عنوان مقاله [English]
The Judiciary has codified the Guideline entitled "How to Deal with Administrators and Employees' Omissions and Prevent them" on October 21, 2020 and published it in the Official Newspaper on October 26, 2020.
We welcome the codification of this Guideline.
In this Guideline, it was particularly anticipated, through a number of articles and numerous laws that in cases where due to disregarding government rules and regulations, there would be a possibility of danger or accident or infliction of damage to public property, necessary warning should be given to the relevant officials. (Paragraph C of Article 2 and Article 3).
and also in paragraph A of Article 3 it is provided that “if failure to perform legal duties on the part of administrators, officials and heads of executive departments, negligence in performing tasks, and failure in supervision of employees lead to a loss of public rights or damage to public property or interest or other constitutional rights of people regarding public rights and other rights that have been explicitly stated in the Constitution regarding public rights or are harmful to public health or security or lead to extension of damages and injuries and have a criminal nature, they must take necessary measures as soon as possible regarding prosecution of the case, gathering evidence, and supervising an investigation, and must inform the attorney general for further investigation of the case in question.”
Also various Articles of this Guideline have provided numerous duties for all prosecutors' offices across the country, Administrative Justice Court, and General Inspection Organization.
Now, taking advantage of the opportunity that has been envisaged in relation to "harmful omissions on the part of public authorities", it is necessary to mention that these harmful omissions are not limited to practical activities of executive departments.
However, in many cases responsibilities regarding innovation in enacting law, legislation, and codification of regulations have also been neglected by officials and have caused much damage. Therefore, such cases must also be considered as harmful omissions and be provided with appropriate civil and disciplinary sanctions as needed and necessary measures are taken to pursue them. Here, we refer to two examples of this kind.
First: harmful omission regarding codification of regulation with respect to authors and composers’ rights: this omission has been arisen in connection with the Article 8 of the Protection of Authors, Composers and Artists’ rights Act. The aforementioned act has been ratified in 1348, and Article 12 has been amended in 1389.
It is stated in Article 8: “the public libraries, institutions for the collection of publications and scientific and educational institutions which are managed by non-profit organizations, may copy through photography or similar methods as needed and in proportion to their activity, the works which are protected by this law according to the guideline that will be approved by the council of ministers.
Despite the fact that it is more than 60 years since this legal article has been ratified, the guideline of this article has not been ratified yet! And failure to ratify this regulation has caused numerous damages. The most important of these are:
1- Lack of expansion of public libraries and scientific and educational institutions with the use of this article.
2- Increasing the costs of public libraries and scientific and educational institutions to provide library resources of this article.
3- Deprivation of poor or low-income students and applicants who have applied and been deprived in this field.
4- Slowing down the pace of information dissemination, expansion and encouragement of books, and making library services available to all individuals in the country
5- Slowing down the pace of formation and create culture building in the field of intellectual property rights for the public use of human knowledge.
Ministry of Culture and Islamic guidance and ministry of justice are directly responsible for codifying rules in this field, and it is unlikely that a convincing answer for this 60-year delay is acceptable and presentable.
It may be said that in the legislator’s decree a specific date for codifying this guideline has not been specified! Or it may be said that the writing of this guideline has been started many times but no conclusion has been reached!
Or we were waiting for the codifying specific rules in the field of intellectual property! and…
However, None of these excuses is a justification for a 60-year delay in drafting regulation related to this article and the damages suffered by the production and dissemination of knowledge and information, and the weakness of reading culture, and access to information and the fact that the caravan of knowledge and information distribution and delayed access to information cannot be unforgivable and irreparable.
It is up to researchers and jurists to remind this negligence and omission and question authorities, and demonstrate harmful effects of these omissions.
Second: the obligation to submit a bill to deal with malpractices and crimes enshrined in Implementation the General Policy of Article 44 Act: this obligation has been mentioned in the Note 32 of aforementioned Act: “the Judiciary is obliged to submit the aforementioned bill to the Islamic Parliament of Iran through the government within 6 months after the approval of this law. There are two significant points in the obligation which stipulated in this Note.
First, according to the text of Note 32, the duty of Judiciary is obliged to "appoint special branches to deal with malpractices and crimes resulting from the implementation of Article 44 and the Securities Market Law approved in 2005".
Second, the time of approval of this article and its note was February, 2008, which is now more than 13 years since its approval.
But the "Bill to deal with Malpractices and Crimes of the Article 44" has not been approved yet! And it is not clear whether this bill was submitted by the judiciary or not?
It is noteworthy that according to the Article 3 of the Duties and Powers of the Chief Justice Act approved in 2000, "the government is obliged to submit judicial bills prepared by the Chief Justice to the Islamic Parliament of Iran within 3 months" and in an additional Note which was attached to in October 22, 2013 provides that “If the government fails to approve and send the bill to the parliament within the mentioned period and another 3 months have passed since the legal deadline, the Chief Justice can send the bill directly to the parliament”,
and now the question is whether this duty has been done in the last 13 years or not? and if the bill has been prepared and sent to the parliament, what has been the its conclusion in the parliament? Who is responsible for shortcoming in this process?
The importance of paying attention to harmful omissions in the initiative of bills and its legislation is caused by the fact that currently there are many problems in the field of "implementation of Article 44 and privatization" or in connection with the "status of the stock exchange and securities market" and it is natural that these problems have been repeatedly considered by the country's top officials at the national level.
Certainly, part of these problems is due to the lack of accurate and clear codifying and approval of malpractices and crimes that are the subject of these two laws, which are provided in Article 32 and its note.
If this duty had been done, would the crises over the "transfer and privatization" of the " stock exchange and securities market " (which has involved millions of Iranians) have arisen at this level?
Whether unrealistic promises, talking in the news and media, and even judicial proceedings to the challenges and crises of privatization and government divestitures, and stock market are the solution for issues?
Or the evaluation, calculating and proposing and initiating bills that contain violations and crimes of these two laws has been a priority?
Whether the news and media coverage of various officials related to the crises caused by "privatization and transfer" and "stock exchanges and securities" and even in some cases been criticized by the Supreme Leader and the problems in this It has involved all the forces of the country and has overshadowed the lives of a large percentage of the people and affected their economic conditions have not required to draft a bill on violations and crimes that are the subject of this law?
Whether passing more than 13 years from the duty provided in this law! - Especially considering the six-month schedule! for carrying out this legal task – did not need that the three forces pay attention to this legal task and move towards to accurate fault detection and detailed legislation for this issue?
Now in accordance with our scientific and research mission, we notify executive departments and the three forces to stopping harmful actions in the field of initiative effective legislations, legislation and regulation - in cases where there is a legal vacuum - and we consider ourselves obliged to monitor and navigate the shortcoming has been done and notify the legal vacuums, and we invite other researchers and legal activists of the country to identify the cases and examples of such gaps caused by leaving the action and to remind the officials the harms of leaving these verbs and ask such questions in their research agenda what are the needs in reforming and initiating laws and regulations?
And what are the effects on these omissions and who is responsible? and ...
We can organize the law and rights of our dear Iran, with the help of research and investigation. By the power of God Almighty