"The Legal Nature of Disciplinary Sanction"
DOI:
https://doi.org/10.64184/ajlps.V2.I4.Y2025.P971-1002.250Keywords:
Personal Nature, Disciplinary Sanction, Administrative Investigation, Safeguards, Disciplinary ProceedingsAbstract
The application of the principle of the personal nature of punishment in the administrative field is not merely a theoretical notion; rather, it constitutes a practical reflection of a set of fundamental procedural safeguards imposed by law and reinforced by judicial practice. These safeguards represent the true guarantee that a disciplinary sanction is imposed solely on the employee who is personally responsible for the violation, thereby strengthening the legitimacy of disciplinary decisions and affirming the principle of procedural justice.
The significance of this research emerges on both the scientific and practical levels, as it seeks to fill a gap in studies addressing the extent to which the principle of the personal nature of punishment—originally developed within the framework of criminal law—can be rooted and effectively applied in the domain of administrative disciplinary law. The study raises a central question regarding the ability of this principle to take firm hold within administrative law, despite the inherent differences between the two legal systems in terms of nature, objectives, and purposes.
The research adopts the analytical method to examine the relevant legal texts and legislative intent, and the descriptive method to review practical applications and judicial precedents concerning this principle. Accordingly, the study is divided into two complementary sections:
The first section explores the concept of the personal nature of disciplinary sanction, its roots, dimensions, and relationship with the principles of legality and individual accountability.
The second section addresses the legality of disciplinary sanction, by examining the extent to which it is subject to constitutional and legal constraints and highlighting the safeguards that protect public employees against the abuse of disciplinary power.
The study concludes that the principle of the personal nature of disciplinary sanction constitutes a fundamental pillar of the rule of law and serves as a vital safeguard against arbitrary administrative decisions. It also reveals existing gaps in legislative and procedural frameworks, underscoring the urgent need for clearer and more coherent legal reforms.
Based on these findings, the research puts forward several recommendations, the most important of which is the call for legislators to unify and clarify the procedural requirements for challenging disciplinary decisions, ensuring their consistency with both criminal and administrative justice principles. Furthermore, the study stresses the need to simplify procedural complexities that may deprive individuals of their right to judicial review, thereby safeguarding the principle of legality and protecting fundamental rights and freedoms
References
Books
1- Al-Ayoubi, Abdul Rahman Nour Jan, Administrative Judiciary in Iraq: Its Present and Future, Dar Al-Shaab Printing House, Cairo, 1965.
2- Badir, Ali Muhammad, et al., Principles and Provisions of Administrative Law, University of Baghdad, Baghdad, 1993.
3- Jassim, Shab Touma, Administrative Law, Book Two, Iraq Printing House, Baghdad, 1980.
4- Al-Jubouri, Maher Saleh Alawi, Principles of Administrative Law, Dar Al-Kutub Printing House, Baghdad, 1996.
5- Hassan, Abdul Fattah, Discipline in the Public Service, Dar Al-Nahda Al-Arabiya, Cairo, 1964.
6- Hassanein Abdul Aal, Muhammad, Judicial Oversight of Administrative Control Decisions, Dar Al-Nahda Al-Arabiya, Cairo, 1991.
7- Al-Helou, Majid Ragheb, Administrative Judiciary, Dar Al-Jami'a Al-Jadeeda, Cairo, 2010.
8- Khalifa, Abdul Moneim Abdul Aziz, General Administrative Penalty Regulations, Dar Al-Kitab Al-Hadith, Cairo, 2008.
9- Al-Desouki, Muhammad Ibrahim, Guarantees for Employees Referred to Investigation, Dar Al-Nahda Al-Arabiya, Cairo, 2011.
10- Raslan, Anwar Ahmad, Administrative Investigation and Disciplinary Responsibility, Faculty of Law Press, Cairo University, Cairo, 1999.
11- Al-Zoghbi, Samara, Administrative Law and its Applications in Jordan, Dar Al-Thaqafa Library for Publishing and Distribution, Amman, 1998.
12- Al-Salem, Abdul-Muhsin, Disguised Punishments: Between Legality and Administrative Abuse, Al-Shaab Press, Baghdad, 1986.
13- Saeed, Wahib Abbad, Dismissal Without Disciplinary Procedure and Judicial Oversight, Anglo-Egyptian Library, Cairo, n.d.
14- Al-Shawi, Sultan Abdul Qadir, and Ali Hussein Al-Khalaf, General Principles of Penal Law, University of Baghdad, Baghdad, 1982.
15- Shukr, Zuhair, The General Theory of Constitutional Judiciary, Part One, Beirut: The Author, 2014.
16- Al-Shaykhli, Abdul Qadir, Disciplinary Law and its Relationship to Administrative and Criminal Law, Dar Al-Furqan, Amman, 1983.
17- Al-Shaykhli, Abdul Qadir, The Legal System of Disciplinary Sanctions, Dar Al-Fikr Publishing, Amman, 1983.
18- Al-Tamawi, Suleiman Muhammad, Administrative Judiciary, Book Three – Disciplinary Judiciary, Dar Al-Fikr Al-Arabi, Cairo, 1979.
19- Al-Toukhi, Salah Al-Din, Contemporary Disciplinary Judiciary, Dar Al-Kitab Al-Arabi, Cairo, 1961.
20- Abdul Aal, Muhammad Hassanein, Public Service, Dar Al-Nahda Al-Arabiya, Cairo, 1974.
