“Revocation must respect the legitimate expectations of those subject to the administration”

The power to revoke administrative acts is known to be a difficult subject, and has been deeply analyzed by Renato Alessi in his classic monograph on the matter (“La revoca degli atti amministrativi”).

More than a jurist, a thinker, he analyzes revocation from his position in the general theory of law, and, as Ortega Y Gasset writes about his own philosophical method, he is “approaching (the thematic nucleus) in concentric circles, of ever shorter and more intense radius, sliding through the spiral of a mere exteriority with an abstract, indifferent and cold aspect to a center of terrible intimacy” (“What is Philosophy?”).

According to the author, the power of revocation derives from the subject’s capacity to act (in this case, public administration [government]) that affects the effects of that act, which, in turn, gave rise to a legal relationship, which will be modified by revocation. It is necessary that the subject be the current owner of the relationship, whose legal effects it seeks to modify or extinguish. However, in addition to the issues related to the competence of the administrative body, it must still have this power of revocation. Reasons for revocation may relate to the erroneous assessment of circumstances at the time of the act or to subsequent changes that render the effects of the act contrary to the public interest. Or, still, to changing administrative and technical criteria that render obsolete the effects of the act to be repealed.

Thus, revocation does not derive from a flaw intrinsic to the act, but from extrinsic elements. The annulment of administrative acts, in turn, depends on such element, which directly affects the act, such as, for example, the incompetence of the authority that effected it. The effects are also diverse: revocation produces non-retroactive (ex nunc) effects, whereas cancellation produces retroactive (ex tunc) effects.

This overview is just like a narrow little window, which invites us to see the whole landscape that is seen in the distance (the importance of the work leads us to publish its translation in the near future).

In the monograph, however, a chapter on the principle of legitimate expectations is lacking, perhaps without much relevance in Italian law for the well-known and specific conception of legitimate law and legitimate interest.

In any case, among us revocation must respect the legitimate expectations of those subject to the administration, that is, those who have taken concrete measures in their life in the face of the explicit or implicit guidance contained in the administrative act. Revocation, if inescapable because of the public interest, but when causing damages to individuals, should generate right to redress. If it does not cause damage, it must respect all the acts exercised and all legal relations generated on the basis of the administrative act to be revoked and which took place before the change of direction of the administration.

“The respect for the legitimate trust placed by those subject to the public administration should be the current content of the principle of administrative morality”

The duty of honesty, established in Art. 11 of the Law on Administrative Improbity derives from the principle of administrative morality, present in the constitutional norm, about whose content there is great disagreement.

At first, we are not aligned with those who give the principle of administrative morality a moral or ethical content.

Historically, this principle was introduced in the French Administrative Law by Maurice Hauriou, to allow for the State Council of France to examine aspects regarding the merit of the administrative act, which were covered by the principle of legality. The administrative morality of which the master of Toulouse spoke consisted in the practice of the administrative act with abuse or misuse of power.

However, this aspect of administrative morality, of which Hauriou spoke, had already been accepted by the doctrine, with the inclusion of the analysis of the merit of administrative acts by the Judiciary Power, even before 1988.

The Rule of Law brought new foundations and new instruments for the analysis of administrative acts, incorporated in the constitutional principles (explicit or implicit), in such a way as to modernize and update the content of the principle of morality.

Among these constituent elements of the Rule of Law, the principle of legitimate trust placed by him who is subject to the public administration must be emphasized. Consider the words by Gabriel Valbuena Hernandéz: “For all of the above, the fact that this principle is not explicitly regulated does not preclude authorities from complying with the obligation to provide reasonable protection to the expectations of the those who are subject to the public administration. After all, this is a minimum requirement that derives from the most basic postulates of public ethics and administrative morality“.

This principle exists to prevent any of the Powers of State from introducing regulatory modifications, judgment criteria and points of view in a direction diametrically opposite to that they had been adopting, without respecting the trust that they received from the citizen. This change, if carried out, should be promoted gradually, so as not to cause any abrupt injustice.

The respect for the legitimate trust placed by those subject to the public administration, therefore, must be the current content of the principle of administrative morality, which, thus, surpasses its former French design and many of the praetorian understandings still in force. In this sense, any proceeding demanding the imputation of violations to the duty of honesty, must demonstrate that the act contradicts, intentionally, the legitimate trust placed by those subject to the public administration.

“The members of the Judiciary do not acquire political legitimacy by being voted – but by means of other legitimating systems, such as a public entrance exam”

On November 19, 1863, then President Abraham Lincoln delivered one of his most famous speeches, in Gettysburg, the site of a bloody battle during the American Civil War: “that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that a government of the people, by the people, for the people shall not perish from the Earth”. Lincoln had just defined, precisely and synthetically, the democratic regime – “the government of the people, by the people and for the people”.

Brazil is a democracy: “All power comes from the people, that exercises it directly, or by means of elected representatives”.

The election, carried out via direct, universal and secret vote, in an indirect democracy such as ours, consists of a system of political endowment to the representatives in their positions. This endowment is what gives the elected representatives the political legitimacy to carry out their mandate, which they can lose in the cases anticipated in the Federal Constitution.

However, the members of the Judiciary do not acquire political legitimacy by being voted – but by means of other legitimating systems, such as a public entrance exam.

Therefore, their political legitimacy does not derive from the political endowment of an election (which occurs without popular participation). Nevertheless, magistrates represent the people when in the exercise of their functions, representing the Power of the State.

The importance of the Judiciary, as the highest instance to protect and safeguard the constitutional values and to settle disputes, is unquestionable, making a decisive contribution to the balance and stability of social relations.

It is this acceptance by the people that gives the Members of the Judiciary their political legitimacy. It comes from a complete harmony with the prevailing values for the majority of the population. Such values and principles interfere decisively in the exegesis and application of legal norms. When there is an overall feeling among the people that the principle of impartiality has been broken, or when highly questionable positions, from a legal point of view, are taken, then that harmony is broken.

We are currently witnessing openly bipolar feelings towards some magistrates: some are placed on an altar; others receive rampant disapproval. Both are serious, but the latter is more worrying and deserves deeper consideration, because it can quickly contaminate the political legitimacy of the Judiciary, in a democratic regime with few and inefficient mechanisms of correction.