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Research studies

Disciplinary Procedures for Public Service Employee Between Palestinian Law and Islamic Jurisprudence

 

Prepared by the researcher

  • PhD :Sohail Al Ahmad  – Faculty of Law – Palestine National University Bethlehem – Palestine
  • PhD Student : Sohaib Yaser Shaheen  – Abbas Leghrour University – Khinshla – Algeria

Democratic Arab Center

Journal of Afro-Asian Studies : Ninth Issue – May 2021

A Periodical International Journal published by the “Democratic Arab Center” Germany – Berlin. The journal deals with the field of Afro-Asian strategic, political and economic studies

Nationales ISSN-Zentrum für Deutschland
ISSN  2628-6475
Journal of Afro-Asian Studies

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Abstract

This study deals with the disciplinary procedures of an employee in the public office in Palestinian law and Islamic jurisprudence. aims at identifying the truth of disciplinary procedures in jurisprudence and legislation, as well as the nature of disciplinary offense and disciplinary punishment related to it in the public office and how to address them. The importance of knowing the disciplinary procedures of the employee in the public service was identified in accordance with the laws and legislation thereof. The study then addressed the stages of disciplinary procedures for the employee in the public service through confrontation and disciplinary accountability of the employee, as well as notification of the direct official of the employee if the existence of these disciplinary irregularities and then showed the compatibility between the two legislations regarding this according to the manifestations and details contained in this study.

Introduction

The Palestinian employee in the civil service carries out his duties entrusted to him in accordance with the provisions of the law and legislation regulating his work, as it obliges him to follow the job controls that he is entrusted with accordingly, and the enforcement of this requires accountability and punishment, through disciplinary measures that address the disciplinary accusation and the nature of the investigation that precedes the employee’s referral to the disciplinary authority concerned with applying disciplinary punishment, and the Palestinian legislator has guaranteed the right of the accused employee to organize the matter of notifying him of the date of the investigation so that he can attend, according to an administrative hierarchy that is through informing the direct official, and this varies according to the employee’s rank , this differs according to the rank of the employee, and the term disciplinary measures and penalties resulting therefrom have not been dealt with in Islamic jurisprudence under this concept. Violations are not valid and legitimate unless they are part of the penalties specified in the law, and the law has stipulated them exclusively, where the disciplinary authority is governed by the principle of legitimacy, and the application of any of the penalties stipulated in the law is only by the authority that the legislator has designated for that. To shed light on this issue, this research came under the title: “Disciplinary measures for an employee in a civil service between Palestinian law and Islamic jurisprudence.”

Importance of the topic:

The importance of the topic and the reasons for choosing it are highlighted in the following:

  • This topic relates the disciplinary measures for an employee in a civil service in terms of the nature and nature of what is taking place in accordance with the Sharia and Palestinian law.
  • Show the importance of standing on the laws and legislations that talked about disciplinary procedures and dealt with the issues of that in terms of description, originality and comparison.
  • A statement that knowledge of the legal and legal texts related to disciplinary procedures is an important issue for researchers and specialists through the disciplinary penalties they deal with as a result of these procedures and their developments in the reality of life.
  • Touching this topic to contemporary reality, and the importance of the objective confusion associated with it, which necessitates legal and legal studies to address these issues with the aim of scientific treatment.

Research aims:

It is represented by the following:

  1. Determine what disciplinary measures are for the employee in the public office and indicate the penalties for them to reach the legal and legal perspective related to that.
  2. Explain how the nature of the disciplinary offense and the disciplinary punishment related to it are in the public office in the Sharia and legal concepts.
  3. Study what is related to the issues of the disciplinary procedures stages of the employee in the civil service in order to find out the issue accurately and clearly.

Research problem:

The research tries around the answer to resolve the problem of the main question: what are the nature of disciplinary violations and the penalties resulting from it and the disciplinary measures related to it for civil servants in the Palestinian and Islamic legislations?

  1. What is the concept of disciplinary measures for an employee in a civil service?
  2. What is the nature of the disciplinary offense and the disciplinary punishment related to it in a public office?
  3. Are there jurisprudential and legal texts and legislations that dealt with the issue of disciplinary violations and the penalties resulting from them, or not?
  4. What are the stages of disciplinary procedures for an employee in a civil service?
  5. What is the position of confrontation and disciplinary accountability for a civil servant in the Palestinian legislation and Islamic jurisprudence?

Research Methodology:

The researchers’ approach was as follows: relying on the descriptive and analytical approaches, by highlighting what are the disciplinary measures for the employee in the civil service and the nature of the disciplinary penalties for that in Palestinian and Islamic legislation, as well as analyzing the texts and laws related to that with the aim of identifying the implications of scientific and objective research, through reference to references Specialized in research topics.

