Administrative Functions of Implementation and Adjudication Guided by Primacy of Fundamental Rights

According to Articles 8.1 and 25 of the American Convention on Human Rights, the right to effective judicial protection, a primary focus of the Rule of Law in Latin America, means the right to a competent, independent and impartial tribunal or court, guaranteeing due process of law, for the determination of individual rights, including those of an administrative nature. In the field of the administrative justice, the prerequisites for such protection are judges who are administrative law specialists and independent from the authorities responsible for the challenged decisions, as well as the reinforcement of procedural principles that enable weighing private interests against public interests.⁽²⁾ Pioneering efforts to establish such a self-standing, independent branch of administrative justice include the German administrative tribunal of Baden of 1864⁽³⁾ and the French Law of Reorganization of the Conseil d’Etat of 1872.⁽⁴⁾ Although no such division has been adopted in Latin American countries, the independence of the courts is considered to be an indispensable element of the contemporary justice system, as is expressly stated in the national and international laws and conventions in force.⁽⁵⁾

In keeping with the Inter-American system of human rights, the statutes and case law of many Latin-American countries have identified three dimensions of the right to effective judicial protection in administrative disputes.⁽⁶⁾

First, the judicial protection must be complete.⁽⁷⁾ The review of procedural and substantive lawfulness must include, where appropriate, a verification of whether the administrative authority exceeded the limits of its discretionary powers.⁽⁸⁾ In principle, government acts are subject to judicial review,⁽⁹⁾ but the question is still controversial in certain countries.⁽¹⁰⁾

Second, the judicial protection must cover every type of conduct of public authorities. Judicial review must cover not only an administrative authority’s acts or decisions that restrict the a citizen’s rights but also any negligence or culpable omissions on the part of that authority. In other words, procedural law must ensure that citizens are able to resort to the courts not only to challenge administrative decisions or acts that affect them adversely but also the authority’s failure to reply to a request or to provide a benefit to which the claimant believes himself to be entitled. The court must have both the authority to rule on the administrative authority’s obligations and the necessary powers of enforcement to guarantee that their ruling will actually be put into practice.⁽¹¹⁾

The third dimension of effective judicial protection concerns the timeliness of the protection. Judicial protection that comes too late is hardly helpful. Procedural law should therefore enable interim relief to be obtained quickly and easily in urgent cases, through petitions to prevent acts of undue interference by the administrative authority or to obtain declaratory judgments in case of danger in delay. The court should be able to order the administrative authority to perform or to refrain from performing an act. Interim relief should be available whenever interference with the citizen’s rights could have irreparable consequences.⁽¹²⁾

Two very different approaches to judicial organization have been taken to create a specialization in administrative adjudication. In general, in common-law countries (especially in the United States, United Kingdom and Australia) there are no specialized administrative courts but rather highly specialized quasi-judicial bodies within the administrative agency themselves. Given the high degree of expertise of those bodies in the relevant areas of administrative law, the courts generally show deference to their decisions with respect to questions of fact,⁽¹³⁾ and merely perform a “closed review” limited to questions of legality and procedure.⁽¹⁴⁾ Such judicial deference is made up for by the availability of “intra-administrative” dispute-resolution mechanisms within the agency (administrative tribunals, adjudicators, adjudicative bodies) which are endowed with quasi-judicial powers and sufficient independence to provide citizens with guarantees of due process of law and a fair hearing.

In most Continental European legal systems with civil law origins in contrast, the courts have a special division for cases, which tends to have broad powers to review the factual grounds for administrative decisions (an open judicial review). Such broad powers of review are intended to counterbalance the traditional absence of internal dispute-resolution mechanisms within the administrative authorities themselves. ⁽¹⁵⁾ Thus, regardless of the organizational system, administrative justice is always placed in hands of specialized adjudicators. The difference is that in the “Continental European” approach, administrative disputes are resolved by specialized judges within the Judiciary, whereas in the United States quasi-judicial bodies within the administrative agency play a decisive role, although they remain subject to relatively deferential closed review by the Judiciary.

