International Journal of Law And Criminology
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VOLUME
Vol.05 Issue05 2025
PAGE NO.
39-50
10.37547/ijlc/Volume05Issue05-06
Alternative Methods for Resolving Administrative
Decisions Outside the Judicial Framework
Asst. Lect. Raed Ibrahim Anoun
Ministry of Education, Najaf Education Directorate, Iraq
Received:
24 March 2025;
Accepted:
20 April 2025;
Published:
30 May 2025
Abstract:
This research addresses the topic of "Alternative Methods for the Finalization of Administrative
Decisions Outside the Judicial Framework." The research problem stems from the lack of clarity regarding the legal
mechanisms governing the finalization of administrative decisions and their impact on the stability of
administrative transactions and individual rights. The importance of this research lies in its examination of an
essential aspect of administrative law, namely "the finalization of administrative decisions," from two
perspectives: administrative and non-administrative. It aims to clarify the legal mechanisms governing the
finalization of administrative decisions in a manner that reinforces the principle of legitimacy and protects
individual rights from administrative abuse. It also aims to identify their consequences and provide
recommendations for improving legal and administrative mechanisms for the fair and effective finalization of
administrative decisions. The researcher also relied on a descriptive and analytical approach to review alternative
administrative methods to finalise administrative decisions outside the judiciary.
Keywords
: - Administrative Decisions, Finalization of Administrative Decisions, Administration, Cancellation,
Withdrawal of Administrative Decisions.
Introduction:
An administrative decision allows the
administration to unilaterally decide on a matter
without the need to obtain the approval of the
concerned individuals. It enjoys a degree of immunity,
presuming its validity and legitimacy. Anyone who
disputes this must resort to the judiciary to request its
annulment. The burden of proving the defect in the
decision rests with them. Without this presumption,
administrative life would be disrupted. The legal
system of the administrative decision empowers the
administration to achieve its goals and objectives by
creating an effect, amending, establishing, or
abolishing a legal status. While administrative decisions
do not remain in perpetuity, they are subject to
expiration. This enforceability has a limit at which the
administrative decision ends. This is the final stage of
the administrative decision, known as "the end of the
administrative decision." Therefore, the existence of an
administrative decision does not end except by the
express or implied will of a competent public authority
(legislator, judiciary, public administration) by ending
its existence. Suppose such will appears in law, judicial
ruling, or decision. In that case, An administrative
decision has expired, and consequently, its effects end
concerning the past and future in some cases and the
future in others. Its effects either end with the
expiration of the decision itself or with a natural end
with its implementation, with the expiry of the deadline
for producing the decision and its effects, the fulfilment
of a condition specified by law, or the impact of the
decision itself ceases with its fulfilment. In other words,
an administrative decision may end naturally or with
the intervention of the public authority. From the
above, we will discuss in the first section (the end of an
administrative
decision
other
than
through
administrative action) and the second section (the end
of administrative decisions through administrative
action) the details explained above. First: Research
Problem:
Administrative decisions are the administration's tool
for implementing its policies and achieving its goals.
However, they are not permanent and may end in
different ways. The end of administrative decisions is
divided into two categories: the termination of
administrative decisions by the administration itself
(such as self-termination or amendment) and the
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second is their termination by parties other than the
administration (such as judicial cancellation or
administrative appeal). The problem arises from the
lack of clarity regarding the legal mechanisms
governing the end of administrative decisions in these
two categories, on the one hand, and the extent to
which the end of these decisions impacts the stability
of administrative transactions and individual rights on
the other hand. Furthermore, there is ambiguity
surrounding the balance between the administration's
authority to terminate its decisions and the judiciary's
or other parties' authority to appeal or annul them. The
research questions are as follows:
Research Questions:
1. What are the mechanisms by which the
administration terminates administrative decisions?
2. What are the mechanisms by which administrative
decisions are terminated by parties other than the
administration?
3. What are the implications of the end of
administrative decisions from both sides on individual
rights and public interests?
Second: Significance of the Research:
The importance of this research lies in its addressing a
vital aspect of administrative law, namely "the
termination of administrative decisions," from two
perspectives: (the administrative element) and (the
non-administrative element). This research contributes
to clarifying the legal mechanisms governing the
termination of administrative decisions in a manner
that reinforces the principle of legitimacy and protects
the rights of individuals from any administrative
arbitrariness.
Third: Research Objectives:
The research aims to analyze the mechanisms by which
administrative decisions are terminated by the
administration, study the mechanisms by which non-
administrative
parties
terminate
administrative
decisions, identify the effects of the termination of
administrative choices from both sides on individual
rights
and
public
interests,
and
provide
recommendations for improving the legal and
administrative mechanisms for the fair and effective
termination of administrative decisions.
Fourth: Research Methodology:
Both descriptive and analytical approaches were used
to review alternative administrative methods for
terminating administrative decisions other than
through the judiciary, whether those decisions are
terminated by the administration or by non-
administrative parties.
Section One
Termination of Administrative Decisions Without
Administrative Action
The term "termination" of administrative decisions
refers to the termination of any legal effect.
Administrative decisions may expire naturally when
their contents are implemented, or when the specified
period for their validity expires, or the purpose for
which they were issued is exhausted, or when their
implementation becomes impossible due to the lack of
a valid reason or the death of the beneficiary, or other
reasons beyond the control of any authority.
Administrative decisions may also expire unnaturally,
such as when a public authority intervenes to terminate
them, or when the legislator or judiciary intervenes to
annul them, or when the administration withdraws or
annuls the decision. The administrative decision ends in
a way that the administration has no role in, the natural
end of the administrative decision, as we will divide the
topic into eight branches. Dr. Nawaf Kanaan defined
administrative cancellation as (the suspension of the
decision's enforcement or validity with its effects for
the future only, without including the results and
effects that it had previously arranged in the past, i.e.,
the results and effects between its issuance and
termination). Dr. Sharif Youssef Khater defined
administrative cancellation as - the termination of the
effects of the administrative decision for the future
only, without extending beyond its effects in the past,
meaning that the decision remains productive of its
effects in the period prior to the issuance of the
administrative decision in the future, not the past.