Search content:

This study – in addition to the introduction and conclusion – Comes in two topics, as follows:

The first topic: What are the disciplinary measures for an employee in a public office in Islamic law and legislation.

The first requirement: the concept of disciplinary measures and the authority concerned with them in the public service in Islamic law and legislation

The second requirement: the disciplinary offense and the disciplinary punishment related to it in the public office in Islamic law and legislation

The second topic: disciplinary measures for an employee in a public office in Islamic law and legislation

The first requirement: the disciplinary confrontation and accountability of the employee in the public office in Islamic law and legislation

The second requirement: Notifying the direct official from the employee in the public office in Islamic law and legislation .

The first topic: What are the disciplinary measures for an employee in a public office In Islamic law and legislation

The employee is asked about the mistakes He/she commits when performing his job, a responsibility that is based on a mistake and the duty of proof, as it assigns the public administration to prove that the employee has actually committed a mistake in his job[1]

The first requirement is the concept of disciplinary measures and the authority concerned with them, In the public service in Islamic law and legislation

First: the concept of disciplinary measures

Discipline is a language: it is polite, and its source is literature from the door of beating, and its literature is said to be literature, meaning: “I taught him the sport of the psyche and the advantages of morals … and his etiquette was said to discipline if you punished him for his offense because it is a reason that calls for the truth of literature”.[2]

Non-judicial disciplinary measures mean: Those procedures and guarantees prior to the disciplinary trial stage, and it includes both disciplinary accusation procedures and investigations prior to referral to the disciplinary authority competent to impose the disciplinary penalty.[3]

Dr. Khaled Al-Zoubi defined it as: “Those steps that must be followed from the employee’s mistake until the punishment is imposed on him. Disciplinary procedures in this sense go through two phases: the first of them is the investigation phase in which the occurrence of the mistake is trusted and attributed to the employee with the collection of evidence and sufficient data to convict him, and the second It is: the trial stage, which usually ends with the infliction of the penalty as soon as it is proven that the employee committed the disciplinary error”.[4]

It appears here that the disciplinary procedures are: All the steps and stages that the disciplinary penalty decision-making process goes through, starting from the employee’s violation, proving the violation, passing the punishment,[5] or referring the employee to the investigation committee, and then carrying out the investigation procedures, up to the disciplinary punishment of  His own doing.

The term disciplinary measures and the penalties resulting therefrom has not been dealt with in Islamic jurisprudence under this concept. Rather, Islamic legislation deals with the subject of unappreciated punishments that are due to the judge’s discretionary authority, which is called the discretionary punishment, and his ruling differs according to his condition and the state of his perpetrator, so the punishment corresponds in the way that it is a discipline of reclamation and restraint, which differs according to the difference of sin.

The philosophy of discretionary punishments is based on disciplining and restraining the perpetrator, in terms of reforming, correcting, and disciplining himself for this. The criterion that the judge adopts in choosing the discretionary punishment is its ability to achieve reform, discipline and restraint, and thus set the appropriate punishment for each criminal, whether it is in his person and his circumstances Or in his criminal act”.[6]

And since it is intended to reform, discipline and rebuke; The sincere repentance is waived for discretion, and the judge or the guardian may also pardon the perpetrator if the crime is related to the rights of God, and if it is related to the rights of people. It is imperative to pardon the victim, restore the rights to their owners, and then count the statute of limitations for discretionary punishments[7] according to the Islamic concept.

If it is sincere repentance, the penalty is waived in this world and the hereafter. The execution of the punishment in this world is an expiation for that sin or the crime in which it was excused, and a purification that removes the responsibility of the individual for the criminal act, and forfeits the punishment or torture in the Hereafter Therefore,[8] most of the scholars are of the view that punishments are both marriage and force, and if they are established in this world, it will expiate the sin, and there is no punishment for its people in the hereafter, and the punishments are expiation for its people.[9]

The prevailing trend in the discretionary penalties is the inclusion of the statute of limitations for the crime and the punishment, because all the provisions related to discretionary punishment aim at achieving a public interest, and the guardian is the one who assesses the areas of achieving this interest. In that, his right to this is similar to his right to pardon the crime or punishment in discretionary discretion, and his right to take the statute of limitations as a matter of priority.[10]

Second:

The authority concerned with it

The authority concerned with disciplinary means: the authority appointed by the legislator to apply the disciplinary penalties stipulated in the law on public office, and accordingly, no other body may exercise this competence except with its authorization in accordance with the legal controls and conditions related to the mandate.[11]

Administrative jurisprudence has shown the systems that have the right to discipline by referring them to three main systems: the presidential system, the quasi-judicial system (disciplinary councils), and the judicial system (disciplinary courts).[12]

