By: Diana De Mata
The content of the principle of legality in administrative matters
The principle of legality in administrative matters constitutes the most important normative and axiological constitutional parameter within the Guatemalan legal system by virtue of which the existence of the State and the exercise of its ius imperium is sustained, justified and legitimized. The existence of this principle reflects the premise of the constitutional theory by virtue of which it is attempted to explain the birth of the State and which establishes that “the State is at the service of the individual and not the individual at the service of the State”.
In the Political Constitution of the Republic of Guatemala, the principle of legality in administrative matters is essentially contained in two articles. Article 152, which establishes that power comes from the people and that its exercise is subject to the limitations established by the Constitution and the law. And Article 154, which states that officials are depositaries of authority, legally responsible for their official conduct, subject to the law and never superior to it.
Regarding this principle, the Constitutional Court has established, in reiterated jurisprudence, the following:
“(…) a public official can only perform what an express normative provision authorizes him to do and, he is forbidden, everything not explicitly authorized (…) which means that the public function must be duly established in the regime of constitutional legality. (…).”-Sentence dated 14-09-2016 within the file 2956-2016.The highlighting is my own-.
“(…) Within those principles, there is the principle of legality in the exercise of public functions, which implies that both the functions and the powers must be contemplated in the laws, as well as that the bodies or officials to whom they are assigned, must exercise them in accordance with the law. In accordance with the above, this Court has stated in repeated rulings that according to the principle of legality contained in Article 152 of the Constitution, the exercise of power, which comes from the people -directly or indirectly- is subject to the limitations set forth in the Constitution and the law. (…)”- Advisory opinion dated 10-13-2010 in file 1628-2010. Emphasis added.
“The principle of legality, recognized in Constitutional Article 152, is another fundamental element of the legal system. According to this rule, the exercise of power, which comes from the people, is subject to the limitations set forth in the Constitution and the law. In order for the principle of constitutional supremacy to prevail and to consolidate the regime of legality — where the rulers and the ruled proceed with absolute adherence to the law, a theological aspect contained in the Preamble of the Constitution — constitutional guarantees are established as legal means to counteract acts contrary to the law. This Court has declared that when the acts of the public power are carried out outside the competence foreseen in the Constitution or without complying with the requirements established by it, it is appropriate to put into operation the activity of the constitutional justice in order to ensure the rule of law (…).”- Judgment dated 06-01-1993 within the file 441-92. Emphasis added.
The observance of the principle of legality in administrative matters does not only imply the existence of a rule that expressly empowers the public official or employee to perform a certain act, but also the existence of a rule that expressly authorizes the public official or employee to perform a certain act.
While it is true that the principle of legality in administrative matters requires, for its observance and compliance, essentially, that the public official and employee act only by virtue of delegation, authorization or express mandate of the law, it is important to note that the respect and effectiveness of the same also implies, necessarily, that the activity or action of the public administration is carried out by the “means”, “ways” or “procedures” consistent, proportional and suitable to achieve the desired objective in each specific case.
In other words, for the public official or employee to effectively comply with the content and scope of the principle of legality in administrative matters, it is not enough that there exists, within the legal system, a rule that expressly “empowers” him to perform a certain act, since it is also necessary for the public official or employee, in a prudent, reasonable and legitimate exercise of the “legal power” that sustains his action, must select, within the “range of legal possibilities” available to him, the most suitable and congruent “form”, “means” or “procedure” to achieve the desired objective, in accordance with the constitutional principles and values.
How to evidence and identify the function of the parameter of reasonableness, contained in the principle of legality in administrative matters, in the exercise of the public function?
To clarify and demonstrate in a practical manner the fundamental role played by the parameter of reasonableness in the exercise of the public function to achieve an effective observance and respect of the constitutional principle of legality in administrative matters, an example is developed below in relation to the legal powers of the Superintendency of Tax Administration – hereinafter SAT – and the exercise thereof by said public entity.
Article 21 “A” of the Tax Code, referring to “Taxpayers’ Rights”, in its numeral 17, establishes that it is a right of the taxpayer that “Any request for information made by SAT to taxpayers or third parties, for auditing purposes, must be made in the request for information that originates the administrative process. Subsequent extensions to such request must be related to the same process”.
On the other hand, Article 30 of the same code, referring to the “obligation to provide information”, establishes that every individual or legal entity is obliged to provide to the officials of the Tax Administration the information on acts, contracts, commercial activities, professional or of any other nature, with third parties, which is required for the purpose of verifying the determination or generation of taxes, to this end, the Tax Administration will notify taxpayers or third parties, by the means it deems appropriate, that they must report their taxable activities generating taxes, exempt or carried out with third parties, in electronic form, with a certain periodicity, providing for this purpose the means, formats, contents or other elements that will contain the information requested.
From the two aforementioned articles, it can be seen that the Tax Code itself establishes and mandates that the “information requests” that SAT makes to taxpayers for the purpose of verifying the determination or generation of taxes (“information requests for auditing purposes”), must be made by the means exclusively intended for such purpose and, therefore, must be “suitable” in terms of format, content or other elements related to the information requested from the taxpayer.
In this order and ideas, for example, it is legally and constitutionally unacceptable, in light of the content and scope of the principle of legality in administrative matters, that the Superintendency of Tax Administration pretends to require information from the taxpayer for auditing purposes, through or by means of a tax return and payment form. While it is true that the SAT is expressly empowered by law to request information from the taxpayer for auditing purposes, this does not imply that it is at the total discretion of the tax administration to select the means or the way to request such information. Since, by virtue of the parameter of reasonableness, as an essential element and content of the principle of legality in administrative matters, when the tax administration needs to request information from taxpayers for auditing purposes, it is obliged to make such request through a special and exclusive request or request for information for such purpose, that is, through a unique, independent and autonomous “tax administrative act”, which even has its own recognition, regulation, properties, characteristics, effects and implications in accordance with the law.
Therefore, the Tax Administration cannot, without violating the constitutional principle of legality in administrative matters, denaturalize an audit act by “including” it within a tax return and payment form, whose nature, properties, purposes and effects are totally different in light of the provisions of the law.
To ignore the relevance of the parameter of reasonableness within the content of the constitutional principle of legality in administrative matters, would not only imply mutilating and distorting the content and scope of said principle, but would also result in the “acceptance”, “conformity” and “validation” of abusive practices and procedures by the public administration, which, not being expressly contemplated or authorized within the Guatemalan legal system, would constitute serious violations to the constitutional guarantees of the individual.