judicial control of public policies in Brazil

an instrument for guaranteeing and enforcing constitucional rights

Abstract

The emergence of social rights and their constitutionalization has led to the courts being called upon to address situations where certain public policies considered essential, based on the Federal Constitution and the fundamental social rights it lists, have not been implemented. Court decisions obligating public administrations to fulfill obligations aimed at realizing fundamental social rights have resulted in a conflict involving the political and legal systems. The actions of the courts in the face of political power give rise to what has been termed judicial control of public policies, as well as the phenomenon known as the judicialization of politics. While the discretionary power of public administrators in defining public policies must be considered, the State cannot evade its responsibilities regarding the implementation of fundamental social rights. Two opposing legal principles are at play. With respect to public administration, the principle of the reserve of the possible dictates that public administration operates within the limits of the public budget and its economic availability; With respect to essential fundamental rights, the principle of minimum ethical standards states that there are rights upon whose realization the very dignity of the human person depends, given their essential nature. It is in this context that judicial review of public policies is analyzed as an instrument for guaranteeing rights within the framework of a democratic state governed by the rule of law, and should be considered while taking into account the independence of the branches of government.