And with an indication of the nature of the disciplinary authorities; It must be known that disciplinary penalties resulting from violations are not valid and legitimate unless they are part of the legally defined penalties, i.e. those stipulated by law exclusively, and this does not mean that there is a match between the principle of legality in disciplinary law, and the principle of legality in criminal law, Although the legislator specifies criminal punishment exclusively, as is the case with disciplinary penalties, however, in the case of the first penalties, he only decides a specific penalty, whether from one or two terms, for each specific criminal offense, and therefore he does not leave the criminal judge much freedom in this regard, unlike disciplinary penalties where he suffices to define a list of those penalties, leaving the disciplinary authority free to choose The appropriate penalty for administrative punishment is among them.[13]

What is meant by the disciplinary authority is that authority concerned with discipline, which differs according to different regulations and from legislation to another, as the legislator appoints this disciplinary authority, whether it is administrative, judicial, or quasi-judicial.[14]

The disciplinary authority is governed by the principle of legality, whereby only the authority that the legislator has designated for that is the authority that has the right to apply any of the penalties stipulated by law, and it is not permitted to delegate disciplinary action unless the law stipulates that.[15]

The role of the disciplinary authority in the field of discipline is to determine both the disciplinary offense and the disciplinary punishment resulting therefrom, and the basis of this authority is the type of legal relationship that links the employee to the state, according to its passing through stages that ended with the organizational (regulatory) relationship, not the contractual relationship, which considers that the provisions of the position include the rights it contains, And the duties it imposes are derived from the texts of laws and regulations governing them, and that the employee is located in a regulatory and regulatory position,[16] Where the Palestinian legislator specified in the text of Article (69) of the Civil Service Law the following:

1 – The referral for investigation is for a disciplinary violation who has the power to impose the punishment on the employee.

 2 – With the exception of the warning or attention penalty, a penalty may not be imposed on the employee except after referring him to a committee for investigation and hearing his statements, and this is proven by recording in a special report, and the decision issued to impose the punishment is reasoned.[17]

According to the Civil Service Law, the competent authority in legislation is one who has the power to impose the punishment on the employee, i.e. the direct supervisor whose powers are limited to inflicting the disciplinary punishment (alerting or drawing attention), Otherwise, the punishment may not be inflicted without forming an investigation committee, Through the recommendation of the head of the government department to his immediate superior, taking into account the administrative hierarchy, the legislator has identified in the following articles the competent authorities in disciplinary punishment according to the category of the employee, as Articles (70 and 71) of the same law specify the procedures for disciplining employees of the second and third categories.

The second requirement: the disciplinary offense and the disciplinary punishment related to it in a public Office in Islamic law and legislation

A disciplinary offense is defined as: the employee’s breach of the duties of his job specified in law, by statute, or in accordance with the orders of the president, whether by refraining from performing the duties that fall within his jurisdiction of duties or what he was assigned to by the boss, or by performing actions that contravene the duties of his job, or if he carried out it in a manner other than The required manner, whether the violation is inside or outside the workplace, during or after leaving the service as long as it is related to the duties of the job, as well as from the point of view of the employee’s breach of moral values ​​and the appearance consistent with his position.[18]

The public servant in the Islamic concept is entrusted with his job and the duties and responsibilities that result from that, and any contravention or fraud of the tasks of his job, such as giving a technical opinion to favor a personal interest, or adopting a method that is more financially costly for a passion for the soul, is considered an offense that deserves punishment and discipline Where the Messenger of God, may God’s prayers and peace be upon him, says: “There is no shepherd whom God entrusts with a flock who dies on the day he dies while he is deceiving it, except that God forbids him to smell Heaven”.[19]

On the authority of the Prophet, may God’s prayers and peace be upon him, he said: “There is no prince who follows the affairs of Muslims and then does not strive for them and advise them unless he does not enter Heaven”.[20]

And due to the importance of employee discipline at work and behavior during it with realization of trust, the Prophet – may God bless him and grant him peace – said to the people of Najran:

“I will send to you an honest, right, faithful, right, trustworthy man.”  So the people were very delighted, so Aba Ubaidah ibn al-Jarrah was sent – may God be pleased with him,[21] This is to demonstrate the importance of these ethical and behavioral rules and to encourage public employee characterization with them.

