Guarantees for the Enforcement of Administrative Judgments and Enforcement Disputes between Voluntary Compliance and Coercive Enforcement – A Comparison between Iraq and Egypt

Abstract

This study presents a comparative analysis of the problem of guarantees for the enforcement of administrative judgments and enforcement disputes in the Iraqi and Egyptian legal systems, in light of legislative and judicial developments up to 2024. The importance of this problem is highlighted as the cornerstone of the effectiveness of administrative judiciary and a practical embodiment of the rule of law, given the fundamental tension between the res judicata authority of a judgment and the requirements of the functioning of public utilities and the immunity of public funds. The core problem revolves around the adequacy of existing legislative and judicial mechanisms to ensure the enforcement of judgments against a recalcitrant administration and to achieve a balance between voluntary compliance and coercive enforcement. The study adopted a comparative analytical method, relying on constitutional and legislative texts, the jurisprudence of administrative courts, and scholarly opinions in both countries. Among its most notable findings are: a deficiency and inadequacy in the existing legislative framework for enforcement disputes in the Iraqi system, coupled with weak direct financial coercion tools such as the astreinte (coercive fine), unlike the Egyptian model which, through progressive judicial interpretation, has established the astreinte mechanism as a more effective pressure tool; the study also confirms that the absolute and undiscriminating application of public funds immunity constitutes a formidable obstacle, and that the effectiveness of the guarantee system requires institutional integration with active oversight and administrative bodies. Despite the agreement of both systems on the principle that an appeal does not automatically entail a suspensive effect, the disparity in the scope of the devolutive effect and the criteria for staying execution impacts the stability of judgments. The recommendations are represented by the urgent need for the Iraqi legislator to establish specialized administrative enforcement judiciary and to codify the astreinte, along with formulating precise definitions of impossibility of enforcement, in order to ensure that administrative judgments are not stripped of their substance and to achieve effective justice.