A função consultiva do Tribunal de Contas do Rio Grande do Sul : reflexões acerca dos discursos e dos deveres de abertura procedimental a partir das teorias discursivas e democráticas de Jürgen Habermas.

Abstract

This paper proposes to investigate the consultative role of the Federal Court of Accounts, drawing on Jürgen Habermas, particularly on his discourse theory and conceptions of deliberative democracy. The investigation is associated to contemporary analysis and intends to analyse the consultative role of the Federal Court of Accounts of Rio Grande do Sul. The object of this investigation, consultations, allow particular authorities to ask the Court of Accounts questions about the interpretation and application of the juridical order, when the question is the review of the mentioned regulating body. Therefore, we observe that it is appreciation of the constitutionality of laws and acts of the Public Power, keeping relative closeness to the abstract control of constitutionality developed in the sphere of the Judicial Branch. The question we want to ask is how the discourse theory can contribute to the formation of the Court of Accounts utterances and, according to the theory we have chosen, whether political opening in the consultative role in terms of legitimacy is power or duty. The assumption follows the sense that, before the presupposition of the discourse theory, such as the principle of discourse and the democratic principle, as well as the types of discourse and conditions for procedure, evince constitutional duty to promote the introduction of the Court of Accounts’ consultative role in order to keep answers legitimate. The chosen research method was the hypothetico-deductive, the method of procedure was the monograph, and the research techniques were bibliographic and jurisprudential researches. As for research results, in the first chapter we have found that the consultative role is an infra-constitutional competence aiming to coordinate actions of adjudicators and the Court of Accounts, so that it is a kind of preventive control with normativity and not provided with definiteness. In the second chapter, we have found that this question requires a kind of discourse. Thus, we have seen that the more the question is abstracted, the more we need a discourse of justification formed with moral, ethical and pragmatic arguments, apart from those proper in a preventive exam of constitutionality, while in other questions in which the description is closer to a concrete situation, the applying discourse becomes more evident. Moreover, we have found that the answers’ addressees do not have the opportunity to take part in the argumentation in the legal procedure. So we have found the possibility of lack of legitimacy in answers in particular situations. Thus in the third chapter, drawing on deliberative democracy presuppositions, associated to the discourse theory, with disregarding the existence of a community open to interpretations of the constitution, we have verified the possibility to increase the number of subjects to ask for advice, as well as using mechanisms such as amici curiae and public hearing. Among the results for this part of the investigation, we have found that the procedure opening allows approaching the public sphere, more acceptability of answers, more opportunity to achieve the illocutionary targets, and controlling answers by reasonability. Furthermore, such opening increases legitimacy for answers assimilating opening instruments used by the Judicial Branch, when constitutionality is controlled abstractly. Therefore, the assumption is confirmed once it was possible to evince a duty of opening of consultation procedure by identifying discourses and contributions of the discourse theory.