This dichotomy has given rise to serious problems in Latin-American systems of administrative justice.As former Iberian colonies, the countries of Latin America inherited the Continental European legal culture, with its civil law tradition. Since the early 19^th Century, however, U.S. Constitutional law has exercised a strong influence on Latin-American countries. As a result, most of them have adopted a judicial system with “general jurisdiction,” meaning that the same courts handle both ordinary and administrative disputes. ⁽¹⁶⁾ Since those countries have not managed to cut all their ties with the European legal culture, however, their adoption of the U.S. model of general jurisdiction has not been entirely successful. Countries that have organized their Judiciary with general jurisdiction are now suffering from the weaknesses of both predecessor systems: the lack of specialized administrative courts in the U.S. model, combined with the absence of quasi-judicial bodies within the administrative authorities themselves, which is typical of the Continental European model.⁽¹⁷⁾

The adoption of a judicial system with courts of unified jurisdiction within a predominantly Continental European legal culture has led to the following situation in Latin America. At one extreme, in courts of general jurisdiction, Latin American judges are tempted to imitate the U.S. courts by refusing to review questions of fact underlying the challenged administrative decisions, merely checking for possible violations of the principles of legality and (above all) procedural due process.⁽¹⁸⁾Such deference to administrative authorities gives Latin Americans the impression of the immunity of the State that makes them feel vulnerable, since decisions are made by administrative authorities that lack the necessary prerogatives to exercise their duties independently, without having to fear negative repercussions from other authorities.

At the other extreme, the broad powers of review of administrative decisions enjoyed by Latin American courts, based on the European model, may paradoxically lead to undermining the effectiveness of judicial protection. Given the absence of specialized administrative courts, judges with excessively broad powers are able to rule on cases involving administrative agencies as though they were disputes between individuals, without due consideration for public interests; in other words, they tend to apply principles of private law and civil procedure to disputes with public administrative authorities. ⁽¹⁹⁾ This is especially true in Brazil, which, to this very day, still has no general code of judicial procedure for administrative adjudication.⁽²⁰⁾

As we have seen, the justice system in Latin America has serious deficiencies.

After over two centuries of a judicial system consisting solely of courts of general jurisdiction, it would not seem the best option at this point to start discussing specialization of the courts. Indeed, the future of Latin American administrative justice depends on compensating for the lack of specialized administrative courts by endowing administrative agencies with guarantees of procedural due process, as established by the 5^th and 14th Amendments to the U.S. Constitution and adopted by most Latin American national constitutions.⁽²¹⁾

Yet there is another problem, as well. It is indispensable for the state to provide independent and impartial dispute-resolution mechanisms, whether exercised by the courts in fair trials, or by the public authorities in fair hearings. Similarly, the executive duties (implementation functions) falling within the competence of the administrative authorities must not be left out of the equation, because it is the faulty performance of such duties that is the root cause of individual complaints against the administrative agencies.

The increasing number of such disputes is an obvious sign that the administrative agencies are not functioning properly and that citizens have lost faith in their primary activities (implementation functions), or at least have greater faith in the courts than in the administrative authorities. Civil servants commonly tell citizens that although their claims may be well-founded they have no chance of success within their own agency, so that they should assert their claim in court. The primary question is what the role of the executive agencies should be in contemporary society. Should they merely apply administrative regulations and statutes to the letter, or should they also respect the guarantees of fundamental rights under national constitutions, international conventions and case law of international courts of human rights?

Although it may seem obvious that administrative authorities should seek to protect fundamental rights, the question is how they should do so. What structure should be used? Do civil servants in decision-making positions require legal qualifications? Do they need to be independent? ⁽²²⁾ Do they need to be impartial? It is time for us to look for a model of administrative authorities that are equipped with (quasi-judicial) instruments allowing them to be guided by the public interest and by the principle of proportionality in order to make difficult choices when confronted with conflicting fundamental rights in favor of an individual or a community.

It is a rather thorny issue but needs to be addressed, especially now that the notion of “diffuse conventionality control” has been introduced by the Inter-American Court of Human Rights. According to that concept, formulated in 2014 in the Case of Expelled Dominicans and Haitians v. the Dominican Republic, the duty to comply with American Convention of Human Rights, as interpreted by the Inter-American Court, extends to all administrative agencies, without exception.⁽²³⁾

It is therefore necessary to rethink the current model of public administrative authorities in Latin America; should they continue to be entities inseparable from the government, with key decision-making positions occupied by officials who are appointed and removed on the basis of political criteria rather than qualifications and expertise? In fact, the extent to which the Judiciary requires a branch specializing in administrative disputes is inversely proportional to the degree to which administrative authorities play their role properly: the more effective the protection of fundamental rights by administrative agencies, the more citizens will have faith in them and the more deference will be shown to them by the courts, and thus the less need there will be for specialized administrative courts.

