Brazil’s administrative justice system in a comparative context*

O sistema de justiça administrativa brasileira em uma perspectiva comparada

It is timely that there be a new dialogue between the Brazilian and U.S. systems of administrative law and administrative litigation. There has been relatively minimal comparative scientific analysis involving Brazil and the United States on the topic. This dearth exists despite the fact that the Brazilian model of “judicial review” was largely influenced by the single civil jurisdictional system of the U.S. model, which replaced the French “model of jurisdictional dualism” present in Brazil since the beginning of the Brazilian republic in 1891.1

With this study, I hope to engage in a descriptive and timely analysis of the Brazilian administrative justice system, focusing on administrative proceedings, organization of the Judiciary, and the judicial process as a whole. Furthermore the study takes a Rule of Law and effective judicial functioning perspective, as defined by European administrative law and reproduced in some Ibero-American models, to identify both positive and negative aspects of Brazil’s administrative justice system. The descriptive analysis will serve as a basis for future comparative analysis with the U.S. system.

Initially, however, it is necessary to define the scope and context of the terminology used. The term “administrative litigation” refers to claims or appeals of a private citizen against the actions taken by an administrative authority. The term “administrative jurisdiction” describes the exercise of jurisdiction over administrative litigation, and “administrative court” refers to the state organs responsible for exercising jurisdiction over administrative issues.

The principle of Rule of Law requires that administrative litigation be entrusted exclusively to a particular jurisdiction. The principle of effective judicial functioning (judicial review of administrative action) is not compromised by filing directly with an administrative authority prior to judicial review.2 I refer here to the model of higher administrative authorities, and the model of independent administrative authority. Under the model of higher administrative authorities, parties, when denied a claim by an administrative authority, lodge an appeal to a superior authority. This approach, which requires the exhaustion of administrative remedies, is adopted in most countries, and particularly in Germany where adjudication within the administrative authority has automatic suspensive effects on proceedings in the Judiciary and is considered a sine qua non for filing suit.3 I also refer to the concept of independent administrative authorities wherein appeals are decided by public officials who, despite being appointed directly by the upper echelon of administrative authorities, perform their functions independently and are not subordinate to superiors. Examples include the English “administrative tribunals”, the “appeals committees” in Switzerland and the “independent administrative departments” (unabhängige Verwaltungsenate) in Austria.4

In Brazil, we find both models. In accordance with the principle of effective judicial functioning, parties can choose which model to use, without foreclosing the possibility of simultaneous filings for preliminary injunctive relief. The appeal before a higher administrative authority, not to be confused with prior claims (which gave rise to the appealable decision), is provided for in Brazilian administrative procedure law.5 The appeal before an independent administrative authority resembles, for example, appeals brought before the Brazilian Board of Tax Appeals (Conselho Administrativo de Recursos Fiscais / CARF),6 regulatory agencies,7 the Federal Audit Tribunal,8 and even the National Council of Justice (Conselho Nacional de Justiça / CNJ).9

Administrative jurisdiction, which is independent of the administrative authority, is subject to the following structure: (1) administrative jurisdictions that issue advisory opinions and provide determinations in specific cases or controversies, such as the Councils of States that exercise the dual function of court of last resort and advisory board in France,10 the Netherlands,11 Italy,12 Greece,13 Belgium14 and Colombia;15(2) administrative jurisdictions of an autonomous jurisdictional nature, such as the courts of last resort that deal exclusively with cases or controversies involving questions of public law found in Germany,16 Austria,17 Sweden18 and Portugal;19 (3) autonomous administrative courts in the first and second tiers that are, however, subject to a single court of last resort that deals with issues not only of public law, but also questions of private law, as seen in Spain,20 Switzerland,21 Hungary22 and Mexico;23 and (4) administrative courts with private jurisdiction, also known as a “unitary jurisdiction system,” that address questions of both public and private law, often through bodies specializing in administrative cases as is typical of common law systems in England,24 Ireland,25 Denmark,26 but also found in Argentina,27 Chile,28 Costa Rica,29 Peru,30 and Venezuela.31

