Administrative Functions of Implementation, Control of Administrative Decisions, and Protection of Rights
Data publikacji: 06 kwi 2021
Zakres stron: 1 - 25
DOI: https://doi.org/10.2478/bjals-2020-0015
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© 2021 Ricardo Perlingeiro, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
This essay includes a comparative analysis of the origins of administrative law in Latin America and their impact on the contemporary scene and trends in the general orientations of the its administrative justice systems. This analysis is limited to Latin American countries of Iberian origin under the jurisdiction of the Inter-American Court of Human Rights (“I/A C
This text reflects my own view of laws, case laws and administrative practices, which do not always match the dogmatic model accepted in Latin American countries. Therefore, it contains new approaches, such as the difference between ‘protection of rights’ and the ‘control of legality of decisions’, mainly founded in the individual collective dimensions of administrative implementations and adjudications (sections II.A and III.A, B, C and D). However I believe my role is predominantly descriptive from the point of view of the Inter-American Human Rights System, which have gradually become present in Latin American administrative law. I specifically focus on the concentrated control of administrative decisions (itens III.D and E), on the reassignment of adjudicative powers to extrajudicial bodies (item IV.A), and on the decisions of implementations subject to the due process clause (item II.C) – all these being tendencies of the Latin American administrative law.
In Latin America, the substantive bases of administrative law remain rooted in French law. For the last 200 years, Latin American administrative law writings have been guided by French administrative law and by the laws of countries whose legal systems are based on it, such as Italy and Germany.
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The interest of Latin American legal scholars in English and American law has focused on the judicial system, in which the jurisdiction of the ordinary courts extends to conflicts between citizens and the administrative authorities. That approach was once considered more appropriate to liberalism,
J T
Many of the origin Iberian countries in Latin America that gained their independence in the early 19th Century began to adopt the U.S. constitutional model,
R Ricardo Perlingeiro,
The main peculiarity of Latin American law is the problematic co-existence of administrative law inspired by the civil-law legal system and the judicial model inspired by the common-law system.
Moreover, the 1970 U.S. Supreme Court case of Goldberg v. Kelly, 397 U.S. 254 (1970). Perlingeiro,
Despite such normative provisions in Latin America, however, prerogatives intended to enable acting with a
On the other hand, the Latin American courts, in absence of a specialized jurisdiction, tend to have less administrative expertise than European courts. Consequently, they generally treat administrative disputes as though they were private-law disputes. As Abram Chayes puts it,
Abram Chayes,
It should be noted that in the common-law world, the basic principles of administrative law have been worked out by the ordinary courts by analogy from the principles of private law.
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The question is therefore sensitive in Latin American law, especially because courts not specialized in administrative law, reacting to the absence of a fair hearing in the administrative sphere, do not show deference to the administrative authorities and therefore review their administrative decisions in their entirety
Barbani Duarte et al. v. Uruguay, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 234, ¶ 204 (Oct. 13, 2011); Corte Suprema de Justicia de San José de Costa Rica [Supreme Court of Costa Rica], Exp. 04-011636-0007-CO, Res. 03669-2006 (Sentencia, 15 Mar. 2006). Available at:
That is the main factor of disequilibrium in the Latin American legal system: if the courts are neither specialized nor inclined to show
As a logical corollary of the current situation, Latin American courts have ended up fragmenting the non-political executive's duty of guaranteeing equal treatment before the law. Decision-making is performed by administrative authorities according to administrative law principles based on law, public policies and discretionary administrative powers, with a focus on the public interest. However, claimants are often confronted with administrative decisions that are neither issued with guarantees of due process in the administrative sphere nor are subject to review by quasi-judicial administrative bodies. Such decisions are likely to undergo full judicial review by ordinary courts, which tend to focus on the bilateral nature of the case (private-law principles) rather than on the structural basis of the public interest (public-law principles).
