The Supreme Administrative Court in Iraq: the challenge and the time limit

This article explains the Court’s place in the State Council, the time limit for cassation of a judgment of the Administrative Judiciary Court, and what becomes of a judgment after that time has passed or after the Court has given its decision. Cassation of judgments of the Court of Employees’ Judiciary is a separate path, set out on cassation of decisions of the Court of Employees’ Judiciary.

The framework of the Council is on the State Council Law, and when a claim is brought in the Administrative Judiciary Court is on When is a State decision challenged in the Administrative Judiciary Court?.

Where does the Court sit in the State Council?

State Council Law No. 71 of 2017 established a State Council with the functions of administrative justice, advisory opinions and drafting. It is an independent body with legal personality, represented by the President of the Council, under Article 1. The provisions of State Shura Council Law No. 65 of 1979 and its amendments apply to this Council, except Article 6, Fourth, and the name “State Council” replaces “State Shura Council” wherever it appears in legislation, under Article 2 of Law No. 71. The President of the State Council has the powers of the minister provided for in legislation relating to the Council’s work, and that title replaces “the Minister of Justice” in those texts, under Articles 4 and 7 of Law No. 71.

The statement of reasons for Law No. 71 records that the Council includes the administrative judiciary, the Courts of Employees’ Judiciary and the Supreme Administrative Court, and that the State Shura Council’s link to the Ministry of Justice was severed. The Supreme Administrative Court is not a court of first instance. It should not be mixed with the Administrative Judiciary Court, which examines the lawfulness of administrative orders and decisions, or with the Court of Employees’ Judiciary, which hears claims in rights arising from civil service and challenges to disciplinary penalties.

Article 7, First, of Law No. 65 of 1979 as amended by Law No. 17 of 2013 forms an Administrative Judiciary Court and a Court of Employees’ Judiciary in four regions: the Northern Region, centred in Mosul; the Central Region, centred in Baghdad; the Mid-Euphrates Region, centred in Hilla; and the Southern Region, centred in Basra; and it lists the governorates in each region. Further courts may, if needed, be formed in governorate centres by a statement issued — after Law No. 71 — by the President of the State Council, on a proposal of the Presidency Body, and published in the Official Gazette. Judges of the first or second class may be seconded, on a nomination of the Supreme Judicial Council, to the Administrative Judiciary Courts or the Courts of Employees’ Judiciary, under Article 7, Third. Those paragraphs describe the courts of first instance. The Supreme Administrative Court is a court of challenge above them, and the four-region description is not transferred to it as if those regions were its own circuits on the basis of this text alone.

If the jurisdiction of the Administrative Judiciary Court or of the Court of Employees’ Judiciary conflicts with that of a civil court, the competent forum is determined by a body called the “Reference Determination Body”, composed of six members: three chosen by the President of the Federal Court of Cassation from among the members of that court, and three chosen by the President of the State Council — after the change of name — from among the members of the Council. It meets under the presidency of the President of the Federal Court of Cassation, and its decision, by agreement or by majority, is final and binding, under Article 7, Twelfth.

The time limit for cassation of a judgment of the Administrative Judiciary Court

Before the Supreme Administrative Court is reached on this path, a grievance must first be made, and a claim then filed in the Administrative Judiciary Court, within the periods in Article 7, Seventh: a grievance within thirty days of notification of the order or decision or of deemed notification; the body to which the grievance is submitted must decide it within thirty days of registration; and the claim is filed in the court within sixty days of an actual or deemed refusal of the grievance. Those periods are set out on the time limit for a claim in the Administrative Judiciary Court, and the grievance steps on grievance against an administrative decision in Iraq.

Article 7(8)(a): the Administrative Judiciary Court decides the challenge, and may dismiss it or set aside or amend the order or decision under challenge, and may award compensation if that is warranted, on the claimant’s request. Article 7(8)(b): the court’s decision may be challenged in cassation before the Supreme Administrative Court within thirty days of notification or deemed notification. Article 7(8)(c): a decision of the court that is not challenged, and a decision of the Supreme Administrative Court issued as a result of the challenge, is final and binding.

Law No. 71 of 2017 itself does not set these time limits. They are in Article 7 of Law No. 65 of 1979, as replaced by Article 5 of Law No. 17 of 2013, and they apply to the State Council under Article 2 of Law No. 71.

Filing a challenge does not, of itself, stay execution of the judgment or of the decision; Article 7 does not make registration an automatic stay, and a judgment, once issued, is executed according to the law, under Article 7, Tenth. A request for a stay, if it is made, is examined in the light of the Civil Procedure Law No. 83 of 1969 where there is no special text, under Article 7, Eleventh, as on stay of execution of an administrative decision.

A legal fee is collected when the challenge is registered in the Administrative Judiciary Court, under Article 7(7)(b); the fee is that provided for in the text in force. The procedure of the Supreme Administrative Court, in so far as there is no special text, is governed by the Civil Procedure Law, the Evidence Law No. 107 of 1979, the Code of Criminal Procedure No. 23 of 1971 and the Judicial Fees Law No. 114 of 1981.

Cassation of a judgment of the Court of Employees’ Judiciary, in brief

Article 7(9)(c) allows a decision of the Court of Employees’ Judiciary, issued in a civil-service-rights claim or in a challenge to a disciplinary penalty, to be challenged in cassation before the Supreme Administrative Court within thirty days of notification or deemed notification. A decision of the Court of Employees’ Judiciary that is not challenged, and a decision of the Supreme Administrative Court issued as a result of the challenge, is final and binding, under Article 7(9)(d).

The time limit for bringing a claim in rights arising from civil service in that court is thirty days if the employee is in Iraq and sixty days if the employee is abroad, under Article 7(9)(b). That period is special to paragraph (A)(1), and is not automatically transferred to penalty claims, which Article 15 of the Discipline Law organises as a grievance within thirty days, a decision within thirty days, then a claim within thirty days of an actual or deemed refusal. Mixing the two periods changes the calculation of the challenge. The detail is on the cassation page for the Court of Employees’ Judiciary, and on grievance and the claim in the Court of Employees’ Judiciary.

The office follows the judgment and the date of notification, and whether it was issued by the Administrative Judiciary Court or by the Court of Employees’ Judiciary.

Legal basis and sources

1. State Shura Council Law No. 65 of 1979 as amended by Law No. 17 of 2013
2. State Council Law No. 71 of 2017

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