Judicial control over the reason for the disciplinary administrative decision

Volume 11 , Issue 1 , June 2023 , Pages 89-112

Authors

Mustafa Rasool Hussein 1 ; Azad Wso Hassan 2

1 Law Department, College of Law, University of Sulaimani, Kurdistan Region - Iraq

2 Researcher - Law Department, College of Law, University of Sulaimani, Kurdistan Region - Iraq.

DOI logo 10.17656/jlps.10233

Keywords

Abstract

The reason element in the disciplinary administrative decision rests on a specific physical act confirmed to be faller, whether positive act or admission (inaction) that may from a disciplinary breach under the law. Accordingly, the judicial censorship will be directed as fares the element of reason is concerned, to examine the form the breach, at the first step. If it was proven that those events had been done physically, the court would there move to censor the legal accommodation that was given by the disciple authority, to the said events at the second step. This is accounted for by the necessity for making sure of whether the legal accommodation, as the authority prescribed it, is correct and sound or not. The Administrative judge will be held to be competent to cursorily the accommodation of the event attributed to the legal official charged with a disciplinary charge, in doing so, the judge examines how far the accommodation given by the disciplinary authority to those events is sound and safe. Even if the events, on which the decision was built on, were correct and existent, and even they were given the precise and correct legal decision the administrative justice will censor, in addition to that, the matter of convenience (suitability) between the decision and the events on which it is based. When it appears for the justice that there is on convenience between the decision and those events, it will abolisher repeal the decision. In view of the fact that it is impossible to inclusively catalogue the acts that from a disciplinary violation, and du to the existence of the discretionary authority of the administration by which it can widely address criminal charges to the official, so it has been necessary for the elements of the administrative decision to be subjected to the censorship of legality, so as far that discretion to be alleviated. The above censorship extends to both of the physical existence of the disciplinary events that are attributed to the official and the legal verity of them and how far they are suitable with the penalty. The above mentioned statement requires us to set out the nation of each level of the censorship as is cited, and to distinguish between those levels. This will be done through this chapter which is composed of four section. The first section will be dedicated to the definition of the element of reason in the administrative decision. The second section deals with the censorship on the verity of the physical existence of the events. The next section sheds the light on censorship of the legal accommodation given to the a reason in the disciplinary room, where as the fourth section will be specified for the meaning of the judicial censorship on the convenience (suitability) in the disciplinary room. 

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  • Published at15 June 2023

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