1. Introduction
The countries of the world do seek in various ways to implement the principle of the rule of law in order to respect the rights and freedoms of individuals. In fact, the application of this principle can only be achieved through the submission of all persons, rulers and those ruled, to the rule of law under the umbrella of the principle of legitimacy.1
Therefore, the role of judicial oversight appears on the work of public administration in order to ensure the principle of legitimacy and protect the rights and freedoms of individuals. Yet, the effectiveness of this oversight requires the creation of judicial bodies to adjudicate administrative disputes in order to achieve the public interest.2
In fact, the establishment of an administrative judicial authority independent of the ordinary judiciary takes into account the distinction of litigation procedures that take place before the administrative courts from litigation procedures that take place before the ordinary courts in terms of the different nature of relations governed by administrative law from those governed by private law.3
Actually, the judicial organization in many countries has been established to the effect of having two types of judicial oversight over the work of the public administration as some countries take the unified judicial system while other countries adopt the dual judicial system according to the difference in the political and legal system of each country. In fact, by referring to the judicial organization in Jordan, the constitutional amendments made in 2011, which were entertained to article 100 of the Constitution, did not make any change in the nature of the administrative judiciary except that the constitutional legislator had to establish an administrative judiciary into two levels instead of one as stipulated in the same constitutional article before its amendment. Yet, and by referring to the judicial organization in some countries of the world, such as France, for example, then it adopted a dual system through the presence of two independent judicial bodies, namely the ordinary judiciary which is concerned with the entertainment of ordinary judicial disputes that arise between individuals with each other and the administrative judiciary that undertakes the entertainment of administrative disputes. In addition, the administrative judiciary has a state council as an administrative judicial authority and a consulting body, i.e. judicial duality and duality of the state council.4
Therefore, the administrative courts in Jordan derive their legal existence from the text of article (100) of the Constitution which explicitly adopted, in terms of judicial organization, the dual system as it stated that: “The types of all courts, their levels, departments and competencies shall be determined together with the manner on how to manage them by a Private Law provided that this law stipulates the establishment of an administrative judiciary on two levels”.5
Hence, and in light of that, the Jordanian Administrative Judiciary Law No. 27 of 2014 was issued which is the law currently in force and which article 3 of the same provided that: “A judiciary shall be established in the Kingdom to be called (the administrative judiciary) to be consisting of: A – the Administrative Court. B- The Supreme Administrative Court.” In fact, this means that the administrative judiciary in Jordan has become, since the issuance of this law, consisting of two levels (the Administrative Court and the Supreme Administrative Court) for which, and according to article 4 of the aforementioned law, an administrative court would be established in Amman while it is permissible, with the approval of its president, to hold its sessions anywhere in the Kingdom. Further, this court is constituted of a president and a number of judges being of not less than the second category. In addition, it shall be conducted by one or more of tribunals to be formed by its president each constituted at least of a president and two members. Yet, if the president of the court is not contributing in any of its tribunals, then it shall be presided over by the judge being of the highest category or the senior in the same.6
As for the Supreme Administrative Court, it shall be established in accordance with article 22 of the aforementioned law in Amman to be consisted of a president and a number of judges. Yet, the president of the Supreme Administrative Court shall be appointed by the resolution of the Council provided that the resolutions is ratified by the Royal Will. Further, and according to article 24 of the Law, the Supreme Administrative Court is conducted by one or more tribunals formed by the president each constituted of at least a president and four judges. Yet, the president shall refer the cases filed to the court to its tribunals and if the president is not participating in any of its tribunals, then it shall be presided by the judge of seniority in the category. In fact, if one of the Supreme Administrative Court tribunals decided to revoke a legal principle established by it or by another tribunal or otherwise it becomes clear to it that the case presented to it involves a new or significant legal principle, then the Supreme Administrative Court will be held in all its members, except for the absent of them for any reason, in order to consider the case and issue the ruling therein at the request of its president.7
Thus, article (100) of the Constitution explicitly provided for the establishment of administrative courts at the lowest level of litigation, independent from the ordinary courts, to entertain administrative disputes to the exclusion of others though the aforementioned article did not explicitly state at the nomination of administrative courts clearly.8
Therefore, this study aims to identify the mechanism of the work of the Supreme Administrative Court, the Administrative Court and the Administrative Public Prosecution in Jordan as well as to explain the mechanism of forming the Supreme Administrative Court, the Administrative Court and the Administrative Public Prosecution in addition to showing the specializations exclusively specified for the Administrative Court and the Supreme Administrative Court. Further, it seeks also show annual report for the situations of the work of the Supreme Administrative Court, the Administrative Court and the Administrative Public Prosecution through the attachment of tables, figures and graphs that support this research.
Actually, the importance of the study lies in its subject being the situations of administrative judiciary’s work in Jordan for the year 2020 by referring to the annual reports of the administrative judiciary situations while linking these reports to the legal and judicial aspects. In fact, this study is one of the modern and important issues that have a great impact in the practical reality for which the researcher will approach all aspects of the subject, whether theoretical or practical, and address the shortage in the texts of the Jordanian Constitution as well as the Jordanian administrative judiciary law.
As for the research problem, then, by referring to the judicial organization in Jordan, the constitutional amendments made in 2011, which were entertained to article 100 of the Constitution, did not make any change in the nature of the administrative judiciary except that the constitutional legislator had to establish an administrative judiciary into two levels.
