* To my dear professor Juan Manuel Guerrero, who has instilled in me a passion for Administrative Law.
i. A Rule of Law State
Prior to the French Revolution, the so-called Police State existed and it was understood that the divine origin of the powers exercised by kings[1] found no limits in the legal system, their attributions and methods being absolute. The Sovereign and those close to him ruled by being and exercising the law, lords and masters, baton and constitution. This was also called the age of absolutism and in France, specifically, the Ancien Régime. After all, it was a system where power was concentrated in the hands of the sovereign, to whom the people owed respect and obedience without the right to question; a system of complete arbitrariness. As a result of this system, expressions such as “Le Roi ne peut mal faire”, “quod Regis placuit legis est”, “L'État c'est moi” or “the King can do not wrong”, characteristic during the era of absolutism, arose. arbitrariness and the Police State.
The triumph of the French Revolution brings as a consequence the end of absolutism and with this, a change in the position of the people towards the Administration. Previously, the administered were simple subjects of the Administration, now the Administration and the administered are positioned at the same level. From now on, the State and all its conformation found limits and perimeter to their actions, and the laws are applicable to it and respond against the damages committed. Likewise, the central purpose of the Administration varies and focuses its attention on the search for the best interests of the people and for the benefit of their rights[2].
Thanks to the above, the figure of the Rule of Law[3] is consolidated, where the principle of legality of the Administration governs, the rules of the division of powers, the supremacy and reserve of law, the protection of citizens through independent courts and the responsibility of the State for illegal acts[4]. Cárdenas Gracia rightly indicates that: “Every rule of law must have at least the following elements: Primacy of Law; legal system of rules; Legality in administrative acts; Separation of powers; Protection and guarantee of Human Rights, and Examination of constitutionality of the laws”[5]. On occasion, we will limit ourselves to covering the element of primacy of the law, which translates into the principle of legality.
ii. Principle of Legality.
The principle of legality is the cornerstone of the Rule of Law State, in fact, it is inherent to it, since, through this principle, the Administration undertakes to act with full submission to the legal system of the State[6]. However, the foregoing is not the essence of the principle of legality –without prejudice to the important role it plays–, but its essence lies precisely in the attributions and faculties that the law grants. The laws serve as enabling titles or authorizations for the Administration to act, carefully defining their limits. All Administrative action turns out to be the exercise of a power attributed previously and exclusively by law; without prior attribution, it simply cannot act[7].
The principle of legality has three main consequences: a) empowers the administration; b) submits the Administration to the principle of hierarchy of standards, and; c) creates a judicial control of all the actions of the Administration[8].
The law is the enabling instrument that defines and delimits the scope in which the Administration can legitimately operate[9], taking into account that the law is the only instrument capable of granting said powers[10]. Contrary to the beliefs of the origin of the powers in the Ancien Regime, in the Rule of Law said powers have their origin in the sovereignty of the law, which is nothing more than the result of the will of the people, said Rousseau. The powers delegated over the Administration had an effect on the community, imposing itself on itself and with indefinite use[11].
Even when the legislator has granted the Administration powers, this does not mean that they are absolute, since their exercise must be carried out respecting the hierarchical order of the rules. The Constitution is the supreme norm, above law, and the latter hierarchically above the regulation. The Administration, in its power to generate regulations (when so conceived by the legislator), must do so in accordance with said principle, since a lower standard contrary to a higher one would be unconstitutional.
Lastly, as a guarantee method, all actions and omissions by the Administration are subjected to jurisdictional control, since there are no areas exempt from this jurisdictional control[12]. It should be noted that contrary to the Spanish case, in the Dominican Republic citizens must not exhaust administrative remedies prior to going to the Contentious Administrative Jurisdiction, but they can make use of the right of option and directly submit their case for consideration by the Contentious Jurisdiction Administrative.
iii. Legality.
The French revolutionaries sowed and made flourish the seed of the principle of legality; pillar of the rule of law. With the expulsion of arbitrariness, it is possible to snatch from the Administration the power to govern at its pleasure and will, and establishing the lordship of the law. Consequently, as we have mentioned, the center of gravity of sovereignty is transferred to the people and their democratically elected representatives; modification that implied the implementation of the obligatory link of all those represented to the normative producer created; the law[13].
However, the linkage of the Law to the Public Administration and individuals, in the strict sense of the norm, is insufficient. It is insufficient since the legal system is in constant evolution and the Legislative Power is materially incapable of foreseeing and specifying the way to function in each possible situation that arises. This is why, through hierarchically superior norms –international treaties and the Constitution–, general principles, guarantees of law and jurisprudential criteria, the scope of submission of the Administration is expanded.
At the end of the 20th century, authors such as Santamaría Pastor and Muñoz Machado supported the expansion of the principle of legality, betting on the change of the term implemented up to now, referring from now on to the submission of the Administration to the Principle of Legality. Legality refers to the submission of the Administration to the entire regulatory system: the Constitution, laws, treaties, regulations, general principles of law and precedents[14]. It is not only limited to the law, but to the broadest possible notion of Law[15]. Adolfo Merkl said that all administrative activity necessarily had a connection with the legal system because this is a requirement of what is called the principle of legality, which alludes to the need for each isolated administrative action to be conditioned by the existence of a precept. administrative authority that admits such action[16].
It is our opinion that such reference turns out to be of an academic nature only, since in practice, as we can see in repeated judgments of the Constitutional Court, both terms are used interchangeably. It is enough to look at article 138 of the Dominican Constitution, which refers to "full submission to the legal system of the State..." leaving it understood that the intention of the constituent was effectively to submit the Administration fully to the Law in its broadest application. Therefore, it would be correct to refer in our legal system to submission of the Administration to the Principle of Legality[17] and not to the principle of legality as halfway wrong is constantly used by all[18].
iv. Negative and positive link.
