Administrative judiciary control over the legality and proportionality of disciplinary punishment

Abstract

Disciplinary penalty is a punitive measure for a disciplinary violation imposed by a competent administrative authority on those who fail to fulfill their duties. It has the freedom to choose the penalty from among the disciplinary penalties and within the scope of the list of penalties exclusively determined by the legislator in accordance with the rule of the legality of the penalty. The role of the legislator here is limited to determining the duties of the employee and the actions prohibited for them without accurately determining the actions that require the imposition of a penalty, leaving the matter to the discretionary authority of the administration by adapting it to whether these actions constitute a mistake or not, provided that it also takes into account the proportionality between the violation and the penalty. The discretionary authority of the administration in this area is of great importance due to its impact on the moral or material rights of the employee when imposing an arbitrary disciplinary penalty when the imposed penalty is not taken into account or the proportionality and suitability between the penalty and the violation is not taken into account. In this case, what is the role played by the judiciary, given its authority and administrative oversight, when the administration is arbitrary in its administrative disciplinary decision due to its failure to take into account the principle of legality in the penalty or the principle of The proportionality between the penalty and the violation, this problem imposes on us to stand on the extent of the judiciary’s control over the legitimacy of the penalty as a first topic, and the extent of the judiciary’s control over the proportionality of the penalty with the functional violation as a second topic. We have adopted the analytical and comparative approach between Iraqi, Egyptian and French law. The importance of our research topic is evident through stating the role played by the administrative judge due to his authority and control over monitoring the administration’s decisions and those appealed before him to uncover the circumstances and ambiguity in them and reveal the truth and to ensure that the administration has not been arbitrary in its decisions due to its discretionary authority in imposing one of the penalties specified by the legislator.