Before addressing the cases that lead to the natural end
of the administrative decision, in which the
administration's will has no role, the administrative
decision ends without the administration's action in the
following cases:
First Requirement
Reasons for the End of the Administrative Decision
The administrative decision ends for several reasons,
including (its implementation, withdrawal of the
decision Administrative, cancellation, exhaustion of its
purpose, physical destruction of the subject of the
administrative decision) as follows:
First / The administrative decision ends with its
implementation (the administrative decision ceases to
produce new effects upon its implementation).
The administrative decision ends as soon as it is
implemented or its purpose is exhausted. Once the
decision is made and its issuance is valid and sound, it
becomes enforceable and produces its legal effects
after its announcement. The administrative decision is
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implemented through several means, some of which
can be implemented on their own due to their
executive power. This is due to the authority that
issued it and the privileges it granted to the decision
that gave it this power. Some decisions require coercive
force to be implemented through its own means. An
example of this is a decision to deport a foreigner,
where the decision ends as soon as the foreigner leaves
the country. Similarly, a decision to demolish a
dilapidated house ends as soon as the house is
demolished. The nature of some decisions may require
them to continue for a long period of time, such as a
decision to grant a license to a shop, where the decision
does not end. By establishing the shop, but rather it
continues as long as the beneficiary continues to
practice his activity in the shop, unless the
administration intervenes and withdraws the license
and passport. If the administrative decision is fully
implemented and produces all its legal effects, it ceases
to produce new effects, for example, a decision to
impose disciplinary punishment, a decision to promote
an employee. We would like to point out that the
decision that produces its effects and is not withdrawn
remains in the legal world and its effects remain part of
the legal structure, as it is noted that some
jurisprudential opinions are inaccurate that say that the
administrative decision ends with its implementation,
as implementation does not end the decision itself, but
rather makes it invalid to produce legal effects after it
has been implemented and produced effects in the
legal world. However, the effects resulting from the
decision remain in place, as does its basis, i.e. the
administrative decision during the period in which it
was effective. Second: The cessation of the legal or
factual status upon which the continued validity of the
decision depends (the subject of the administrative
decision).
The administration issues an administrative decision
under specific circumstances that prompted the
administrative official to issue it. Circumstances
change. The authority of the administration is almost
absolute in arranging its legal actions according to the
circumstances of the decision's issuance. This
absoluteness is found more in regulatory regulations
than in individual decisions, as the latter are based on
creating rights and individual legal positions.
Regulatory decisions, on the other hand, are not
viewed from the perspective of the circumstances in
which they arose, but rather in light of emerging rules
and circumstances. This is because they are permanent
actions that do not generate rights, but rather regulate
future situations. Legal or factual cessation refers to the
subject or location of the administrative decision. This
occurs when the administration grants a foreigner a
residence permit because he works for a government
agency or department. If his service in this agency ends,
his residence permit ends, meaning that the general
nature of the decision is negated. The physical
cessation of the subject or location of the
administrative decision refers to the permit granted to
use part of the coastline for a private purpose, such as
residence. Kiosks or a casino, and then this part is
submerged by seawater, becoming part of the sea.
Third: Impossibility of Implementing the Decision:
These decisions are only enforceable against those
against whom they were issued or a specific person.
When the administration issues a decision to practice a
specific profession (appointment), and then the
beneficiary of the decision or license dies before the
appointment is implemented, the default is that the
fate of the decision is linked to the fate of those in
whose favor it was issued, except in some exceptional
cases that allow for some of the effects of the decision
to be arranged for the beneficiary's heirs.
The Second Requirement
Conditions for the Termination of an Administrative
Decision
An administrative decision terminates upon the
fulfillment of its termination conditions, which are the
following: (the rescinding condition, the suspensive
term, a change in circumstances, or the issuance of a
court ruling). We will discuss these as follows:
First: The administrative decision is subject to a
rescinding condition or is linked to a suspensive term.
A condition is generally a future matter that has not yet
materialized, and its occurrence entails the obligation
to comply. A decision may be issued subject to a
rescinding condition. This is a full decision, and its
effects are effective from the date of its issuance.
However, the fulfillment of the rescinding condition
leads to the decision being revoked retroactively, i.e.,
from the date of its issuance, not from the date the
condition was fulfilled. Similarly, a decision to appoint
an employee is subject to a rescinding condition, which
is the employee's refusal to accept the position or not
to begin work. If the employee rejects the position and
refuses to accept the job, this leads to the decision
being terminated from the date of its issuance. The
condition upon which the decision terminates is a
potential event, the fulfillment or non-fulfillment of
which, as the case may be, leads to the termination of
the decision. Administrative for the future, a distinction
must be made between a suspensive condition and a
resolutory condition. The latter removes the decision
retroactively if it is fulfilled, while the suspensive
condition does not remove the decision from the
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moment of its issuance and its effect is limited to
putting an end to the effects of the decision for the
future. This includes administrative decisions that
determine the employee’s relationship with the s
tate,
which ipso facto ends when the employee reaches
retirement age. The deadline is a certain moment in the
future, the occurrence of which leads to the decision
ceasing to produce its legal effects for the future. The
decision may specify the period in which it is valid and
specify its effects. If the period ends, the decision
ceases to produce any other effects. However, the
extension of the period may be outside the decision, as
may happen when a law or regulatory decision extends
the period. An example of this is a decision that
specifies its validity for a specific period, such as a
decision to appoint a temporary position, and a
decision to regulate a specific activity that ends with a
specific period. Determining the period at which the
decision ceases to produce new effects may be among
the matters binding on the administration by virtue of
a legal text that specifies a period for its validity, or
obligates the administration to issue decisions
specifying a period for its validity. When the specified
period comes, the decision ends for the future, so it
does not produce new effects after that period. This
expiration does not need to be decided by another act,
as it is stipulated in the decision since its issuance, and
it becomes effective upon the arrival of the specified
period. However, if it is desired to extend the
implementation of the decision, it requires a new
decision, and in this case, the new decision that
addressed the subject of the first decision is the one
that becomes The decision is not valid, and it is not the
first decision that expires upon the expiration of its
specified term. In any case, if a decision is coupled with
a rescinding or suspensive condition, that condition
must be legitimate and possible. If the condition is
illegitimate, then the condition is invalidated, and the
decision remains valid. However, if the decision as a
whole is inconsistent with general legal principles
—
that is, the administration would not have issued the
decision without including the violating condition
—
then the decision is absolutely null and void.