Yet, and since the administrative judiciary is working to ensure that the principle of legality is achieved by the oversight of the work of the administrative authority, then, and to achieve a balance between the rights and freedoms of individuals, it is required to adjudicate in administrative cases which will not happen unless it is aware of the requirements of public administration and its working conditions in order to be able to adjudicate disputes the administrative disputes through a fair judiciary without prejudice to work requirements. Hence, and since it is one of the obligations of the independence of the administrative judiciary that the administrative judiciary is not undertaken by non-specialists, then there must be an administrative judiciary independent of the ordinary (regular) judiciary in all aspects.
Therefore, and through this study, we will try to answer the questions that represent the problem of research represented by three main problems: -What is the mechanism of the Supreme Administrative Court work? What is the mechanism of work of the Administrative Public Prosecution? In fact, several major problems are subordinate to these main problems, the most important of which are: What is the mechanism of forming the Supreme Administrative Court, the Administrative Court and the Administrative Public Prosecution? What are the powers of the Supreme Administrative Court, the Administrative Court and the Administrative Public Prosecution? What is meant by the independence of the administrative judiciary from the ordinary (regular) judiciary? What is the importance of the independence of the administrative judiciary from the ordinary (regular) judiciary? Did the Jordanian administrative legislation take into account the principle of bringing justice to the litigants by establishing administrative courts in all governorates of the Kingdom? Did the Jordanian administrative legislator achieve the advantage of specialization for the judges of the Administrative Court and the Supreme Administrative Court?
Hence, and in this study, the analytical approach to analysing all the texts of the legislation related to the subject of this research will be followed in addition to following the practical applied approach by presenting the annual reports of the situations of the regular courts, the administrative judiciary and the public prosecutor for the year 2020 including the attachment of tables and figures that support the theoretical aspect as well as to identify their contents, connotations, and goals in addition to criticizing the legal texts contained in the Jordanian Administrative Judicial Law, comment on them, explain the differences between them and the jurisprudence, and know the strengths and weaknesses of the various trends and the extent of taking them in addition to highlighting the critical side of the researcher as the research required the use of several curricula for its divergent nature between the texts of legislation, practical applications, opinions and jurisprudence trends.9
2. The Mechanism of Action of the Supreme Administrative Court
The Supreme Administrative Court has independence, that is, independence from the executive authority since the administrative judicial authorities are allocated to adjudicate administrative disputes that do not mean that they are affiliated with the executive authority as a party to the dispute. In fact, adopting this subordination means that the orders of the administrative court will not bind the executive authority in anything.10
Therefore, the legal question that arises is: What is the mechanism of action of the Supreme Administrative Court?
To answer this legal question, we must refer to article (3) of the Jordanian Administrative Judicial Law which provided that: “The establishment of a judiciary called the administrative judiciary to be formed from the Administrative Court and the Supreme Administrative Court”.11
Hence, the judicial jurisdiction regulates two very important issues, i.e., the issue of distributing jurisdiction between the ordinary and administrative judiciary and the issue of distributing jurisdiction between the same administrative judiciary in countries whose competencies are distributed in entertaining administrative disputes over more than one administrative authority.12
Therefore, the petitioner must submit his/its claim before competent judicial authority in terms of function and venue to entertain his/its case while the judicial authority must actually be fulfilled that it is specialized to entertain the dispute presented to it and to adjudicate the same or not.13
2.1. Forming the Supreme Administrative Court
The Supreme Administrative Court was created under the Jordanian Administrative Judicial Law. In fact, and with the creation of that authority, the litigation before the administrative courts became in two levels through the establishment of a court called the Supreme Administrative Court which will be based in Amman to be composed of a president and a number of judges while the head of the Supreme Administrative Court is appointed under a resolution issued by the Council associated with the Royal Will. Further, that the president of the Supreme Administrative Court will be of the rank and salary of the President of the Court of Cassation and that the judge therein will be of the rank and salary of the judge of the Court of Cassation.14
Hence, it is clear to us that the Supreme Administrative Court and the administrative courts that were previously referred to are consisting of a president and judges acting jointly as the administrative judiciary often depends on legal opinions established as it is not the applied judiciary as is the case with the ordinary judiciary for which the reason for the difference is due to the role of both the ordinary judge and administrative judge. In fact, the legislator, in the field of private law, has discussed almost all matters and laid down a large group of rulings regulating various relationships and governs many facts that is unlike the administrative judge who may face a dispute without a text that is governed by the law which requires establishing a legal opinion to resolve the dispute before him. In fact, the administrative law, as being one of the branches of public law, its upbringing is attributed to the judiciary and it was for the jurisprudence of the French administrative judiciary that the administrative law have found its existence and development.15
Actually, the work of the Supreme Administrative Court in 2020 witnessed an increase in the number of cases received by it by 12% compared to 2019, where the number of cases received by the court during the year reached (334) cases and that the percentage of cases filed against ministries reached 25.7% out of the total newly received cases. Yet, the details of the tribunals issuing the administrative orders, the subject matter of the cases received by the court during the year 2020 were as follows:
In fact, it is noted from Figure 1 that the most appeals presented in 2020 according to the authority issuing the administrative order are from ministries, unions, social security and universities. Actually, this percentage is logical as it represents the largest segment in the Hashemite Kingdom of Jordan as most of the citizens dealings are with the ministries, vocational unions and social security in addition to the administrative orders issued by universities, whether they are related to employees or students.