Latin American law must search for its own identity capable of transcending its European heritage because certain characteristics of the French matrix, with its broad powers of review of administrative decisions and the absence of quasi-judicial authorities, are incompatible with the English matrix of administrative law (with its courts of general jurisdiction).
Latin America's greatest historical challenge in administrative law has been to establish guidelines defining the institutional roles assigned to the legislature, political executive, non-political executive (“the bureaucracy”), tribunals and courts for the creation of legislation and implementation of laws, including the creation of administrative rules, and adjudicatory protection of rights, without departing from the Rule of Law as a prerequisite for administrative law and from the guarantees of due process as a basis for fair and equal administrative justice, starting from certain well-established structures in both the civil-law and common-law systems.
I recognize that the public decision-making functions will be allocated to powers typical of the State, in keeping with the realities of each legal system.
Michael Asimow,
The decisive question in Latin America therefore seems to me to consist of defining each of the above-mentioned branches of the State and their prerequisites, in accordance with the historical evolution of the essential basis of Latin American administrative law, in such a way that the allocation of powers to different spheres of public decision-making does not cause either a duplication or an absence of functions in practice.
To do so, it is not enough for an administrative authority to be empowered to protect rights: it must also have the various structural bases needed to perform qualified, independent and impartial adjudication; it is not enough for a court to claim to produce decisions with general effects if it lacks the corresponding democratic constitutional legitimacy; it is not enough for a court to opt for deference to the administrative authorities if such authorities are incapable of protecting rights or implementing statutes effectively.
Nor does the principle of separation of powers suffice to explain certain contemporary phenomena such as the highly decentralized internal structure of public administration in the U.S.
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As noted, the difficulty in understanding the diversity of the authorities’ roles in relation to other spheres of power is certainly not unique to Latin American administrative law, but the difficulty is more obvious in Latin American countries which are former Iberian colonies because of the inadequate combination of two rather complex and distinct judicial models.
The case law of the I/A Court H.R. takes precedence over national law in countries under its jurisdiction. It has recently been established that the Expelled Dominicans and Haitians v. Dominican Republic, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 282, ¶ 471 (Aug. 28, 2014). Cabrera-García & Montiel-Flores v. Mexico, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 220, ¶ 33–5, 42, 44, 59 (Nov. 26, 2010).
The Court was faced with a question of special interest for administrative law in the case of Claude Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151, ¶ 119–20 (Sept. 19, 2006).
It is also worth mentioning that the above-cited case of OAS, AG/RES. 2607 (XL-0/10) (2010).
As we have seen, such perspectives indicate the tendencies in Latin American administrative law, which are converging with the principle of good administration enshrined in Article 41 of the EU Charter of Fundamental Rights (“CFR”), while also approximating the due process clause in the administrative sphere, as in the above-cited case of
It is also clear that Latin American law is moving towards a judicial model similar to the U.S. model of an administrative state with quasi-independent agencies,
Agustín Gordillo,
That is why this
The expression
One type of implementation has an
To provide more context for the topic in Latin American law, however, I bring another type of administrative decision as a form of
Decision-making with general effects, which is included under the heading of
In the case of a decision that deprives an individual of rights, implementation merely refers to the front-line decision that gives rise to the proceeding in question, which is necessarily followed by an
In this context,
In 19th Century Latin America, administrative decisions likely to have general effects were associated with Castillo Velasco,
Thus, from the standpoint of contemporary Latin American law, I associate the expression
In fact, the reason why a decision of general effect, associated with the governmental decision, can generate personal responsibility of the ruler (administrative, civil, criminal responsibility) is the fact that such a decision cannot be motivated completely by criteria that are extraneous and immune to law.
