ALRAQABA . ISSUE 15
11
an administrative body issues a decision on
a subject matter , i.e., the administration’s
authority is restrained whenever the conditions
set by the legal provision were met. It is
necessary that the administration issues a
relevant decision. If the legal provision was
left to the administration’s discretion in either
providing or refraining from issuing a decision,
then the condition is not met in this context.
To this extent, the Supreme Court stated “…
This court decides that an adverse decision
may not be annulled unless it is proven that the
administrative entity has refrained or abstained
from potentially taking a decision based on the
laws and regulations. It is important that the
concerned party meets all the conditions and
terms set by the law which also compels the
administration to interfere with a decision to
make the impact it has caused. If making such
a decision was not an obligation, then refraining
from issuing one is not considered an adverse
decision and may be subjected to an appeal.”
Concerning the source of provision
compelling an administrative body to issue an
administrative decision, it is not stipulated by
the law in its narrow sense. However, it includes
the law and its regulations. It is what the
legislators refer to based on article no. (4) of the
Law Decree no. (20) of the year 1981, amended
by Law no. (61) of the year 1982 on establishing
a department in the high court to address the
administrative conflicts mentioned earlier.
In this regard, the Court of Cassation states
that “an adverse decision is only valid when
the administrative authority refrained from
potentially taking a decision based on the laws
and regulations) .
Some doctrines have expanded the scope to
“…encompasses all the legal rules, including
the constitutional provisions being the supreme
and highest in the legal hierarchy. Therefore,
the administrative refusal or refraining to issue
an executive or explanatory bylaw or any
other configurations is considered an adverse
administrative decision. That is because the
constitution enforces the administrative authority
to do so. The source of enforcement extends
beyond the bylaws to involve the issued
instructions by supreme administrative bodies.”
• The Second Condition:
The administration’s
refusal or refrain from issuing an
administrative decision:
To have a valid adverse administrative decision,
along with the supporting provision of decision-
making, the administration is required to issue
or refuse to issue the said decision when the
concerned party reaches out with a request,
and the administration would not respond.
In this case, the administrative body has not
issued the required decision, nor has it issued a
refusal decision.
In this context, there has been a case when
a private university abstained from issuing a
certificate with the academic program and its
educational track, the Court of Cassation stated
in its decision that “…based on the mentioned,
awarding a certificate of scientific qualification
to this university graduates is a complex
decision. This decision involves both the
university and the board of private universities,
i.e., the authorized entity that approves the
certification process under the supervision of
the Ministry of Higher Education. The Ministry is
authorized to enforce the university to comply
with the provision of law. It is not acceptable to
settle for one of those stages without the other.
Henceforth, abstaining from issuing the said
certificate of the academic program and its
educational track - appealed for - constitutes an
illegal adverse administrative decision. In case
the appealed decision displayed a different
approach of not accepting the proceeding due
Legislations