Figure 1
The Supreme Administrative Court works based on the authority issuing the administrative decision of 2020.16
2.1. The Competence of the Supreme Administrative Court
The Jordanian Administrative Judicial Law has determined the competencies of the Supreme Administrative Court whereby article (25) of the Jordanian Administrative Judicial Law provided that: “The competence of the Supreme Administrative Court is to entertain the appeals submitted in all the orders issued by the Administrative Court in a final way provided that it considers the appeals submitted to it in terms of objective and legal aspects”.17
In fact, the Jordanian Supreme Administrative Court did, in its order No. 53/2020 issued on 4 April 2020, judge that: “And since the Supreme Administrative Court is competent, in accordance with the provisions of article (25) of the Administrative Judicial Law, to entertain the appeals that are submitted to it in all final orders issued by the Administrative Court to be considered from the objective and legal aspects”.18
Yet, and if a dispute over the jurisdiction occurred in any case between the administrative court and another court, whether positive or negative, then the reference is appointed to consider that case from a judicial tribunal formed by the president of the Court of Cassation as the president and membership of the president of the Supreme Administrative Court in addition to two judges from the Court of Cassation to be named by the Council and a judge from the Supreme Administrative Court to be nominated by its president.19
Actually, it is noted in this regard that the administrative legislator, and in the formation, adopted that is proportional to the adequate representation between the Supreme Administrative Court on the one hand and the Court of Cassation on the other as they are at the top of the ordinary and administrative judiciaries which is in line with the idea of duality of judicial that requires the formation of duplication of representation at the level of the Special Judicial Authority. In fact, this is in addition to that it adds to the dispute court of its refereeing nature. Yet, it must be noted that equal representation does not mean the search for balance because this balance is not achieved at all as it is under the majority of belonging to a specific judicial party, which is an established matter, that the court of dispute is in need to a president to run its affairs, i.e. the president of the Court of Cassation. Further, that the equal representation that the legislator wished to achieve is not the purpose of strengthening the court’s role in preserving the rules of jurisdiction and ensuring its neutrality and objectivity as those rules are originally achieved. Moreover, that it is neither possible nor reasonable for the dispute court to be directed with their great experience and their broad viewing behind their affiliation when adjudicating the cases presented to them. Yet, this is in addition to the number of cases has become continuous which increases the burdens on the courts to become of the desire to leave the excessive burden that represents a breadth for adjudication to the other judiciary instead of having the control over the case.20
Actually, in this regard, the Court of Cassation did, in its order No. 7462/2019, as being the court competent in applications for the appointment of the reference, issued on January 27, 2020, order to the effect that: “In this regard, we find that the party that issued the appealed decision sought to be rescinded is Philadelphia University which is a private university but not one of the persons of the public law, and since this is the case, then the decisions issued by it are not considered final administrative decisions in the sense intended in article (5/7) of the Administrative Judicial Law No. (27) of 2014 for which the party specialized functionally to consider the case filed by the plaintiff and the adjudication is the ordinary judiciary but not the administrative judiciary”.21
Further, the same court ruled in its order No. 5552/2019 issued on October 1, 2019 to the effect that: “Before discussing the request, we find that the request to appoint the reference must be submitted to the Court of Cassation in accordance with the text of article (1/35/B) of the Civil Procedures Law and not to its president directly which matter has been established by the judicial opinions of the Court of Cassation. Hence, and in the present case, we find that this request related to the appointment of the reference was submitted to the president of the Court of Cassation but not to the Court of Cassation, with which it becomes that this request requires dismissal in form”.22
Actually, it is noted that the inclusion of such a text in the Jordanian Administrative Judicial Law indicates with no doubt that the Jordanian administrative legislator adopted dual judicial system, despite that the constitutional court did consider, in its aforementioned judgment set in this research, that the administrative judiciary is an integral part of the ordinary judiciary.
As for the adjudication level, the court adjudicated (311) administrative orders while the following table shows the classification of these orders, their number, and the reason for rescinding.23
In fact, the rulings issued by the court included the cancellation of (28) administrative decisions while the following table shows the classification of these decisions and their number as well as the reason for the cancellation.24
Hence, the administrative judicial order does not differ from the judicial judgments issued before the ordinary courts as it has the power of the thing that is only judged for final orders, i.e., the orders that adjudicate the whole dispute or in part of it, whether this order is a primary or final, Yet, and as for the orders that do not adjudicate the subject matter of the dispute, then this power is not established.25
Actually, it is noted from Tables 1 and 2 that the role of the Supreme Administrative Court is no longer a (dismissal) court that dismisses the case in form, as the term (dismissal court) was (previously) assigned to the Jordanian High Court of Justice. In fact, this term was used among the courts, the judiciary and the lawyers due to the court’s extreme accuracy practiced in formal matters, such as the matter of powers of attorney regarding the outrageous ignorance of the power of attorney or the matter of the appeal statements. However, through the statistics shown in the above table, it is shown to us that the number of cases entertained by the Administrative Court is a matter in relation to an objective reason (cancellation of the administrative decision complained of being contrary to the law) or the rescinding of the Administrative Court’s order in a part amounting to (20) cases for objective reason and the rescinding of the Administrative Court’s order in a specific part while only (8) cases were dismissed for a formal reason.
Table 1
Classification of administrative orders adjudicated by the Supreme Administrative Court.
| DISMISSAL IN FORM | DISMISSAL IN SUBJECT | RESCINDED | RESCINDED AND RETURNED | A CASE CONCLUDED | TOTAL |
|---|---|---|---|---|---|
| 5 | 244 | 43 | 17 | 2 | 311 |
| 1.6% | 78.5% | 13.8% | 5.5% | 0.6% | 100% |
Table 2
The reason for cancelling the administrative decisions adjudicated by the Supreme Administrative Court.
