The absence of an administrative decision according to the provisions of Libyan and comparative jurisprudence

Abstract

A decision tainted by illegality acquires immunity by the passage of time, meaning it cannot be challenged, whether by cancellation or withdrawal. This is because individuals have the right to be assured of the stability of their legal status and positions acquired through administrative decisions, even if those decisions violate the law, after a specified period of time, based on the principle of legal certainty. However, this principle of immunity is contingent upon the decision's violation of the law not being serious. If the defect in the decision is so blatant that it renders it null and void, then the passage of time cannot be interpreted as validating the decision or stabilizing the resulting situations. This is because the serious defect deprives the decision of its essential elements, reducing it from an administrative decision to a mere physical act that constitutes a material obstacle preventing those concerned from exercising their rights. Therefore, this study examines the concept of a null and void decision and distinguishes it from a voidable decision in order to determine the consequences of a null and void decision. The foremost of which is the release of the administrative authority to withdraw it, and the permissibility of challenging it judicially before the ordinary and administrative courts at any time. With the existence of such a decision, the time barrier and the barrier of jurisdiction collapse. The study addressed in some detail the issue of the liberation of individuals from the duty of obedience to such void decisions. Jurisprudence differed between those who permitted them to do so, and those who rejected it, considering that terminating such decisions and declaring their voidness falls within the jurisdiction of the judiciary and the administration only, and that individuals are not allowed to resist such decisions, so they must submit to them until the judiciary or the administration declares their voidness and arranges the consequences accordingly.