Interestingly, Brazil has known all four types of administrative structures in its history. What preceded the Brazilian Republic resembled administrative jurisdictions that operate in an advisory capacity as well as dealing with cases or controversies. This structure existed despite the fact that the Brazilian Empire’s Council of State mirrored the first version of France’s Council of State, with “justice retained” (justice retenue) in the hands of the Emperor and no true jurisdictional or delegated functions.32 Only with the approval of the 1891 constitution did Brazil adopt administrative jurisdictions. Brazil’s administrative jurisdiction was, however, marked by the common law characteristic of courts that deal with questions of both public and private law. The “unitary jurisdiction”, still prevalent today, is characterized by certain degrees of specialization in public law, as exemplified by the “turmas” or “câmaras”33 in courts of appeal.34 One could say that the organization of the federal courts of first and second tiers, which include administrative jurisdictions that cover federal administrative authorities,35 resembles the Spanish and Swiss models. The federal courts of first and second tiers operate under a common court of last resort, which also deals with questions of private law - the Superior Court of Justice (Superior Tribunal de Justiça / STJ).36 Brazil’s electoral court’s organization, however, is almost identical to the German and Portuguese models, with autonomous administrative jurisdiction that operates under a specific court of last resort: the Superior Electoral Court (Tribunal Superior Eleitoral / TSE).37

When examining the scope of administrative justice, first we must ask about its main principles and specific rules. Why should legislators treat the structure of courts responsible for administrative jurisdiction differently? Why should legislators be concerned with dealing specifically with judicial procedure in cases related to administrative justice? Indeed, the establishment of specialized jurisdictional courts ensures effective legal protection of citizens’ rights and serves as a check on the legality of administrative authorities. The specialized jurisdictional courts do so by considering best practices as well as specific principles and rules of administrative justice. These specific principles and rules of administrative justice contemplate the vulnerability of citizens in relation to administrative authorities as well as the balance between public and private interests. Considering these values of specialized jurisdictional courts, what demands justify a standalone administrative justice system?

As a general rule, in Europe and Latin America, the following criteria define administrative jurisdiction: (1) administrative law cases (in which disputes may involve administrative authorities or private entities in the exercise of public functions, such as in France,38 Spain,39 Portugal,40 Greece,41 Costa Rica,42 Peru, Venezuela,43 Colombia,44 and Argentina);45 (2) cases concerning administrative acts or actions (not including questions of civil liability or administrative contracts, such as in Germany,46 Austria47 and Switzerland);48 (3) cases limited to legitimate interests (excluding acquired rights, such as in Italy49 and Belgium);50 and (4) cases involving public or private law (provided that administrative authorities have an interest in the case, such as in unitary jurisdiction systems in England, Ireland, Norway, Denmark,51 Chile52 and Mexico).53

In this sense, the Brazilian system is also a hybrid. In general, consistent with Brazil’s unitary jurisdiction system and regardless of the public or private nature of the case, the condition that the interest of administrative authorities is at stake gives rise to administrative jurisdiction. The condition that the interest of the administrative authority be in controversy justifies the jurisdiction of the Varas de Fazenda Pública54 and federal courts. The same is true regarding the application of specific procedural rules as exemplified by the differentiated regime for enforcement of judgments against the administrative authorities (precatório judicial), the postponement of deadlines so that the administrative authority may defend itself, etc.55

When it comes to legal proceedings concerning the writ of mandamus (mandado de segurança),56 similar to the German system, Brazilian law has a longstanding tradition wherein the party challenging an administrative action, even if carried out by private entities exercising a public power, is forbidden from bringing a claim for compensation before the same judge.