Disciplinary violations are divided in one aspect of jurisprudence s divided into three types: violation of laws, regulations, regulations, and instructions, exit or breach of job duties, and behavior that violates the dignity of the job, discrimination and lack of objectivity in providing service or assault on public morals, and others divided them according to the nature of the error committed into Two types: financial and administrative violations.[22]

In order for the disciplinary offense to be recognized, the following elements must be met:

1-The material element: It is the deviant activity that is the subject of the disciplinary issue represented by positive or negative action, and these actions must take a tangible external appearance, meaning that the employee performs an act that is contrary to the duties of the job or his abstention from performing a work that he is required by his job duty to do, and the action must be constant And that it is not based on mere conclusions or rumors, and ideas and intentions are not punished as long as they are not translated into actions.[23]

2-The moral element: It means that the act was issued by the employee with a free and sound will, and this will is not required to be intentional or out of bad faith.[24]

3-The Pillarof Islamic Law : The jurisprudence has differed on this element as one of the pillars of the disciplinary offense, as some of them denied this on the basis that the disciplinary offense is not like a criminal offense that is subject to the principle of no crime or punishment except by a text, and that disciplinary offenses are not limited, and others went that Legitimacy in disciplinary offenses differs from legitimacy in criminal offenses, so although the legislator does not limit all disciplinary offenses, it has established a general provision under which all disciplinary offenses may be included, and in this way the Islamic law element is achieved.[25]

As for disciplinary punishment, it is defined as: one of the means of management that includes an element of pain and is used in accordance with the law in facing the perpetrators of disciplinary violations within the functional group in order to maintain order in it.[26]

The disciplinary punishment aims to deter the violating employee so that he does not return to committing another violation, thus achieving deterrence for the rest of the employees and ensuring their commitment to the rules of behavior, good progress of work and then raising the efficiency of performance, as well as reform and correction by studying the causes and types of violations committed, educating employees and developing appropriate mechanisms to ensure Not to be repeated in the future.[27]

Accordingly; The relationship between the disciplinary violation and the disciplinary punishment in the legal and Sharia concepts is a legal one, as the punishment cannot be imposed on the employee if he did not commit the disciplinary offense, and committing the disciplinary offense entails the punishment of the employee so that the penalties are to be alerted, and attention is drawn directly by the official. However, other legal procedures are required that ultimately lead to disciplinary punishment or its abolition.

Punishment in Islamic legislation is also not intended in and of itself, and it is not intended to inflict harm and pain on the offender in retaliation or mere harm. Rather, it has goals represented in deterrence, both private and public, reforming, rehabilitating and disciplining the offenders, achieving justice, protecting individual and social interests, defending religious values ​​and morals, in addition to Expiation for sin or disobedience, and other goals that all contribute to the fulfillment of the objectives of the Sharia in creation and the divine succession of man on earth, for the Messenger of God, may God bless him and grant him peace, said: “There is no shepherd whom God entrusts to a flock who dies on the day he dies while he is deceiving it. the Paradise”.[28]

Al-Mawardi says: “Know that God, may He be glorified and exalted, has entrusted creation to its worshipers and obligated them to its assumptions, and he sent His messengers to them, and prescribed his religion for them, without a need that called him to assign them, nor the necessity of leading him to their devotion, but he intended to benefit them, preferring him to them, as he preferred to countless A count of his blessings, but the grace in what they worship with him is greater, because the benefit of what is other than the worshipers pertains to the urgent world, and the benefit of the worshipers includes the benefit of the world and the hereafter … so his grace was in what he prohibited us, as his grace in what he permitted us, and his preference in what we have avoided, as the favor of him In what we are commanded.[29]

The second topic: disciplinary measures for an employee in a public office

In Islamic law and legislation

Confronting the accused with the offenses attributed to him constitutes a necessary basis in terms of the inability to prosecute disciplinary proceedings without applying them, so that the accused is not punished for an act or action that he has not been informed of, and to deny this matter the most basic principles of justice and fairness.[30]

The First Requirement: confrontation and disciplinary accountability for the employee in the public officeIn Islamic law and legislation

Disciplinary confrontation means: informing the accused employee of the accusation attributed to him, by informing him of the violation he is accused of committing, and then informing him of the evidence indicating its commission, and notifying him that the administration’s intention is to impose one of the penalties stipulated in the law if it is proven that he committed that violation.[31]

It was also known as: “Informing the employee of the violation attributed to him and informing him of the evidence indicating that it was committed in order to make his defense, and notifying him that the administration is heading towards taking him against him if it is more likely to have evidence of his guilt”[32]

Facing the accused employee with the behavioral violations attributed to him, even if it is one of the essential disciplinary guarantees in the investigation with the employee. However, it is at the same time a necessary matter required for the conduct of disciplinary measures to achieve its goal, since without this confrontation there will be no disciplinary accountability in the legal sense, which is based on an accusation in an offense faced by those accused of committing it, in order for him to express his defense against it.[33]

It is based on the idea of ​​confronting the accused employee with divine acts or mistakes that require him to be arrested on the truth of those charges and the behavioral violations attributed to him, as well as informing him of various evidence related to them that indicate that he committed a specific disciplinary offense so that he can present his defense.[34]

