The Right of the Jordanian Universities’ Staff to Seek a Lawyer’s Counsel during the Administrative Disciplinary Investigation

Abstract

The preliminary investigation stage, whether in the field of criminal or administrative law, is the stage prior to the consideration of the criminal or administrative case. This preliminary investigation must be accompanied by several general guarantees, including: The evidence of guiltlessness, the impartiality of the competent authority in this investigation, the guarantee of the speedy completion of the preliminary investigation, the codification of the preliminary investigation procedures, the confidentiality of the preliminary investigation for the public (others), the openness of the preliminary investigation for the parties to the case (the litigants) and their representatives, the presence of the accused in the preliminary investigation, and his right to seek a lawyer’s counsel.

The administrative disciplinary investigation procedures have their own specificity. Such procedures differ from the rest of the procedures in the penal field. Therefore, one of the most important matters that dominated the researcher’s concern is the major problem whose impact may be exacerbated, and related to the belief of the administrative heads, some deans of law faculties and their faculty members, investigation committees, and advisors jurists, directors of legal departments, and university lawyers, that the workers in those universities have no right to seek the assistance of a lawyer or defender during the disciplinary administrative investigation.

The legal or lawyer profession was not known to Arabs in the old times, but there was a so-called argumentator or controversialist, a person with a strong argument, who was able to spread the viewpoint of each party in the dispute. The poets were the most capable people to take on this task. Many contemporary jurists have also inferred the permissibility of the accused’s use of a lawyer, and they cited evidence from the Qur’an and Sunnah related to this context. Some say that the Islamic system had a so-called governor of crimes, and his job was similar to that of the Public Prosecution today. Moreover, the body that handled the preliminary investigation was the mandate of the grievances, and Islamic jurisprudence permitted the use of a lawyer based on the theory of absolute interests.

The right of the accused to seek a lawyer was mentioned in the Universal Declaration of Human Rights and in the European Convention on Human Rights. Moreover, it was stipulated by most of the various constitutions such as the Egyptian Constitution, the Constitution of the Soviet Union, the Constitution of the People’s Republic of China, and the United States of America, but it was not mentioned in the Jordanian Constitution. And I wish it had been stipulated despite the fact that there is an implicit provision for it in the Jordanian Code of Criminal Procedure and some special job regulations in Jordan. In this regard, a text was found in the job regulations related to universities allowing a worker in Jordanian universities to seek the assistance of a lawyer during the preliminary investigation before the administrative disciplinary boards, but such a text was silent about the right to seek the assistance of a lawyer before the administrative investigation committees, which led to the belief that it is not permissible for the worker in Jordanian universities to seek a lawyer’s counsel before such committees.

In short, in the absence of a clear text in the legal rules regulating discipline, the investigation authority is obliged to enable the employee, who has to undergo administrative disciplinary investigation, to use his right to seek the assistance of a lawyer to defend him. This right, when the law is silent, is merely an application and implementation of the general principles that regulate trials in general.

The important thing is that the consequences of not observing the guarantee of seeking a lawyer’s counsel during the preliminary criminal or administrative investigation reflects the invalidity of the disciplinary administrative decision because the guarantees of the administrative investigation, including the right to the assistance of a lawyer, are considered parts of the general order. A worker in Jordanian universities can object to what may happen in violation of legal principles, either the investigation authority responds to his objection, corrects the procedure, or rejects the objection, and this is recorded in the proceedings. In this way, the lawyer can raise the illegality of the procedure before the court in order to reach the invalidation of the evidence or evidence based on it.