Direitos fundamentais sociais e orçamento público: das escolhas político-administrativas ao controle de constitucionalidade concentrado

Abstract

This research aims to analyze, from the point of view of legislation, doctrine and jurisprudence, the concentrated constitutionality control of laws and budget execution, given the slowness and weakness of the public power in promoting the progressive implementation of fundamental social rights. The methodology of this wok comprises a literature survey based on national and international doctrine and court decisions, especially the Brazilian Supreme Court, as well as the legislation related to the subject and other sources of investigative interest. It is pointed out that the implementation of fundamental social rights listed in the Constitution is mandatory for the public administration and the judiciary must ensure its execution, rebutting criticisms that allude to the political neutrality of jurisdiction, the separation of powers and the constitutional legitimacy. It is emphasized the importance of deepening the knowledge that the public budget should be defined and executed in a responsible manner, aimed at meeting the social needs of the population. It is analyzed the control of the public budget from internal, external, popular and judicial levels. It is emphasized the diffuse constitutional control in individual and collective actions that seek to impose obligations regarding social services on the State to achieve the existential minimum; and the control of constitutionality of political and administrative choices as the most advantageous way to minimize inconvenience to the budget during the financial year. It presents hypotheses in which the direct action of unconstitutionality and the claim of breach of fundamental precept can be used to contest normative and administrative acts or legislative and administrative omissions related to the public budget, before and throughout the financial year. Based on the studies carried out, it is concluded that there is the need for procedural opening in concentrated control of constitutionality of the public budget at the postulation, instructions, decision and execution stages, strengthening the participative democracy mechanisms and permanent institutional dialogue between the Powers and also between them and the society to ensure the progressive realization of fundamental social rights that comprise the existential minimum.