Administrative Functions of Implementation, Control of Administrative Decisions, and Protection of Rights
| Author | Ricardo Perlingeiro |
| Position | Visiting Professor in Comparative Judicial Studies at Birmingham City University. Federal Appellate Court Judge and Professor at Fluminense Federal University and Estácio de Sá University. (Brazil) |
| Pages | 1-25 |
This essay includes a comparative analysis of the traditions of administrative law in
Latin American and their impact on the contemporary scene and trends in the general
orientations of 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 Court H.R”). The method followed by the author is
to point out the roles attributable to the administrative authorities and to attempt
to identify a distinction in Latin America between the “administrative function of
implementation”, “control of the legality of administrative decisions” (unrelated to
any adjudicative function) and the “protection of rights” (by means of an adjudicative
function) while examining their historical genesis and possible future trends. From
that perspective, the text discusses certain administrative powers, such as disciplinary
or other regulatory powers, and their forms of concrete application; the prerogatives
and instruments of the authorities and of their decision-making employees in the
exercise of the functions of implementation; the control of administrative decisions
by those authorities themselves and by external bodies; and judicial and extrajudicial
protection of rights against administrative decisions. The author concludes that Latin
American administrative law, despite the fact that its civil-law substantive roots have
always coexisted with judicial review typical of common law, is currently tending, on
the one hand, to approximate the U.S. model of administrative adjudication and, on
the other, to adapt to I/A Court H.R case law with respect to the administrative function
of implementation in harmony with the fundamental right to good administration
administrative rules in court, would safeguard the true role of adjudicating bodies
(administrative authorities or courts) in their function of protecting individual rights
for the sake of more fair and equitable administrative justice.
Latin America, Comparative Law, Administrative Justice, Courts
© 2021 Ricardo Perlingeiro, published by Sciendo.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
10 Br. J. Am. Leg. Studies (2021)
I. Introduction .........................................................................................3
A. Retrospective Bases for a Comparative Study..................................3
1. Is Administrative Law Based on a Civil Law System Compatible with
Judicial Review Typical of Common Law? ...........................................3
2. Administrative Due Process Clause and Judicial Deference ...........4
3. Latin America’s Search for Its Own Identity for Implementations,
Control of Decisions and Adjudications ..............................................5
B. Prospective Bases for a Comparative Study ....................................6
1. The Inuence of the I/A Court H.R. for New Latin American
Administrative Law ...............................................................................6
2. Approximations of Latin American Law with the “Administrative
State” in the United States ....................................................................7
II. Administrative Implementation Functions .......................................8
A. Individual and Collective Dimensions of Implementation Functions
8
B. Political and Non-Political Executive Decisions .............................8
C. Principle of Legality as Guideline for the Implementation
Functions ..............................................................................................9
D. Personal and Institutional Prerogatives in the Implementation
Function ..............................................................................................10
E. Front-Line Decisions in the Exercise of Powers Depriving Individuals
of Rights .............................................................................................11
F. Front-Line Decisions for an Applicant to Receive a Benet ..........12
III. Control of Administrative Decisions ...........................................13
A. Collective Dimension (Control of Legality) versus Individual
Dimension (Adjudication) ...................................................................13
CONTENTS
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