In fact, the Brazilian mandado de segurança would deserve a chapter unto itself, given its apparent identity crisis. There are four reasons for this identity crisis. Firstly, the mandado de segurança is inspired by common law “writs,” which nowadays have been replaced by “claims for judicial review.”57 The second reason is the mandado de segurança’s roots in the Mexican concept of amparo (juicio de amparo), a procedure whose applicability has been well established as constitutional. Thirdly, the mandado de segurança’s unmistakable similarity to the appeal against excessive power (recours pour excès de pouvoir), of French tradition from when that measure was limited to annulling administrative acts.58 Lastly, the mandado de segurança is embedded, as it now stands, in a procedural and constitutional system wherein, regardless of the chosen judicial procedure, interested parties may pursue claims against administrative authorities.

Public agents and judicial structures charged with protecting the interests subject to administrative jurisdiction should be assured of the inherent right of personal and institutional independence. To guarantee this independence judges should not be subject to transfer, should have life tenure (vitaliciedade), and their remuneration should be fair and adequate. Their selection, their career paths, and the mechanisms for disciplining these judges should be entrusted to a body that will not compromise a judge’s independence. This oversight will avoid a vertical judicial structure marked by hierarchical subordination and careerism among the judges.59 Moreover, the method of selecting judges should occur through an open, objective, and transparent process. Selection should be based on the candidate’s technical skills and professional capacity.

These principles, which are specified in the Ibero-American Model Code for Administrative Processes (both within the Judiciary and within administrative authorities),60 are partially incorporated in the Brazilian Constitution.

Under Brazilian law any Brazilian citizen with a law degree can participate in a public, competitive selection process for first-tier judges. Selection is based on the candidate’s academic credentials and performance on civil service exams. These first-tier judges then advance to become second-tier judges through promotions based on merit or seniority. Throughout the judge’s career, the judge has continuing education requirements, which must be satisfied at the nation’s judicial schools. Some of the openings for second-tier judges are filled according to political criteria, by way of nominations by the Public Prosecutors’ Office (Ministério Público) as well as peer associations such as The Brazilian Bar Association (Ordem dos Advogados do Brasil / OAB). These nominations are then forwarded to the courts, and reviewed by the head of the executive branch for final appointment. The appointment for a position on Brazil’s Superior Court of Justice is subject to the additional requirement of congressional approval.61 In Brazil, there are no examples of lay judges sitting in administrative courts, except in the case of special courts (although the constitution, in art. 98, I, § 1, does make allowances for such judges, this is not yet reflected in the law).

The 1988 Constitution (Article. 96 II), gives the courts complete autonomy over the election of their governing bodies; the ability to develop bylaws; organize their departments, ancillary services and the courts that are tied to it; fill judicial vacancies in the respective jurisdictions; and fill positions necessary for the administration of the Judiciary. Further, administrative and financial autonomy is guaranteed by granting the courts the power to draw up their own budget proposals, within the limits established by the other branches of government, and in accordance with the Budget Guidelines Law (Lei de Diretrizes Orçamentárias / LDO).

In order to eliminate external influences, Art. 95 of the Constitution grants and at the same time limits judges’ power.62 Provisions that promote the independence of judges include: lifetime appointments, which secure the judges position until the judge is 70 years old (except in cases of criminal convictions that are final); prohibitions on the removal or transfer of judges to other courts (except transfers based on a public interest as determined by a majority decision of the court where the judge sits, or the National Council of Justice); and lastly, the irreducibility of salaries.

Nonetheless, the effectiveness of these prerogatives granted to the Judiciary, both on an institutional and personal level, has been widely questioned. One such criticism is that the nature of the budget-making process means that the executive branch does in fact exert influence in allocating funds to the Judiciary. Another criticism is that the irreducibility of salaries is on a nominal basis and thus does not assure the preservation of real values. Internally, despite a general feeling amongst judges that they are fully independent, it is not ideal that second-tier judges hold disciplinary and selection powers over judges of the first-tier.63 The first-tier judge’s hierarchical subordination in disciplinary matters and the role of the second-tier judge in selecting first-tier judges at the beginning of first-tier judge’s careers may leave citizens with the impression that there is a hierarchical and careerist structure that calls into question the independence and impartiality of the Judiciary. Impartiality questions could be raised, for example, in a case where a first-tier judge exercises jurisdiction over the legality of administrative acts of a second-tier court to which he or she is tied, or in a case where the first-tier judge may decide questions that impact interests of members of the same court.