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Moreover, the discretionary policy-making margin for the decision-making authorities, now under pressure from fundamental rights, implies that, in a contemporary reading, the expression
Thanks to an elastic view of the right to a fair trial,
American Convention on Human Rights (‘Pact of San José, Costa Rica’), art. 8.1, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR]. T G G
The tendency to reduce the definitional scope of governmental decisions can also be explained by a constant, growing and regrettable trend towards
The principle of administrative legality in Latin America, under German influence, currently manifests itself with dual connotations: the primacy of legality, asserting that the Constitution prevails over administrative norms and laws; and the H
Thus, implementation decisions under Latin American law, which used to be aimed solely at putting the law into practice in the literal sense, now tend to be guided by considerations of constitutionality and fundamental rights or principles such as equal treatment, legal certainty and protection of legitimate expectations.
Moreover, according to the case law of the I/A Court H.R. applicable in Latin America, not only the courts but also the administrative authorities must adhere to the ACHR, on the terms interpreted by the I/A Court H.R. itself.
The implementing decision-makers are therefore subject to the duties of transparency, publicness, efficiency and morality as well as their duties to grant interested parties a prior hearing and explain the grounds for their decisions in order to prevent arbitrariness and to enable the injured individuals to challenge the decisions.
Less importance is attached to
It is therefore apparent that implementation decisions tend to avoid conflicts as much as possible, i.e., to anticipate the functions of control and protection of rights, in keeping with the fundamental principle of the right to good administration
Charter of Fundamental Rights of the European Union, art. 41, Dec. 18, 2000, 2000 O.J. (C364/1).
Thus, the authorities’ decisions are no longer subject to the sole criteria of strict administrative legality but must also comply with the constitution and international conventions. This results in a practical problem: how, in practice, will administrative authorities and their bureaucrats in decision-making positions be able to challenge
In Latin America, civil servants used to have difficulty defending their rights
J Lei No. 8.112 art. 149, de 11 de Dezembro de 1990, D
The lack of expertise is being made up for by the availability of legal advisors, but firstly their legal opinions are not binding on the decision-maker and, secondly such arrangements may give the impression that, in practice, the decision is made by the legal advisor rather than by the administrative decision-maker.
The lack of tenure results in the vulnerability of civil servants exercising a certain range of powers, because tenure is a
It should also be noted that impartiality is becoming necessary not only in adjudicatory functions but even more so in administrative implementation functions. Since the implementing decision-makers constantly make difficult choices between private interests and public interests, they must remain equally distant from both.
Decision-makers and authorities need to enjoy independence from such interests (external independence). Decision-makers must be provided with adequate remuneration and the authorities must be integrated to institutions endowed with sufficient administrative and financial autonomy. Contrary to the example of Ecuadorian law,
Decreto No. 2428/2002 art. 10 (2002) (Ecuador).
Front-line decisions in the exercise of powers depriving individuals of rights are often confused with adjudicatory decisions. That is a mistake because they are subject to different principles. Adjudication is shaped by principles inherent in due process and is designed to require the State to issue a decision that resolves a conflict in which it is involved.
An
In the exercise of regulatory or disciplinary administrative powers, front-line decisions are examples of administrative implementation decisions concerning individuals: the preliminary investigation phase, in which the authority's staff investigates whether an individual should be targeted for a sanction or other regulatory order and makes a front-line decision accordingly. The same is true of the authorities’ power to revoke
The decisions related to such powers are issued
Thus, during a preliminary investigation, the authorities have no duties to the investigated parties beyond those generally required of implementation functions, since no adjudicatory function is involved.
In Latin America, the absence of a clear dividing line between implementation and adjudication in the exercise of administrative powers restricting individual rights has caused misconceptions in two different respects: 1) the presumption of legality of administrative condemnatory decisions, which in fact should be preceded by a genuine fair hearing, without exposing the applicant to the risk of reversal of the burden of proof, and 2) court orders that require administrative authorities to always precede their front-line decisions by a complete fair hearing, based on an out-of-context interpretation of the statutory and constitutional norms of due process in the administrative phase. Since it is not the nature of a front-line decision to be preceded by a fair hearing, the authorities fail to comply with the judicial decisions, so they are paralyzed and the disciplinary proceedings end up being time-barred.
