Da (in)efetividade dos direitos sociais à excessiva tutela judicial garantidora: contribuições da teoria dos diálogos institucionais a partir da teorização fundamentada nos dados de processos judiciais sobre saúde e educação no Município de Dois Irmãos/RS

Abstract

Especially in the last two decades, in Brazil, the defense of an active role of the Judiciary in the realization of social rights has spread, given the insufficiency revealed by the other branches to ensure effectiveness to the huge list of rights in the 1988 Constitution. As courts intensified their action in this subject, besides the problem of the effectiveness of social rights remaining unsolved, the problems of judicial interference in an area in which the Judiciary does not have the institutional capacity to act have been accentuated. The objective of this dissertation is to explore the extent to which institutional dialogues can contribute for Executive and Judiciary to act in collaboration, obtaining a higher level of realization of social rights and avoiding excessive judicialization of public policies. To achieve this, it starts from the importance of social rights, based on its evolutionary process, and so its difficulty to be realized is understood, due to uncertainty about its content and to the limitation of public budget to finance the infinite social demands. Since the judicial review of the measures from other state departments cannot be stopped, alternative understandings to the judicialization of politics were sought. Among the alternative arrangements, there are institutional dialogues, a third way between judicial and legislative supremacy. And, among the dialogical theories, the partnership theory stands out, which understands that each Power, from its institutional position, has a valid contribution on the debate about the meaning and extension of constitutional rights. However, when analyzing 200 lawsuits on the rights to health and education, it was noticed that the Executive’s attribution of meaning to social rights is not respected by the Judiciary. However, it was considered feasible to engage the Executive and the Judiciary in the interpretation of the meaning and the extent that social rights must have, through the adoption of a dialogical stance between both. To this purpose, is proposed to jointly approve a periodic planning for the implementation of public policies. It was used the bibliographic method, the exploratory strategy and the qualitative approach of research at first, and, afterwards, it was used the method of grounded theory, which led to the creation of a theoretical proposal. This proposal contemplates the feasibility of Judiciary and Executive establishing institutional dialogues with each other and bets on the positive effects that can result from these dialogues for the realization of social rights. The proposal was based on the observation of judicial contempt for the administrative budget, the inability of the Judiciary to assess the general framework of public policies, but, in parallel, the impossibility of removing from the judges and the courts the control of such policies, in the perception that the Judiciary Power itself has already been opening atypical spaces for dialogue within the judicial process and in the need of normative provision for dialogues to occur. After all, it was understood that judicial action not discussed, in terms of social rights, does not lead to their effectiveness.