| NUMBER OF CASES | THE REASON FOR CANCELLATION |
|---|---|
| 8 | A formal reason (related to the issuance of the decision by a non-competent party, a non-final decision, a confirmatory decision). |
| 13 | An objective reason (cancellation of the administrative decision complained of being contrary to the law) |
| 7 | Rescinding the Administrative Court’s order in a specific part and canceling the administration’s decision or rescinding it in its entirety |
| Total | 28 |
In general, the ratio of adjudication for cases brought to the court amounted to 93.1% and that the percentage of adjudication to the total amounted to 91.5%. Yet, and as for the current level pending, it amounted to (29) cases only. Moreover, the following figure shows the change in the number of the newly received, concluded and pending cases before the Supreme Administrative Court in 2020 compared to 2019.26
In fact, by referring to Figure 2, then it is noted that the rate of conclusion to the newly received cases of the Supreme Administrative Court in 2020 amounted to 93.1%, while the rate of conclusion to the total amounted to 91.5%. Yet, and as for the level of the currently pending, then it amounted to (29) cases only compared to 2019 whereby it is noted that the newly received cases to the Supreme Administrative Court in 2020 were greater than the newly received cases to the Supreme Administrative Court for the year 2019 which indicates the return of confidence in the administrative courts. In fact, although the conclusion rate was higher in 2019 compared to 2020, although the number pending of the Supreme Administrative Court, as we indicated, was greater in 2020.27
Figure 2
Change in the number of newly received, concluded and pending cases before the Supreme Administrative Court in 2020 compared to 2019.
In fact, in order for the judicial orders to be considered valid, then the procedures that preceded and being contemporaneous with their issuance must be correct whereby the judicial order must pass through several stages, beginning with the stage of confidential deliberation before issuing it with all its procedures, until its utterance is recited and a copy of it is filed in accordance with the procedures established by the applicable law in each country. Further, the competent administrative court must pronounce the order in the administrative case in a public session when the order is issued either to dismiss the case or to issue an order to cancel the administrative decision, whether this cancellation is partial or in its entirety. Yet, and in the event that the administrative decision is cancelled, then this will have important and serious effects on the cancelled decision as well as the decisions related to it whereby the administration must execute the cancellation order, otherwise it will be accountable.28
In addition, the total number of petitions received by the Supreme Administrative Court amounted to (19), all of which were concluded. On the other hand, and as for the average length of litigation before the court, it amounted to (71) days in (305) cases registered and concluded during the year as shown in the following table:29
Hence, it is noted from Table 3 that the Supreme Administrative Court did, during the year 2020, conclude (71) cases while the low rate of conclusion is due to the Corona pandemic as this pandemic affected the rate of adjudication of cases for which the total conclusion rate decreased during the year 2020.30
Table 3
Rate of conclusion of cases at the Supreme Administrative Court.
| COURT | NUMBER OF CASES | THE AVERAGE NUMBER OF DAYS AT THE STAGE THE CASE PREPARATION | THE AVERAGE NUMBER OF DAYS AT THE STAGE OF ENTERTAINING THE CASE | THE AVERAGE NUMBER OF DAYS AT THE STAGE OF TYPING, CHECKING AND FILING THE CONCLUSION | TOTAL |
|---|---|---|---|---|---|
| Supreme Administrative | 305 | 8 | 38 | 25 | 71 |
| Percentage to the total | 91% | 11.5% | 53.6% | 34.9% | 100% |
Yet, by going through Figure 3, then this figure shows the rate of newly received, concluded and pending cases with the Administrative Court during the years (2017, 2018, 2019, and 2020) whereby it is noted that the highest rate of the pending, concluded and newly received of cases was in 2018 while it was in 2020 that the same hit the second place in terms of the conclusion and the third place in terms of the newly received.32
Figure 3
Change in the number of newly received, concluded and pending cases at the Supreme Administrative Court for the years (2017–2020).31
3. The Mechanism of Action of the Administrative Court
This court finds its foundation or roots in what was known as the High Court of Justice which the constitutional legislator mandated to establish pursuant to article (100) of the Jordanian Constitution of 1952. In fact, the Court of Cassation was convened as a High Court of Justice under article (10) of the Law for the Formation of Ordinary Courts of 1952.33
Yet, the legal question that arises in the context of this study is: What is the mechanism of action of the Administrative Court?
To answer this question, it is noted that the Administrative Court has become independent, that is, independent from the executive authority since the specialization of the administrative judicial authorities in adjudicating administrative disputes does not mean that they are subordinate to the executive authority as a party to the dispute for which adopting this dependency means that the orders of the Administrative Court will not oblige the executive authority in anything.34
In fact, article (3) of the Jordanian Administrative Judicial Law which provided that: “The establishment of a judiciary called the administrative judiciary to be formed from the Administrative Court and the Supreme Administrative Court”.35
3.1. Formation of the Administrative Court
Administrative courts were created pursuant to the Jordanian Administrative Judiciary Law, and with the introduction of that authority, litigation before the Administrative Courts turned to be on two levels for which an administrative court was established in Amman while it is permissible, with the approval of its president, to hold its sessions anywhere in the Kingdom. Further, this court is constituted of a president and a number of judges being of not less than the second category. In addition, it shall be conducted by one or more of tribunals to be formed by its president each constituted at least of a president and two members. Yet, and if the president of the court is not contributing in any of its tribunals, then it shall be presided over by the judge being of the highest category or the senior in the same.36
However, the legal question that arises in this study is: Does the Jordanian administrative legislator take into account the principle of bringing justice closer to the litigants through the establishment of administrative courts in all governorates of the Kingdom?
