Las políticas públicas ante el Poder Judicial

Abstract

This article analyzes the scope of judicial power in relation to public policies stemming from programmatic constitutional principles. It seeks to establish the view that the public administrator’s former situation of “discretional” immunity now tends to yield to a new opinion in regard to administrative legality and public policies, with the latter seeking to put into practice the diffuse rights stipulated in the Brazilian Constitution of 1988. The conclusion reached in this study is that the fact that a judge cannot investigate the merit of an administrative act, a prohibition that stems from a non-interventionist liberal policy, is gradually being overtaken by jurisprudence, opening matters up to the underlying principle that judicial power can analyze reasons of suitability and opportunity. Thus, the orientation constructed in the article is that magistrates can and must order public administrators to justify the impossibility of implementing public policies, especially when they involve indispensable individual or group rights.