Benefits claimed by citizens are granted through an application decided on by a front-line decision-maker. Such is the case of pension and healthcare benefits, participation in public competitions to fill vacancies in (public) universities and schools, or government jobs.
As explained in the previous section, a front-line decision, as an implementing decision, is not preceded by a complete fair hearing. However, if a front-line decision regarding an application for a benefit indirectly causes harm either by denying or granting the applicant's claim, the decision is subject to appeal in a fair hearing typical of adjudicatory functions.
A grey area between implementation and adjudication has also formed here in Latin America. Only recently, statutes that made a judicial appeal conditional on a prior front-line decision were questioned by constitutional courts, which argued that such laws unduly restrict the constitutionally guaranteed right to adjudication in a court of law. That argument is clearly based on the false premise that a front-line decision has the same value as an administrative adjudicatory decision.
STF, RE631.240, Relator: Min. Luís Roberto Barroso, 03.09.2014 (Braz.). Available at
In fact, if despite being provided for by law adjudication in the administrative sphere does not fully satisfy the due process clause, it means that individuals should have access to another sphere of power of review. In general, it is the law courts that provide such a space in Latin America.
However, front-line decisions on the required benefits cannot be replaced by courts or adjudicators under any circumstances, or else there would be a disproportionate reversal of institutional roles: the channel of courts or adjudicators is not the most suitable, because they lack the special qualifications for initial evaluation of an application.
Corte Suprema de Justicia de San José de Costa Rica [Supreme Court of Costa Rica], Exp. 04-005845-007-CO, Res. 6866-2005 (Sentencia, 1 Jun. 2005) ¶ VIII, A (Costa Rica). Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], 11/02/2014, “Biosystems S.A. c. Estado Nacional - Ministerio de la Salud – Hospital Posadas / contrato administrativo”. Available at
In fact, no decision issued by a governmental authority is exempt from control of A Arts. 3–5 of Euro-American model code of administrative jurisdiction.
The distinction that I propose between the control of the legality of administrative decisions and the adjudicatory protection of rights mainly lies in their collective and individual dimensions. The control of administrative decisions is always from a general perspective, whereas the protection of rights is individual by nature. Even in the case of the control of an administrative decision affecting an individual, the interest at stake is not individual. Rather, society has a general interest in seeing the authority correctly implement the administrative norm and law.
In other words, the control of administrative decisions is unsuitable to protect the rights of individuals, since it is comparable to G
Unless there is an intersubjective dispute (conflict between individuals or entities) in practice, the controlling entity exercises a quasi-consultative or normative function in light of the general effects of its decision on the legality of an administrative decision. This means that despite the control of decisions exercised by courts, tribunals or the legislature, unless it concretely involves the infringement of an individual's right, such control is classifiable as a governmental function
Adjudication is a governmental function that is only indispensable to satisfy individual or
Although the function of protecting rights is a form of control over the authorities, such control is only indirect. An administrative authority's act that has been found to be illegal in an adjudicatory proceeding is an indirect prerequisite for protection of rights. Yet not even the prerequisite to recognize an individual's rights can or should always be evaluated by the adjudicator, because adjudication directed at the individual is not always compatible with the collective dimension of the control of administrative decisions.
I do not intend to argue that the courts or other adjudicatory bodies lack democratic legitimacy to rule on the control of administrative decisions. It is not my objective here to indicate which spheres of power and bodies are competent to control the legality of the authorities. That is a question to be submitted to the political and cultural organization of each State.
Actually, my objective is to point out that a system of control of the legality of decisions does not become adjudicatory just because it can be decided by a court (Nunes 1943, 5), and that the individual's right is the decisive factor in adjudication, since an adjudicator's primary mission is the protection of rights, rather the control of legality of administrative decisions.