The confrontation must include informing the employee of the details of the violation attributed to him, on which the penalty is based, whether it was revealed to the management authority from the beginning or before the penalty was imposed. The confrontation also includes all evidence that proves the occurrence of the violations, and so that the confrontation fulfills its purpose as a guarantee for the employee. It must take place in a manner that discerns the direction of the intention to impose the penalty, because by that alone the employee knows the seriousness of the situation and takes the matter seriously and the importance he deserves, The accusation against him.[35]

Accordingly; Confrontation is a legal principle for investigation, and taking the appropriate decision to discipline the public employee, and any defect in this procedure results in invalidity of investigation and disciplinary measures, as the law guarantees the employee’s right to know the charges against him so that he can prepare his defense for himself, and the confrontation must be with charges Defined and clear-cut, so that the employee can defend himself. This is an example of working according to the established principle of justice in Islamic law, because God Almighty says: “God enjoins justice and charity …”.[36]

The Islamic law is beneficial and deterrent, and its structure and basis is on governance and the interests of the servants, and it is all justice, mercy in all, and all interests, so wherever the interest is then God’s law, and wherever the law of God is, then there is an interest, and that includes confronting the accused and informing him of what is attributed to him as it is considered among the guarantees that cannot be ignored And neglect it[37].

And Islamic law jurists differed in determining the interest or benefit and some of the reasons for the rulings in a number of resources, they generally agree that what is meant by imposing a punishment for disobeying the order of the street is to reform the condition of people, protect them from evil, save them from ignorance, guide them from misguidance and stop them For sins, and sending them to obedience[38].

The Second Requirement: Notifying the direct official from the employee in the public officeIn Islamic law and legislation

 

It is not fair in anything to lead the worker to accountability or to a disciplinary trial, without being fully aware of the charges and evidence proving these accusations. Therefore, informing him of these charges and those evidence is an important guarantee and a basis in the field of disciplinary trials, and even the first element of these trials.[39]

Administrative practice, jurisprudence, and the judiciary have also taken place to notify the employee to come before the investigation authority to listen to his statements and defend himself, provided that he is informed of the reason for attending before it without specifying a specific period for attendance, but rather falls within the discretionary authority of the administration[40] Also, the notification or notification does not adhere to a certain way, as it may be through notification by the administrative head responsible for him, or by sending him a telegram stating his presence for investigation because of a specific charge against him.[41]

This requires informing the concerned employee of the violations attributed to him and the date of the disciplinary council convening, notifying him of the possibility of viewing his disciplinary file, and appointing a lawyer to assist him during the disciplinary council meeting.

It can be said that the legislator, even if it does not explicitly stipulate the principle of confrontation; However, this is implied by the requirement to question the employee before imposing any disciplinary penalties on him, which is stipulated in Article (72) of the Civil Service Law: “If an employee is attributed to an employee that would arrest him, detain him, or investigate him in a matter outside the scope of his position, then The authority responsible for this procedure shall immediately inform the governmental department to which the employee belongs, to look into him in accordance with the provisions of this law”.[42]

When the employee attending the disciplinary council attended the first session and the case was postponed upon his request or for any reason such as calling witnesses; He/ she is not entitled to adhere to not being summoned, as the goal would have been achieved if the person concerned attended the matter spontaneously based on his personal knowledge and was able to prepare his defense, and therefore it is not permissible for him to adhere to this method to challenge the cancellation of the disciplinary decision, but if the notification certificate is returned that the person concerned is outside The country is on an official holiday, or he is in a state of health that precludes his attendance, or in general in a situation that makes it impossible for him to attend the disciplinary council The disciplinary session must be postponed until the excuse or impediment is removed.[43]

Palestinian law has guaranteed the right of the accused employee to notify him of the date of the investigation in order to be able to attend, but it did not specify a specific method for informing him, but it is customary in public and administrative positions that this is done according to an administrative hierarchy that is by informing the direct official about him, and this varies according to the employee’s rank. This is like implementing the interest represented in bringing benefit and warding off harm by preserving the intent of the Islamic law, which is one of the five people: to protect them their religion, themselves, their mind, their offspring and their money, and everything that includes preserving these five assets is an interest, and everything that misses these assets is corrupt and paid Interest, and these five assets are kept in the category of necessities,[44] as they are the strongest ranks of interests.

 Notifying the accused employee of the date of the investigation and enabling him to attend according to an administrative hierarchy through the official is considered among the public interests and purposes of the criminalization and disciplinary punishment legislation.