21- Al-Atoum, Mansour Ibrahim, Disciplinary Responsibility of the Public Employee Middle East Press, Amman, 1984.
22- Othman, Hussein Othman Muhammad, Principles of Administrative Law, Al-Halabi Legal Publications, Beirut, 2010.
23- Othman, Muhammad Mukhtar Muhammad, Disciplinary Crime Between Administrative Law and the Science of Management, Dar Al-Fikr Al-Arabi, Cairo, 1973.
24- Asfour, Muhammad, Discipline and Punishment in Labor Relations, Alam Al-Kutub Publishing, Cairo, 1972.
25- Asfour, Muhammad, The Crime of a Public Employee and Its Impact on Their Disciplinary Status, Dar Al-Jeel Printing, Beirut, 1963.
26- Al-Qabbani, Bakr, Kuwaiti Administrative Law, Kuwait University, Kuwait, 1975.
Theses and Dissertations
1- Khwein, Hassan Bashit, Guarantees of the Accused in Criminal Proceedings During the Preliminary Investigation Stage: A Comparative Study, PhD Dissertation, College of Law and Politics, University of Baghdad, 1983.
2- Al-Yaqubi, Ali Muhammad Jawda, The Judiciary of Civil Servants in Iraq, Master's Thesis, University of Baghdad, 2001.
Journals and Periodicals (Published Research)
1- Jassim, Shakib Khalaf, "The Principle of Personal Disciplinary Punishment," Journal of the College of Law for Legal and Political Sciences, Kirkuk University, Volume 7, Issue 26, 2018.
2- Al-Jubouri, Maher Saleh Alawi, "On Some Interpretations of the General Disciplinary Board under the State and Socialist Sector Employees Discipline Law No. 14 of 1991," Al-Adala Journal, Issue 1, Baghdad, 2000.
Constitutions
1- Iraqi Constitution of 1970.
2- Iraqi Constitution of 2005.
3- Lebanese Constitution of 1926, as amended.
Laws
1- Iraqi Penal Code No. (111) of 1969, as amended. 2. Iraqi Criminal Procedure Code No. (23) of 1971.
3. Iraqi Labor Law No. (37) of 2015.
4. University Service Law No. (23) of 2008.
5. Iraqi Civil Service Law No. (24) of 1960, as amended.
6. State and Public Sector Employees' Discipline Law No. (14) of 1991, as amended.
Judicial Rulings and Decisions
Decisions of the Iraqi General Disciplinary Board:
1- Decision No. (82/63), dated July 23, 1963, published in the Journal of Legal Codification, Issue 3, 1963.
2- Decision No. (161/73), dated July 21, 1973, published in the Journal of Justice, Issue 2, 1975.
3- Decision No. (142/73), dated June 25, 1973, published in the Journal of Justice, Issue 3, Year 1, 1975.
4- Decision No. (289/99), dated December 8, 1999, cited in: Ghazi Faisal Mahdi, Explanation of the Provisions of the Law.
5- Decision No. (146/97), dated April 6, 1997, cited in: Ghazi Faisal Mahdi, Explanation of the Provisions of the Law.
6- Decision No. (106/2000), dated July 30, 2000. 7- Decision No. (501/997), 31/12/1997 (unpublished).
8- Decision No. (447/997), 29/11/1997 (unpublished).
Judgments of the Iraqi Supreme Administrative Court:
1- Judgment of 19/1/1991, cited in: Naeem Attia and Hassan Al-Fakahani, The Modern Administrative Encyclopedia of the Principles of the Supreme Administrative Court and the Fatwas of the General Assembly of the State Council from 1985–1993, Arab House for Encyclopedias, Cairo, 1995.
2- Judgment of 12/3/1991, cited in the same reference.
3- Judgment of 27/12/1958 and Judgment of 7/1/1967, cited in: Muhammad Mukhtar Muhammad Uthman, Disciplinary Crime Between Administrative Law and the Science of Management, Dar al-Fikr al-Arabi, Cairo, 1973.
Iraqi Civil Service Court:
1- Decision No. 403/Civil Service/Cassation/2013 (unpublished).
2- Decision No. 1116/Civil Service/Cassation/2017, 17/9/2017 (unpublished).
3- Decision No. 49/Civil Service/Cassation/2014 (unpublished).
Egyptian Administrative Court:
1- Case No. 407/Year 6, cited in: Muhammad Jawdat al-Malt, Disciplinary Responsibility of the Public Employee, Dar al-Nahda al-Arabiya, Cairo, 1967.
Egyptian Supreme Administrative Court:
2- Judgment No. 3 of 15/11/1955.
3- Ruling No. 97 of 8/3/1958, referred to in: Abdel Fattah Hassan, Discipline in Public Service, Dar Al Nahda Al Arabiya, Cairo, 1964.
Downloads
Published
Issue
Section
License
This work is licensed under a Creative Commons Attribution 4.0 International License.
The authors retain Full copyright of their published article
Ashur Journal of Legal and Political Sciences applies the Creative Commons Attribution 4.0 International (CC BY 4.0) License to articles and other works we publish. If you submit your paper for publication by AJLPS, you agree to have the CC BY 4.0 license applied to your work.
Articles can be read and shared for under the following conditions:
BY: Attribution must be given to the original source (Attribution)
Full details available at
https://creativecommons.org/licenses/by/4.0/