Second: Expiration of the Specified Period for the
Effectiveness of the Administrative Decision
The legislator may specify a specific period for the
effective period of an administrative decision, the
effect of which ceases upon its expiration. This is the
case of a residence permit for a foreigner for a specific
period, where the decision expires upon the expiration
of the permit period, or an administrative decision
granting an employee leave for a month, where the
month expires.
Third: The physical destruction of the property upon
which the decision is based, or a change in the
circumstances that prompted the issuance of the
decision. The physical destruction of the thing upon
which the decision is based occurs when a decision is
issued licensing a person to use a portion of public
funds. The decision ends with the destruction of this
portion of public funds, or the loss of its public status.
A decision may also end naturally as a result of a change
in the circumstances that prompted its issuance. An
example of this is administrative decisions issued
pursuant to a specific law. These decisions naturally
end with the lapse or repeal of the law, unless
otherwise provided. Fourth: An administrative decision
may expire upon the issuance of a ruling by another
authority, such as a ruling annulling the administrative
decision by the Administrative Court. Consequently,
the administrative decision is deemed null and void vis-
à-vis all parties. The administration must then, out of
respect for the annulment ruling, withdraw its decision
and terminate all its consequences.
Chapter Two
The End of Administrative Decisions by Action by the
Administration
An administrative decision ends with an action by the
administration in two ways: (cancellation of the
administrative decision) and (withdrawal of the
administrative decision).
First Requirement
Cancellation of the Administrative Decision
The rapid development and change of administrative
life leads to the necessity of administrative decisions
evolving and changing at all times, to keep pace with
this development and respond to changing conditions.
In most cases, the administration may resort to putting
an end to the implementation of its decisions that have
become inconsistent with the current development, in
accordance with what is called (cancellation).
Cancellation means removing the effects of the
administrative decision for the future, not the past,
starting from the date of cancellation. This can be done
by the administrative authority that issued the
canceled decision or by the higher presidential
authority, unless the law grants another authority this
right. This cancellation may be total, encompassing all
parts of the decision. The administrative decision may
be partial or administrative, and may be based on a
portion of the administrative decision. It is essential
that the cancellation decision be issued in the same
form and with the same procedures as the original
decision. That is, if the original decision was issued in
writing, the cancellation decision must also be issued in
writing. The cancellation of an administrative decision
may be explicit and direct regarding the previous
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decision in all its parts (total cancellation). The
cancellation may also be represented, with regard to
the contents of the previous decision, by the result of
comparing the previous decision with the new decision.
This is the partial decision or the amendment to the
previous decision. The administration's right to cancel
its administrative decisions varies according to their
scope, whether they are individual or regulatory
decisions. The administration has broad freedom to
cancel regulatory decisions. However, if the decision is
individual, the matter also varies from one decision to
another, as the decision that stipulates acquired rights
for individuals differs from the decision that does not
stipulate such rights. Section One
Revocation of Administrative Regulatory Decisions
As a general rule, the administration can revoke its
regulatory decision at any time. This is because the
latter creates general substantive legal positions, and
these positions can be amended or revoked by the
administration whenever the public interest so
requires. Revocation here means that the effects of
which apply to the future. The rule in France and Egypt
is that the administration may at any time amend,
revoke, or replace its regulatory decisions, in
accordance with the public interest. This rule is based
on the provisions governing general regulatory
positions. These regulatory positions are subject to
amendment and change at any time according to the
requirements of the public interest. The Egyptian State
Council believes that a distinction must be made
between regulatory legal positions and subjective legal
positions. The former may be changed at any time,
subject to the law or regulatory decision, while the
latter may only be affected by a law specifically
stipulating this in a specific text. This means that the
legal positions created by laws and regulatory decisions
are temporary and subject to change at any time
according to the requirements of the public interest.
For the requirements of the public interest, these
regulations, despite their flexibility, are binding on all
authorities, and even on the authority that issued
them, and they have the right to amend or change
them at any time, as long as they do not issue
amendments or changes to those regulatory decisions.
Section Two
Voiding Individual Administrative Decisions
A general rule in Islamic jurisprudence is that a valid
individual administrative decision may not be nullified,
as this would impinge on the rights acquired by
individuals through these decisions. For example, when
the administration grants a license to open a public
store after approving its location, it is not permissible
for it to revoke this decision with a subsequent decision
that nullifies it. This is because the initial decision may
create legal positions and personal rights that may not
be infringed upon. In nullifying its individual decisions,
the administration must distinguish between decisions
that establish acquired rights and legal positions, and
decisions that do not establish such rights. Regarding
the first type, the rule is that the administration cannot
nullify them once they are valid and create rights for an
individual or group of individuals. As for the second
type, i.e., decisions that do not create rights for an
individual or group of individuals, the administration
can nullify them, which we will discuss in turn:
First / Voiding Individual Decisions That Create Rights
for Individuals
Here, a distinction must be made between the
permissibility of nullifying legitimate individual
decisions. The distinction between those establishing
acquired rights and those establishing unlawful
individual decisions and those establishing acquired
rights is as follows:
1 - Regarding the annulment of a valid and legitimate
individual administrative decision establishing acquired
rights:
The principle is that if individual decisions are issued
validly, meet the conditions required by law, and result
in the right of a person or legal position, the
administration may not interfere with them except
within the limits permitted by law. Jurisprudence
stipulates that respect for acquired rights arising from
individual administrative decisions is similar to the
principle of legality, which is considered one of the
foundations of the legal state. However, this principle
does not apply in absolute terms. The administration
often has the power to annul a decision that results in
acquired rights by issuing a counter-individual decision.
