Administrative Legality as a Determinant of the Administration’s Exercise of its Discretionary Powers: A Comparative Study
Prof. Omar Abdul Rahman Al Borini
Professor of public law
Kuwait International Law School
Abstract:
The importance of the study is mainly connected to the importance of the discretionary authority of the administration, but it is never considered one of the basic privileges enjoyed by the administrative authority which it uses as it sees fit, but it must consider it a tool to achieve public benefit in accordance with the protection of the rights and public freedoms of individuals, and under the supervision of the administrative judiciary. Accordingly, it was necessary to show administrative legitimacy and the public interest and their role in determining the controls contained in the administration’s use of its discretionary powers, while highlighting the development that has taken place in supervising the administrative judiciary.
The concept of discretionary power was discussed, highlighting its historical roots and legal basis, and the role of the public interest in restricting that authority as a first axis, then showing the development of the supervision of the administrative judiciary in particular and the role of the public interest in that as a second axis, through the principles and means that the administrative judiciary reached in its supervision of the discretionary authority, whether it is related to the control of appropriateness or the apparent error in the assessment, and finally the principle of balancing the benefits and negatives of the administrative decision, by relying on the comparative inductive analytical method, and based on jurisprudential opinions and jurisprudence, in Egypt, Jordan and Kuwait, in addition to France.
As a result, any privilege, or any authority that the administrative authority enjoys is only a means to achieve the general interest of society, and the discretionary authority of the administration is only a basic means that it enjoys achieving a specific goal, which is the public interest. Its existence, and it is the means of the judiciary for its control over the activity it carries out, all according to the general concept of administrative legality.
Keywords: legality, discretion, annulment claim, appropriateness, balance between benefits and harms.