The Limits of Judicial Oversight of Administrative Judiciary Authority in Iraq (A Comparative Analytical Study)

Abstract

Abstract: Administrative law is a relatively modern branch of law, as the establishment of an independent administrative judiciary in France in the second half of the 19th century is considered the cradle of this independent judicial system. The administrative judge is the one who finds a solution to the dispute brought before him, as he is not bound to apply a specific legal text. This makes him a judge of origin, which distinguishes him from civil or criminal judges, among others, who are obligated to apply the text of the law presented to them and not deviate from it. The activities of the administration are constantly changing to keep pace with the significant developments and transformations occurring in society due to political, social, and economic circumstances. Therefore, the administrative judiciary has expanded the limited powers of the administration by granting it discretionary authority to address the needs it faces or the circumstances that affect its operations, provided that it remains within the framework of the principle of legality. This is done to protect the rights and freedoms of individuals from the misuse of discretionary power by the administration. The administrative judiciary was established and imposes its oversight on the administration to guarantee the principle of legality and its proper functioning. Therefore, in this research, we addressed the concept of administrative discretion and its underlying principles, as well as the reasons for relying on these principles. We also examined the administrative judiciary system in Iraq and its origins. Given the comparative nature of our research, we considered the administrative judiciary systems and their development in both France and Egypt. Following this, we discussed the oversight of the administrative judiciary over the two elements of an administrative decision—the subject matter and the cause—in which the discretionary authority's jurisdiction is clearly manifested. Throughout our study, we examined several practical applications of these elements.