Brief Essay in favor of Administrative Justice (English Version: Original)

  

Brief Essay in favor of Administrative Justice

(English Version: Original)

 

1.   Introduction

 

In this essay, we intend to succinctly expose a set of fundamental ideas that defend the implementation of a full, independent and specialized Administrative Justice in the legal systems.

 

2.   The omnipresence of the Administrative State in contemporary times

 

Today's Administrative State is notoriously very different from that one of the beginnings of the modern liberal constitutional movement (late 18^th century), because in addition to having an unprecedented organic dimension, it performs a function of regulating various sectors, which makes it an omnipresent figure in society. It is the result of a progressive increase in the state function[1], where it has gone from a mere police state to with the advent of globalization, Europeanization and the reduction of Lockean mistrust, to be seen as a continuous, benign, and paternal figure in whom we trust our collective destiny. Thus, despite the apogee of the neoliberal doctrine[2] in the 80s of the 20^thcentury, and consequently, from the movement of deregulation and privatisation of public services, the Administrative State, once again acquired in the post-crisis of 2008 a colossal dimension, either through the provider Administrative State, or through the regulatory Administrative State, which at the same time regulates more and more areas: environment, urbanism, territory, agriculture, fisheries, provision of services,  health, education, data protection, capital markets, among others.

We are, therefore, recurrently inserted in a vertex of the legal-administrative relationship[3], whether through the direct relationship with the central administration, or through the relationship with private entities with prerogatives of public power, or even with entities supervised by the public authorities. Consequently, just as in legal-private relations most of the time things do not go well, with various conflicts arising, legal-administrative relations are no exception, unless the administrative function benefits from another great characteristic of the theistic notion of God: perfection. If that’s not the case, it is necessary that legal thought be erected in the sense of defending the protection of the subjective rights of individuals, in the same terms in which it has already been raised for the protection of subjective rights in private relations. Fortunately, albeit slowly, we have witnessed this movement of equalization of tutelage.[4]

 

3.   The need for the courts of law as the guarantor of the effective protection of the rights of individuals

 

We bear in mind that it is not uncommon for adjective law to be seen or even seen as a secondary branch of law[5]. Nevertheless, this traditional view of the doctrine must be replaced by the modern current, which defends the adjective law as an instrumental right of the substantive law, and, therefore, a sine qua non condition for the effectiveness of legal norms. 

The role that the judiciary plays is therefore essential as a guarantor of the Democratic Rule of Law, so it is natural that alongside the traditional judicial courts, there is a need for administrative and tax courts. The administration of justice would not be achieved if there were only courts aimed at protecting the vicissitudes of private law or criminal law. As SÉRVULO CORREIA rightly states: "(...) The principle of legality will remain a dead letter if it is not subjected to control by independent courts."[6]. However, this has not always been the majority accepted conception[7]. Until recently, the promiscuity between administration and justice was accepted, whether in the administrativist model, or in the judicial or quasi-judicialist model[8], sickening the system until the movement of constitutionalization of the administrative process, of an “original sin”, as VASCO PEREIRA DA SILVA suggests. It was only effectively with the “confirmation” of this movement that individuals began to have an effective protection of their rights, and not to be seen as legal entities inserted in an unequal relationship, where the privilege of the Administration prevails, and they are mere "administered". 

Now, thanks to the existence of today's administrative litigation - even if deprived of means, in the Portuguese case - an individual will be able, among several things, to react judicially against a wide range of administrative acts, which could have very serious practical consequences, e.g.: a public expropriation; a closure of an establishment; a ban on circulation; the illegal collection of taxes; restrictions on economic activity;[9] and in addition, to question the legality of administrative regulations, among others. 

 

4.     The Fundamental Right to Justice: A Very Brief Excursion

 

We consider it relevant to recall that today, in modern European constitutions, whether in the Romano-Germanic or even in the British substantive constitution, the right to administrative procedure is no longer a legal claim, but rather a fundamental right.

In the Portuguese case, our Constitution is clear, whether in Article 20, a fundamental synoptic precept in this matter, or in Article 202 (Jurisdictional Function), or in Article 212 (Administrative and Tax Courts), as well as in Article 268/4 and 5 (Rights and guarantees of the administrated). In addition, through the clause on the direct reception of international law, under Article 8(2) of the CRP, this is also a requirement arising from Articles 6 and 13 of the European Convention on Human Rights, and Article 47 of the European Charter of Fundamental Rights. The right to administrative justice is, therefore, in our legal system unequivocally a fundamental right of the members of our political and legal community.

Faced with this reality, no matter how many turns the political power may want to take, imbued with some of the childhood traumas that administrative law suffers: the privilege of the Administration, or the unequal relationship between the Administration and the citizens, today this is a past participle. To deny this almost unmistakable truth would be to deny the democratic rule of law, and therefore the dignity of the human person. Everyone, without exception, has the peremptorily right of access to the courts, that is, to independent and impartial bodies, capable of giving a decision on the merits.[10]

It was in this sense that the Constitutional Council of the French Republic noted in two important aspects, the first dated 22 July 1980, and the second, more recent, dated about 9 April 1996, emphasizing that: "if the law that confers a right and does not provide for the existence of an effective appeal before a judge,  this means that the guarantee of the right is not ensured and, according to Article 16 of the Declaration of Human Rights, there is no longer a constitution."  This idea therefore runs counter to the German dogmatization of the rechtsstaatsprinzip in confluence with its later French modernizations. 

 

5.   Conclusion

 

We intend to briefly demonstrate how administrative justice is essential within the framework of a democratic state based on the rule of law, and is currently a fundamental right, within our Constitution and other European Constitutions and in some basic international texts. However, there is still a way to go, albeit one of improvement. 

 

 

 

We intend to develop a more extensive work with the title: A Requiem for a Frankenstein administrative justice: the Portuguese case. 

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[1] Noções Fundamentais de Direito Administrativo, Fernanda Paula Oliveira/José Eduardo Figueiredo Dias, 5ª Edição, 2022, Almedina, page 29.

[2] Manual de Direito Administrativo, Volume I, Paulo Otero, 5ª Reimpressão da edição de Novembro de 2013, Almedina, pages 287-292.

[3] Noções de Direito Administrativo, Volume I, J. M. Sérvulo Correia/Francisco Paes Marques, 2ª Edição, 2021, Almedina, pages 148-151.

[4] Talking about the current state, and giving a comparative law perspective apud Vasco Pereira da Silva, “O Contencioso Administrativo no Divã da Psicanálise – Ensaio sobre as acções no novo processo administrativo”, 2ª Edição, 2009, Almedina, p. 85 and following pages

[5] Elementos de Direito Processual Civil, Teoria Geral, Princípios, Pressupostos, Rita Lobo Xavier/Inês Folhadela/Gonçalo Andrade e Castro, 3ª Edição, 2024, page 10 and 113. 

[6] Page 265 in Escritos de Direito Público, Vol. III, Contencioso Administrativo e Arbitragem, José Manuel Sérvulo Correia, 2019.

[7] Idem, op. cit. n. 4

[8] A Justiça Administrativa, Lições, José Carlos Vieira de Andrade, 19ª Edição, Almedina, page 17-18

[9] “Casos Clínicos” de Processo Administrativo (Caderno Prático), Vasco Pereira da Silva, Miguel Assis Raimundo, Tiago Serrão, José Duarte Coimbra, David Pratas Brito, Rita Curro, 2020, Reimpressão p. 101 and following pages.

[10] Constituição Portuguesa Anotada, Vol. I, Jorge Miranda/Rui Medeiros et. ali. Artigo 20.º, 2017, 2ª Edição, UCE.