The Democratic Rule of Law, in all its spheres, submits itself to the dictates of the Law, conceived as an instrument for realizing the objectives outlined by the Federal Constitution in its original form.
When we talk about Public Administration, this scenario is no different. This is because the democratic character of a State should influence the way the Administration operates, so as to have a full impact on all state sectors.
From this arise explicit and implicit principles that subject the applicability of these rules to a balanced approach with the aim of limiting and reducing state arbitrariness.
Public administrators have a degree of discretion in analyzing the convenience and opportunity of administrative acts when drafting and executing them; this discretion is granted only to the extent necessary to serve the public interest.
In pursuing this objective, the administrator is bound by the Law in its strict sense, and must act within its framework, so as to ensure the maximum application of constitutionally established norms and infra-constitutional legislation, without infringing on fundamental rights or guarantees.
Once these limits are exceeded, discretion transforms into arbitrariness, legitimizing the actions of oversight bodies, which can prevent the continuation of this act or cease its effects.
In this context, the principle of judicial review fulfills its function of ensuring that every administrative act, whenever potentially harmful to rights, is subject to some type of control, whether internal or external.
How does the principle of judicial review manifest itself in administrative action and in the control of the acts of the Public Administration?
Imagine that the Public Administration, when publishing a public notice for a competitive examination, includes a clause that directly contradicts a constitutional norm, compromising essential rights of the candidates.
In this scenario, the public notice, as an administrative act of a normative nature, is, at a minimum, flawed by a defect of legality, in direct violation of article 37, caput, of the CFRB/88.
In simplified terms, we can discuss two types of control that can be implemented: external and internal control.
Internal control originates from the Administration itself, acting on its own principles. This is the literal interpretation of Precedent No. 473 of the Brazilian Supreme Court and Article 53 of Law 9.784/1999, which address administrative self-regulation.
This refers to the possibility, either on one's own initiative or upon request, of reviewing, annulling, or revoking an administrative act, in order to ensure its compliance with the legal system and the public interest.
External control, on the other hand, is exercised from outside to inside the Administration. It is the responsibility of the Legislative Branch, with the assistance of the Courts of Accounts, and the Judicial Branch, upon request, to carry out the control of administrative acts, in accordance with articles 70 to 74 and article 5, XXXV, of the 1988 Federal Constitution.
In the modern conception of the principle of legality, normative powers are attributed to the administrative entities of the Public Administration, provided that they are guided by intelligible principles capable of also allowing legislative and judicial control over the acts issued.
In contrast to the Legislative branch—which exercises control in an institutionalized manner and can even assess the merits of administrative acts—the Judicial branch acts only when prompted by a legitimate party, limiting itself to the control of legality and constitutionality.
Judicial review does not focus on examining the convenience or expediency of an administrative decision, but solely on verifying its conformity with the limits imposed by the legal order in order to make administrative acts compatible with the entire legal system, and not just with formal law.
The jurisprudence of the Supreme Federal Court assumes a position of deference in relation to the decisions and acts issued by the Public Administration, since it is the entity that possesses the eminently technical knowledge to deal with the matter, provided that it acts within the legal limits.
It is not the role of the Judiciary to substitute itself for the administrator in choosing the solution most appropriate to the public interest, under penalty of violating the principle of separation of powers.
Thus, the principle of judicial review demonstrates that no administrative act is beyond control, whether internal or external, guaranteeing the conformity of the Public Administration with the Law, the Constitution, and the public interest.
How has case law applied, in practice, the principle of judicial review of administrative acts, especially with regard to judicial control of discretionary power?
In the context of public tenders, for example, both internal and external controls play an essential role in preserving legality and protecting rights.
Internal control ensures that the Administration itself corrects procedural flaws. In this sense, the Administration retains the ability to review acts tainted by irregularities, guaranteeing the integrity and reliability of public selection processes.
External control is frequently illustrated by the jurisprudence of the higher courts.
In the judgment of RE 898.450 (General Repercussion Theme 838), the Supreme Federal Court declared unconstitutional the clause in the public notice that prevented the participation and entry of candidates with tattoos into public office.
The Supreme Court understood that such a prohibition constituted arbitrary discrimination, without legal basis, violating both the principle of equality and freedom of expression, both provided for in Article 5, IV and IX, of the Brazilian Federal Constitution of 88.
Similarly, Supreme Court Ruling 683 consolidated the understanding that age limits in public service examinations can only be established when there is a legal provision and when the nature of the position so requires.
Another relevant example is found in RE 630.733/DF (General Repercussion Theme 485), in which the STF established the mandatory observance of the rules of the public competition notice, both to guarantee legal certainty and to ensure equality among candidates.
In this case, the parties sought a reassessment of answers provided during the exam and the grade assigned. Based on this scenario, it was reinforced that the Administration has the legitimacy to reassess the questions without interference from judicial review, except when there are egregious situations or flagrant illegality or unconstitutionality.
These precedents demonstrate that the role of judicial review, while not replacing administrative discretion, is essential in curbing abuses and ensuring that state actions comply with the Constitution and sub-constitutional legislation.
Conclusion
It is inconceivable that the actions of an administrator should be exclusively bound and mechanized, as there will always be room for interpretation of the legal norm, allowing for consideration of the specificities of each case and the careful application of the principles of reasonableness and proportionality, which are essential in the concrete case.
In turn, the margin of choice that the law grants to the Administration is not absolute. As Juarez Freitas observes, 'discretion not bound by principles is, in itself, arbitrariness', therefore there must be a delimited space between the Law and the Constitution so that the administrator can choose the most appropriate measure within that scope.
Whenever limits are exceeded, discretion degenerates into arbitrariness, which, according to the principle of judicial review, ensures that the administrative act can be subject to some type of oversight, whether internal, through the self-regulation of the Administration itself, or external, through the actions of the Legislative branch, the Courts of Auditors, and the Judiciary.
Thus, the Law constitutes a parameter for the validity of administrative acts, ensuring that state action remains faithful to the legal order and guided by the public interest and constitutional principles.
Read also: Administrative efficiency and due process in sanctioning procedures
BIBLIOGRAPHIC REFERENCES
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