Administração pública em juízo: o patrimonialismo como óbice ao princípio da eficiência

Abstract

This review studies the Public Administration in court in a Democratic State-of-Law. Therefore, it seeks to analyze the rule of law in three stages: Liberal, Social and Democratic. It aims the primacy of each organic power during each stage: Liberal, Legislative; Social, Executive (Government); Democratic, Judiciary (Justice). The last stage, over the Judiciary role, is defined by the Constitution and it?s normative power. Along with its increasing power, the jurisdiction starts to have more responsibilities, since arises as a Right?s realizer. The obbligation of fully justify decisions is one of them that is, also, a way of legitimate its actions. Besides the Rule-of-Law State, this study also seeks to nationally contextualize the Public administration, since its patrmionialistic inception, through the bureaucratic period, until arrives at the Management model, with the insertion of the efficiency principle (Federal Constitution, art. 37, head). The Democratic State-of-Law, together with the Management model of Public administration results in a new Public administration, directly reflecting on its acts when in Court, through the Public Lawyers. They, in turn, as delegates of the State, and not de Government, play an essential role to Justice, always defending the primary public interest. With a properly structured Public Advocacy, independent and autonomous, subdued to constitutional norms, juridicity and efficiency, some instruments of civil process may be object of reflection, like the necessary review and the (un)necessity of an mandatory appeal.