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EFFECTIVE ADMINISTRATIVE PROTECTION OF FUNDAMENTAL SOCIAL RIGHTS: By ONLATANE IMPLEMENTATION, INTEGRAL AND Equitable

Abstract

A This research is part of the following problem: following the advent of the 1988 Constitution, the low effectiveness of fundamental social rights in Brazil has led, as a reaction from academic writings and case-law, to an excessive centralisation of the debate around the judiciary as a solution for the realisation of such rights, notably through individual legal proceedings. However, judicial action, although often the only alternative, tends to favour an uneven share of citizens, especially those with higher levels of information and rent in order to gain access to the judiciary. This violates the constitutional integrity of the principle of equality by subverting the main reason justifying the protection of social rights by constitutions: the reduction of social inequalities. Two hypotheses are then launched. The first is that many of the problems that have arisen in the field of administrative activities necessary for the spontaneous, full and equal implementation of fundamental social rights could be remedied by the revision or relativisation of some dogmas created by classical administrative law science, developed and consolidated in the 19th century, which are not more in line with the constitutional landscape of the contemporary social and democratic state. The second hypothesis is that, on the one hand, the dogmatic of administrative law has not yet adequately incorporated three core categories of contemporary dogmatic of fundamental rights, which appear to be designed to put some of the axiomes of that legal discipline into perspective: the immediate applicability of the rules defining fundamental rights; the dual – subjective and objective – dimension of these rights; the multifunctionality of fundamental rights. On the other hand, the dogmatic nature of constitutional law does not sufficiently exploit administrative law institutions as mechanisms for the implementation of fundamental social rights, focusing in particular on judicial tools governed by civil procedural law. The proposal put forward to address this problem on the basis of those two hypotheses consists of the recognition, in the Brazilian legal system, of the fundamental right to effective administrative protection, enshrined in the Ibero-American Charter of the Rights and Duties of the Citizen in Relation to Public Administration approved on 10 October 2013 by the Centro Latinoamericana de Administración para el Desarrollo. It is argued that such a right may be inferred from a systematic interpretation of the constitutional system of homeland (Article 5, § § 1 and 2 and Article 37, header paragraph) and must be understood as the right of the citizen: to receive from the public authorities, within a reasonable period, effective protection – spontaneous, full and equal – of their rights; authorising the adoption of all appropriate administrative techniques and procedures for this purpose, even if, in order to comply fully with the determinations of the constitutionality block, it is exceptionally necessary to act in the absence of a law (praeter legem) or contrary to the law (contra legem); it prohibits the State from acting, administrative or judicial, in support of its secondary interests, where these are inconsistent with fundamental rights. On the basis of those factors, the argument put forward is that the Federal Constitution of 1988 confers on the citizen the fundamental right to effective administrative protection, which: imposes on the public administration the primary duty to create the substantive and legal conditions necessary to satisfy fundamental social rights in their entirety, beyond the minimum existential situation, even if it is necessary to do so by praeter legem or contra legem in order not to incur unconstitutional omissions that hinder social development; it requires it to take equal account of all holders of identical subjective judicial positions by adopting measures capable of universalising benefits granted individually by means of administrative applications or court convictions, failing which individual or collective State liability will depend on the nature of the legal claim in question. Keywords: Effective administrative protection. Fundamental social rights. Immediate applicability. Multi-functionality of fundamental rights. Objective dimension of fundamental rights. Subjective dimension of fundamental rights.

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