The Council of State is a pivotal institution within the judicial and administrative system of countries that adopt a dual judiciary system, as it is entrusted with both supervisory and judicial roles simultaneously. On one hand, it exercises legal oversight over draft legislations and regulatory decisions, and on the other hand, it adjudicates disputes of an administrative nature, making it a safeguard for protecting the principle of legality and consolidating the rule of law.
The importance of its supervisory role lies in being the means that ensures the consistency of laws and decisions with the constitution and the law, preventing administrative overreach over rights and freedoms. In some countries (such as France, Egypt, and Algeria), it is considered the highest administrative judicial authority and also plays an advisory role to the government in drafting legal texts.
The work of the Council of State is divided into two main axes: the judicial function, where it considers appeals against administrative decisions and rules on administrative disputes of a public nature; and the advisory or legal supervisory function, where it reviews draft laws, regulatory decrees, and administrative regulations before their issuance to ensure their compliance with the law.
Prior oversight of laws by the Council of State involves examining draft legal and regulatory texts before their issuance. The Council expresses its opinion on their conformity with the prevailing legal rules, particularly constitutional principles. Although this opinion may be non-binding in some systems, it carries significant weight and is generally heeded. The Council’s legal oversight objectives on legislation include ensuring the soundness and conformity of legislations to the principle of legality, limiting conflicts between legal texts, achieving harmony between new texts and the existing legal framework, and protecting fundamental rights and freedoms from unintended legislative violations.
In France, the Council of State serves as an advisory body to the government in drafting draft laws and decrees, with most regulatory texts being presented to it prior to issuance. In Egypt, the legislation department of the Council of State is responsible for reviewing draft laws and presidential and ministerial decisions, and its opinion is binding in certain cases.
Legal oversight of administrative decisions is a requirement of the principle of legality, which mandates that the administration comply in all its actions with legal provisions in terms of jurisdiction, form, procedures, reason, and purpose. The Council of State exercises comprehensive legal oversight to ensure the administration’s adherence to this principle. The types of decisions subject to oversight include individual administrative decisions (such as appointment, transfer, or dismissal decisions), regulatory decisions (such as issuing organizational regulations by administrative bodies), and disciplinary or punitive decisions that may directly affect individual rights.
The judicial oversight of the Council of State takes multiple forms, including annulment review—ruling the administrative decision illegal and canceling it retroactively; compensation review—providing redress for damages resulting from an unlawful decision; and review of administrative inaction—canceling the administration’s failure to issue a decision it was obligated to make. In this context, the rulings issued by the Council of State carry binding executive authority over the administration and are viewed as a source for developing administrative jurisprudence due to their interpretive efforts in public law.
The preventive and protective impact of the Council’s role is highly significant as it prevents the issuance of unlawful texts or decisions, supervises the proper use of discretionary power, ensures balance in the relationship between the administration and citizens, and enshrines principles of administrative justice while safeguarding fundamental rights.
However, the Council of State faces challenges, including delays in procedures where some councils suffer from a backlog of cases and slow dispute resolution, weakening their immediate effectiveness. Other challenges include restricted competencies or political interference, as in some countries the powers of the Council of State may be limited or its advisory role curtailed in favor of the executive authority. Additionally, a lack of legal culture within the administration and the disregard or ignorance of the Council’s decisions by some public administrations lead to repeated violations, thereby increasing the Council’s burdens.
In conclusion, the Council of State represents a fundamental pillar in safeguarding the principle of legality and monitoring the performance of administrative and legislative authorities to ensure respect for the law and protection of rights. Through its dual role as judge and advisor, it embodies the principle of the rule of law and contributes to building a sound administration that exercises its powers within the limits of the law. Supporting the Council’s independence, enhancing administrative awareness of its decisions, and ensuring the speed and effectiveness of its procedures are priorities for strengthening the rule of law and consolidating administrative justice in any country. The Council is both the sought-after goal and the commendable means.
Dr. Jumana Jassim Al-Asadi, Member of Al-Naba’a Forum for Dialogue, Faculty Member at the University of Karbala
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