Core Principles and Sources of Administrative Law
Key Characteristics of Administrative Law
- Specialty (Especialidad): It constitutes an autonomous legal system governing public authority. This allows the administration to make unilateral and executive decisions that produce effects without needing the recipient’s consent, even against another state power.
- Legality (Legalidad): Based on Articles 6 and 7 of the State Constitution. These state, respectively: State agencies must submit their actions to the Constitution and the rules derived from it, ensuring the institutions of the Republic are upheld. State organs act validly upon the proper investiture of their members, within their competence, and in the manner prescribed by law.
- Formalism (Formalismo): For administrative action to be valid, it must strictly adhere to pre-established legal requirements and procedures. This is often materialized through the oversight of the Comptroller General of the Republic.
- Enforceability (Ejecutoriedad): This is the power of the administration to execute its own decisions as mandated in the acts it issues. This includes achieving forced compliance or, if not possible, applying sanctions, without prejudice to any claim the affected person wishes to bring.
Sources of Administrative Law
The sources of administrative law can be classified into two main types:
1. Positive Sources (Fuentes Positivas)
These are hierarchically subdivided as follows:
- Constitution of the State (Constitución Política del Estado – CPE): Establishes the branches of government, their powers and faculties, and constitutional guarantees for individuals.
- Organic Constitutional Laws (Leyes Orgánicas Constitucionales – LOC): Govern fundamental areas such as the general bases of state administration, congress, armed forces, municipalities, and regional government.
- Qualified Quorum Laws (Leyes de Quórum Calificado): Along with LOCs, regulate sensitive societal areas. These laws require specific majorities for adoption, amendment, or repeal.
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Statutes (Leyes): Divided into:
- Ordinary Law: Approved by a simple majority.
- Decree with Force of Law (Decreto con Fuerza de Ley – DFL): Issued by the executive branch under delegation from the legislature.
- Decree Law (Decreto Ley – DL): Issued by de facto governments.
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Decrees (Decretos): Sets of rules governing specific legal situations. These include:
- Simple Decree: Issued by a specific ministry.
- Supreme Decree: Issued by the President of the Republic.
- Regulatory Decree: Implements or details a specific law.
- Resolutions (Resoluciones): Regulatory acts issued by specific national or territorial authorities.
2. Scientific Sources (Fuentes Científicas)
These are also subdivided:
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Court Decisions (Decisiones de los Tribunales): Uniform opinions from courts in their rulings and judgments. Key instruments include rulings related to public procurement (Law 19,886) and the writ of protection (recurso de protección) against state administration.
The writ of protection is a procedural legal tool available to citizens against arbitrary or unlawful actions or omissions by the state (or potentially private entities in some cases) that deprive, disturb, or threaten the exercise of one or more rights guaranteed by the Constitution (regulated in Article 20 of the Constitution of the Republic).
The constitutional guarantees protected by this writ are those listed in Article 19. It is filed with the relevant Court of Appeals and can be submitted by any affected person or someone acting on their behalf. Filing can be verbal or written (written is recommended). The deadline is 30 days from the act or omission.
The act or omission must be illegal or arbitrary and cause deprivation, disturbance, or threat to the legitimate exercise of rights under Article 19 of the Constitution. Once the application is received and declared admissible, the court requests a report from the respondent within 72 hours. After receiving the report, the court may request additional information from private individuals or public services. With all the data gathered and after hearing the case, the court issues its sentence. If the court upholds the writ, it orders all necessary measures to restore the rule of law. The sentence is appealable to the Supreme Court.
- Opinions of the Comptroller General’s Office (Dictámenes de la Contraloría General de la República): Authoritative opinions based on relevant administrative matters.
- Legal Doctrine (Doctrina): Scholarly comments, analyses, and scientific views presented by legal authors.