Administrative Judge and Directing Orders to the Administration … Prohibition and Permissibility in Algerian Legislation: A Comparative Study
Dr. Fridja Mohamed Hicham
Lecturer (A) – Faculty of Law and Political Science – University Mohamed Boudiaf – M’sila – Algeria
The principle of prohibiting directing orders from an administrative judge to the administration was the result of factors among the most important of which was the French Revolution’s adoption of the principle of separation of powers and a mistaken understanding of it, despite the absence of legislative texts prohibiting these orders from being directed. Perhaps the reason behind the French State Council’s prohibition of directing orders to the administration is mainly due to the independence of the administrative position from the judicial position. The Algerian administrative judiciary and its Egyptian counterpart have been affected by the principle of prohibition, which is the goal pursued by this study. The study aims at examining, in detail, the problems that resulted from this prohibition, including the non-implementation of the provisions of the administrative judiciary. However, in order to preserve the basic freedoms of the citizen, this trend has evolved and the principle of directing orders from the administrative judge to the administration has become one of the matters that the administration has widely accepted.
From this perspective, the study aims at discussing the issue of the extent to which the administrative judge’s directing orders to the administration is considered a replacement of their orders and a violation of the principle of separation of powers, or if it is an application of the principle of legality. This is achieved through relying on the descriptive and analytical approach along with the comparative approach whenever necessary.
We have concluded through this study that when the administrative judge directs orders to the administration it shall not be considered a deviation from the judge’s competences. By issuing such orders, the judge does not practice administrative work, but rather directs the administration to carry out its duties. The judge is also helping the administration properly implement the law and preserve the freedoms and general rights of the citizen. We have also concluded that the administrative judge should automatically include the financial penalty along with the issued ruling without requiring its request from the plaintiff, whenever it is deemed necessary as the core of the judgment because it represents a guarantee of respect for the principle of legality and compliance with the implementation of judiciary rulings, and it is also a means of pressure against the administration.
Keywords: judiciary, independence, implementation, provisions, employee.