, New Law of Contentious Administrative Jurisdiction: coming into force with significant improvements

New Law of Contentious Administrative Jurisdiction: coming into force with significant improvements

This January 31, 2018 will enter into force Legislative Decree No. 760, approved by the Congress on August 28 of last year, which contains the new Law of Contentious Administrative Jurisdiction (hereinafter “LJCA”), which abrogate and replaces the one in force since 1978. The new law has significant improvements in terms to facilitate the access to judicial instances, greater scope of matters that may be subject to its decision, more expeditious proceedings, mandatory intervention through lawyers and oral hearings.

Before the new law, any contentious administrative action has had to be raised before the Contentious Administrative High Chamber, but now a more complete Jurisdiction (authority to rule and execute ruled) is created with specialized Courts and Chambers, which will decentralize knowledge monopoly of the Supreme Chamber, alleviating the excessive workload that has generated decades of being the only jurisdictional body with competence in the matter; assigning different competences by criteria of matter, territory and amount.

For reasons of the matter, for example, requests of personnel at the service of the Public Administration, immigration matters, municipal – non-tax issues, will be heard in an abbreviated process before the Contentious Administrative Courts; and, actions attributed to officials of indirect or second-degree election indicated in Article 131 ord. 19 ° of the Constitution (eg, President and Magistrates of the Supreme Court of Justice, Supreme Electoral Tribunal, among others), will be heard in a common proceeding before the Contentious Administrative Chambers.

Although this new Jurisdiction will allow an early obtainment of resolutions and enforcement of the same, only to identify the competent court and the type of process for each case will require an important work of the litigating lawyers; starting point that will condition the admission to processing of their claims that are expanded, recognizing claims founded not only in traditional areas but in other subcategories that were normally strictly known by the civil and commercial jurisdiction, extending their competence – in a novel way – up to the preliminary and incidental requests not subject to Administrative Law, but related to the contentious administrative process.

The LJCA exhaustively lists the claims subject to this Jurisdiction, according to the following: administrative acts, whether express, tacit, presumptive, definitive or procedural; administrative contracts, including their interpretation, execution and termination; inactivity of the Public Administration; illegal material actions of the Public Administration without backup in previous administrative acts; actions and omissions of concessionaires; patrimonial liability of officials, concessionaires and the Public Administration; all of which may be deducted within the term of sixty (60) days after the expiration of the corresponding administrative procedure, according to the terms regulated in the -as recently approved- Law of Administrative Procedures, which regulates the procedures prior to the challenge in court.

In a harmonious way, the Law of Administrative Procedures regulates the end of the procedures in administrative offices by express resolution, by positive or negative administrative silence, withdrawal, resignation, or declaration of expiration; determining the beginning of the term to initiate lawsuits in court under the LJCA.

The greatest innovation of the LJCA is perhaps the incorporation of the principle of orality in the hearings to be held within the processes, which will not only have an impact on the arguments of the litigants, but also -even more important- will demand that they master skills and abilities, proper techniques of oral litigation, aimed at improving the quality of information that will be provided in the trial; and, especially, necessary to elaborate the theory of the case, setting in a precise way the pretension and the terms of the debate, as well as to propose and practice the evidence effectively.

In short, the entry into force of the LJCA will be a reason for enthusiasm and competitive advantage for the lawyers of CENTRAL LAW with experience in the Civil and Commercial Process Model that came into force in 2011, thanks to the similarities based on identical procedural principles: disposition, procedural equality, defense and contradiction, immediacy, among many others that will be of new application to contentious administrative proceedings.

Jonathan Menjívar
Associate Attorney at CENTRAL LAW in El Salvador