Article 40.15 of the Dominican Constitution expresses, to the calque, that: "no one can be forced to do what the law does not mandate or be prevented from doing what the law does not prohibit...", attributing constitutional character to the aphorism "what is not prohibited by law, it is permitted”[19]. The maxim of law has its origin in the past and for a long time it was applied for the benefit of the Administration and currently, it is applied to citizens. This was intended to justify a wide margin of freedom of the Sovereign over the Law, in the understanding that the original power belonged to the monarch, so that the Constitution was nothing more than a concession by virtue of which his power was self-limited. . Hence, it was considered that everything that was not reserved in the law was the exclusive competence of the monarch[20]. Continuing with the application of said maxim for the benefit of the Administration, meant attributing –indirectly– a very wide margin of powers, also known as negative Bindung or Monarchical Principle.
Contrary to the negative binding, the positive binding or Positive Bindung is formed. In our legal system, the principle of legality is found in article 138 of the Constitution, by establishing that the Public Administration is subject in its actions to the principles of efficiency, hierarchy, objectivity, equality, transparency, economy, publicity and coordination, with full submission to the legal system of the State. It is obvious that the constituent had the intention of positively linking the Administration. That is, all actions, acts and provisions must be carried out by virtue of antecedent norms. In other words, the principle of legality is intended to be a kind of authorization or permission for the actions of the Administration, and it is only then, when the law authorizes it, that the Administration can act.
In the words of García Enterría: “The law is not, then, for the Administration an external boundary that marks out a zone of prohibition and within which it can occur with its sole freedom and discretion. On the contrary, the Law conditions and determines, in a positive way, the administrative action, which is not valid if it does not respond to a normative provision”[21].
Once the principle of legality in its positive conception is accepted, the popular sovereignty of which the law is its full expression is recognized as the only source of legitimacy of power.[22] With this, the Administration is obliged to leave behind any other source of legitimacy, as the monarchical principle had been at the time; the Administration can only do what it is empowered to do by law[23].
[1] We use the term kings, sovereigns, prince, rulers and others, interchangeably, to refer to the Public Administration of the time.
[2] Article 8 of the Dominican Constitution: "It is an essential function of the State, the effective protection of the rights of the person, respect for their dignity and obtaining the means that allow them to perfect themselves in an equal, equitable and progressive manner, within a framework of individual freedom and social justice, compatible with public order, general welfare and the rights of all.”
[3] Article 7 of the Dominican Constitution: “The Dominican Republic is a Social and Democratic State of Law, organized as a unitary Republic, founded on respect for human dignity, fundamental rights, work, popular sovereignty and the separation and independence of public powers.”
[4] R. Thomas, cited by: Santamaría Pasto, Juan Alfonso. Principles of General Administrative Law. (Madrid: Iustel, 2009).
[5] Cardenas Gracia, Jaime. A Constitution for Democracy. Legal Research Institute, UNAM, 1996, p. 22.
[6] See: Article 138 of the Dominican Constitution.
[7] Garcia Enterria, Eduardo. Administrative Law Course. Volume I. (Madrid: Thomson Cívitas, 2008).
[8] Notary Collado, Pedro. "Concept of Administrative Law" in Administrative Law Lessons, General Part. (Madrid: Iustel, 2015).
[9] Munoz Machado, Santiago. Treatise on Administrative Law and General Public Law. Volume III, "The Principles of Constitutionality and Legality." (Madrid: State Agency Judicial Bulletin of the State, 2015).
[10] See: Principle of Reservation of Law.
[11] See more about this in: Escribano Collado, Pedro. "Concept of Administrative Law" in Administrative Law Lessons, General Part. (Madrid: Iustel, 2015).
[12] Judgment of the Constitutional Court of Spain: SSTS 39/1983, 80/1983, 197/1988 and 238/1992.
[13] Vignolo Cave, Orlando. The Rule of Law Clause, the Principle of Legality and Public Administration. Basic Postulates and Transformations. (Mexico: Mexican Bulletin of Comparative Law No. 131, 2011).
[14] Santamaría Pastor, Juan Alfonso. Principles of General Administrative Law. Volume I. (Madrid: Iustel, 2015).
[15] Sanchez Moron, Miguel. Administrative Law, General Part. (Madrid: Tecnos, 2008.); who says: "Law are also the regulations approved by the Governments and, where appropriate, other bodies of the Administration and, as legal norms that they are, they cannot be violated or unapplied by singular resolutions of the Public Administrations, even if they come from the bodies that approve the regulations themselves or their superiors.”
[16] Merkl, Adolfo. General Theory of Administrative Law. Spanish edition. (Mexico: National Editor, 1980).
[17] We make the point that indeed Law No. 107-13, in article 3.1., refers to the Principle of Legality.
[18] See as an example the following Constitutional Court judgments where both terms are referred to interchangeably: TC/0267/15 of September 16, 2016; TC/183/14 of August 14, 2014, and; TC/0200/13, dated November 7, 2013
[19] Note: Also known as the Permission Principle. See: Iturralde Sesma, Victoria. Critical consideration of the Permission Principle according to which: "what is not prohibited is allowed." Published in the Legal Magazine of the University of the Basque Country.
[20] Beladiez Rojo, Margarita. The link between the Administration and the Law. Public Administration Magazine, No. 153. September-December 2000.
[21] Garcia Enterria, Eduardo. Administrative Law Course. Volume I. (Madrid: Thomson Cívitas, 2008).
[22] Estéve Pardo, José. Administrative Law Lessons. (Madrid: Marcial Pons, 2013). [23] Idem.
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