Judicial review of administrative normative act. Limits of courts control on political decision making

• Author: Erlir Puto
• Position: Faculty of Law of Tirana University
• Pages: 9-22

ISSN 2410-3918

Acces online at www.iipccl.org

9

IIPCCL Publishing, Tirana-Albania

Academic Journal of Business, Administration, Law and Social Sciences Vol. 2 No. 1

March 2016

Judicial review of administrative normative act. Limits of courts control on

political decision making

Dr. Erlir Puto

Faculty of Law of Tirana University

Abstract

Legal democracies have been facing with the evolution of a system of administrative activity

judicial review. Meanwhile the evolving of the Judicial Control over the Public Administration

in different countries of civil law systems has produced even in Albania the possibility of a

specific judiciary control over the Public Administration in an extended way. The new Albanian

Law on Administrative Courts (Law 49/2012) provides the power of the Administrative Court

of Appeal to judge as a Court of First Instance, in the cases regarding controversies on normative

administrative acts. It is a new open door to judge political decision makers, with some implicit

consequences on the entire system. Those acts are produced as a further explanation and

specification of the Law. Meanwhile they also express the Government Political Direction

and Political will. The most important issue which may rise in this case is: How can an

Administrative Court judge on the Executive Political Decision? May a Court judge the political

will of the Executive?

This power, given to the court, if we refer to administrative normative acts produced by public

authorities of political nature, is in substance in contrast to the right of exercising political

powers. This power to judge the politics should be evaluated case by case, but also some

guiding lines should be established. These should be some basic guiding criteria and limits to

be followed by the judges in the evaluation of objectives, purposes, aims or proportionality to

the situation that has imposed the law.

In most of the judiciary systems, the limits of reciprocal control between powers of the state

remain a never ending process of practice. It is usual that the law gives to the administration

a wide margin of opportunity. The way how executive would use its discretionarily, should

be judged in an appropriate way by courts. The limits of court interference in administrative

decision making would produce a fair system of judiciary control but may be even an

usurpation of government independence of political decision making or administrative

flexibility.

Keywords: judicial review, normative act, political decision making, court limits, separation

of powers.

Introduction

Judicial review of administrative activity has been a continuously discussed topic in

the last centuries. It is strongly connected to the evolution of democracy in every

single country. In its initial concept, the right of judicial review on the activity and

decisions of political power holders established through the Executive power has

been very limited. In a country where the power has been represented by a power

holder representative of the Divinity, or an authoritarian or totalitarian regime, the

idea of separation of powers and as a consequence of an independent judicial review,

has been very limited. It has been allowed only on individual acts mostly regarding

peripheral administrative bodies’.