السلطات التقديرية للإدارة في ظل مبدأ المشروعية

الملخص EN

The study addressed the concepts of legitimacy and discretionary authority and the contradictions that may appear between them.

it then explored the scope of exercising discretionary authority and the judicial oversight associated with it.

the study highlighted that discretionary authority, representing the margin of flexibility that allows the administration to make a specific decision based on its judgment of the situation, does not constitute a complete departure from the principle of legitimacy.

instead, its legitimacy is derived from reliance on a specific legal basis, without which it cannot be exercised.

the study emphasized that the administration's discretionary authority is relative in decision-making, as it varies from one element to another of any decision.

therefore, the authority of the administration is almost never entirely discretionary or entirely restricted.

within every administrative decision, there are aspects that accept discretion, and others where discretion is not applicable.

the study demonstrated that the scope of administrative discretionary authority can be understood considering three main determinants.

firstly, the necessity to adhere to the principle of legitimacy and not deviate from it, by embodying the legislator's will in administrative decisions and aligning with it in understanding, interpreting, and applying legal texts.

secondly, achieving the primary purpose of administrative activity, which is the public interest as defined by the legislator, and not deviating from it for the sake of private objectives.

all of this within the framework of respecting and promoting the rule of law.

the third determinant is avoiding falling into error.

the researcher concluded that after the administration makes an appropriate decision based on discretionary authority, it is subject to a type of oversight that aligns with its uniqueness as an exceptional tool granted to the executive authority, to enable it to perform its duties with the utmost efficiency, effectiveness, and flexibility, with the aim of achieving the public interest through diligence and differentiation among the available options in a specific situation.

the decision made is considered appropriate while respecting the law in its comprehensive sense, thereby contributing to the establishment of a state of justice and fairness.