Conclusion:

After this station in dealing with the subject of disciplinary measures for the employee in the public office between Palestinian law and Islamic jurisprudence, it is possible to summarize the most important findings and recommendations of this research as follows:

Results:

  • The non-judicial disciplinary procedures are those procedures and guarantees prior to the disciplinary trial stage, as they include both disciplinary accusation procedures and the investigation prior to referral to the disciplinary authority competent to impose the disciplinary penalty.
  • The term disciplinary measures and penalties resulting therefrom have not been dealt with in Islamic jurisprudence under this concept. Rather, Islamic legislation has dealt with the issue of unappreciated punishments that are due to the judge’s discretionary authority to consider and determine which is the so-called discretionary punishment.
  • Palestinian legislation guarantees the right of the accused employee to notify him of the date of the investigation in order to be able to attend, but it does not specify a specific method for informing him, and this varies according to the employee’s rank. Notifying the accused employee of the date of the investigation and enabling him to attend according to an administrative hierarchy through the official is considered among the public interests and purposes of the criminalization and disciplinary punishment legislation in Islamic legislation.
  • The employee is asked about the mistakes he commits when performing His/ her job, a responsibility based on a mistake and an obligation to prove. The public administration is tasked with proving that the employee has committed a mistake in his job.
  • The disciplinary authority is the authority appointed by the legislator to apply the disciplinary penalties stipulated in the law on public office, and accordingly, no other party may exercise this competence without authorization from it in accordance with the legal controls and conditions related to the mandate.
  • Administrative jurisprudence showed the systems that have the right to discipline, as it referred it to three main systems: the presidential system, the quasi-judicial system (disciplinary councils), and the judicial system (disciplinary courts)
  • The public servant in the Islamic concept is entrusted with his job and the resulting duties and responsibilities, and any contravention or fraud of the tasks of his job, such as giving a technical opinion to favor a personal interest, or adopting a method that is more financially costly for a passion for the soul, is considered punishable offenses. And discipline
  • Disciplinary penalties resulting from violations are not valid and legitimate unless they are part of the penalties specified by law, that is, those stipulated by the law exclusively.
  • The disciplinary punishment is one of the means of administration that includes an element of pain and is used according to the law in facing the perpetrators of disciplinary violations within the functional group in order to maintain order in it
  • The relationship between the disciplinary violation and the disciplinary punishment in the legal and Islamic law concepts is a legal relationship, as the punishment cannot be imposed on the employee if he did not commit the disciplinary violation
  • The disciplinary authority is governed by the principle of legality, as it does not have the right to apply any of the penalties stipulated by law except for the body that the legislator has designated for that, and it is not permitted to delegate disciplinary action unless the law stipulates that
  • The relationship between the disciplinary violation and the disciplinary punishment in the legal and Sharia concepts is a legal relationship, as the punishment cannot be imposed on the employee if he did not commit the disciplinary offense.

Recommendations:

And based on what was stated in the research readings and its scientific results, The researcher’s recommendations are as follows:

  • Establishing legal mechanisms that in turn achieve impartiality, transparency and fairness in the procedures for disciplining the employee to protect him from abuse by management.
  • That the disciplinary procedures be overt and far from confidentiality and ambiguity, and that the role of judicial oversight over those procedures be activated.
  • Work to control the procedures for causing administrative disciplinary decisions, and this standard aims to ensure the right of the employee.
  • Applying the dual judicial system because of its effectiveness in settling administrative disputes.
  • The introduction of the Administrative Prosecution Law to establish an administrative prosecution authority that is independent of the executive authority, so that it is granted investigation and accusation powers.

Sources and references:

Laws:

Law No. (4) of 1998 issuing the Civil Service Law.

Books :

1- Ahmed bin Muhammad Al-Fayoumi, The Enlightening Lamp, Dar Al-Hadith, Cairo, 2011.

2- Bukhari, Al-Sahih, House of International Ideas, Amman, Jordan, 2004 AD.

3- Tawfiq Shehadeh, Principles of Administrative Law, Dar Al Maaref, Cairo, 1955.

4- Khaled Al-Zoubi, Administrative Law, House of Culture for Publishing and Distribution, Amman, 1998.

5- Disagreement, Abd al-Wahhab, Sources of Islamic legislation in what is not stipulated, Kuwait, Dar Al-Qalam, i 1392 AH.

6- Al-Zuhaili, and Heba, Sharia Punishments, Judicial and Testimonies, Dar Al Fikr, Damascus.

7- Al-Sarraj, Abboud, comparative penal legislation.

8- Suleiman Al-Tamawi, Disciplinary Judiciary, Dar Al-Fikr Al-Arabi, 1995.

9- The groom, Hala, the character of discretionary punishments in Islamic law.

10- Ali Jumaa, Administrative Discipline in the Public Service, House of Culture for Publishing and Distribution, 2004.

