Political acts and administrative acts: the judicial control of pardon in the Brazilian and Spanish legal systems

Abstract

The distinction between the legal categories of the administrative act and the act of a political nature (species) is pertinent to establish their respective standards of judicial review. In order to perform an evaluative and comparative study, the Spanish and Brazilian political-administrative organizational frameworks were delimited in such a way as to investigate comparatively the legal treatment given to the pardon by the Spanish Supreme Court, in the judgment of Rec. Ordinario nº 13/2013 and by the Brazilian Federal Supreme Court, in action nº 5874. It is concluded that, while the Spanish system has a set of normative provisions capable of offering normative standards for the judicial review of political acts, the Brazilian system is deficient. In relation to the pardon, the 1988 Federal Constitution has limitations regarding the competent authority but no general normative disposition (statute) was issued by the normative-political authorities on the subject. In the ADI 5874 judgment, the STF defined that the Pardon Decree is a discretionary administrative act, but departed from the doctrine currently in force in Brazil regarding judicial control of this type of act.