The credibility enjoyed by each sphere of authority or administrative entity in a society also depends on that question. It is well known that in countries where the authorities have lost their credibility and structural framework, it may be necessary to assign jurisdiction to the courts to decide on the control of
In Brazil, the Lei No. 8.429, de 20 de Novembro de 1992, D C
These are court claims related to administrative issues in which any citizen has standing to sue, even if he is not directly interested in the subject matter of the dispute, since such actions are based rather vaguely on a democratic system of direct participation.
On the connection between popular participation, credibility of institutions and dictatorial regimes, P
Although such role reversal is understandable, it is sometimes disproportionate and may cause institutional dysfunctions. The price of co-existing with adjudicatory decisions that are neither democratic nor egalitarian may be too high.
Jerry L. Mashaw,
Allowing the courts and adjudicatory authorities to rule on administrative questions with general effects, including when raised as the basis of an individual's claim,
Law No. 19.549, Apr. 3, 1972, 27 de Abril de 1972 B.O. 6, art. 24 (Arg.); Law No. 8.508/2006 art. 36.3 (Costa Rica); L. 1/437 art. 189 ¶ 2, enero 18, 2011, Diario Oficial [D.O.] (Colom.); Law No. 152-87/1987 art. 129 (Hond.); Law No. 189-87/1988 art. 30 (Hond.).
The effectiveness of the control of administrative decisions having general effects depends on the expertise and, above all, on the democratic aptitude of the decision-maker exercising the control. In addition, an appropriate proceeding is needed to ensure that the decision resulting from the control produces general effects accordingly.
Ricardo Perlingeiro,
The
In the case of an administrative decision concerning an individual, the control of that decision should always be directed against government bodies, never against individuals, even if the decision favors the latter. If, as the result of a control, the controlling body indicates that the sphere of a certain right of an individual may be infringed, it is up to the initial authority or to the controlling body itself to provide the applicant with a fair hearing – the right to adjudication. In such situations, the decision by the controlling body will be final for the controlled authority, but equivalent to a
It seems to me that the legal systems that adopt concentrated control of constitutionality of laws and of legality of administrative norms have greater affinities with the notion that the control of administrative norms is subject to a differentiated procedure with respect to adjudication.
J Juan Carlos Cassagne, Law No. 135/1943 (Procedimiento Gubernativo) arts. 29–42 (Pan.); Ley No. 350, 18 May 2000, Ley de Regulación de la Jurisdiccion de lo Contencioso – Administrativo [R Law of Regulation of the Jurisdiction of Administrative Litigation] tit. II, art. 17(1)-(2), tit. IV, chs. I-II, arts. 35–45, L
Moreover, allowing an individual's claim based mainly on a question of general interest (validity of the law and administrative norm) to be decided in favor of the individual alone, which partakes of the nature of the adjudication function, amounts to splitting administrative law in two: one part in relation to the claimants, another in relation to the non-claimants. Adjudicators should not lend themselves to that role.
A new light has been cast on this topic by I/A Court H.R. starting from the premise that if the administrative implementation and adjudication authorities lack the power to exercise constitutionality control under the laws of their respective States, then they will also lack the power to exercise conventionality control I/A Court H.R., n. 15, paras 37, 39. Sergio García Ramírez,
In countries that adopt a system of concentrated constitutionality control, as in Continental Europe, such a measure goes unnoticed because the thesis of the I/A Court H.R. is quite consistent with such a system.
In Latin America, countries that adopt a system of diffuse judicial control of constitutionality under the influence of U.S. constitutionalism, however, the administrative implementation and adjudication authorities are in an uproar because they lack authority to rule on a conventional or constitutional question that challenges the national law and must therefore await the decision of a judicial body of constitutional control. In general, however, any judicial body can rule on any constitutional or conventional matter immediately, which encourages filing claims in court and creates opportunities for further fragmentation of administrative law.
I therefore hope that the interlocutory request for a ruling on conventionality submitted by the authorities will serve as a reference so that interlocutory requests for rulings on legality and constitutionality (involving administrative questions with general effects) will become part of Latin American administrative law in relations with the administrative and judicial sphere.