In fact, and in order to answer this question, we must refer to the provisions of the Jordanian Administrative Judiciary Law. Accordingly, it is noted that it is possible to hold sessions of the Administrative Court in any other place in the Hashemite Kingdom of Jordan with the approval of the president of the Court. However, we tend to believe as others in that the same does not stand to be a substitute for establishing administrative courts in the governorates of the Kingdom since the permissibility of convening, by a decision of the president, of the court differs from the necessity of establishing by providing for the same in the law.37
Yet, and undoubtedly, the administrative legislator did not observe the principle of bringing justice closer to the litigants. Actually, the litigant alone bears the burden of moving from the farthest region in the Kingdom until he reaches the capital, Amman, to file the case resulting in burdens and expenses.38
3.2. Jurisdiction of the Administrative Court
The Jordanian legislator, and in the Administrative Judiciary Law, specified the jurisdiction of the Administrative Court whereby the Administrative Court is exclusively competent to hear all appeals related to final administrative decisions, including appeals made against the results of the elections of the boards of bodies of chambers of industry and commerce, trade unions, associations and clubs registered in the Kingdom as well as the electoral appeals that take place according to the laws and regulations in force unless there is a provision in another law to the effect of vesting this jurisdiction unto another court. Further, the same includes the appeals submitted by the concerned parties regarding the final administrative decisions related to the appointment to public positions, promotion, transfer, assignment, secondment, commissioning, confirmation in service or classification as well as the appeals of public officials related to the annulment of final administrative decisions concerned with the termination of their services or their suspension from work in addition to the public officials’ appeals related to the annulment of final decisions issued against them by the disciplinary authorities other than the appeals related to salaries, allowances, bonuses, annual increases and pension rights due to public officials, the retirees of them or their heirs according to the legislations in force.39
In fact, it is noted that the jurisdiction of the Administrative Court was specified exclusively with regard to appeals related to public office. Yet, and although the Jordanian Administrative Judiciary Law has made good strides in relation to the jurisdiction of the Administrative Court, it has not caused the Administrative Court to be of the general jurisdiction to entertain all administrative disputes as it is still of a limited jurisdiction while the ordinary courts remain the ones with general jurisdiction to hear administrative disputes related to administrative contracts which matter affects the advantage of having an independent administrative court because the ordinary courts apply the Jordanian Civil Law while the Administrative Court applies the Administrative Law. In fact, since the disputes are of a single nature (administrative), then they must be governed by unified administrative rules and procedures. Yet, this is in addition to having the text of the aforementioned article been free from providing for disputes related to administrative contracts as the majority of countries that adopt the administrative judiciary system include disputes related to administrative contracts within the jurisdiction of the administrative judiciary.40
Hence, and in application of this, the Jordanian Administrative Court, and in its order No. 434/2021 issued on February 28, 2022, ruled to the effect that: “In this regard, our court finds that the Administrative Court is exclusively competent to entertain all appeals related to final administrative decisions”.41
However, the legal question that arises in the context of this study is: Has the Jordanian administrative legislator achieved the advantage of specialization for the judges of the Administrative Court and the Supreme Administrative Court?
Actually, and in order to answer this question, it is noted that the Jordanian legislator, in the Jordanian Administrative Judiciary Law, has specified the cases that are exclusively reserved for the administrative judiciary and that every dispute falling out of those specific cases exclusively, and even if the nature of the dispute is purely administrative, then the competence to entertain these cases falls within the competence of the ordinary judicial authorities. In fact, this is what we clearly notice in disputes related to administrative contracts as the Jordanian legislator did not stipulate that these disputes be included in the cases stipulated exclusively for entertainment by the administrative judiciary. Hence, we call on the Jordanian legislator, in the earliest amendment to the aforementioned law, to include all disputes related to administrative contracts within the jurisdiction of the administrative judiciary in order to unify the orders.
Yet, by referring to the text of article (40) of the Jordanian Administrative Judiciary Law, it provided that: “Without prejudice to the provisions of the Administrative Judiciary Law, judges of the Administrative Judicial Courts shall be subject to … the legal provisions and rules that apply to ordinary judges, including the provisions of the Law on the Independence of the Judiciary”.42
It is noticeable also in this regard that this text did not achieve the advantage of specialization for the judges of the administrative judiciary courts as the Judicial Council is given the right to transfer the administrative judge to the ordinary courts and vice versa which leads to the instability of these judges in their work in addition to leading to the absence of a specialized administrative judiciary for which the ordinary judges apply the rules of the Private Law to the disputes entertained by them considering the individuals and administration at an equal level in contrast to the specialized administrative judge who believes that administration is not equal in its litigation with individuals because the two parties to the dispute are not equal. Further, and also regarding the issues of evidence, then they are different in Administrative Law than in Civil Law. On the other hand, administrative disputes in the Jordanian Administrative Judiciary Law are characterized by a set of provisions that make them different from civil litigations including that the administrative legislator imposed therein the submission of case petition and representation through a lawyer who has been practicing the legal profession for a period of not less than five years or worked in a judicial position for a similar period before his practice of law at the level of the judiciary of the first category, i.e. at the level of administrative courts, and a fortiori at the level of the Supreme Administrative Court being the top of the hierarchy of the administrative judiciary in Jordan. In fact, imposing the obligation to be represented by a lawyer in administrative disputes is based on strong and reasonable justifications in terms of the positive role of the lawyer in the administrative dispute and his assistance to the judge in order to reach a fair judgment, especially in the face of what distinguishes the administrative law from the advantage of non-legalization on the one hand, and the modernity of the administrative law on the other.43
