Administrative Law Concepts: Discretionary Acts and Public Administration

Understanding Discretionary and Administrative Acts

What is a Discretionary Act?

Discretionary acts are those in which the administrative authority is granted the power to decide the general interest in a particular case. This attribution must be exercised in compliance with constitutional and legal requirements applicable to all administrative acts, specifically ensuring the absence of arbitrariness.

Evolution of Discretionary Acts

Initially, discretionary acts were viewed as a manifestation of royal power and authority, thus being free from control. This concept has since been significantly attenuated. Today, discretionary acts refer to those where the authority is free to decide, but they remain strictly subject to the control of legality.

Features of Discretionary Power

Discretionary power grants the issuing authority the ability to choose between the best possible decisions, while simultaneously upholding and respecting the rules of morality and public interest.

In a discretionary act, the authority has greater freedom of choice. This decision is not determined by chance, nor is it the result of automated conduct. Instead, it requires a careful analysis and appreciation of the facts presented.

Purpose of a Municipality

The primary purpose of a municipality is to meet the needs of the local community and ensure their active participation in the economic, social, and cultural life of the commune.

Administrative Acts, Intent, and Legality

Diversion of Power and Official Intent

Diversion of power occurs when a public official, deliberately, either alone or in collusion with a third party, executes a fraudulent action.

Diversion of power is considered fraudulent because it involves:

• Incurring a different procedure to bypass certain formalities and guarantees.
• Concealing the real content of the act under a false appearance.

The Cause and Motives of Administrative Acts

Since the administrative act is performed to satisfy a public interest, the externalization of the motives or reasons that led the authority to dictate it must have an undeniable connection with certain values that ensure the measurable juridical nature of the Administration's work.

These values include:

• Honesty
• Reliability
• Responsibility for staff
• The faculty to implement the control of legitimacy.

The Purpose of the Administrative Act

The final element of the administrative act sets another essential requirement related to the functional aspect of the event. It represents the specific purpose of public interest or common good that the act pursues.

Overall Purposes of State Administration

The State Administration serves the human person. Its fundamental purpose is to promote the common good by meeting public needs on an ongoing and permanent basis and fostering national development.

This is achieved through:

1. Exercising the powers conferred by the Constitution and the law.
2. Adopting, implementing, and monitoring policies, plans, programs, and actions at national, regional, and community levels.