The
However, allowing the assignment of adjudication to any one sphere of power does not amount to authorizing it simultaneously in several spheres of power. That would involve an overlap of public resources for the same purpose and would weaken legal certainty with a delay in dispute resolution.
In the case of government bodies intended to protect an individual's rights against administrative implementation decisions, their A
In a way, that is what is happening with the doctrine of judicial deference, which is facilitated by the existence of quasi-independent entities, such as the LAJ in the USA, which decides on questions of fact in the administrative agencies while the courts tend to rule exclusively on other points of the claim. That approach prevents the redundancy and overlap of
In other words, in a legal system in which the courts have the last word on the protection of individual rights, the greater deference is shown by the courts to the adjudicatory administrative authorities, the clearer will be the signal that such authorities are exercising their adjudicatory functions effectively. And vice-versa: the weaker the due process guaranteed by such authorities, the less the courts can show deference and the more intensely they will exercise their power of P
In this context, the
Adjudication is a public authority's proceeding designed for dispute resolution. In turn, a
Another example of
The primary example of fictitious opposition is part of daily life in Latin American: an individual's claim is denied by an authority that has no margin of appreciation or discretionary power to reach a more favorable decision for the applicant. I shall attempt to explain this paradox. On the one hand, the laws lead citizens to suppose that the authorities are competent to decide on an application, which suggests that there is a single administrative channel to satisfy their claims. On the other hand, although it is not very clear, the laws do not assign jurisdiction to those same authorities to decide on certain incidental aspects of the individual's claim, the evaluation of which is vital in order to grant the claim.
This occurs whenever an individual's claim is based on fundamental rights and the authority is unable to interpret the law beyond its literal meaning, or when an individual's claim is based on a law incompatible with an administrative rule that is binding on the authority. In such cases, government agencies have no authority to cease implementing the rules and to grant the individual's claim. In practice, the authority is induced to prefer the administrative rule over the law and over fundamental rights.
In this context, the administrative authority
That is a problem of the allocation of powers to the spheres of governmental decision-making. If an individual's claim is denied solely because of a law that is binding on the authority without the possibility of real opposition, it is because, in reality, the opposition does not arise from the will of the authority, but rather from a law or administrative rule itself.
In such cases, it is therefore the law or administrative rule that should be called into question, not the administrative decision.
In fact, the legal fiction discussed above involves typical cases pertaining to Peter Cane,
If an individual's claim is derived from an interpretation or challenge of a norm that is not yet accessible to other members of society, then it is truly an abstract claim of general scope disguised as the claim of an individual. If handled by the adjudicator to the sole benefit of the claimant, such a claim not only A
In contrast, an adjudicatory decision effective Law No. 8.508/2006 arts. 130(3) & 185 (Costa Rica); L. 1/437 art. 189, enero 18, 2011, Diario Oficial [D.O.] (Colom.); Ley Federal de Procedimiento Contencioso Administrativo [LFPCA] 52(5)(c), Diario Oficial de la Federación [DOF] 01-12-2005, últimas reformas 27-01-2017 (Mex.); Ley No. 350, 18 May 2000, Ley de Regulación de la Jurisdiccion de lo Contencioso – Administrativo [Law of Regulation of the Jurisdiction of Administrative Litigation] tit. VI ch. X, art. 95, L Cane,
Adjudication by the State is a fundamental human right that mainly depends on the availability of qualified, independent and impartial adjudicators. In Latin America, however, adjudication is mainly practiced by courts that are not specialized in administrative law. With rare exceptions, Latin American has no administrative adjudicatory institutions that satisfy all three criteria of being qualified, independent and impartial.
Although the Latin American judicial system has traces of the influence of U.S. law, the number of laws recognizing structures such as the U.S. LAJs and Canadian and Australian administrative tribunals belonging to the Executive Branch is still low. The few examples of Latin American STF, Agravo de Instrumento 11.094, Relator: Min. Bento de Faria, 28.05.1934, 153. Available at: Ricardo Perlingeiro et al.,
In general, despite having the objective of resolving conflicts and giving applicants an opportunity to express their opinions, the Latin American proceedings within administrative authorities do not encourage adjudication. They are essentially administrative functions of implementation, and are subject to full judicial review.