In conclusion, it is time to stop pinning all the blame for the ineffectiveness of administrative justice on the judicial system and laws of procedure alone. On the contrary, Latin America should come to terms with its judicial system of courts of general jurisdiction, while progressively reducing the role played by the courts in administrative disputes thanks to an administrative reform ensuring the primacy of fundamental rights in the implementation and adjudication functions of the agencies.

We need to think about a reform that would induce administrative authorities to act as a voice of the public interest rather than as an end in themselves or as entities for the protection of their own momentary financial and political interests that are not clearly bound by a duty to protect fundamental rights.

When I refer to “specialised courts”, I mean “a branch” of the Judiciary devoted to conflict resolution in the area of administrative law, in which the judges are hired for the expertise in administrative law and always work in that field of specialisation. I do not consider “specialised courts” to include courts whose judges are not appointed by law to act exclusively and specifically in a court specializing in administrative law. Latin America generally has courts of general jurisdiction (including both private law and administrative law).⁽²⁴⁾ They are specialized only under certain circumstances, at certain times or in certain places, through the internal organization of the Judiciary itself, without uniformity and with no guaranteed tenure of the judges who perform such specialized duties. In Brazil, for example, there is the Federal Justice System, which approximates the concept of a specialized court but is not exactly a court specializing in administrative law. Since Brazil is a 3-level federal republic, the Federal Justice System exercises jurisdiction over administrative law in cases of interest to the federal administrative authorities.

Yet this involves not only conflicts of administrative law, but also conflicts between private citizens as well as criminal cases of interest to the federal administrative authorities. The federal judges are not hired solely for their expertise in administrative law and are not guaranteed a permanent position in bodies specializing exclusively in administrative law. Over the course of their career, they may be transferred to other bodies of the Federal Justice System.

Thus, in my opinion, there are no special administrative law courts in Brazil, or in Latin America in general, with the exceptions of Colombia, Guatemala, Dominican Republic, Uruguay and Mexico, which have real specialized administrative law courts.⁽²⁵⁾

When I refer to administrative agencies, I am thinking of the U.S. model of adjudication of administrative disputes. Administrative agencies are bodies of the Public Administration, which I consider synonymous with the term “administrative authorities”. Such authorities or agencies may do double duty, with purely executive duties typical of bodies of the Executive Branch, as well as quasi-judicial duties of adjudication to resolve disputes between citizens and public administrative authorities.

The agencies and authorities that exercise quasi-judicial duties of adjudication are also called administrative tribunals, which are not to be confused with administrative courts. Administrative tribunals are bodies of the Executive Branch (agencies and authorities), typical of the adjudicative models of the United States, United Kingdom and Australia;⁽²⁶⁾ administrative courts are specialized bodies of the Judicial Branch, typical of the adjudicative models of Continental Europe. Brazil and Latin America have adopted the U.S. model’s courts of unified jurisdiction but without incorporating the compensatory mechanism typical of the U.S. system, namely intra-administrative dispute resolution through specialized administrative tribunals or quasi-judicial bodies within the agencies or administrative authorities themselves. In Latin America, there are no extra-judicial bodies capable of final and enforceable decisions in conflicts between citizens and public administrative authorities. Only the courts of the Judiciary are empowered to issue a final and enforceable judgement in such cases. The only exceptions are Uruguay and Mexico, which have court-like tribunals outside the Judiciary.⁽²⁷⁾

I wish to say a few things about the principle of party autonomy, a term borrowed from Dr. Nataliya Bocharova, who discussed the subject so well in Volume 3 of the Brics Law Journal.⁽²⁸⁾

