchy ) would not possible in the governance of law . Supervision can be have many forms:
1. The ConstitutionSupervision ( Constitutional Hearing )
2. Administrative Supervision ( Ordinary Hearing )
3. Political Supervision ( parliamentary Supervision on the government's actions) 4. Social Supervision ( Free Media and Public
Opinion )
An accuracy study of each of the five supervision in the legal system of the Islamic Republic of Iran takes the great opportunity. However , this can be briefly pointed out that the constitution and normal regulations have been predicted the supervision in some cases incompletely . Of course, regulatory shortcomings sometimes is so that the analyst in the implementation of existing mechanism with the idea of constitutional government leads to doubt. In the following , a
brief mention of the supervision will be provided . The Constitution Supervision
separation the competence between ordinary ruler and constitutional executor >> . Constitutional justice has been considered two organizational and material indexes . In such interpretation , constitutional justice composed of << set of organizations and techniques which will be guarantee the superior of constitution by them without any restrictions >> . Also , constitutional hearing can be implied the set of institutions and mechanisms that their ultimate goal is ensure the respect and supremacy of the constitution .
Administrative Supervision (Administrative Hearing ): Constitution of the Islamic Republic of Iran enacted to prediction the two separate mechanisms for enforcement the administrative hearing . The first mechanism has been predicated within the framework of a special body called the Court of Administrative Justice by Article 619 predictions: << In order to address the complaints, grievances and protests against the officers or units with governmental regulations and consideration their rights , one court has been established entitled as administrative Justice Court under the supervision of Head of the Judiciary. The powers of authorities and proceeding manner of this court will be determined by law >> . The second mechanism which has more limited range has been defined by the Article 170 of Constitution: “ Judges of courts are obliged to implement the Acts and governmental regulations that is contrary to Islamic laws and regulations or is outside the domain of executive power and everyone can be demand to invalidate these provisions from administrative justice court>> . Types of administrative supervision consists of :
Hierarchical Supervision
Patronage Supervision
Qusi-Judical Supervison
Judicial Supervision( Ordinary Hearing ) : This type of supervision will be implemented by a judicial body. The most important aspect of such supervision is that this supervision will be performed by the judiciary authorities . The result
of such supervision may be lead to the annulment of the decisions of the government or even punishment of administrative officers . This type of supervision is consists of intense performance bond and often its result will be lead to issuing the judicial order or creating the context of issuing the judicial order . Its judicial proceedings in order to supervision is a judicial way and it is basic difference with two other types of supervisions . Judicial supervision can be considered as the highest type of supervision . Multiple principles of Constitution In Islamic Republic of Iran, especially of 611 to 614 Articles have to explain how judicial supervision. According to Article 156 , the judiciary power is an independent power that supports individual and social rights and it is responsible for implementation the justice and following duties :
Examination and issuing the order about grievances , abuses , complaints , dispute and elimination of discounts and the make decisions and required measurement which has been determined by law .
To restore the public rights and promoting the justice and legitimate freedoms .
Supervision on the proper implementation of the rules .
Discovering the crime and determination the punishment of offenders and enforcement the domain and provided penal codes in Islam .
Appropriate measurement in order to prevention the occurring the crime and reforming the offenders .
Political Supervision ( parliamentary Supervision on the government's actions ) : In the parliamentary system, the legislature power with the use of certain regulatory practices can be supervised the other governmental powers , especially , executive and so , it can be provide the security and freedom of people power . Political supervision has numerous species that can be listed as following :
Informative Supervision ( noting , question , complaints of people against the proceedings of three powers ( commission on principle 90 ) , investigation and examination ( principle 76 of Constitution ) .
Mandatory Supervision (supervising on the international treats , supervising on the changing of border lines , supervising on the establishment of exceptional and critical limits, supervising on the government's financial claims or referring them to arbitration referring , supervising on the case of lending and borrowing and grants, supervising on the hire foreign experts, supervising on the sales of constructions and governmental property , supervising on the granting the license of establishment of corporation and institute to foreigners .
Financial Supervision ( supervision on preparation the budget , supervising on implementation the budget through Supreme Audit Court).
Political Supervision by a certain meaning ( political responsibility of the members of executive power , noting to the President and the secretary, question from President and secretary, impeach the President and secretary ).