As for the adjudication of cases, then the number of cases received by the Administrative Court during the year amounted to (590) cases, i.e., an increase of 7% compared to 2019, including (534) cases filed by natural persons, (54) cases filed by companies and institutions and (2) cases by government agencies. Yet, the Figure 4 shows the classification of cases registered with the Administrative Court in terms of the claimant.44
Figure 4
The works of the Administrative Court according to the party submitting the case.45
Actually, the process of determining the jurisdiction is based on a specific criterion that enables the judicial authorities adjudicating the dispute in question to determine the judicial authority that has jurisdiction to adjudicate the subject matter of the dispute.46
In fact, the Administrative Court adjudicated a total of (492) cases where the orders issued were as the Table 4 shows:47
Table 4
Classification of administrative orders adjudicated by the Administrative Court.48
| DISMISSAL IN FORM | DISMISSAL IN SUBJECT | ACCEPTANCE OF THE APPEAL AND ANNULMENT OF THE ADMINISTRATIVE DECISION | DROPPING | CONSIDERING THE CASE CLOSED | TOTAL |
|---|---|---|---|---|---|
| 141 | 187 | 104 | 53 | 7 | 492 |
| 29% | 38% | 21% | 11% | 1% | 100% |
Therefore, we find that the jurisdiction of the administrative courts must be organized on a regional geographical basis considering that the rules of local jurisdiction are represented in the necessity of spreading administrative courts throughout the country in order to bring the judiciary closer to the citizens and to facilitate litigation by bringing the administrative courts closer to the place of administrative disputes.49
Accordingly, it can be said that the Jordanian legislator must develop a law of judicial independence for the administrative judiciary which has a judicial council composed of administrative judges as well as the introduction of a law to organize administrative courts stipulating the establishment of a supreme administrative court, the establishment of administrative courts of appeal in the governorates of the Kingdom and the establishment of first administrative courts all through the Kingdom. Yet, article (4/A) of the Jordanian Administrative Judiciary Law provides for the possibility of holding sessions for the Administrative Court in any other place in the Kingdom, subject to the approval of the President of the Court, the possibility of holding the court in another place in the Kingdom is not considered as a substitute for the establishment of courts in the regions. In fact, the permissibility of convening, by a decision of the president of the competent court, differs from the necessity of establishing and expressly providing for in the law as the movement between the judicial and advisory bodies of the administrative judiciary helps in the professional and technical training of the members of this judiciary making them better able to understand the requirements of the activity of the public administration, reconcile these requirements and protect the rights and freedoms of individuals.50
As for the adjudication of judicial orders, then the ratio of adjudication to newly received court cases amounted to 83.4%. Yet, the Figure 5 shows the change in the number of newly received, concluded and pending cases before the Administrative Court in 2020 compared to 2019.51
Figure 5
Change in the number of newly received, concluded and pending cases before the Administrative Court in 2020 compared to 2019.
Further, the average duration of litigation before the Administrative Court in (289) cases that were registered and concluded during the year was (168) days as shown in the Table 5:
Table 5
The rate of adjudication of cases before the Administrative Court.52
| THE COURT | NUMBER OF CASES | THE AVERAGE NUMBER OF DAYS AT THE STAGE OF PREPARATION OF THE CASE | THE AVERAGE NUMBER OF DAYS AT THE STAGE OF ENTERTAINING THE CASE | THE AVERAGE NUMBER OF DAYS AT THE STAGE OF TYPING, CHECKING AND FILING THE CONCLUSION | TOTAL |
|---|---|---|---|---|---|
| Administrative Court | 289 | 99 | 62% | 8 | 168 |
| Percentage of the total | 49% | 58.8% | 36.8% | 4.4 | 100% |
4. The Mechanism of Action of the Administrative Public Prosecution
The representation of the Administrative Public Prosecution for the people of the Public Administration does not prevent it from appointing a lawyer to act on its behalf before the administrative courts in accordance with the provisions of article (37/B) of the Jordanian Administrative Judiciary Law. Yet, and as for the rights and duties of the chief of the Administrative Public Prosecution and his assistants, then they are subject to the provisions and rules that apply to the ordinary judiciary including the provisions of the Law on the Independence of the Judiciary in accordance with the provisions of article (40) of the same law.53
Hence, the legal question that arises in the context of this study is: What is the mechanism of work of the Administrative Public Prosecution?
In fact, and in order to answer this question, it should be noted that “an administrative public prosecution is established in the administrative judiciary consisting of a president and two assistants, none of whom is of a category less than the third. Further, that the chief of the administrative public prosecution and his assistants shall be appointed by a decision of the Council”. In fact, the chief of the Administrative Public Prosecution or whom he authorizes to that effect of his assistants does represent the persons of the public administration before the Supreme Administrative Court and the Administrative Court in the case and in all its procedures up to the last stage of the same. Yet, the Chief of Staff, and based on the request of the Chief of the Administrative Public Prosecution, may assign one or more of the military judges whose category is not less than Major to act as his assistant in cases in which the Armed Forces are a party. However, and at any time, termination of the mandate of the aforementioned judge and his replacement by another may be made in the same way. In addition, if the parties to the case are persons of the public administration, then the case shall be entertained by reviewing by the court after receiving the reply suit from the respondent party after which it shall issue its judgment according to the rules. Hence, and in application of that, the Jordanian Administrative Court ruled that: “The chief of the Administrative Public Prosecution or whoever is authorized by him in writing shall represent the public administration persons before the Administrative Court in the case up to its last stage pursuant to the provisions of Article (37/A) of the Jordanian Administrative Judiciary Law”.54
However, there are several other legal questions that may be raised in the future, the most important of which are: What is meant by the independence of the administrative judiciary from the ordinary (regular) judiciary? What is the importance of the independence of the administrative judiciary from the ordinary (regular) judiciary?