The presence of a lawyer in administrative courts is a necessity and it should be considered a duty of the state to guarantee adequate counsel. This is true for administrative authorities themselves, which need professional legal representation. The complexity of public law cases make lawyers in administrative courts necessary. To fulfill the state’s duty to guarantee adequate counsel, the state must provide the benefit of free legal assistance to those who are unable to afford a lawyer.64

In Brazil, although the presence of a lawyer is optional only in small claims courts (juizados especiais de pequenas causas), in practice, a party to a case always has access to counsel, even if that counsel is an employee of the Judiciary itself. Free legal services (lawyer’s fees and expenses) have been widely available and effectively used in administrative jurisdictions.65

Administrative jurisdiction will have to be full in the sense being capable of fully implementing individual rights, as alleged, and therefore to correspond, if necessary, to a declaration, annulment, order to do or not do something, to pay, including by means of emergency judicial decisions, or forced execution. 66 Effective judicial functioning and Rule of Law depend on this extensive authority limited only by the principle that the Judiciary cannot impose upon administrative authorities obligations to act, to apply punitive or coercive fines (civil or criminal contempt of court), or even expropriate or impose liens on non-essential public assets.67 Effective administrative jurisdiction must be conditioned on being in the public interest, properly alleged and proven, so long as guarantees of due process are observed and compensatory means to the interested party are provided.

In this regard, Brazilian law has evolved considerably. The Code of Civil Procedure, applicable to administrative jurisdictions, permits filing any kind of claim against administrative authorities. Additionally, under Brazilian law, courts can issue emergency relief through preliminary injunctions and, where necessary, payment of a sum in cash consistent with Supreme Federal Tribunal (Supremo Tribunal Federal / STF) precedents.68 The greatest difficulty, however, lies in the practice of administrative authorities not complying with enforcement measures. They avoid compliance simply by alleging that emergency relief is against the public interest, asking for suspension of the preliminary order (suspensão de liminar) or suspension of the judgment (suspensão de sentença), which do not allow for any opposition to be filled. 69 Such allegations do not comply with the rules of adversarial proceedings.

The notion that certain public acts are excluded from judicial review is still present in the culture of some systems. There is no longer, however, justification for a special category of such acts that is different from the rest of those emanating from administrative authorities.70 It is undeniably a myth that judicial review of political content of public acts is impossible. The issue deserves to be revisited from the perspective of fundamental principles of the role of administrative jurisdiction, in parallel with that of constitutional jurisdiction.

The civil law tradition of judges serving as a “mouthpiece of the law” (Bouche de la Loi) is no more than a rhetorical flourish in Brazil.71 Constant litigation in various spheres of the Brazilian Judiciary regarding whether administrative acts fall within the authority granted by the administrative authority’s governing statute, or conform to the Brazilian Constitution’s social policy requirements, particularly healthcare policy, exemplifies that no act emanating from the public sector can be considered immune from judicial review.72

Judicial review of administrative acts should cover not only questions of the form and content of the administrative act in question, but also administrative discretionary powers when the exercise of such power exceeds limits allowable by law. Such an abuse of discretionary powers occurs where its exercise diverges from the administrative authority’s purpose or offends fundamental rights or principles, such as equality, legal certainty, legitimate expectations, proportionality and reasonableness.73

Above all, in this context, what is expected of the administrative authority is ethical behavior consistent with the Rule of Law, with emphasis on the respect for fundamental rights, following the principles of administrative law, among which the following are highlighted: the principle of legality, the principles of proportionality and reasonableness, the principle of equal treatment, the principles of legal certainty and legitimate expectations, and the principle of due process (fair hearing and adversarial proceedings).