By this, we mean an administrative decision that relies
on a valid, not non-existent, administrative decision,
modifying some or all of its provisions so that its effect
is limited to the future. Thus, the counter-individual
decision replaces the previous decision. This includes a
decision issued to appoint a person to a public position.
This decision, even if it grants the person the right to
hold a public position, grants the person the right to
hold a public position. The administration may
terminate an employee if they commit an error that
justifies this penalty. This applies to a valid individual
decision. From another perspective, it applies to valid
or legitimate individual administrative decisions. The
rule is that they may not be revoked if they create
rights. However, if they do not create rights, they may
be revoked at any time. 2 - Regarding the revocation of
a defective (unsound) individual administrative
decision
that
creates
acquired
rights:
The
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administration may revoke or amend it, and its
revocation constitutes a penalty for its illegality.
However, the administration may not carry out this
revocation or amendment at any time, as established
court rulings stipulate that an unlawful administrative
decision is immune to revocation oversight after the
statutory period for appealing the revocation decision
has elapsed (60 days). It is unreasonable for the
administration to be permitted to do what the judiciary
is not permitted to do, which would deprive the
administration of the authority to revoke the decision
after the appeal period has elapsed, starting from the
date of its issuance. Second: Administrative Decisions
That Do Not Create Rights for Individuals
These are administrative decisions that the
administration can revoke or amend. Jurisprudence has
established several types, including:
1- Temporary Decisions: These are decisions that do
not create rights in the legal sense because they relate
to temporary situations, even if the law does not
stipulate their validity for a specific period. These are
also decisions that the administration can always
revoke, such as assignment or secondment decisions.
These decisions do not confer rights to the assigned
position, and therefore may be revoked at any time.
These include decisions granting a temporary license.
2- Negative Decisions: These are administrative
decisions that do not express the administration's
intention to establish, amend, or terminate a legal
status. Rather, the administration takes a negative
stance when it should have taken action in accordance
with the law and regulations. The administration's
failure to explicitly express its intention constitutes a
negative decision of refusal. These decisions do not
create rights or benefits for individuals and may be
revoked at any time, such as an administrative decision
to refuse to grant a license to an individual to practice
a particular profession. 3- State decisions that do not
confer rights on individuals: These are decisions that
merely grant individuals a license from the
administration, without any other legal consequences.
This decision cannot be considered an acquired right,
and therefore, the person in whose favor the decision
was issued may not demand its continuation, as the
nature of these decisions is temporary. Therefore, the
administration may cancel it at any time it wishes, such
as granting an employee sick leave in cases other than
those specified or indicated by the law, or the
competent administrative authority canceling its
decision to grant a foreigner a residence permit.
4- Non-executive decisions: These are decisions issued
with the intention of preparing for the issuance of a
specific decision, such a
s the management’s decision to
refer an employee to an investigative board, and
decisions that require approval from the presidential
authority. These decisions can be revoked by the
management for future use at any time and without
being bound by a specific deadline. The Second
Requirement
Withdrawal of Administrative Decisions
French jurisprudence has defined the withdrawal of an
administrative decision in several ways. Jurist Bonnard
defined it as (the act that terminates the administrative
decision by the issuing authority, as if it had never
existed). Jurist Forget defined it as (a special method for
terminating an administrative decision retroactively, by
the will of the source or the presidential authority,
under the conditions specified by administrative law).
In Arab jurisprudence, jurist Suleiman al-Tamawi
defined the withdrawal of an administrative decision as
(retroactive cancellation). Professor Muhammad al-
Saghir Baali asserts that it is the nullification of the
decision and the uprooting of its roots, such that it
disappears and erases all effects resulting from the
implementation of the withdrawn administrative
decision in the past, and also eliminates its effects in
the future. Therefore, unlike cancellation, it has a
retroactive effect, as an exception to the principle of
retroactivity. However, the authority of the
administration in administrative withdrawal varies
depending on whether the administrative decision is
valid, defective, or nonexistent. The intent of
withdrawing decisions is to... Administrative decisions
are nullified retroactively from the date of their
issuance, as if the decision had never been issued and
had no legal effects. Withdrawal in this sense is like
judicial cancellation in terms of its effect, as it results in
the termination of all legal effects arising from the
administrative decision from the date of its issuance. If
the administrative judiciary has the right to cancel
defective administrative decisions from the date of
their issuance during the appeal period for
cancellation, then logic dictates that the administration
has the right to withdraw its defective decisions during
this period, to avoid lengthy litigation procedures. Also,
the administration’s withdrawal of its defective
decision is better for it than its judicial cancellation.
From the above, we will clarify what is meant by
withdrawing
an
administrative
decision
by
retroactively ending it, and what is meant by canceling
an administrative decision by cancellation before
addressing the distinction between withdrawing
legitimate and illegitimate administrative decisions.
The first method - the retroactive termination of an
administrative decision:
This means withdrawing the administrative decision at
the will of the competent authority (legislative,
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administrative, or judicial), thereby erasing it from the
legal system and removing it from the legal framework.
After this, the decision ceases to produce any legal
effects. However, the effects it produced prior to its
termination remain in the legal system unless a
decision is issued to terminate all of its effects from the
moment of its issuance, i.e., to terminate the decision
or its effects retroactively.
