Administrative justice: a counterweight to state decisions

A company excluded from an administrative decision it deems illegal, a civil servant challenging a measure taken against them, or a citizen requesting the annulment of an act by a public authority are not necessarily in the same legal position as two individuals engaged in a private dispute. This is precisely the purpose of administrative justice, which subjects the actions of the administration to judicial review. In Senegal, a clarification is necessary from the outset, as the country has not had a Council of State since 2008. Its former jurisdictional and advisory functions were transferred to the Supreme Court, which now exercises some of the powers that certain states entrust to a separate supreme administrative court.

Senegal's institutional history helps to explain this organization. At independence, the ordinance of September 3, 1960, established a single Supreme Court. The judicial reform of May 30, 1992, subsequently divided it into three higher courts: the Constitutional Council, the Council of State, and the Court of Cassation. The Council of State thus served as the highest court in administrative matters for sixteen years, until the reform initiated in August 2008.

Organic Law No. 2008-35 of August 7, 2008, re-established a single Supreme Court by merging the Council of State and the Court of Cassation. The legislature justified this choice, in particular, by the consequences of the proliferation of higher courts on human resources, budgetary means, and the consistency of case law. Cases still pending before the Council of State were then transferred to the new Supreme Court, along with the judges involved.

Eighteen years after this reform, referring to the "Senegalese Council of State" in the present tense would therefore be legally inaccurate. The current framework is based primarily on Organic Law No. 2017-09 of January 17, 2017, as amended by Organic Law No. 2022-16 of May 23, 2022. The Supreme Court now comprises eight chambers, including two administrative chambers, alongside two criminal chambers, two civil and commercial chambers, and two social chambers. Each chamber sits as a panel of at least five judges.

It is primarily before an administrative chamber that an appeal for abuse of power, one of the most characteristic instruments of administrative justice, can be brought. A person who believes that a decision made by an executive authority is illegal can ask the judge to annul it. The review may concern the competence of the decision-maker, compliance with procedures, but also the reasons given, the factual accuracy of the statements, any potential errors of law, or abuse of power.

The distinction with the judicial system then becomes clearer. A judicial court may have to resolve a conflict between private individuals, prosecute a criminal offense, or settle a commercial dispute. Administrative justice, on the other hand, deals with disputes in which the actions of public authorities are involved. However, the boundary cannot be reduced to the idea that any conflict involving the State is automatically administrative, since jurisdiction depends on the nature of the dispute, the contested act, and the applicable rules.

Control can have very concrete consequences for economic activity. Administrative decisions play a role in the granting of permits, certain land transactions, the civil service, public procurement, and the exercise of activities subject to approval. When an act is annulled for abuse of power, the judge does not rule on the political expediency of the decision taken by the administration. The judge examines its legality, which constitutes a fundamental distinction in the relationship between the judiciary and the executive branch.

Time sometimes plays a crucial role, as an annulment obtained several months later is not always sufficient to prevent the immediate consequences of a decision. The 2017 reform therefore established a judge of summary proceedings in administrative matters within the Supreme Court, a function exercised by the Chief Justice or a judge he appoints. This judge can, when the legal conditions are met, suspend the execution of a challenged decision, order measures necessary to safeguard a fundamental freedom, or prescribe certain useful measures.

The Supreme Court also possesses a function directly reminiscent of that of the Councils of State in other legal systems. Meeting in a general consultative assembly or as a restricted special committee, it can issue opinions on draft laws and decrees, on certain proposed laws, and on administrative difficulties. It then examines, in particular, the legality of the provisions submitted to it and the legal arguments employed, without commenting on the political objectives pursued by the Government.

This dual function helps to understand what a Council of State truly is in countries that have retained this institution. It can act both as legal advisor to public authorities before certain decisions are made and as a judge of administrative disputes when they subsequently arise. Senegal did not abolish these functions in 2008. It chose to combine them with the other powers of the supreme court within a single institution.

Administrative justice thus raises a question that is far more commonplace than its name suggests. The administration possesses prerogatives that a citizen or a business does not, since it can unilaterally make certain decisions that produce legal effects. The existence of a judge tasked with reviewing the legality of these decisions introduces a counterweight to this power. In Senegal, this judge has no longer been called the Council of State since August 2008, but the function remains, now exercised at the apex of the judicial system by the Supreme Court.