The principle of legality contemplates the submission of the administrative authority to the requirements of law. The inclusion of the principle of legality in administrative procedure laws reinforces the supremacy of the law. As stated in the Peruvian law of administrative procedures: “Administrative authorities should act with respect for the Constitution, enacted law, and general legal principles, within the powers allocated to administrative authorities, and in accordance with the purposes for which [those powers] were conferred.”74

Moreover, it is important to emphasize that administrative authorities must ensure not only the legality or constitutionality of their actions, but also that such actions conform to international conventions to which Brazil is a party. Consistent with this need to emphasize administrative actions’ conformity with international conventions, administrative authorities may face situations where they are authorized to disobey legislation or administrative rules that the administrative authority considers contrary to international convention or unconstitutional, but which would normally bind the administrative authority. This authorization to disobey legislation or administrative rules is subject to the caveat that the administrative authority does not violate the principle of hierarchical subordination. The principle of hierarchical subordination means that controlling authorities must be looked to for any declaration of unconstitutionality or non-conformity with any international convention.75 In the absence of explicit legislative or constitutional provisions, it is the duty of the administrative authority to effectively apply for a decision on questions of unconstitutionality or non-conformity with international conventions and not to refrain from doing so in the hope that there will be some national or international legal intervention.

Concerning the absence of national legislation on determinations of conformity or non-conformity with international conventions, the Inter-American Court of Human Rights ruled, litteris:

Regarding Judicial practices, the case law of this Court has recognized that judges and domestic courts are subject to the Rule of Law and, therefore, are obliged to apply the provisions of existing law. However, when a State has ratified an international treaty such as the American Convention, its judges, as part of the state apparatus, will also be subjected to it, which obliges them to ensure that the effects of its provisions are not affected by the application of laws contrary to its objective and purpose, which from the start would lack any legal effect.

In other words, the Judiciary must exercise - ex officio - a control of the meaning of a convention, considering internal standards and the American Convention, obviously keeping in mind the appropriate competencies and corresponding procedural regulations. In this task, the Judiciary should take into account not only the Treaty but also its interpretation by the Inter-American Court, the final arbiter of the aforementioned Convention.

Thus, it is necessary that the interpretations of a constitutional and legal nature regarding the material and personal competency of military jurisdiction in Mexico are appropriate vis-à-vis the principles established in the jurisprudence of this Court, which have been reiterated in this case. In this light, this Court does not consider it necessary to order the modification of the normative content that regulates Article 13 of the Political Constitution of the United Mexican States.76

Brazilian legal doctrine views the principles of reasonableness and proportionality as a single concept. According Bandeira de Mello:

Strictly speaking, the principle of proportionality is simply a facet of the principle of reasonableness. It deserves special consideration in order to have a better understanding the specific problems that may arise under the guise of the disproportionality of an act. This will help us identify possible judicial remedies based on proportionality. Since it is a specific aspect of the principle of reasonableness, it is understood that its constitutional roots are the same.77

Although both principles are referred to in Art. 2 of Law No. 9.784/98, only proportionality is mentioned explicitly, in the following terms: “an alignment between means and ends, wherein obligations, restrictions, and sanctions greater than strictly necessary to meet the public interest are prohibited.” (Article 2, VI). Note that the principle of proportionality, in the legislation, is tied to “public interest,” and will naturally be used alongside the principles of equality, good faith and protection of legitimate expectations when exercised by a discretionary administrative power.