The principle of party autonomy, also known as the dispositive principle, gives rise to arbitration and other mechanisms of consensual dispute resolution between citizens and public administrative authorities. In Brazil, the term “direitos indisponíveis” (“inalienable” or “unavailable” rights), which sets the limits of the principle of party autonomy, is not well defined. Such “inalienable rights” are often confused with the interests of the administrative authorities.⁽²⁹⁾ In fact, however, only “public interests” rather than the interests of the administrative authorities should qualify as “inalienable rights”. This means that in Brazil, in practice, only questions of private law involving administrative authorities are subject to the principle of party autonomy and related consensual dispute resolution mechanisms, such as arbitration and mediation.⁽³⁰⁾ I’m sorry to say that this lack of distinction between the public interest and the interests of the public authorities is the fault of the justice system and procedural laws in matters of administrative law. Since it is not necessary to determine whether a dispute should be classified as a matter of administrative law or ordinary law in order to assign it to an ordinary court or specialized administrative law court, there is no reason to define detailed criteria to distinguish between the public interest and the interests of the authorities.

Brazil’s backwardness in arbitration and other means of consensual conflict resolution between authorities and citizens can also be explained by the low level of expertise of the civil servants in charge of decision-making within the administrative agencies. In addition to better legal training, Brazilian civil servants should be provided with institutional guarantees allowing them to make independent and impartial decisions without fearing negative repercussions from other authorities.

In a judicial review to determine whether or not an administrative authority exceeded its proper margin of discretion, several factors must be taken into account; the greater the authority’s independence, impartiality, legal qualifications and specialized expertise in specific subject areas, such as health, environment and energy, the less likely it is to make arbitrary decisions and the less judicial review will be necessary.⁽³¹⁾ In practice, administrative authorities endowed with such characteristics should be granted a greater margin of discretion and the resulting decisions should be shown greater deference by ordinary courts of law. Since the authorities generally lack such characteristics in Brazil, the courts have full powers to review the exercise of their discretionary powers.⁽³²⁾ In that situation, judicial review of administrative powers always reveals that the authorities exceed their statutory limits of authority or violate fundamental rights and principles such as equality before the law, proportionality and legitimate expectations. Such assertions are not provided for by law but that is what happens in practice in Brazil.⁽³³⁾

Regarding injunctive relief measures, first of all it should be remembered that Brazil does not have a specific code of procedure for administrative law cases. We use the Code of Civil Procedure, which contains certain specific articles for causes of interest to the administrative authorities, but in general administrative law cases are governed by the same rules of procedure as private-law cases.⁽³⁴⁾ In this context, in principle, non-specific injunctive measures (including measures to preserve the status quo pending final judgment or to join similar claims in the interests of procedural efficiency) are permitted for any type of claim against the administrative authorities. A common example of an unspecified injunctive relief measure is a provisional court order instructing the authorities to supply a medicine or health care service to a private claimant. If the authority fails to comply with the court order, the judge is empowered to seize the corresponding amount of money and pay it to the claimant.

There are certain restrictions on granting injunctive relief, however: general and specific restrictions. One example of a general restriction is protection of the public interest;⁽³⁵⁾ no such measure can be granted if it would create a risk of harming the public interest. An example of a specific restriction is the prohibition on injunctive relief to increase the remuneration of civil servants.⁽³⁶⁾

The traditional form of enforcement of orders instructing an administrative authority to pay a certain amount is called “precatório”.⁽³⁷⁾ It consists of an extrajudicial administrative procedure in which the administrative authority asks the Legislative Branch for budgetary resources and, once such funds are available, they are passed on to the Judiciary, which then pays the claimant.⁽³⁸⁾ In case of urgent need, however, case law allows for debt enforcement against the authorities, that is to say enforcement through expropriation of public funds that are not allocated to an essential public service.⁽³⁹⁾ The enforcement of other types of claims against the authorities (not involving orders to pay) is handled in the same way as enforcement of judgments against private entities. That is to say, they are enforcement measures of financial coercion, such as an order to a civil servant to pay a per-diem fine payable by the civil servant until he complies with a court order.⁽⁴⁰⁾

In practice, however, such enforcement must respect public interests (although there are no provisions of the Code of Civil Procedure specifying the public interest as a factor limiting the enforceability of judgments against the authorities). The only restrictions on the enforcement of judgments against public administrative authorities are provided by certain specific procedural laws.⁽⁴¹⁾

There are at least 65 million administrative law cases pending trial in Brazil, about 40 million of which concern the enforcement of decisions by the tax office that restrict individual rights.⁽⁴²⁾ Most of the claims are repetitive, mainly because even when the court rules in favor of an individual’s claim based on a general interest to society, the administrative authorities do not willingly recognize the same right among the general public. For example, if a court grants one civil servant’s claims for a salary adjustment, the other civil servants must each go to court in order to obtain the same benefit. The authorities prefer to await a final decision of the Supreme Court, which means there is a tendency for all the civil servants to file a new legal action.

