Guarantees of Disciplinary Questioning of the Public Servant Contrastive Study

Guarantees of Disciplinary Questioning of the Public Servant Contrastive Study PDF

Amjad Jihad Nafe' Ayyash

Supervisor(s)

Dr. Ahmad Mubarak Al-Khaldi -

Discussion Commity

180 صفحة

Abstract :

Abstract This study investigated the guarantees of disciplinary questioning of the public servant. In this study, I investigated these guarantees in the light of each of the Palestinian, Jordanian and Egyptian systems. In the first chapter, I approached the guarantees that precede the implementation of the disciplinary penalty. I demonstrated the confrontation of the worker with the violations alleged to him. I dealt with the concept of confrontation and the legal basis on which it is based. I found out that confrontation aims at putting the worker in the image of the accusations attributed to him. Although jurisprudence is in not in agreement in determining the basis of confrontation in case of lack of text between the ideas of penalty and hearing the other party, there is agreement about considering it a core procedure. Upon studying the confrontation details, I demonstrated the idea of informing the public servant of the accusations attributed to him, and his right of seeing the disciplinary file. I also studied the guarantee of the public servant to practise his right of defence. I found out that there is some discrepancy and absurdity in the definition of defence right and its relationship with other guarantees. I also discussed the procedures of defence practices regarding oral or written defence, freedom of defence, the employee's right of cross questioning witnesses and using them as witnesses, his right of having the assistance of a lawyer. I found out that the right of defence is one of the general principles that should be respected even in the absence of text. However, there are limits and restrictions that should be respected. I also discussed the jurisprudence disagreement regarding the burden of proof. I found out that some attributed this burden on the prosecution party taking in consideration the principle "the accused is innocent until proven guilty" which is applied in the criminal field. Others believe, based on the idea of the accuracy of administrative procedures, that the very idea of accusing the employee makes the employee guilty and he carries the burden of proving his innocence. Since confrontation of the employee with the charge attributed to him, and granting him with the right of practicing defence shall not be useful, and shall not realize the targeted purpose unless there is a guarantee of objectivity, I discussed the definition of objectivity. Some legislators restrict its range so that it is limited to the idea of not joining between the authority of investigation and verdict while others consider it an extension of defence right. I discussed this guarantee during the stage of investigation in addition to the stage of penalty implementation. I reached the conclusion that the objectivity guarantee finds complete application in the judicial disciplinary system while it is applied more weakly in the quasi-judicial disciplinary system, and it is hardly available in presidential discipline. In dealing with the means of fulfilling the objectivity guarantee, I discussed the reasons of rejection, withdrawal, and non-competence, in addition to the regulations of response and non-competence. I found out that the difference between the reasons of non-competence and the reasons of rejection lies in the following: the first nullifies the sentence or verdict even if the opponents are in agreement because the case is related to public order while opponents can disregard the rejection request or concede it after its application, and so the verdict becomes correct even if the reasons are available. The second chapter is dedicated to the guarantees of disciplinary questioning related to the controls of disciplinary penalty. As I discussed the principle of legality, I found out that the application of this principle in the disciplinary field is inadequate since it includes the legality of penalty while it does not include the legality of the violation. In addition, there are no penalty lists that link between the violation and its corresponding penalty since this is left to the competent disciplinary authority. I also discussed the procedures of commitment to the legality principle concerning the commitment to the legally-recognized limits of penalty, and narrow interpretation of penalty texts, and non-application of disguised penalty. Then I discussed the principle of disciplinary penalty character. I found out that this principle does not allow punishing the employee unless he has committed a violation or contributed to it. Otherwise, the penalty verdict would lack one of its basic foundations which is the reason foundation. Following this, I discussed the unity of the disciplinary penalty stating that the employee shall not undergo more than one original disciplinary penalty for committing one violation. I discussed the stipulations for such multitude. Among the important guarantees that I investigated in this study is the principle of proportion between the violation and the disciplinary penalty. I found out that the administrative judiciary acknowledges as a general principle for the concerned disciplinary authorities the liberty of estimating the proper penalty for the committed violation provided that such estimation shall not be excessive. I discussed the jurisprudence disagreement about the judiciary supervision of proportion. I found out that the application of such principle contradicts with what the legislations used to do in providing penalty lists related to some categories of high-ranking employees. I also discussed the principle of causation in penalty, stating its importance, its place in contrastive legislation, and the rule of such causation when the text is not available. I found out that this rule differs among systems based on administrative nature of discipline (Jordan and Palestine) and the systems based on judicial nature of discipline (Egypt). I also discussed the elements of causation restricted by facts that require penalty, the legal basis of incrimination, and the employee's response regarding defence. I demonstrated the stipulations of correct causation that require that causation should be stated in the main part of the verdict, and that the causation must be proper, coordinated and clear. The third chapter is dedicated to study the judicial appeal against the disciplinary penalty. I discussed the competent party of seeing the appeal in Egypt, Jordan and Palestine. I found out that the disciplinary penalty in Egypt may be issued by administrative circles in addition to judicial parties. Therefore, I distinguished between the competent parties investigating the appeal against the disciplinary penalty according to the part issuing the verdict. I also criticized the Palestinian administrative judiciary for its suffering from having one degree of judiciary, and the inadequacy of one court in looking into all the administrative cases. I also dealt with the two stipulations of interest and dates. I identified what is meant by interest and the judiciary stands of the jurisprudence and judiciary that it is necessary to have it, and the criteria of its identification. I also discussed the dates of submitting appeals against the disciplinary penalty at both administrative and judiciary levels. I found out that such dates are not applicable on the executed verdict. I discussed the regulation of injustice before submitting the appeal and the reasons of appeal. I found out that the disciplinary verdict as an administrative verdict is based on five bases: competence, form, cause, locus, and purpose. Therefore, I confined the appeal causes at the bases that may affect the administrative verdict in one of its bases. As for the appeal causes of the disciplinary verdict, I discussed what is stated in the Egyptian State Board Law that restricts such causes in that the appealed verdict shall be based on law violation, error in its application or interpretation, nullification of the verdict or the procedures taken following the verdict, or issuing the verdict in contrary with a former verdict that exceeded the power of the sentenced case. I also discussed the impact rising from abolishing the disciplinary verdict. It was found out that the abolishment verdict shall execute the administrative verdict retrospectively from the date of its issuance. However, the abolishment verdict has the power of absolute authority regarding the locus but it does not prevent the disciplinary authorities from re-questioning the employee disciplinarily in accordance with the

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