| 520 |
|
|
|b Act (106) for the year 1989 stipulated the establishment of the Administrative Judicature Court in the Iraqi State Consultative Council. This enactment permitted forming other judicature courts in case of need in the appellate sections center with a statement issued by the minister of justice basing on a suggestion from the presidency board in the State Consultative Council. That enactment was to be published in the official gazette . \ Thus, the Republic of Iraq had an administrative judicature in the Iraqi judicial regulation in addition to the normal judicature. But this judicature did not start wherefrom the other legislators ended in the Egyptian or the French administrative judicature. On the contrary of that, it started whence the other lawmakers started. Hence, it was with simple jurisdictions where it did not include all the joints and subjects of the administrative law. This enactment did not impose its judicial authority upon all means of public administration. The job of this court was limited to considering the validity of the administrative orders and decisions which were issued from the officials and boards in the state departments in which no authority was appointed to impugn them depending on impugnation of an authority with known benefit and possible situation, as well as the possible interest, if there was what would cause harm to persons concerned. So, the judicature of this court was restricted to regarding the validity of the administrative orders and decisions to which no authority was appointed to impugn them in accordance with the conditions and rules included in the mentioned law. The competence of this court did not include the discordances of the administrative contracts which are the most important means of public administration to satisfy the public needs and present the services to people, where they were merely considered by the normal judicature represented by the courts of first instance acting according to the wording of clause (29) of the valid amended civil law of procedure. The rights of public employment and public official and his/her duties and disciplines were the authority of the public disciplinary council. In this respect, the decisions of this board are subject to impugnation in cassation in the public board of the state consultative council. \ The pensioners affairs and the objections to them remained the mere authority of the verification council which was formed according to the rule of the article (2/9) of the civil pensionary law (33) for the year 1966. this was cancelled and replaced by the unified pensionary law (27) for the year 2006 which was amended in the article (20) which ruled to re-form the Pensioners Affairs Verification Committee as is shown in the above article. As a matter of fact, the officials’ judicature as it is stated hereinbefore is an important matter in the law and administrative judicature regarding the public official as the most important means to manage the works of the public administration. On the contrary, the guarantees granted the official at present time do not achieve their factual aim to protect the official from the despotism of administration because it uses its decreed powers according to the previously enacted laws by the bygone regime which have not been amended or updated up to now. Instead, the rules of the administrative judicature in Iraq focus on some of the formal sides of the lawsuits presented rather than their obligation to enforce the right and ascertain justice, and this is the exact work of the administrative judge. Hence, it is necessary and beneficent for this subject to be under the authority and jurisdiction of the administrative judicature court in order to unite the principles of this subject, consolidate it and emphasize it in conformity with of the viewpoint of the administrative law and its public theories in this connection because it has originally the public competence to what events that result as a consequence from the employment . \ In spite of the long time since the court has been originated, its jurisdiction has remained without advancement or development. It stayed as it was when the court was established. Administrative laws, such as the General Contracts Law (87) for the year 2004, which was restricted to establishing an administrative court specialized in the resulted grievances and litigations or in the granted governmental general contracts, had been issued. This court was called “the administrative court in the Ministry of Planning and Developmental Cooperation” which was formed according to the order (87) for the year 2004. This name was debatable! Inclusion Law (12) for the year 2006 had been issued. It comprises charging the official, the public service charger, the public companies, the private companies, or the contractor the responsibility of compensating the harms undergone by the public money due to his negligence, nonfeasance, or his dissent of the regulations, systems, and instructions. This inclusion is to be performed by a decision of the authorized minister or the head of non-ministerial board. This law allows the includer (the embodier) to impugn this decision in the Courts of First Instance, in spite of the fact that this decision is an undoubtedly mere pure administrative one, which is supposed to be handled by the administrative judicature. The law entrusted the courts of appeals to treat the cassation impugnations (appeals) on the rules of the courts of first instance. Hence, the researcher concludes that the Iraqi administrative judicature at present time is simple in its competence as regards the subjects of the administrative law. Its competences are considered in the courts of first instance or in limited and specific councils, committees, or boards. This occurs owing to the legislative dispersion of the jurisdictions of this judicature, while it is legally beneficent to gather these competences together and consider them by their original judicature, the administrative judicature so as to uncover their principles, which were the basis of the administrative law, and attempt to completely unifying the competence of this judicature in order to be an administrative judicature, which forms and creates the legal base, when this base is not dealt with in the written legislation, and applies it on the presented incidents. The guarantees of this original judicature are that its rules are impugned by the highest judiciary board in Iraq. This is a big guaranty to the competence of the administrative judicature, the litigators and the public administration as concerns the previously mentioned matters presented to this judicature. Thus, it has the judicial review on the works of administration in the new Iraq. The researcher suggests that the new Iraqi legislator undertakes the task of uniting the legislative dispersion of this competence and molding it in the crucible of the administrative judicature court. Due to the above-stated reasons, this can be regarded as a sound application of the principle of specialization in the judicial work. \
|