4-2 Study the Legal Status and the Role and Importance of Regulatory Devices
The Regulatory Organizations depended to the Executive Power :Executive power has an important role and status in systems of Republic government And he president who is responsible the heads of the executive power has the main and primary role. President in Iran due to the Article 113 of the Constitution in addition to the head of the executive's power has responsibility for implementing the Constitution. Also, in Islamic Republic of Iran , head of the executive's power is responsible for supervising the work of ministers accordance to the Article 134 of the Constitution and due to Article 122 against the nation, the leader Islamic Consultative Assembly is responsible and these responsibilities caused
that device and organizations are responsible in charge of the supervising in complex of executive power as follows:
Ministry of Information
Planning & Management s Organization
Ministry of Economic Affairs and Finance
The Regulatory Organizations depended to the Judicial Power : It is no reasonable that we expect that one power which is responsible for implementation the justice and protection the individual and social right counted as one of the most important regulatory device in country . Judicial power which is responsible for important above missions in addition to due to principle ((156)) of constitution is responsible to investigating and issuing the order about grievances, complaints and elimination the disputes and restoring the public rights and promoting the legitimate justice and freedoms and preventing the occurring the crime and detecting the crime and prosecution and punishment of offenders has an another important task entitled as << supervision on the proper implementation of the laws >> . Mentioned power will be perform such and other duties through following regulatory organizations:
1. Supervision Organization of Country 2. Administrative Justice Court
3. Supreme Court 4. Court Judges
proceeding against the regulations and laws or outside of authority domains of executive power . In other words, ordinary laws and consists of two guardians and major supervisor who plays the same role of guardian council about the constitution . First of them is justice court that annul the regulations and decree and circulars against the law and second are court judges who have no right to revoke the decrees and regulations contrary to the law and outside of the jurisdiction authorities and refusing the implementation of this decree and regulations . In other words, if the parties to substantiate their claims refer to a decree or regulation contrary to law, judge is obliged to refuse the mentioned regulations and the decree and refrain from the implementing of its provisions.
Obviously, this action merely for the judge and for the same file Is acceptable and reliable, but it may not be sufficient in the case of similar provisions in the decree.
The Regulatory Organizations depended to the Legislative Power: Islamic Council Assembly as a power that passed and imposed the most of the country’s laws and On the all matters within the limits can be prescribed the law in the constitution . In the case of supervising also has the capability and authority and qualifications that performs them through the below organizations and devices :
1. Supreme Audit Court
2. The Commission of Principle of 31 on
Constitution
3. Board of Review and implementation of
governmental decisions with the Public Rules and Regulations
Mentioned board based on the Article 138 of the constitution and according to the law implementation related to the Article 85 and 138 of the constitution in relation to the responsibilities of the Islamic Consultative Assembly is formed and above law has been completed accordance with the law accession of Note 1 in 1999s. As we know, according to the Article 138 of constitution , Board of Ministers
5 . CONCLUSIONS
The main purpose of human law is creating an atmosphere of security and peace for citizens. Modern human is well aware that the main gift will be provided in the light of law are security, welfare, rights, justice, and also, is prevention the oppression. In today's society, security is preserved as a social blessing. So that security is a blessings that all governments are attempted for the realization of it .Government is located in the center of this thought which it can be applied its power absolutely . Of course, It must be aware that total meaning of the governance is no this same way but it can be a beginning point for understanding the governance of the law. .
SUGGESTIONS:
1. Laws and regulations of administrative systems should be have the motivated aspects not deterrent.
2. Responsibility and reporting of devices should be considerate on their performance as seriously.
3. There are any attention to the local conditions and calculation their cost-benefit in many laws . Moreover, there are not any coordination with involved public and private agents .
4. Deregulation. Due to this one of the factors that caused the individuals or the private sector resort to the unhealthy administrative ways is complex and unnecessary laws and regulations , therefore , deregulation means the elimination, reduction or changes in regulations and administrative procedures and guidelines in order to facilitate the economic and social activities in various fields and on the basis of necessity , deregulation can be help to adjustment the level of demand for administrative corruption services .
5. Raising the public awareness
6. Control and Supervision . Inspecting and monitoring organizations were as a ring connection between people and state and enacted as a judge that the interests of the people and the state to make concessions and
protected the weakness against the powerful . In addition, continuous supervision is applied on the legislative implementation by consistently reference.
7. Constitution is written properly and correctly and it was due to the needs and aspirations of the majority community. Appearance and correctness of the law dependence on this idea that lowers have be participate in setting the context of law and formal terms and rational manner with former laws specified as reasonably and using the ambiguity words and phrases was voided .
8. Executor of law must be have the required qualification and capability for implementation the law . To this purpose , firstly , mechanism based on public standards ( not taste ) should be enforced on the managers who are selected .
9. Reflection and reaction of people concern to law have always be considered by legislators and executors . Non pay attention of legislators and executors to demand of people and non-belief of people to law will be lead to deep gap between state and nation .
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