The protection of the public servant against the discretionary authority of the administration in the Republic of Iraq

Our letter، tagged with the protection of the public servant in relation to the discretionary authority of the administration in the Republic of Iraq، by examining that authority in the amended State Employees Discipline Law No. 14 of 1991، whose texts combined the powers of accusation and punishment، and that the rights of the public servant in this authority are threatened and prejudiced As a result، our study came in accordance with the legitimacy of the use of this authority stipulated in the law and through a balance between the public employee’s interest and the public interest، As well as the search in the Civil Service Law No. (24) for the year 1960، as amended، about the rights granted to it، in addition to relying on the judiciary of the Supreme Administrative Court and the Staff Judiciary Court in Iraq، whose provisions have always been repeated to prevent the administration’s conduct of arbitrary use of the discretionary power granted to it contrary to the intended purpose For him، which wanted to provide protection for the public servant، Since the rights of the public employee remain subject to the direct administrative head، i.e. the source of the administrative decision، which necessitates and in order to preserve those rights، to draw objective criteria that prevent the official from going beyond them، and thus our study advanced to delve into this field by reviewing civil service laws، state employee discipline laws and judicial rulings. Administrative in Iraq for the purpose of identifying the reasons for the abuse of this authority and providing an objective and practical standard that protects the employee from these behaviors، which may and for many reasons conflict with the constitution، legislation and administrative custom in force in countries with dual judiciary.

The study reinforced its subject with judicial rulings that it cited on the validity of what was presented in its subject of the administration’s violation of the financial and moral rights of the employee، as it showed the reasons for the administration’s departure from its right in this application، and it allowed us the practical field in the legal profession to formulate recommendations consistent with judicial decisions in this The connection and the disagreement with some of them as a result of being neutral and not drawing a legal principle commensurate with the modern trends in the rulings of the Administrative Court in France and the democratic system established in the Iraqi constitution.

As for the legislative field in Iraq، and in the aspect that concerns the public employee and his rights، it was found through the study and review of a number of laws from 2003 to 2021 that the majority of those decisions did not provide real guarantees for employees despite the large number of legislation issued by Parliament and we do not disagree that some of them may provide financial abundance، but they were at the expense of guaranteeing rights and freedoms، as well as some selective rights that contradict the direction of the Constitution and the rulings of the Federal Supreme Court and the Supreme Administrative Court.