O STF como ator no ciclo das políticas públicas decorrentes de omissões inconstitucionais

Resumo

Purpose: The purpose of the study was first to understand how judgements on unconstitutional omissions issued by the Federal Supreme Court in writ of injunction affect the public policies cycle, interfering and altering its phases, and turning the Judiciary into a central actor in the insertion of the problem on the agenda-setting, from policy formulation and decision making to the implementation of the policy. Finally, understanding how the judgment of the Federal Supreme Court in writ of injunction n.º 7300 meant a turning point in the evolution of the jurisprudential practice of unconstitutional omissions and their possible impacts on future judicialization through the writ of injunction. In writ of injunction n.º 7300, the Federal Supreme Court determined, in April 2021, that the Government implemented the citizen’s basic income provided by Act n.º 10.835/2004, because the current policy — “Bolsa Família” Program — was no longer considered sufficient to comply with the constitutional commands to poverty combat. In August 2021, Provisional Presidential Decree n.º 1.061/2021 was issued, which established the “Auxílio Brasil” Program, a basic income considered, as well as “Bolsa Família”, a step on implementation of the Act n.º 10.935/2004. Methodology: The research has a descriptive purpose, following a qualitative methodology through content analysis and triangulation of secondary data. Findings: The 3 themes in which STF adopted concrete decisions — special retirement of public servants, strikes by public servants and criminalization of homotransphobia — implied agenda-setting and replacement of the decision-making, policy formulation and implementation of the public policy, even if precariously, due to the transposition, by analogy, of the only possible solution to the case. On the other hand, in the non-concrete decisions, the STF decision results in agenda-setting and has only influence on the edition of acts by the Legislative Branch (even if not immediately). The decision of the Federal Supreme Court in writ of injunction 7300 has significant innovations, despite of its non-concrete effects. First, it inaugurates the action of the STF in relation to the omission by standard parameter of the Constitution of limited programmatic effectiveness that does not directly refer to the enactment of law. Second, the decision handed by Federal Supreme Court has a different obligation in relation to the previous ones, which were limited to recognizing the delay and inform it to National Congress. Third, immediate and effective results come from the Federal Supreme Court’s judgment with the successive edition of administrative arrangements and legislative acts, from all the triggering of measures that resulted in the edition of Provisional Measure n.º 1.061/2021, converted into Act n.º 14.284/2021, establishing the “Auxílio Brasil” Program. Fourth, it determines de implementation of a social public policy. Regarding interference in the phases of the public policy cycle, the judgment of the Federal Supreme Court in writ of injunction 7300 implies the evaluation of the previous public policy (“Bolsa Família” Program), in addition to affecting the agenda-setting as a window of opportunity for “Auxílio Brasil” program implementation, even if cannot be considered as the only factor in decision making. The writ of injunction 7300 was a relevant factor, although not explicit and not isolated, in the implementation of “Auxílio Brasil” Program. Research limitations: The subject of the study were the judicial decisions of the Federal Supreme Court in writ of injunctions in the 9 themes in which the Court issued, until 12/31/2022, concessive decisions, until the writ injunction n.º 7300 (the tenth theme), as well as administrative and legislative results of the judgments. It is beyond the scope of the research to investigate possible internal developments (or their absence) within the Legislative Branch. The time and resources available did not allow a one-by-one analysis of all writ of injunctions submitted to the STF since its creation with the 1988 Constitution, which, up to 12/31/2022, totalized 7433 (seven thousand, four hundred and thirty-three) writs of injunction. Practical implications: Since the writ of injunction is a legal instrument that allows any citizen to sue the Judiciary, the writ of injunction 7300 may inaugurates a new front for public policy lawsuit, consisting of insufficiency verification of social public policies conveyed through programmatic constitutional norms. Social Implications: The study can shed light on new fronts for the judicialization of social public policies, considering that Writ of Injunction n.º 7300 deals with basic income for citizens. Originality: The study deals with an unexplored field, related to the judicialization of public policies related to cases of unconstitutional omissions.

Ficha do documento

Tipo

Dissertação

Ano

2023

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Não informado

Identificador

oai:repositorio.fgv.br:10438/34637

Temas

Políticas Públicas

Palavras-chave

Mandado de InjunçãoOmissão inconstitucionalPolíticas públicasCiclo de políticas públicasRenda básica de cidadaniaLei n.º 10.835/2004Mandado de Injunção n.º 7300Ação de inconstitucionalidade por omissãoBrasil. [Lei n. 10.835, de 8 de janeiro de 2004]