Baraa N. I. The administrative customary and its impact on the perpetuation of the rights of the public employee: A comparative study

Abstract

The state, in its pursuit of achieving its goal of ensuring the regular and consistent operation of public utilities through the establishment of regulations and instructions governing the work of the administrative institution and its personnel, aims to reach the fundamental purpose and objective of its work, which is the realization of public interest.
In its endeavor to achieve its objective of satisfying public needs, the state requires an effective legal framework to govern public office. Legislation (written text) emerges as the general principle for regulating the affairs of this function. However, administrative custom enters as a very important source alongside legislation, albeit an unwritten one, in order to fill legislative gaps in some areas, interpret ambiguous texts, and complete provisions that may be inadequate to address the developments and changes occurring in public administration.
The importance of administrative custom in the field of public office is evident, as it has become a significant source for many administrative rulings and decisions that have become indispensable in the field of administrative work. It establishes rights for employees, provided that it is characterized by antiquity, generality, and continuity, and does not contradict an existing legal text. It is also characterized by flexibility, to the extent that it has become binding on both the administration and administrative judiciary, as the judge is presumed to have knowledge of the administrative customary rule just as they have knowledge of the legal text.
In Iraq, we note that administrative custom has not attained the status it enjoys in Egypt and France, for example, in terms of studies and judicial applications, in addition to the legislator's lack of interest in administrative custom. It is worth noting that constitutional custom, for instance, holds supremacy even over legislative texts and is considered an important source according to the principle of legislative hierarchy.