Tribunais de Contas e o controle da atividade-fim da administração pública: políticas públicas e regulação. Legitimidade e limites das decisões das Cortes de Contas sob a abordagem de uma teoria da decisão democraticamente construída

Abstract

This work addresses the legitimacy and the limits of the decisions of the courts of accounts (general accounting offices) regarding primary government activities. The main questions for the development of this research were: after all, what are the courts of accounts? can they oversee public policies? when does the court of accounts make a bad decision in the oversight of primary government activities? what are the limits of a democratic decision in the oversight of the government? To understand the place of the courts of accounts in the institutional design, we have adopted the contributions of the administrative state, whose underlying logic points to the existence of independent institutions that function based on technicalities. Therefore, this work analyses the deference of the Judiciary to such institutions, considering, within this design, the place of the courts of accounts. Additionally, this work discusses the implications of the constitutional provision that increases the possibility of a qualitative oversight of the government through operational audits considering standards of legality, legitimacy, and economy. Thus, the issues discussed in this work specifically in terms of oversight of primary government activities revolve around the idea of (non)discretion, both of the government and the accounting offices. Our study was based on the notions of Autonomy of Law and the Adequate Response to the Constitution, which are important attributes to guide the limits of the activities of the courts of accounts on issues of this nature. In this context, the use of a prognostic model of oversight and the understanding that legality should not be conceived in its strict sense — but as having the Constitution as a parameter ("constitutional legality") — emerge as elements capable of conferring legitimacy to the oversight conducted by courts of accounts over primary government activities, while also limiting that oversight.