Hence, and in order to answer these questions, it must be noted that there is an urgent need to cancel the text of article (40) of the Jordanian Administrative Judiciary Law and to introduce a law of judicial independence for the administrative judiciary so that the legal provisions and rules that apply to ordinary judges may not all apply to administrative judges due to the different in nature of the ordinary and administrative judiciary. In fact, what supports our position in this study is the trend of the Jordanian Administrative Judiciary Law itself in article (2) of the definitions which defined the law as being: “the law of the independence of the judiciary or any law that substitutes it” which text implicitly calls for the need to create a judicial independence law for the administrative judiciary.
Therefore, it is necessary to lay the foundations for the dual judiciary system in Jordan, given that the distinguishing feature of the dual judicial system is that the administrative judiciary is independent from the ordinary judiciary each having its own courts of several types and levels headed each by a higher court. In fact, to provide for the independence and distinguishing between the administrative judiciary party and that of the ordinary judiciary, then it is necessary to achieve the advantage of specialization as administrative disputes are of a different nature from that of civil and criminal disputes which matter may be met through the presence of specialized judges who are independent from the side of the ordinary judiciary and are free from the application of the provisions of civil law in order to achieve a balance between the public interest and the rights of individuals. In fact, the ordinary judges apply the rules of the Private Law deals to the disputes that they entertain while they look at individuals and the administration equally but the specialized administrative judge believes that the administration is not equal in its litigation with individuals because the two parties to the dispute are not equal. Hence, the legal provisions and rules that apply to ordinary judges may not all apply to administrative judges because the nature of the ordinary (regular) judiciary differs from that of the administrative judiciary and given that the administrative judiciary is a judiciary of legitimacy and a guardian of the freedom of individuals.55
Actually, the appeals submitted by the Public Prosecution before the Supreme Administrative Court amounted to a total of (55) appeals as shown in the Table 6:56
Table 6
Appeals submitted by the Public Prosecution to the Supreme Administrative Court.
| NUMBER OF CASES RECEIVED | NUMBER OF CASSATION CASES (RULED FOR THE BENEFIT OF THE PUBLIC PROSECUTION) | NUMBER OF CASES DISMISSED IN SUBJECT (RULED AGAINST THE PUBLIC PROSECUTION) |
|---|---|---|
| 55 | 9 | 26 |
In fact, the objective criterion is considered a criterion to be relied upon in cases where the administration is a party to the dispute. Therefore, no person can be held accountable without referring to the actions and activities issued by him through which the jurisdiction of administrative courts is determined in order to extend the judicial control.57
Further, during the year, the Administrative Public Prosecution pleaded before the Administrative Court in (184) cases as shown in the following table:58
In fact, based on Table 7, it is noted from that the Administrative Public Prosecution has a major role in representing the people of the Public Administration. Yet, this representation does not prevent the Administrative Public Prosecution from appointing a lawyer to act on its behalf before the administrative courts as stipulated in article (3/E) of the State Case Management Law which states that: The public attorney, with the approval of the Council and at the request of any of the state’s departments, may authorize, in writing, any of the Jordanian lawyers to conduct the lawsuits of that department before the courts or internal arbitral tribunals when that department shall be committed to pay the attorney fees agreed upon provided that he shall not be an attorney in a pending litigation made against the department.59
Table 7
The agenda of the Administrative Public Prosecution before the Administrative Court.
| THE AGENDA OF THE ADMINISTRATIVE PUBLIC PROSECUTION BEFORE THE ADMINISTRATIVE COURT | THE CONCLUDED CASE BASED ON THE MANNER OF THE SAME | |||||||
|---|---|---|---|---|---|---|---|---|
| CARRIED FORWARD FROM 2019 | NEWLY RECEIVED CASES DURING 2020 | TOTAL CARRIED FORWARD (PENDING) | CONCLUDED CASES | CURRENT PENDING | CANCELLATION OF THE ADMINISTRATIVE DECISION | DISMISSAL OF THE CASE | DROPPING THE CASE | CONSIDERING THE CASE TERMINATED AND IRRELEVANT |
| 96 | 289 | 385 | 249 | 136 | 55 | 156 | 31 | 7 |
5. Conclusion
The judicial jurisdiction regulates two very important issues, namely the issue of the distribution of jurisdiction between the two bodies of the ordinary judiciary and the administrative judiciary and the issue of the distribution of jurisdiction among the administrative judiciary itself in countries that distribute their competences in entertaining administrative disputes to more than one administrative authority.
Therefore, a standard must be set that defines the jurisdiction of the administrative judicial authorities in countries that distribute jurisdiction over administrative disputes to more than one judicial authority in order to identify the ordinary judicial authorities that enjoy general jurisdiction in hearing some administrative disputes and to identify the administrative judicial authorities whose jurisdiction is defined by virtue of law in addition to comparing the litigation procedures that take place before the ordinary courts with the procedures that take place before the administrative courts.
In fact, it would have been more appropriate for the Jordanian constitutional legislator to amend the text of article (100) of the Jordanian Constitution by adding the phrase establishing (administrative courts of first instance in all governorates of the Kingdom, administrative courts of appeal and a supreme administrative court) instead of the phrase (administrative judiciary of two levels). Further, we also hope that the Jordanian administrative legislator amend the Administrative Judiciary Law and stipulate at the creation of administrative courts of first instance in all courts of first instance in the Kingdom as well as the creation of three administrative courts of appeal in the governorates of Amman, Irbid and Ma’an.
In fact, it is noted that the most appeals filed in 2020 according to the authority issuing the administrative decision are the ministries, trade unions, social security and universities which percentage is reasonable as it represents the largest segment in the Hashemite Kingdom of Jordan as most of the citizens’ dealings are with the ministries, trade unions and social security in addition to the administrative decisions issued by universities, whether related to employees or students.