The Judiciary should respect the principle of equal treatment, that requires like treatment for those in like circumstances. Certain legal instruments are rooted in this principle, for example: class actions, binding precedents, and model proceedings (Musterverfahren)78. These instruments help guarantee ​​broad access to justice, the reduction of redundant lawsuits, and the merging of cases that deal with the same legal questions. Nonetheless, when referring to public law cases, where administrative behaviors or actions of general applicability are in question, equal treatment arising from judicial proceedings is doubly necessary. This is principally by reason of the duty of the administrative authority to treat equally those affected by non-adjudicatory actions taken by the administrative authority.79

It would be contrary to the principle of equal treatment if administrative action of general applicability had a different impact on some only because others were willing to go to court. Such a situation would ensure that the Judiciary’s decisions would contribute to a break with the principle of equal treatment. At the same time, however, the principle of equal treatment should not deter recognition of individual rights. The Judiciary cannot be associated with an outcome that defeats the principle of equal treatment. On the other hand the principle of equal treatment cannot be used to justify the denial of individual rights. Indeed, granting a citizen a right that could also be extended to all who were in the same situation, without actually doing so, undermines the idea of ​​equal treatment. The error, however, lies in an administrative authority not extending this benefit, not in the Judiciary’s recognition of the right.80

One of the greatest challenges of contemporary administrative law is the lack of uniformity of administrative decisions pertaining to interested parties that find themselves in the same factual circumstances. This situation encourages redundant claims, particularly in the Judiciary, and potentially undermines legal certainty. Some systems in Europe have found it hard to apply the principle of equal treatment to administrative decisions, and few studies exist on the subject.81

According to the Model Administrative Procedures Code for Ibero-America, the concept of equal protection before the law pertaining to administrative authorities should be such that when:

…the underlying issue in an individual claim concerns the legal effects of administrative action of general applicability, the outcome of the conflict must now address the interest of the community that this action effects, and therefore the solution must come from a single administrative decision, with erga omnes effect.82

Therefore, legal agreements involving administrative rules or actions of general scope necessarily affect all those who find themselves in the same factual circumstances, even though they might not have participated in these agreements.83

The principle of legal certainty should serve as a check on administrative authorities’ powers of self-governance. The annulment of administrative decisions or rules that are beneficial to citizens, but are of an illegal nature, can occur within the administrative authority itself. In such a procedure the administrative authority repeals a rule or decision after providing an adequate avenue for appeal in fulfillment of due process rights of citizens impacted by the repeal. Both subjective and objective considerations are taken into account in determining the propriety of repealing an invalid act. The objective consideration is a fixed statute of limitation within which administrative authorities may repeal invalid, but beneficial, acts. The statute of limitation, however, is not a limit in cases where the administrative act is in bad-faith. The subjective consideration is that an administrative authority may repeal an invalid, but beneficial act when such a repeal would no longer constitute a breach of trust of interested parties.84

The principle of legitimate expectations, coupled with the subjective element of good-faith, based on fundamental rights, and derived from legal certainty and the Rule of Law, are factors that guide German legislation, according to which:

An unlawful administrative act which provides for a one-time or continuing payment of money or a divisible material benefit, or which is a prerequisite for these, may not be withdrawn so far as the beneficiary has relied upon the continued existence of the administrative act and his reliance deserves protection relative to the public interest in a withdrawal. Reliance is in general deserving of protection when the beneficiary has utilized the contributions made or has made financial arrangements which he can no longer cancel, or can cancel only by suffering a disadvantage which cannot reasonably be asked of him.85

In addition to the previously mentioned cases, once the invalid act is repealed based on public interest considerations there should be an assessment of damages that result from the harm caused by the interested party’s trust in government institutions.86 Intentional misconduct, duress, corruption, knowledge of invalidity of acts (bad-faith), gross negligence by the interested party, or by basing the act on inaccurate or incomplete facts may harm trust in Government.87 As such, when validation is based on the lapse of time (e.g. One year from the date of notice of the invalid act), concern over trust in Government is less relevant. However, there are exceptions that remain in cases of intentional misconduct, duress or corruption.88

