Contemporary Challenges in Latin American Administrative Justice

Author:R. Perlingeiro
Position:Fluminense Federal University (Rio de Janeiro, Brazil)
Pages:21-56
BRICS LAW JOURNAL Volume III (2016) Issue 2
CONFERENCE PAPERS
The II Siberian Legal Forum, with the topic “Administrative Justice: Comparative
and Russian Contexts”, organized by Tyumen State University, West Siberian
Commercial Court, Tyumen Regional Court and in association with the BRICS Law
Journal, will be held on 29–30 September 2016 in Tyumen city, Russia.
The conference brings together leading researchers in the eld of jurisprudence
from the higher educational institutions of Europe, North and South America, Africa and
Asia who will share their experience in foreign judicial specialization. The host country
experts, in turn, will concentrate on the features of Russian judicial authority.
The mission of the Siberian Legal Forum is to create a platform for the discussion
of legal trends, the exchange of experiences, and the establishment of close ties
with scholars and experts in Siberia and other parts of Russia, Eurasia and countries
of other continents.
ConTEMPoRaRY CHaLLEnGES
In LaTIn aMERICan aDMInISTRaTIVE JuSTICE
RICARDO PERLINgEIRO,
Fluminense Federal University (Rio de Janeiro, Brazil)
DOI: 10.21684/2412-2343-2016-3-2-21-56
This study consists of a critical comparative analysis of the administrative justice
systems in eighteen Latin-American signatory countries of the American Convention
on Human Rights (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador,
Ecuador, Guatemal a, Hon duras, M exico, Nicaragua, Panama, Paraguay, Peru, the
Dominican Republic, Uruguay, and Venezuela). According to this article, the excessive
litigation in Latin-American courts that has seriously hampered the eectiveness of the
administrative justice systems may be explained as follows: as former Iberian colonies, the
aforementioned countries have a Continental European legal culture originating in civil
law but nevertheless have improperly integrated certain aspects of the unied judicial
BRICS LAW JOURNAL Volume III (2016) Issue 2 22
system (generalized courts) typical of administrative law in common-law countries. This
situation, according to the author, could be rectied through strengthening the public
administrative authorities with respect to their dispute-resolution and purely executive
functions by endowing them with prerogatives to act independently and impartially,
oriented by the principle of legality understood in the sense of supremacy of fundamental
rights, in light of the doctrine of diuse conventionality control adopted by the Inter-
American Court of Human Rights.
Keywords: administrative justice; fair trial; due process of law; Latin America.
Table of contents
1. Introduction
2. Right to a Fair Trial
2.1. Intensity
2.1.1. Complete Review of Administrative Decisions
2.1.2. Judicial Review of Government Acts
2.2. Admissible Claims
2.3. Interim Relief
2.4. Excessive Judicialization
3. Challenges Related to the Judicial System
3.1. Historical Reasons for the Identity Crisis of the Judicial System
3.2. The Extremes: Judicial Deference to Administrative Authorities
and Open Judicial Review
3.3. Credibility Thanks to Specialized Courts
3.4. Are Repetitive Claims Really Individual?
4. Challenges Related to Administrative Authorities
4.1. Primary Administrative Functions
4.2. Secondary Administrative Functions
5. Diuse Conventionality Control Vis-à-Vis the Administrative Authorities
6. Certain Organizational Prospects for Administrative Justice
7. Closing Considerations
1. Introduction
The excessive number of lawsuits led in Latin America is extraordinary, which
might leave a visitor surprised by the high productivity of the courts there. In Brazil,
for example, each judge delivered an average of 1,500 judgments in 2014 alone.1
1 On excessive judicial review of administrative decisions in Chile, see Supreme Court of Chile (Corte
Suprema), Acta 176, 24 October 2014.
RICARDO PERLINgEIRO 23
In the eld of administrative law, judges are being forced to resolve highly similar
and repetitive claims, which reduces their role to that of a manager of case les
or a purely executive authority2 at the cost of their judicial mission of resolving
disputes and safeguarding rights.3 This is so because most of the cases are articial,
i.e., not attributable to an administrative authority’s actual rejection of an individual’s
request but rather to the structural impossibility of such authorities to reconcile the
principle of legality (associated with the supremacy of fundamental rights) with the
administrative principle of hierarchical subordination.4 Moreover, in many cases it
is the administrative authorities that resort to the Judiciary to enforce their claims
against individuals, which is an outward sign of the consensus (among citizens and
public authorities) that the administrative agencies cannot be relied on to enforce
their own decisions, in agrant contradiction with the attribute of self-enforceability
(autoexecutoriedade) according to which administrative decisions can be enforced
by the government itself without the intervention of the Judiciary.5
Although remarkable progress has been seen in Latin-American statutes and
case law in terms of procedural principles guaranteeing a fair trial, the eorts to
staunch the proliferation of repetitive claims, now called articial claims, have failed
for a number of reasons, ranging from the lack of specialized courts and procedural
laws sensitive to the public-law nature of administrative disputes to the fact that
administrative authorities lack the necessary independence and technical expertise
to perform their institutional role.6
Against this backdrop, in search of ways to improve administrative justice in Latin
America, we shall examine the current state of development of the right to judicial
protection in administrative law cases and the corresponding judicial structures,
without losing sight of the executive and dispute-resolution functions exercised by
the administrative authorities. To that pur pose, this article is intended to provide
a critical comparative analysis of the administrative justice systems of Latin-American
countries that were former Iberian colonies subject to the American Convention on
Human Rights (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador,
Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the
Dominican Republic, Uruguay, and Venezuela). The sources drawn upon in this study
include the case law of the Inter-American Court of Human Rights (I/A Court H.R.) and
2 See in general Reis 2011, Silveira 2016, and Gubert & Bordasch 2016.
3 See in general Streck 2013.
4 Starting from section 3 of this text.
5 See in general Perlingeiro 2015.
6 Repetitive claims is an expression adopted by Judge Vânila in the Brazilian National Justice Council
project Research on Repetitive Claims and in Article 976 of the Brazilian Code of Civil Procedure (Código
de Processo Civil / Law No. 13.105, of 16 March 2015) entitled Incidente de Demandas Repetitivas
(interlocutory proceeding for repetitive claims).

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