11- Al-Ghazali, Al-Mustasfa from Science of Fundamentals, Beirut, Dar Al-Arqam Ibn Abi Al-Arqam, (dt).

12- Muhammad Al-Khalayleh, Administrative Law, Book Two, House of Culture for Publishing and Distribution, Amman, Third Edition, 2017.

13- Muslim, Al-Sahih, House of International Ideas, Amman, Jordan, 2004 AD.

University scientific theses:

1- Bader Al-Qeissi, Disciplinary Guarantees for Public Officials in Jordanian and Egyptian Law: A Comparative Study, Master Thesis, 2014.

2- Rashed Al-Subaie, Confrontation as a Guarantee of Disciplining the Public Employee: A Comparative Study, Master Thesis, Aal al-Bayt, 2019.

3- Ziyad Al-Masaar, Judicial Supervision of Public Employee Disciplinary Decisions: A Comparative Study, Master Thesis, Yarmouk University, Jordan, 2013.

  1. Karima Bellili, Administrative Investigation as one of the Disciplinary Guarantees for Public Employees, Master Thesis, University of Jordan, 2013.
  2. Muhammad Al-Shehri, Public Employee Discipline Guarantees in the Saudi and Jordanian Civil Service Systems, Master Thesis, University of Jordan, 2009.
  3. Mustafa Afifi, The Philosophy and Objectives of Disciplinary Punishment, A Comparative Study, PhD Thesis, Ain Shams University, Cairo, 1976.

Scientific journals and websites:

1- Watermelon Ramadan, Disciplinary Guarantees, Symposium: Legislations Governing Civil Service in the Arab World, Arab Administrative Development Organization, 2009.

2- Houria Orak, Disciplinary Procedures for the Public Official in Algeria, Ijtihad Journal for Legal and Economic Studies, Issue (1), 139.

3- Abdul-Ghani Yifoot, Basic Guarantees in the Field of Discipline, The Arab Journal of Local Administration and Development, Issue (84), 2009.

4- Abdullah Arjamand, The Philosophy of Disciplinary Procedures for Civil Service Workers: A Comparative Theoretical and Practical Study in the United Arab Emirates, Journal of Security and Law, Volume (7), Issue (1), 1999.

6- Muhammad Tuhami Dakir, The Objectives of Punishment and Its Philosophy in Islamic Law,

https://www.iicss.iq/?id

[1]– Houria Orak, Disciplinary Procedures for the Public Official in Algeria, Ijtihad Journal for Legal and Economic Studies, Issue (1), 2012, pg. 139.

[2] – Ahmed bin Muhammad Al-Fayoumi, The Enlightening Lamp, Dar Al-Hadith, Cairo, 2000, P.11.

[3] – Abdullah Arjamand, The Philosophy of Disciplinary Procedures for Civil Service Workers: A Comparative Theoretical and Practical Study in the United Arab Emirates, Journal of Security and Law, Volume (7), Issue (1), 1999, p. 432.

[4]–  Khaled Al-Zoubi, Administrative Law, House of Culture for Publishing and Distribution, Amman, 1998, p. 248.

[5] – Some disciplinary penalties may be issued without referral to an investigation committee as approved by Article (69) of the Civil Service Law No. (4) of 1998, whereby the article stipulates: “With the exception of the penalty for warning or attention, a penalty may not be imposed on the employee except after his referral To a committee to investigate him and hear his statements, and this will be proven by recording in a special report, and the decision issued to impose the penalty is justified, “which will be clarified later in this study.

[6] – The groom, Hala, Personal Discrimination Punishment in Islamic Law, p. 418.

[7] – Al-Sarraj, Abboud, Comparative Penal Legislation, p. 459.

[8] – Al-Sarraj, Abboud, Comparative Penal Legislation, p. 290.

[9]–  Al-Zuhaili, Wehbe, Sharia Punishments, Judicial Punishments, and Testimonies, 4/16, 17.

[10] – See: Al-Sarraj, Abboud, Comparative Penal Legislation, p. 459.

[11]– Muhammad Al-Khalayleh, Administrative Law, Book Two, House of Culture for Publishing and Distribution, Amman, Third Edition, 2017, p. 131.

[12] – Ali Jumaa, Administrative Discipline in the Public Service, Dar Al Thaqafa for Publishing and Distribution, 2004, p. 162.

[13] – Abdullah Arjamand, The Philosophy of Disciplinary Procedures for Civil Service Workers: A Comparative Theoretical and Practical Study in the United Arab Emirates, previous reference, pg. 435.

[14] – Khaled Al-Zoubi, Administrative Law, previous reference, p. 240.

[15] – Sulaiman Al-Tamawi, Disciplinary Judiciary, Dar Al-Fikr Al-Arabi, 1995, p. 432.