For Forsthoff, under German law, only two situations are possible when undoing administrative acts: cancellation (invalidating an act that has harmful effects) and revocation (invalidating an act generating favorable effects). In principle, a fully voluntary, or “free” revocation is never appropriate, except in cases where the illegal act is contrary to basic concepts of justice, such as in cases of willful misconduct or when revocation is based on changed circumstances of fact and law.89

In French administrative law, the principle of legal certainty is associated with the principles of non-retroactivity and respect for acquired rights (legally intertwined concepts). In cases of changes to a stable, yet illegal, status quo the French administrative authority reconciles the principles of legal certainty with the “obligation to restore a situation according to the law.” French administrative law does so by allowing contra legem “rights” to be undone, but only as long as the statute of limitation for such changes has not expired.90 This is the objective logic of French law.

In British law, legal certainty is related to the protection of legitimate expectations. The governing philosophy being that administrative authorities should not mislead interested parties. When dealing with cases of illegal acts that create a status quo, however, English law can be more severe than French law by precluding the possibility of contra legem rights.91 European administrative law, however, which increasingly influences European national systems, gives preference to the principle of legitimate expectation as conceived of in Germany.92

Brazilian Law No. 9.784/99, partially contradicting Precedent No. 473 of the Supreme Federal Tribunal (“The administrative authority may annul its own acts, when riddled with flaws that make them illegal, because rights do not originate from them.. .”), incorporated into law the French objective conception of legal certainty, along with German subjectivity, and the principle of legitimate expectations. This hybridization occurred in two regards: (1) A statute of limitation that precludes administrative authorities from annulling acts with favorable effects after five years (except in cases of bad-faith); and (2) the possibility of validation of acts with flaws that do not result in harm to the public interest or to parties with an interest in the case.

The absence of bad-faith (equivalent to the absence of willful misconduct) and the expiration of the statute of limitations justify the validation of acts with favorable effects that are contrary to law and designated as voidable. This rule is set out in art. 54 of Law No. 9.784/99 which states that, “The right of the administrative authority to annul administrative acts which have favorable effects for the beneficiaries fails five years from the date the acts were enacted, unless bad-faith can be proven”). The Brazilian rule is consistent with the German treatment of the subject (VwVfG, § 48, number 4).

Under the provisions of art. 55 of Law No. 9.784/99 (“In decisions where there is no evidence of harm to the public interest or to third parties, acts that have repairable flaws can be validated by the administrative authority itself”), the validation of illegal acts always depends on the absence of harm to the public interest. It should be emphasized that the public interest should not be confused with the interests of the administrative authority. Despite this lack of clarity in the law, however, the validation should be limited to when it is necessary to serve the interest of those who rely upon the act based on the interested party’s trust in Government. The interested party’s trust is evident when, given the circumstances, a reasonable person would believe in the stability of the administrative act. As a result, the Brazilian rule has a direct relationship with the principle of legitimate expectations as conceived in the German tradition (VwVfG, § 48, numbers 2 and 3).

With respect to the protection of acquired rights as a barrier to revocation of administrative acts in art. 53 of Law No. 9.784/99, it seems clear that, under normal conditions, administrative authorities do not revoke legal acts that create rights. The legal provision only makes sense if “revocation” is understood according to the German perspective in which the term “revocation” applies to the undoing of an illegal acts that have favorable effects. Therefore, the only barrier to revocation of administrative acts would be “acquired rights” that arose from the favorable effects.93 The above-mentioned provision could also be interpreted, in the French tradition that emphasizes the existence of two categories of administrative decisions, those that generate rights and those that do not generate rights (such as those resulting from police powers). Only regarding the latter can subsequent events lead to the annulment of the act.94

In this context, I find acceptable the interpretation in Brazil that, so long as there is no harm to the public interest, favorable effects of invalid acts should be safeguarded and unfavorable effects terminated. Additionally, there must be compensation for damages caused by a reliance on administrative acts based on trust placed in an administrative authority. Ultimately, if there is no willful misconduct, and the five years statute of limitations expired, not only is the favorable status quo preserved, the unlawful administrative act is validated.