Another major cause for the high number of legal actions in Brazil is that authorities tend to use the Judiciary as a means of enforcing their administrative decisions that restrict individual rights. ⁽⁴³⁾ In general, the authorities do not have the necessary prerogatives to conduct independent adjudication and the decisions are made by civil servants with no legal training. As a result, citizens have lost faith in the administrative authorities. This is the reason why the laws of procedure continue assigning to the Judiciary the role of enforcing administrative decisions against individuals.⁽⁴⁴⁾

In fact, judicial enforcement of administrative decisions is dysfunctional. It is a case of role reversal: the administrative authorities cease to exercise their power of “autoexecutoriedade,” according to which they should be able to enforce their own decisions without judicial interventions, while the courts enforce administrative decisions instead of protecting the rights and settling the disputes of private claimants.

According to the case law of the Inter-American Court of Human Rights, all administrative authorities are required to respect the American Convention of Human Rights as interpreted by the Inter-American Court.⁽⁴⁵⁾ That means that whenever the authorities are faced with a national law that is contrary to the American Convention of Human Rights, it should interpret that law in such a way as to comply with that Convention. Nevertheless, if the resulting interpretation tends to interfere with the intended purpose of law then the administrative authority must apply to the Supreme Court for a preliminary opinion on the constitutionality of national laws.

In any case, the system of “conventionality control” is a way of forcing the administrative authorities to respect the supremacy of fundamental rights. To do so, however, the administrative authorities need legal training and prerogatives to act with greater independence vis-à-vis other authorities with contrary political interests.

The doctrine of “conventionality control” favors a harmonious relationship between the Executive and Judiciary powers, which come to act rationally, always searching to protect fundamental rights.

The Ibero-American Institute of Procedural Law’s Model Code of Administrative Procedure in Judicial and Administrative Proceedings is not an enforceable law but rather an academic proposal drawn up by legal scholars affiliated with the Ibero-American Institute that may serve as a model to be followed by Latin American countries of Iberian origin.⁽⁴⁶⁾The Model Code has incorporated the experiences of certain countries with judicial and extrajudicial proceedings involving administrative law cases. As a result, the Model Code has consolidated such experiences related to basic principles of administrative justice that may be of benefit to other Latin American countries.

The Model Code takes as its premise that administrative authorities lack dispute-resolution proceedings guaranteeing due process and therefore proposes innumerable duties to be imposed on the authorities in dispute-resolution, such as respect for the principles of impartiality, proportionality and legitimate expectations. Consequently, the Code encourages courts to perform close judicial review of both procedural and substantive issues of administrative decisions, including the exercise of their margin of discretion.

I am not aware of any national law in Latin America that has adopted the Model Code or any of its articles. Nevertheless, there is a noticeable trend for case law in Latin American countries to adopt principles similar to those expressed in the Model Code. Here are three examples:

The Euro-American Model Code of Administrative Justice was an initiative of Federal Fluminense University in Rio de Janeiro, in partnership with the University of Speyer, in Germany.⁽⁴⁸⁾ Contributions to the Code were made by legal scholars from the University of Buenos Aires, Universidad Externado da Colombia, the University of São Paulo, the Max Planck Institute of Munich, the University of Erfurt, University of Milan, University of Paris 1 and the University of Jaume 1, in Spain. The Euro-American Model Code was finished in 2010, two years before the Ibero-American Model Code, but it was not published until 2014.

The basic differences between the two model codes are as follows:

In terms of the contents, there are few differences with respect to administrative adjudication in court. Both model codes adopt the premise that administrative authorities do not perform the function of quasi-judicial adjudication. The procedural principles of both model codes therefore allow for full, close judicial review of administrative decisions.