It is not a coincidence that Spanish and Portuguese (as well as Italian) laws distinguish between
In Latin America, however, proceedings in the administrative sphere do not really guarantee a
Based on laws and on the Constitution, individuals are claiming the right to due process of law before the administrative authorities, especially to defend themselves against disciplinary and regulatory administrative powers aimed at depriving citizens of rights. Since the Latin American national authorities are unable to offer guarantees of due process, such as a hearing by a competent, independent and impartial
A similar situation has occurred with claims based on applications for government benefits. If the request is denied by a front-line decision, the law provides for the remedy of reconsideration by the same decision-maker as well as an appeal to a hierarchically superior body. In practice, however, being aware of the absence of independent or quasi-independent adjudicators in the administrative sphere, the applicants go directly to court to try their luck in the only sphere of power that can offer fair adjudication: the courts.
In the past few years, the Latin American courts have been playing an unrestrained leading role in administrative law, with functions that go beyond the protection of rights and are shaping
Such self-confidence in activism is not unique to Latin American law. In certain situations, it is considered a general problem even in administrative justice systems typified by closed judicial review. I am referring to the immunity of judges by which they are exempted from the responsibilities inherent in the administrative authorities in the exercise of their powers of implementation.
P
Yet the particularity of Latin America is the absence of an adjudicatory proceeding in the administrative phase associated with courts that are not specialized in administrative law as the sole alternative to administrative adjudication.
Moreover, a combination of circumstances exacerbating the above-mentioned situation requires urgent reflection on Latin American law:
The adjudicators’ lack of confidence in the implementing authorities, which are trusted as little by society as they are by the courts, especially since the Latin American authorities and civil servants lack the prerogatives necessary to act independently; a system of diffuse constitutionality control in court that encourages diffuse control of the legality of administrative rules and that assigns to the courts the power to rule on the individual aspects of a claim and, in the same proceeding, incidentally, the power to rule on fundamental elements of the claim that are collective in nature; judicial decisions on an individual's claims based on questions of a collective nature (laws and administrative rules), sometimes effective On erga omnes efficacy from an individual claim, see Law No. 350/2000 (Regulación de la jurisdicción de lo contencioso-administrativo) art. 95.2 (Nicar.); Law 1437/2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) art. 189 (Col.); Law 8508 (Código de Procesal Contencioso-Administrativo) art. 130.2 (C.Rica)
In this situation, society insists that the courts should have superpowers, which their members end up believing that they really possess.
L
The basic institutional roles of power will be more likely to be maintained if the original decision-making bodies acquire the necessary administrative expertise and democratic legitimacy in the eyes of society. That would lead to a more fair and equitable administrative justice system.
By reinterpreting the systems of control and distribution of powers in a manner adapted to Latin American realities, especially in Brazil, the effective exercise of the decision-making functions of implementation, control of legality of administrative decisions and adjudicatory protection of rights may be conceived independently from their allocations to the traditional branches of State power.
In fact, it is not necessarily the courts and other adjudicatory bodies that are endowed with the greatest democratic legitimacy and are best qualified to exercise the power of review (control of legality) over the other State institutions, while incidentally exercising the power of review under the pretext of protecting rights.
What is at stake is not the court's legitimacy to make laws or intervene with activism. Rather, the crux of the matter is that a court or other adjudicatory bodies should not be allowed to make laws that are effective
Throughout history, power structures have been instituted based on aptitude for certain functions:
The functions of implementing the law and controlling the implementation of laws should be exercised by bodies having the proper expertise (especially for decisions affecting an individual) and democratic legitimacy (especially for decisions with general effects).