The Second Method
–
Cancelling an Administrative
Decision Through the Judiciary:
Many administrative decisions are subject to judicial
oversight, whether the judiciary is specialized or
ordinary, specializing in all disputes, whether related to
public administration activities or not. If the
administrative decision is appealed before the judiciary
and the court decides that it is illegitimate, i.e., there is
a defect in the administrative decision that can lead to
cancellation, the court will issue its decision to cancel
the administrative decision. The cancellation of an
administrative decision by the judiciary is only
retroactive, meaning that it nullifies the decision from
the date of its issuance. The bodies responsible for
oversight of administrative decisions in Iraq are the
Administrative Judiciary Court and the General
Disciplinary Council.
Based on the above, this research will address the
distinction between the withdrawal of sound
(legitimate)
administrative
decisions,
whether
individual or organizational, and the withdrawal of
unlawful administrative decisions, as follows:
Section One
Withdrawal of Legitimate Administrative Decisions
The general rule is that valid administrative decisions
cannot be withdrawn. The exception is that they may
be withdrawn in certain cases, as follows:
First - The inadmissibility of withdrawing valid
(legitimate) administrative decisions
The general rule, in Islamic jurisprudence, is that valid
administrative decisions cannot be withdrawn. This
protects the principle of legality and guarantees the
acquired rights of individuals, whether regulatory or
individual decisions. Although regulatory decisions do
not create personal positions, they create public
positions. This is in order to stabilize legal situations
and apply the principle of non-retroactivity of
administrative decisions. However, the general rule is
not applied in its entirety. However, the administrative
judiciary in France has somewhat softened the severity
and strictness of the aforementioned rule, which states
that "rights and legal positions established on a sound
legal basis must be respected and not infringed upon."
This softening is based on distinguishing between
decisions that create rights and those that do not
create rights. To further clarify the principle of the
inadmissibility
of
withdrawing
legitimate
administrative decisions, we distinguish between
individual decisions and organizational decisions as
follows:
1. Individual decisions - as the basis for sound individual
administrative decisions, an administration may not
withdraw them, for reasons of appropriateness, such
that it may not withdraw its sound individual
administrative decisions if they create acquired rights
for individuals, in compliance with the principle of non-
retroactivity of administrative decisions. Most
administrative decisions generate rights for individuals
and therefore may not be withdrawn, as the
withdrawal of an administrative decision must be
carried out by another administrative decision, with
retroactive effect going back to the date of issuance of
the first decision. While the general principle is the non-
retroactivity
of
administrative
decisions,
the
inadmissibility of withdrawing sound and legitimate
decisions was only established as a rule to protect the
rights that arose from the decisions and were
legitimately acquired by individuals. If no rights are left
behind from the decisions, there is no point in applying
this rule. Therefore, it is permissible to withdraw
administrative decisions that do not generate acquired
rights. For example, it is permissible to A legitimate
regulatory decision may be withdrawn if it has not been
implemented through individual decisions that grant
rights to individuals. An individual decision may also be
withdrawn if it does not infringe upon an acquired
right, such as withdrawing a decision to deport a
foreigner from the country, or withdrawing a decision
to impose a disciplinary penalty if this decision does not
infringe upon the acquired right of another employee.
2. Exceptions to the rule that valid (legitimate)
administrative decisions may not be withdrawn: There
are exceptional cases in which the law allows the
administration to withdraw its legitimate decision with
respect to individuals (individual decisions) when the
withdrawal is based on a legislative provision, or when
the party benefiting from the decision requests its
withdrawal. Withdrawal is considered impermissible if
it creates rights for third parties. We will then discuss
the exceptions to the administration's right to
withdraw its legitimate individual administrative
decisions in two cases: (administrative decisions issued
to dismiss employees), (second - administrative
decisions that do not generate rights for individuals),
and (the withdrawal of legitimate organizational
administrative decisions) as follows:
A - Administrative decisions related to the dismissal of
employees
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Administrative courts in Egypt and France have
permitted, for considerations related to justice and
humanity, the withdrawal of a decision to dismiss an
employee, even if it was issued correctly and in
accordance with the law, provided that the withdrawal
decision does not affect the acquired rights of
individuals, as if another employee were appointed to
fill the position held by the dismissed employee. The
administration's withdrawal of the decision does not
mean that there was any error on its part, and
therefore the reinstated employee does not have the
right to request compensation for the decision to
withdraw his dismissal. Jurists recognize that this
exception can only be justified on the basis of justice
and compassion on the part of the French State Council
with regard to the category of employees, because the
conditions of appointment may change after the
employee's dismissal, so if it is desired to reinstate him
again, it may not be possible. The new stage applies to
him, and for this reason the Council preferred to
consider the return to the job as a mere continuation
of the previous work, by canceling the dismissal
decision retroactively. The French State Council was
given the opportunity to approve the previous case and
clarify it (the decision issued to dismiss the employee,
whether it was correct or incorrect, its withdrawal is
permissible in either case, because if it is considered to
be in accordance with the law, then the withdrawal
here is permissible as an exception, even though the
withdrawal is not permissible in principle due to the
exercise of discretionary power, but they allowed the
review of decisions to dismiss employees, and their
withdrawal for considerations related to justice,
because the employee’s connect
ion to the job is
supposed to be severed as soon as he is dismissed, and
because in order to return him to service, a new
decision must be issued regarding his appointment.
However, it may happen during the dismissal period
that the conditions for the validity of the appointment
change, and the appointment may become impossible,
or the dismissal may have a negative impact on the
employee’s service period or seniority. On the other
hand, the authority responsible for appointment may
change and become different from the one that
dismissed the employee, and it may not have the
willingness to repair the harm that befell the employee
by his dismissal or other considerations of justice.
