ADMINISTRATIVE LAW I / القانون الإداري 1

ADMINISTRATIVE LAW I: The ‘‘division of powers’’ is a political doctrine originated in the writings of Montesquieu. It urges a governmental system structured in three separate branches: the Executive, the Legislative, and the Judiciary. 

The public administration is part of the executive branch, including the government (Board of Ministers), which has a dual position, both administrative and political.

Although the underlying philosophy of the theory implies that such powers must be independent, in practice they are not whatsoever. 

Mutual interactions between the three branches are frequent. For example, a relevant part of the Legislative ́s action depends on the previous draft legislation from the Executive branch.

The Judiciary, though holding complete independent status when it comes to judicial review, lacks complete autonomy with regards to organisational aspects: the appointment proceedings in its Governing Body are strongly influenced by the political parties.

Last but not least, decision-making and regulatory making processes in the Executive branch are monitored by the courts. In addition, it has a direct link to the legality principle, and therefore, a relevant subordination to the Legislative.

Dealing with the concept of Public Administration is not an easy task. During Administrative law history, many authors have tried to reach a common point to identify the administrative phenomena; no one has been able to find a definitive result.

Three theories have arisen with limited success. Let us test and discuss them.

The objective doctrine tries to find either a specific function or formal criteria to explain what Administration is and how it should be. Some authors consider that the ‘‘public service’’ concept is the one that fits best, as every public body must carry out public service activities.

However, the theory fails as long as the public service concept significantly changes in time and place. In addition, Administrative bodies carry out many actions that cannot be directly linked to public services (i.e. penalties, tax benefits, etc.).

Other authors prefer to identify Administration with those bodies whose action is always vested with privileges. In particular, with the so called ‘‘autotutela’’ privilege.

However, the fact is that Administrative bodies do not always act under such privileges.

Sometimes they get involved in relations holding the same position as citizens do.

Finally, some scholars find the characterising role in the public interest concept (función típica o giro or tráfico administrativo), but the idea fails for the same reasons as the public service theory does.

The subjective doctrine focuses on the legal person that the Law appoints as an Administration body. Therefore, entities holding public legal personality, according to law, will be regarded Administration, and their activity shall be reported under Administrative law and under the supervision of Administrative Courts.