The Unconstitutionality of “Primary Administrative Jurisdiction”

Abstract

The paper begins by defining the concept of jurisdictional power, describing it as a prerogative exclusive to the Judiciary. It then introduces the discussion about the possibility of the Executive Branch assuming jurisdictional powers and presents the four possible stances on the matter. Once the topic is introduced, the paper analyzes Argentine jurisprudence. It concludes that the theory of "primary administrative jurisdiction" was first adopted by the Supreme Court in the Fernández Arias v. Poggio case. The paper takes a position diametrically opposed to that of the Court and presents various constitutional arguments against its legitimacy. It starts by presenting constitutional arguments in favor of a categorical prohibition of administrative jurisdiction. Following that, it mentions arguments related to procedural guarantees. Finally, it analyzes the practicality of the theory under scrutiny.