Based on this The French State Council ruled that the
administration's right to withdraw a valid dismissal
decision was restricted to the administration's failure
to appoint another employee to fill the position of the
dismissed employee in a valid appointment, because
reinstating
the
dismissed
employee
means
withdrawing the decision of the newly appointed
employee in a valid appointment.
b. Administrative Decisions That Do Not Create
Individual Rights
The general rule upon which the non-retroactivity of
administrative decisions is based is respect for acquired
rights or personal positions acquired by individuals
under previous legislation. French and Egyptian courts
have permitted the retroactivity of administrative
decisions in valid individual decisions, provided that
individual administrative decisions do not create a
right. The retroactivity of decisions here is more
apparent than real. The administration may withdraw
its decisions at any time it deems appropriate, because
the restrictions imposed on the administration, if they
create benefits and rights for individuals, cannot be
deprived of them. The administration may withdraw its
decision if it deems that an employee has been
wronged. It is not permissible for an administrative
div to establish a personal position by maintaining a
penalty imposed without a legal basis. Therefore, the
administration may withdraw this decision at any time
without being bound by a deadline. It is preferable not
to permit retroactivity except within the narrowest
limits. To remedy the effects of the decision to be
withdrawn, it is sufficient to issue a new decision in
accordance with the new legal conditions, with an
effective effect from In cases where this is permissible,
if the administrative decision is not of the type that
creates rights or does not generate acquired rights,
then the basic reason for not withdrawing valid
administrative
decisions
is
negated,
because
withdrawal does not threaten the rights and legal
positions of individuals in this case. On this basis, the
administrative
judiciary
has
authorized
the
administration to withdraw its legitimate decisions that
do not create legal advantages or positions, including
its decision to withdraw a decision to impose a
disciplinary penalty on one of its employees because
this decision is not related to the acquired right of
another person. From here, the issue of regulatory
administrative decisions arises, as they create general
legal positions and therefore do not create any
acquired rights for individuals. This means that
regulatory decisions can be withdrawn at any time, but
this right is restricted to the decision not creating rights
for individuals, even indirectly. T - Withdrawing
Legitimate Administrative Regulatory Decisions
The process of withdrawing regulatory administrative
decisions does not pose any problems, as they do not
create individual rights. Thus, if a regulatory
administrative law is issued, it may not be withdrawn.
Generally, regulatory decisions do not create acquired
rights, and therefore may not be withdrawn unless they
are applied individually, such that they become the
status of individual decisions, which may not be
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infringed upon because they create personal legal
positions for individuals. However, if they are not
applied individually, their effects remain limited to
creating
general
legal
positions.
Therefore,
jurisprudence and legal reasoning have permitted the
withdrawal of these decisions. From another
perspective, regulatory decisions, unlike individual
decisions, do not create personal positions, but rather
generate general positions. These positions do not
entitle individuals to rights unless they are applied
individually. Therefore, valid regulatory decisions may
be withdrawn simply because they do not create
personal rights or positions. However, it is accepted in
jurisprudence that a regulatory decision may not be
withdrawn retroactively, as regulation is only for the
future, not the past. By referring to the decisions of the
Egyptian State Council, we see that It is not clear, as
most of its rulings proceed as follows (its ruling of
1/13/1948 states: A distinction must be made between
organizational administrative decisions and individual
administrative decisions, since while the administration
may withdraw general organizational decisions,
whether by cancellation or amendment, at any time as
required by the public interest, it may not withdraw
individual decisions...). Likewise, its ruling of May 4,
1949 (This court’s jurisprudence has settled on the
distinction between organizational decisions and
individual decisions, and that the administration may
withdraw organizational administrative decisions,
whether by cancellation or amendment, at any time as
required by the public interest...). Likewise, its ruling of
April 11, 1950 (If the decision is not individual and
intended for the plaintiff, but rather a general
organizational decision, then it applies to everyone,
and the relationship that connects the employee to the
directorate council is an organizational relationship,
not a contractual one, and the administration has the
right to withdraw the general organizational decision at
any time required by the public interest). The state’s
judiciary is almost settled on The permissibility of
withdrawing the regulatory decision, and he did not
specify the provisions of this withdrawal or its limits,
nor whether the regulatory decision includes sound or
defective decisions, and that the majority of the rulings
of the previous Egyptian State Council were in fact
dealing with the provisions of withdrawing individual
decisions, not regulatory decisions, and that the sound
regulatory decision does not fall outside of one of two
assumptions:
That the regulatory decision has been applied
individually, and thus individuals have acquired new
rights or personal positions under it, which are sound
and cannot be infringed upon. Therefore, the sound
regulatory decision cannot be withdrawn, i.e. it cannot
be cancelled retroactively, because withdrawal means
the
nullification
of
the
regulatory
decision
retroactively, from the date of its issuance, and thus it
leads to the nullification of the individual decisions
issued pursuant to it or in application of it, which is not
permissible otherwise. If the regulatory decision has
not been implemented, and its effect is limited to the
establishment of general legal centers that individuals
have not benefited from, then it is incomprehensible to
cancel it retroactively, as the benefit of retroactivity
does not appear, and the withdrawal is tantamount to
cancellation for the future. Therefore, Dr. Al-Tamawi
supports the opinion that states the impossibility of
withdrawing sound regulatory decisions, i.e. it is
prohibited to cancel them retroactively, and the
administration’s right to cancel them, amend them, or
replace them with others is limited to the future, which
is what has been settled and the reality of the situation,
because the regulation is only conceived for the future,
not the past.