The function of protecting rights requires adjudicators who are qualified, independent and impartial in relation to the challenged decision-makers.
Such aptitudes provide the basis for distributing institutional roles among the various spheres of power and reduce the risk of gaps or redundancies in the exercise of such roles. This equation should not be tampered with, or else it might cause distortions in the legal system.
Moreover, there is a real distinction between rights-protecting procedures and decision-control procedures: the corresponding procedural basis needs to be related to the substantive nature of the right to be protected and of the decision to be controlled. In fact, adjudicators are guided by the clause of due process of law and aim at remedying the right infringed by an individual administrative decision. However, the controllers use a procedure that is similar to the procedure that leads to the creation of the decision that they are controlling, and thus is not necessarily subject to due process, which would be considered a legal fiction here since the administrative decision control is merely a higher-level implementing decision.
Incidentally, whereas the protection of rights is intended to safeguard the interests of individuals and is effective
In this way, the power of legal interpretation by adjudicators in administrative law finds its limits in the individual barriers of the dispute to be settled. If the adjudicators’ legal interpretation may benefit or harm third parties, it is because the adjudicator may be encroaching on the sphere of authority of other decision-makers because the question should be subject to abstract control rather than adjudication. An adjudicator's interpretation that undermines the content of a law or administrative rule and fills in an omission in a law or rule is an action equivalent to the annulment or creation of a rule, deserving to fall under the authority of a body of an appropriate type rather than an adjudicator.
In this context, it is ideal for the jurisdiction to be concentrated in a single body with the aptitudes needed to rule on administrative questions of general interest. A procedure of diffuse jurisdiction for administrative legality control presupposes a plurality of bodies ruling simultaneously on the same case and is therefore only compatible with the adjudicatory protection of individual rights.
Consequently, Latin America questions the U.S. system of diffuse constitutionality control in court, which indirectly encourages diffuse control, with concrete effects, of administrative norms before any judicial bodies. The idea of separation between the protection of rights and the control of administrative decisions has a parallel in the concentrated constitutionality system, as currently configured in Continental Europe.
Finally, despite being obvious, although seldom remembered and reflected on, it should be noted that the more citizens feel that the implementers are respecting fundamental rights and constitutional guarantees, the less they will call upon adjudicators, controllers and reviewers of front-line decisions. Since it is better to avoid conflicts by means of forward-looking measures than to remedy them with retrospective measures, the implementing decision-makers should have prerogatives similar to those held by the adjudicating and controlling authorities.
The negative aspect for the future of Latin American administrative law is the absence of signs that indicate that courts will cease to have jurisdiction over claims of a structural nature of the authorities under review, mainly in cases of individual claims. Therefore, there is still a risk of a dysfunction in the basic State roles.
The positive aspect, on the other hand, is that, under the I/A Court H.R. case law, Latin American administrative law transfers part of the adjudicatory power to the authorities and tends to give the implementing authorities guarantees for decision-making with greater respect for fundamental rights. This should reduce the role played by the ordinary courts and prevent conflicts vis-à-vis administrative adjudicators.
Likewise according to the I/A Court H.R. case law, implementing and adjudicating authorities lack the authority for full conventionality control, which should be exercised in a concentrated manner before the national bodies with powers of constitutionality control. That should be a guideline in Latin America, leading to future concentrated control of administrative rules and decisions of general effect, including with respect to the claims of individuals, by instituting a procedure for interlocutory decisions on the legality or constitutionality of norms. That would result in a procedural separation between the adjudicatory protection of rights and the control of administrative decisions.
In short, a Latin American model of administrative justice aimed at fair and equitable administrative law should be based on: (i) the administrative decision control inspired by the European-style concentrated control of norms, (ii) combined with a U.S.-style decentralized adjudicatory system of rights protection, regardless of the branch of power to which it is allocated, (iii) together with a system of administrative decision implementation that is subject, as much as possible, to the primacy of fundamental rights, as illustrated by the international legal system of human rights.