Cláudia TOLEDO
Associate Professor at the Law
Scholl of the Federal University of Juiz de Fora – Brazil
While the principle of separation of powers goes back to
eighteenth-century France, the focus on the checks
and balances system, that takes part in that principle, is increasingly
present in the contemporary legal debate. Both omission and excess of public
powers in exercising their competence are institutionally damaging.
In compliance with the system of
checks and balances, the judicial control of the acts and omissions of the
other powers is done by judicial review.
Although the core of the competence of each power is well-known, diversity of
reality creates situations in which the identification of the competent power
is not clear. Often the concrete case involves issues that have influence or
effect on the scope of competence of more than one power. In such situations,
the border of the competence of each power is indefinite and its determination
is not possible in the abstract, but only in the concrete case.
One of the contributions – and,
in this sense, one of the innovations – that Legal Theory can offer to this
topic is the presentation of objective
criteria for the solution of the frequent competence conflicts between public
powers. The principle theory
developed by Robert Alexy plays an important role in the analysis of the
competence conflicts. According to this theory, principles (both material and
formal) are optimization requirements and their collision in concrete cases
must be solved by a balancing process.
The competences of powers can be
expressed in formal principles:
1)
Legislative power – Principle of democracy (freedom of the legislator, legislative
discretion);
2)
Executive power – Principle of democracy (administrative discretion);
3)
Judiciary power – Principle of non-obviation of jurisdiction (judicial
review).
In order to identify the
competent power in the concrete case, it is essential to determine the degree
of the extent or amplitude of the scope of competences at stake. For this
purpose, the three criteria below (which are not exhaustive) act as follows:
1)
Empirical epistemic reliability of the premises used for a decison – the greater the empirical epistemic unreliability,
i.e., the uncertainty of the empirical knowledge expressed in the premises of a
decision, the wider the scope of
discretion of legislative and executive powers for decision-making and narrower the scope of judicial review,
because it is necessary to increase that knowledge (or the empirical epistemic
reliability) of the subject mentioned in the premises and the representative
powers are the public sphere where the debate must originaly take place;
2)
Extent of legal regulation of the subject of the decision – the higher the regulation of the subject of
the decision, the wider the scope of
judicial review and the narrower the
scope of discretion for decision-making of legislative and executive powers.
Since there is a high degree of the regulation of a topic, the margin of
appreciation allowed to the legislator and the administrator for decision-making
on that topic is narrow;
3)
Interference with fundamental rights – the greater
the degree of interference with fundamental rights, the wider the scope of judicial review to protect those rights and the narrower the scope of discretion for
decision-making of legislative and executive powers, that are bound to
constitutional rights.
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