Section Two
Withdrawal of Illegal Administrative Decisions
The general rule in administrative judiciary is that the
administration may withdraw its illegal decisions as a
penalty for their illegality and out of respect for the law,
either on its own initiative or based on a grievance. The
basis of this rule is that illegal administrative decisions
do not create acquired rights for individuals, and
therefore their effects are nullified with respect to the
past and the future. Accordingly, the decision to be
withdrawn must be illegal, as it must be flawed by one
of the defects of the administrative decision, namely
(form, jurisdiction, violation of the law, reason, or
deviation of authority). The withdrawal of the decision
may be total, or it may be partial if the defect is in a part
of it, and the administrative decision is divisible. The
authority that has the right to withdraw the decision is
the authority that issued it or the higher presidential
authority, unless the legislator grants this right to
another authority. The administrative judiciary has
stipulated that defective individual administrative
decisions must be withdrawn within the legal period for
challenging them for annulment before the judiciary,
which is (60 days) from the date of issuance. Issuance
of an administrative decision. If the period has passed
and the administration has not withdrawn its decision,
the defective administrative decision is immune from
any cancellation or amendment. The rule for
withdrawing defective decisions remains based on two
foundations: (the illegality of an administrative decision
does not create rights) and (the withdrawal of unlawful
decisions is a penalty for their illegality and a remedy
for the error committed by the administration. Thus,
the administration that issued the decision or the
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authority responsible for issuing it, as well as the judge,
have the authority to revoke the decision
retroactively). This link between the administration's
right to withdraw its defective decision as a penalty for
its illegality and the possibility of its annulment through
the judiciary is evident in an important rule in this
regard, which is to make the period within which the
administration may not withdraw the defective
decision the same period within which the defective
decision may be appealed before the judiciary, which is
usually a period of two months. In the event that the
administrative decision is appealed before the
judiciary, the administration may withdraw the
decision at any moment prior to the issuance of a ruling
on the appeal. As for unlawful administrative
regulatory decisions, the administration may withdraw
them at any time it wishes, as required by the public
interest. However, countries with administrative
judiciaries The legislator stipulates that a cancellation
suit must be filed within a period of (60 days/Egypt) and
(two months/France), so the administration in these
countries can withdraw its defective decisions within
the period stipulated for filing a cancellation suit. If this
period expires, the defective administrative decision is
protected against judicial cancellation and against
administrative withdrawal, as the following rules can
be
indicated
regarding
the
withdrawal
of
administrative decisions as approved by the
administrative judiciary:
1. The administration must withdraw its unlawful
decisions; indeed, it is its duty to do so, and its
commitment to do so is a legal obligation. If a
stakeholder requests the withdrawal of a flawed
decision and the party fails to do so, the refusal to
withdraw the decision may be challenged before the
courts.
2. The administration has the right to withdraw its
flawed
decisions,
based
on
illegality,
not
inappropriateness. A legitimate, inappropriate decision
that subsequently becomes inappropriate may not be
withdrawn. Withdrawal is a penalty for illegality, not
for inappropriateness.
3. The administration's right to withdraw its unlawful
decisions is restricted to the administration
withdrawing them within the appeal period. The
administration may also withdraw the decision after
filing the annulment lawsuit and during its review,
provided that the withdrawal is within the limits of the
claims presented in the lawsuit.
However, the rule of adhering to the withdrawal of
flawed administrative decisions has some exceptions,
through which the administration can withdraw its
decisions without being bound by the appeal period:
First - The Null Decision
This is a decision tainted by a serious defect that strips
it of its administrative character and renders it merely
a purely material act, such as the usurpation of
authority by an ordinary employee who does not
possess the status of a responsible employee and
performs administrative tasks and powers that do not
carry the administrative character. The administration
has absolute authority to intervene and withdraw its
null decisions without being bound by a specific time or
period. This is due to the nature of the null decision
itself. The claimant may also resort to the judiciary at
any time, requesting its annulment without being
bound by the deadlines for filing an annulment lawsuit.
Some jurists have held that withdrawing these
decisions is not necessary, and the administration can
ignore them without explicitly announcing this.
However, it does so out of a desire to clarify matters for
individuals. Therefore, it is not permissible to adhere to
a specific time limit for withdrawing its null decisions.
Examples of such decisions include a decision issued by
an ordinary individual who does not have the status of
an official. The employee, or from a private div that
has no connection to the competent administration.
Second - Administrative Decisions Based on Fraud or
Deception
If the administrative decision is issued based on fraud
or deception by the beneficiary of the decision, i.e., if
the beneficiary acted in bad faith by forcing the
administration to make the decision as a result of his
fraud or deception, then he is not worthy of protection.
Administrative courts in France and Egypt have
established the right of the administration to withdraw
a decision based on fraud or deception by the
beneficiary. The administration may withdraw the
decision without being bound by the withdrawal
period, because in this case, there is no justification for
protecting the legal status of this person, who used
fraudulent methods to mislead the administration and
force it to issue the decision based on the rule that says
(fraud spoils everything). In this case, the beneficiary
must have used sufficient fraudulent methods to
influence the administration, and these methods must
have prompted the administration to issue this
decision. An example of this is (a decision to appoint an
employee based on his submission of forged
experience certificates). It may also be a purely
negative act in the form of deliberate concealment by
the concerned party. Some basic information that the
administration is ignorant of, and it is not easy to
discover it in another way, and its ignorance affects its
will, despite the knowledge of the concerned party (the
beneficiary) of this information and its importance and
danger. Among the rulings of the Supreme
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Administrative Court in this regard is its ruling issued on
(February 27, 1965) in a case related to the dismissal of
an employee due to forgery, but he applied for
appointment again and succeeded in concealing the
matter of his previous dismissal. The Supreme
Administrative Court in Egypt decided (that the
decision to appoint the plaintiff is an absolutely null and
void decision, not only because it violates the
provisions of the law in a fundamental violation, but
also because it is a decision based on fraud, and a
person may not benefit from his fraud and bad faith,
and such a decision does not acquire immunity no
matter how long it has been issued, and it may be
withdrawn at any time). Third: Administrative decisions
based on restricted authority
These are decisions in which the legislator does not
leave the administration freedom of discretion. The
administration may retract its decisions whenever it
errs in applying the law, without being bound by a
specific period. An example of this is (decisions issued
based on restricted authority, such as the
administration's decision to promote an employee
based on seniority). When the administration errs in
observing this condition and issues its decision
bypassing the eligible employee for a more junior
employee, it may withdraw the promotion decision,
without being bound by a specific period. Conversely, if
the administration exercises discretionary authority, it
may not retract its flawed decision except within the
specified period by appealing for cancellation. In such
decisions based on unlawful decisions, it is decided to
either judicially annul them or administratively
withdraw them.