Administrative hearings must come first, in order to elaborate the specific and restrictive effects of an administrative act on rights and interests. It is important to note that the possibility of a fair administrative appeal (a posteriori) challenging the administrative act does not eliminate the duty of holding administrative hearings prior to the implementation of the act. The prior administrative hearing is one of the constituent elements of the administrative act.

In that respect, the requirement of a fair hearing and adversarial proceedings in administrative process must include not only the right to be heard (i.e., one’s “day in court”) or the right to produce evidence, but above all other rights, the right to have a well-founded decision rendered in public that considers the findings of fact and law raised by the parties.95 In this sense, the jurisprudence of the Federal Constitutional Court of Germany (Bundesverfassungsgericht) has influenced the Supreme Federal Tribunal. Therefore, the requirement of a fair hearing and adversarial proceeding involves not only the right to express oneself and the right to information, but also the individual’s right to see a court address their arguments.96

What seems obvious, is currently the subject of much resistance on the part of Brazilian administrative authorities themselves. I will use as examples two model cases that are referenced frequently in Brazilian courts. One involves individual administrative acts, the other relates to general administrative acts.

In my opinion, Brazilian administrative law, with its structure, judges, and standards and principles of judicial due process, is consistent with the fundamental principles of effective judicial functioning and the Rule of Law. This assessment also extends to Brazilian procedural law governing hearings within the administrative authority.

Despite this consistency, there is a widespread notion in Brazilian society that administrative authorities do not respect individual rights.111 Additionally, there is a general belief that the Judiciary is slow and unable to respond adequately to the challenges it faces.112 In fact, statistics indicate that the number of claims against administrative authorities is increasing.113 In proportion to the increased number of claims, the length of time to complete a judicial proceeding has increased.114 Paradoxically, however, the judicial structures have grown in size, with a corresponding increase in costs.115 These symptoms indicate something is not functioning well. Indeed, there is a gap or lag in time between Brazilian legislation and the reality of the country’s administrative authorities.

I have tried to show that most conflicts arise as a result of resistance by administrative authorities, sometimes resulting from a lack of knowledge, to comply with the fundamental principles specified in the backbone of administrative law: the procedural laws governing hearings within the administrative authority. Today, 15 years after the issuance of the General Law on Procedure within Administrative Authority (Law No. 9784), and 25 years after the ratification of the country’s Constitution, we still see vestiges of a time when administrative acts were imposed without allowing for fair hearing and adversarial proceedings. Also, the widespread lack of training of public servants has become common knowledge. Recently, when the country’s new access to information law went into effect, this lack of training made the news. The newspapers, including those of the government itself, reported that when asked about the new law many public servants responded: “What access law is that?”116

Given an administrative culture and mentality in many ways rooted in the past, it would be premature and even rash to immediately increase the power of administrative authorities to resolve administrative disputes, and restrict or only allow access to courts in a secondary way. In the longer term, however, I recognize that the improvement of so-called “independent administrative authorities” is the most natural solution. Special attention should be afforded to the experience of American administrative agencies, with a view toward an overdue re-approximation of Brazilian and American administrative justice systems.

Therefore, what is required in Brazil, are reforms not only the Judiciary itself or the administrative procedural law (whether supplied by the Judiciary or the administrative authority), but also reforms directed at administrative authorities themselves. These urgently needed reforms would consist of training and qualification of public servants. This training would be technical, but also, and just as importantly, ethical. These reforms would create more efficient administrative authorities that are credible, strong and fortified as a true third branch of government. Brazil requires reforms that lead to an administrative authority that does not hide behind strict legality, comfortable with delegating to the Judiciary the responsibility of recognizing rights based on the Constitution and international conventions. Finally, Brazil needs reform that will result in administrative authorities committed to Rule of Law and which, without relying on the Judiciary, take the initiative to guarantee fundamental rights.