Further, that the role of the Supreme Administrative Court is no longer a (dismissal) court that dismisses the case in form, so that the term (dismissal court) was (previously) common for the Jordanian High Court of Justice used to dominate which term was used among the courts, the judiciary and lawyers due to the severity of the court’s accuracy in formal matters, e.g. the issue of powers of attorney regarding outrageous ignorance in the power of attorney or the issue of the appeal statements. However, and through this study, it becomes clear to us that the number of cases entertained by the Administrative Court in subject with regard to an objective reason (cancellation of the administrative decision complained of as being contrary to the law) or the rescinding of the decision of the Administrative Court amounted to (20) cases while only (8) cases were dismissed for a formal reason.
Finally, the Jordanian legislator, and in the Jordanian Administrative Judiciary Law, has defined the cases that fall exclusively within the jurisdiction of the administrative judiciary while each dispute falling out of the said cases exclusively set, and even if being of a mere administrative nature, then the jurisdiction to entertain the same would fall within the jurisdiction of ordinary judiciary parties. In fact, we clearly notice this in disputes related to administrative contracts as the Jordanian legislator did not provide for the inclusion of these disputes in cases stipulated exclusively for entertainment by the administrative judiciary.
Notes
[1] See A. Shatnawi, Jordanian Administrative Judiciary, Arab Center for Student Services, 1995 & A. Al-Shakhanbeh, Organization of Administrative Courts in Jordanian Legislation, Master’s Thesis, Middle East University, 2016.
[2] See R. Thabeti, Jurisdictions of Administrative Courts in Algeria, Master Thesis, Akli Mohand Olhaj University, 2016 & N. Al-Zahra, Specific Jurisdiction between the State Council and the Administrative Courts, Master Thesis, Hadj Lakhdar University Batnah, 2012.
[3] See M. Khalailah, Aspects of the Independence of Administrative Litigation Procedures from Civil Case Procedures in Jordanian Law. Dirasat: Shari’a and Law Sciences 40(1) pp.27–43.
[5] See A. Boudiaf, The organic standard and its legal problems in the light of the Civil and Administrative Procedures Law. Journal of Political and Law Notebooks 3(5) pp.9–30.
[9] See B. Malkawi, The Scientific Origins of Writing Legal Research PhD and Master’s Theses, Bar Association Research Judicial Institute Research and Student Research Conferences and Seminars, Dar Wael for Publishing and Distribution, 2008.
[10] See A. Boudiaf, Jurisdiction to consider the annulment case between the State Council and the Administrative Courts in France, The Arab Organization for Administrative Development Conference, 2008; N. Bounas, The Privacy of Administrative Judicial Procedures in Algeria, Tunisia, and Egypt, PhD Thesis, Haj Lakhder University, 2015.
[12] See M. Bonaventure, Administrative Justice in Algeria, PhD Theses, University of Algiers, 1976.
[13] See A. Abo Omrane, Resolving the problems of conflict of jurisdiction between the administrative judiciary and the ordinary judiciary in the Algerian legal system. Journal of politics and law Notebooks 5(8) pp.123–134.
[16] See <http://www.jc.jo/storage/app/uploads/public/618/29c/263/61829c2639b78769429488.pdf> [accessed 27 March 2022].
[21] See Cassation of Rights (Special Court) considered a request to appoint reference No. 5552/2019 (The Pentagonal Commission) 27 January 2020.
[22] See Cassation of Rights (Special Court) considered a request to appoint reference No. 7462/2019 (The Pentagonal Commission) 1 October 2019.
[25] See C. Debbasch, J. Claude, Administrative litigation, RICCI, Dalloz, 2001.
[28] See A. Al-Ghaweiri, The Administrative Litigation Procedures at the Jordanian High Court of Justice A comparative study. Mutah Journal for Research and Studies in Humanities and Social Sciences, 6(3) pp.237.
[33] See N. Ajarmeh, Developments in the Jordanian Administrative Judiciary Law. Journal of Kuwait International Law School 7(2) pp.279–316.
[40] See N. Al-Johari, A. Al-Hamadnah, The Administrative Litigation Procedures Manual based on Administrative Judiciary Law No. 27 Of 2014, House of Culture for Publishing and Distribution, 2016.
[43] See A. Boudiaf, The Necessity of a Lawyer in Administrative Disputes: Its Justifications and Its Impact on the Right to Litigation. Journal of Fiqh and Law 1(35) pp.37–42.
[46] See A. La’akoun, The specific jurisdiction of administrative courts in Algeria between the legislative text and judicial action. Journal of Law and Human Sciences 11(3) pp.119–132.
[49] See S. Seoudi, M. Atailyeh, The Criteria for determining the jurisdiction of administrative courts in the Algerian judiciary, Master’s Thesis, University of 8 May 1945, 2013.
[50] See T. Al-Billeh, The Extent to which the Rules of Incompetency, Displacement and Disqualification Apply to the Judges of the Administrative Judiciary Courts in Jordan and France: A Comparative Study. Dirasat: Shari’a and Law Sciences 47(3) pp. 91–122.
[54] See Administrative No. 390/2015, The Pentagonal Commission, 7 February 2016), Jordanian Administrative Court.
[55] See T. Al-Billeh, Approaches towards the Independency of the Administrative System of the Administrative Judiciary from the Administrative System of the Ordinary Judiciary (Justice) in Jordan (Applied Study for the Provisions of the Jordanian & French Legislation and Judiciary). Dirasat: Shari’a and Law Sciences 47 (1), pp.503–538.
[57] See M. Al-Saghir, The Administrative Contracts, Dar Al-Uloom for Publishing and Distribution, 2005.
Competing Interests
The author has no competing interests to declare.