The role of the administrative judge in proving administrative disputes and their effects: a comparative study

Abstract

In legislation related to administrative articles, proof has a special character represented in having the administration as a primary party in and administrative claim. Any administration enjoys the privileges of the public authority that renders it a strong party in the dispute. In fact, in most times, it becomes the defendant compared to the position of the individual who stands defenseless with no evidence. This resulted in issuing special rules and procedures for proofing in administrative litigation, the most important of which are related to the authority of the judge in administrative cases, especially with regards to the burden of proof.

The study showed that the role of the judge in the elements of proof is two-fold; he exercises a procedural role related to the preparation and progress of the case together with verifying the validity of documents and administrative papers, whereas the objective role relates to the extraction of judicial evidence which contributes to alleviating the general rule of the burden of proof. The most important of those evidences are deviation from authority, complete knowledge and mistakes in upholding responsibility. This role also holds important implications, especially with regards to the authority of the judge in this regard, in addition to his/her positive role through intervention to mitigate the unjust effects of the burden of proof in the proof phase.

The research concluded with a number of findings and recommendations, the most important of which is that: the introduction means of proof in civil matters must be to the extent that is commensurate with the nature of administrative articles governed by the doctrine of free evidence, considering that it is compatible with the powers of the judge in general, and the administrative proof in particular. The Yemeni and Moroccan legislators do not adopt this system, preferring as other contemporary legislators a mixed doctrine as in Egypt. A system that is consistent with evidence in civil cases. This situation reflects absence of legal text related to evidence in administrative disputes and limited specialized courts in administrative cases. The Yemeni judiciary is based on the unity of judiciary and litigation, hence administrative disputes are subject to the civil law and the judge will apply the Civil Evidence Law.

We recommend to the Yemeni and Moroccan legislators to enact a law for administrative procedures specific to administrative judiciary and separated from the civil procedures law to incorporate all related issues. Also, it becomes imperative to establish a legal system for proof in administrative cases, as the application of general rules of proof to the ordinary administrative lawsuit violates the rights of the parties in the administrative dispute as well as the administrative law itself.