The Iraqi administrative judiciary and its impact on protecting the rights of individuals, a comparative study between positive law and Islamic jurisprudence

Abstract

We must find in the life of every group many types of general needs that are shared by a group of members of the group, or a large group of them, or the vast majority of them. And the members of this group may contribute by their individual endeavor or by cooperation among themselves to satisfy the needs of one another. The state may see that it fulfills these needs on the basis of its political, social and economic thought in not abandoning individual activity or other individual cooperative initiatives. In all of these cases, the state provides through the public administration or the administrative authority therein to fulfill these public needs, either by direct means through what is called (public utilities) or by assisting the private institutions available here and there to satisfy the public needs for the purpose of improving the services they provide. present to the public. Or that the state suffices to set the regulations and rules necessary to organize and control its individual activity, in relation to other needs, in order to preserve public order from disruption and confusion, and this is what is called (administrative control). Accordingly, the administrative work of the state or its administrative function is represented by its willingness to intervene in the life of the group for the purpose of meeting their general needs, either directly or indirectly, or by merely controlling and restricting individual activity in order to protect the system and the public interest. The volume of its administrative work is no longer governed by a certain restriction, as it has assumed great burdens that are summed up by working to expand its services in various areas of life and achieve social justice, but often, this intervention may lead to the administration committing some mistakes when it issues its administrative decisions without hesitation or Hurry or the administration will ignore some of the legal rules enacted by the legislator to preserve the interest of individuals. Through this, these errors may lead to harm to the members of the group (members of society) and the violation of their rights. One of the requirements and components of justice is that the administration is subject to the rule of law and that the word of the law is supreme. Sanctities, and for this it is necessary to organize judicial oversight of the work of the administration to ensure the rule of law. The late Professor Dr. Al-Sanhouri says in this sense ((If someone is wronged and his opponent is strong like the administration, then he must have a haven to turn to and submit his complaint to him. prestige and respect). The existence of judicial oversight over the legality of the administration's actions represents an important guarantee of the rights and freedoms of individuals, as this includes the adoption of the legitimacy of the rule of law. The function of the judicial system required finding a judiciary that works to ensure respect for rights and freedoms in internal legislation by monitoring the work of the administration and ensuring the legality of its actions, especially with the administration being a party to legal relations with individuals, with its many powers and privileges. The administrative judiciary) to carry out this task within the judicial system in the state based on the rule of law and respect for human rights, and the judge has become the key to commitment to the rule of law and depends on respect for it in its broad sense that goes beyond the abstract adherence to texts to (respecting the content of the law in terms of the obligation to protect human rights, and if he is unable The law is about providing protection for the human being who has not become worthy of having sovereignty. Perhaps I find myself having researched the subject of (administrative judiciary) away from the rest of the other subjects of the judiciary (civil or criminal, etc.) for several reasons, including the above and the following: In spite of the academic research and articles written in it, it did not rise to the level of balance between respecting the rights of individuals and the rights of administration. 3- The importance of this judiciary in Iraq, especially after the recent amendments that occurred to the Iraqi political, legal and administrative system. After April 9, 2003. 4- The importance of diagnosing and avoiding the legislative defects mentioned in the provisions of the law that the administrative judiciary in Iraq is currently governed by, and the need to amend them in a manner that is compatible with respect The rights of individuals and their balance with the rights of administration. Perhaps the most prominent thing I discovered, through my research in the main books that talked about this judiciary, whether in its first inception in France (the cradle of modern administrative judiciary) in 1799 when the French State Council was established or in (the judiciary of grievances in Islam) Or in Egypt in 1946 or in Iraq in 1989, is that there is a strong link between this (administrative) judiciary and the rights of individuals, in that these meanings must all lead in the end when applied to one result, which is: (respect for freedoms and maintenance of rights and taboos) . Therefore, I ask those interested in legal affairs, for those who read this research of mine, to open their hearts to my expansion in the interpretation of some meanings sometimes and to make them part of the title of this research, and not to place their judgment on me except after reading the rest of the research chapters and the results that I concluded, hoping that these results will be A small contribution from me in providing students and researchers with the information they need about this newly established judiciary, and God is behind the intent, and from God is success.