Qualifications to Ensure Compliance with the Principle of Legality in Administrative Implementation
Abstract of the paper to be presented at the annual meeting of the Law and Society Association, “International Meeting on Law and Society” (Toronto, 7-10 June 2018), as part of the panel "Courts and Jugding in Asia and the Americas / Access to Justice" (Collaborative Research Network/CRN 01).
Posted: 13 Dec 2017
Date Written: September 22, 2017
Abstract
This text is based on two premises: 1. Administrative implementation guided by the overarching principle of legality (understood in the sense of supremacy of fundamental rights) is essential to the credibility of administrative authorities in the public eye, which, in turn, is needed in order to gradually reduce the number of disputes and increase the willingness to resolve any remaining disputes through consensual processes such as mediation and arbitration instead of adjudication by courts and tribunals; 2. Administrative implementation in compliance with fundamental constitutional rights requires providing the public administrative authorities with a quasi-independent structural basis, especially by ensuring that the officials with “front-line” decision-making duties have proper technical and legal qualifications. In this context, the author analyzes which prerogatives and qualifications would ensure the quasi-independent nature of administrative implementation and and how such prerogatives and qualifications would become a reality in Latin American administrative justice, whose roots in Continental European administrative law were unsettled by importing USA legal concepts without the necessary process of adaptation. The analysis therefore covers the institutional guarantees that can minimize the risk of governmental and political capture of the administrative authorities and any other form of dependence on private economic interests. Similarly, the analysis includes the guarantees that should be given to civil servants (with “front-line” decision-making duties), such as fair compensation, life tenure and freedom of decision within a predetermined range of action. Finally, the author examines the possibility of establishing a multidisciplinary “front-line” decision-making panel composed of civil servants specializing in a variety of fields of expertise, according to the specific nature of the conflicting interests to be weighed.
Keywords: Admistrative justice, public authority, judicial review, fundamental rights, front-line decision
JEL Classification: K23, K41, I28, N46
Suggested Citation: Suggested Citation