[16] – Tawfiq Shehadeh, Principles of Administrative Law, Dar Al Maaref, Cairo, 1955, p. 476.

[17] – Article (69) of the Civil Service Law No. (4) of 1998.

[18] – Abdul-Ghani Yifoot, Basic Guarantees in the Field of Discipline, The Arab Journal of Local Administration and Development, No. (84), 2009, p. 32.

[19] – Issued by Al-Bukhari, Kitab Al-Ahkam, Chapter of Those Who Was Attained a Parish Who Was Not Advised, No. (7151), Muslim, Al-Sahih, Book of the Principality, Chapter on the Virtue of the Just Imam and Punishment of the Unjust, and Urging the Kindness and Prohibition of Entering Hardship on them, No. , Jordan, 1998 AD.

[20] – Muslim, Al-Sahih, Book of the Principality, Chapter on the Virtue of the Just Imam and Punishment of the Unjust, and the Encouragement of Kindness and the Prohibition of Inflicting Hardship on them, No. 1829

[21] – Compiled by Al-Bukhari, Al-Sahih, No. (4380).

[22] – Karima Bellili, Administrative Investigation as One of the Disciplinary Guarantees for Public Employees, Master Thesis, University of Jordan, 2013, p. 38.

[23] – Ziad Al-Masaar, Judicial Oversight of Disciplinary Decisions on Public Officials: A Comparative Study, Master Thesis, Yarmouk University, Jordan, 2013, p.

[24] – same reference, p. 35.

[25] – same reference, p. 35.

[26]– Mustafa Afifi, Philosophy and Objectives of Disciplinary Punishment, A Comparative Study, PhD Thesis, Ain Shams University, Cairo, 1976, p. 27.

[27] – Ziyad Al-Mas`ar, Judicial Oversight of Public Employee Disciplinary Decisions, previous reference, p. 42.

[28] – It was provided by Al-Bukhari, Kitab Al-Ahkam, Chapter of Those Who Was Attained a Parish Who Was Not Advised, No. (7151), and Muslim, Book of Faith, Chapter on the Entitlement of the Deceptive Governor to His Parish of Fire, No. (142).

[29]– Al-Mawardi, Al-Ahkam Al-Sultani, Dar Al-Kutub Al-Ilmiyya, Beirut, p. 221.

[30] – Karima Bellili, Administrative Investigation as One of the Disciplinary Guarantees for Public Employees, Master Thesis, The University of Jordan, 2013, p.50.

[31] – Bader Al-Qeissi, Disciplinary Guarantees for Public Officials in Jordanian and Egyptian Law: A Comparative Study, Master Thesis, 2014, p.

[32] – Muhammad Al-Shehri, Disciplinary Guarantees for Public Employees in the Saudi and Jordanian Civil Service Systems, Master Thesis, University of Jordan, 2009, p. 49

[33] -Faisal Shatnawi, Procedures and Guarantees for Disciplinary Accountability of Public Officials in Jordanian Legislation, An-Najah University Research Journal, Volume (26), Issue (7), 2012, p. 1535.

[34] – Rashid Al-Subaie, Confrontation as Guarantee of Disciplinary Guarantees of Public Employees: A Comparative Study, Master’s Thesis, Aal al-Bayt, 2019, p.25.

[35] – Faisal Shatnawi, Procedures and Guarantees for Disciplinary Accountability of Public Officials in Jordanian Legislation, previous reference, p. 1536.

[36] – Quran -Surah Al-Nahl, Verse 90.

[37] – Muhammad Tuhami Dakir, The Objectives of Punishment and Its Philosophy in Islamic Law, https://www.iicss.iq/?id.

[38] – Disagreement, Abd al-Wahhab, Sources of Islamic Legislation in What is Not Texted, Kuwait, Dar Al-Qalam, i 1392 AH, p. 116.

[39] – Watermelon Ramadan, Disciplinary Guarantees, Symposium: Legislations Governing Civil Service in the Arab World, Arab Administrative Development Organization, 2009, p. 173.

[40] – Rashed Al-Subaie, Confrontation as Guarantee of Disciplinary Guarantees of Public Employees: A Comparative Study, Master Thesis, Aal al-Bayt, 2019, p.29.

[41] – Ibid, p. 30.

[42] – Article (72) of Law No. (4) of 1998 promulgating the Civil Service Law.

[43] – Abdul-Ghani Yifoot, Basic Guarantees in the Field of Discipline, The Arab Journal of Local Administration and Development, No. (84), 2009, p. 48.

[44] – Al-Ghazali, Al-Mustasfa from Science of Fundamentals, Beirut, Dar Al-Arqam Ibn Abi Al-Arqam, (d.), 1/636 and 637.

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