Efetivação de políticas públicas pela via judicial: a audiência pública jurisdicional como instrumento de legitimação democrática

Abstract

Despite its social inclusion perspective, the Democratic State of Law has confined by its exclusive economic assumptions, since there was no abandonment of capitalist practices, which features a clash that has been threatening the continuity of the maintenance and deepening of its project of reality transformation. Thus, beyond the frustrations caused by disregard of constitutional promises, the democratization of access to justice as well as the endless demands that arise from the complexity of social relations make the judiciary is called to make possible the realization of those promises. So we characterized the phenomenon called judicialization of politics. It happens that the Judiciary, unlike the Legislative Power and the Executive Branch - traditional centers of representative democracy - it is not democratically legitimized by popular suffrage. It also arises therefore the need of the incidence of the democratic principle within the judiciary - in other words, the need for new practices in the construction of judicial decisions that ensure citizen participation. It is further considered, facing this situation in which the political mediation procedures give way to judicial, a crisis representativeness and on the other hand the fact that the Federal Constitution of 1988, art. 1, sole paragraph, establish besides a representative democracy, the participatory democracy, in other words the structuring of processes which allow citizens, effective possibilities to take part in decision processes. In this context, the research intends to investigate if the jurisdictional public hearing presents itself as a procedure to be able to legitimize the execution of public policies by Judiciary, in accordance with the participatory democratic principle laid down by the Constitution of 1988. Therefore, it examines, as a case of study, the Public Hearing nº 4, which had been convened by the Supreme Court, in 2009, in order to hear testimony from people with experience and authority on the Health System, aiming to clarify the technical, scientific, administrative, political, economic and legal issues relating to the provision of health actions in order to guide the Court's decisions in cases involving the commented. Thus, the research also involves an analysis whether there is a causal link between the criteria defined therein and the content of judicial decisions uttered by the Supreme Court about that subject since then, checking, in practice, possible democratic effects of the institute.