Fourth: Administrative decisions that were not
published or announced
The administrative decision is considered enforceable
against the administration from the date of its issuance,
as the administration is presumed to be aware of the
decision it issued, while It is effective against
individuals from the date they become aware of it
through the legally prescribed methods. Accordingly,
the
administrative
authority
may
withdraw
administrative decisions that have not been published
or announced at any time, and this is especially true
with regard to defective administrative decisions that
have not been announced or published.
CONCLUSION
1. Administrative decisions do not remain in effect
forever; they are subject to expiration. This is because
administrative decisions, like all other processes, keep
pace with development and change, regardless of the
length of their validity and enforceability. This
enforceability has a limit at which the administrative
decision ends, which is the final stage of the
administrative decision and is known as "the end of the
administrative decision." Therefore, the existence of an
administrative decision does not end except by the
express or implicit will of a competent public authority
(legislator, judiciary, public administration), by ending
the existence of the administrative decision.
2. The administrative decision may end naturally, or it
may end by the intervention of the public authority in
two ways: either by ending the effects of the
administrative decision with respect to the future while
its effects with respect to the past remain intact, and
this term is called cancellation, or it may lead to the
nullification of the administrative decision with respect
to the past and the future, and it is called (withdrawal),
such that the administrative decision is considered as if
it did not exist.
1. Administrative decisions may come to a natural end
when their contents are implemented, when the
specified period for their validity expires, when the
purpose for which they were issued is exhausted, or
when it becomes impossible to implement them due to
the lack of a place for them or the death of the
beneficiary, or other reasons that no authority has any
role in determining. The end of administrative decisions
may be unnatural, such as when a public authority
intervenes to terminate them, when the legislator or
the judiciary intervenes to cancel them, or when the
administration withdraws or cancels the decision. 2.
The administrative decision may be cancelled for the
previous decision in all its parts (total cancellation), or
the cancellation may represent the contents of the
previous decision by the result of comparing the
previous decision with the new decision, which is the
partial decision, or the amendment to the previous
decision. The right of the administration to cancel its
administrative decisions varies according to their
scope, whether its decisions are individual or
organizational, as the administration has broad
freedom to cancel organizational decisions. However, if
it is individual, the matter also differs from one decision
to another, as the decision that stipulates acquired
rights for individuals differs from the decision that does
not stipulate such rights. 3. In this sense, withdrawing
an administrative decision is similar to judicial
annulment, as it terminates all legal effects arising from
the administrative decision from the date of its
issuance. Suppose the administrative judiciary has the
right to annul flawed administrative decisions from the
date of their issuance within the annulment appeal
period. In that case, logic dictates that the
administration can withdraw its flawed decisions
within this period, avoiding lengthy litigation
procedures.
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Proposals
1. Develop legislation by enacting clear and specific
legislation to regulate the process of terminating
administrative decisions, including annulment and
withdrawal.
2. Establish clear and specific criteria for terminating
administrative decisions, including the period specified
for their validity and fulfilling their purpose.
3. Strengthen and activate the judiciary's role in
monitoring administrative decisions and ensuring their
legitimacy, including the right to annul and amend
flawed decisions.
4. Provide mechanisms for withdrawing flawed
administrative decisions within a reasonable period,
avoiding lengthy litigation procedures.
5. Train administrative staff on handling and
terminating decisions according to precise and
accurate administrative procedures.
6. Promote transparency in the administrative
decision-making process and how to terminate them.
7. Review administrative decisions periodically to
ensure they remain valid and effective for the purpose
they were issued.
RECOMMENDATIONS
1. Draw legislators' attention to the need to develop
clear and specific legislation to regulate terminating
administrative decisions.
2. Strengthen the judiciary's role in monitoring
administrative decisions and ensuring their legitimacy.
3. Provide mechanisms for withdrawing flawed
administrative decisions within a specific and
reasonable period.
REFERENCES
First - Books and Publications
Hussein Darwish, Termination of Administrative
Decisions by Non-Judicial Means, Cairo, 1987.
Salman Muhammad al-Tamawi, The General Theory of
Comparative Administrative Decisions, Dar al-Fikr al-
Arabi, 1957.
Abd al-Razzaq al-Sanhuri, Al-Wasit, Part Three, no date
printed.
Abdel-Ghani Basyouni Abdullah, The General Theory of
Administrative Law, Maaref Establishment, 2003.
Abdel-Fattah Al-Hasani, Lessons in Administrative Law.
Ali Muhammad Badir, Essam Abdul-Wahhab Al-Bar
Zangi, and Mahdi Yassin, Principles and Provisions of
Administrative Law, Dar Al-Arabiya for Law, 1993.
Labib Shanab, Lessons in the Theory of Obligation -
Proving the Provisions of Obligation, no date.
Mazen Lilo Rady, Administrative Law, third edition, no
date.
Muhammad Fuad Abdul-Basit, Administrative Decision,
Dar Al-Fikr Al-Jami'i, Alexandria, 2008. 10. Maher Saleh
Allawi, The Mediator in Administrative Law, President
of Tikrit University, no publishing house or year of
publication.
Second - Theses, Dissertations, and Research:
Dabakh Linda - Master's Thesis entitled (The End of the
Administrative Decision), Akli Mohand Oulhadj
University - Bouira, College of Law and Political Science
/ Department of Public Law - Academic Year
(2014/2015).
Mahmoud
Khalaf,
Direct
Implementation
of
Administrative Decisions: A Comparative Study,
Master's Thesis, Baghdad, 1979, p. 75, and Dr.
Muhammad Kamil Laila, The Theory of Direct
Implementation in Administrative Law, Dar Al-Fikr Al-
Arabi, 1962.
