Os direitos fundamentais sociais e a jurisdição constitucional brasileira : uma análise da repercussão e da efetividade da audiência pública da saúde na jurisprudência do Supremo Tribunal Federal.

Abstract

This research aims at analyzing the repercussion and effectiveness of the use of public hearings, taking as basis the public hearings on health, in the jurisprudence of the Supreme Federal Court, to implement fundamental social rights, notably the right to health access. The fundamental rights, especially the social ones, are of great complexity not only due to the open nature of their contents, which lack in hermeneutics integration and constitute axiological, objective, normative goals in the Democratic State that radiate their effects throughout the whole legal system, but also due to the high costs of their implementation. These circumstances coupled with the increasing Judicialization Policy and Judicial Activism, determined by deep and diverse roots, imply an increased judicial role, especially in the enforcement of fundamental rights, especially social ones, expanding the role of the Constitutional Jurisdiction, not only quantitatively, but materially, which ultimately generates tension in the relationship maintained between State Powers. In this complex social and legal setting, the amicus curiae role emerges, as an attempt to democratize the Constitutional Jurisdiction with the opening of the locus of constitutional interpretation. Thus, the conditions for the constitutional hermeneutics are established to be preceded by the Open Society of Interpreters of the Constitution, created by Peter Häberle, which may represent a balancing factor to the judicial role. This research aims at verifying, using the proposed framework and considering mainly the public hearings on health, if the implementation of these hearings are effectively democratically legitimized or if it solely supports the role of Constitutional Jurisdiction, especially the Supreme Court. The chosen topic fits into the line of research of Contemporary Constitutionalism, characterized by the attempt to understand the constitutional phenomenon and its nuances in the pursuit of the realization of the diverse catalog of rights contained in the Magna Carta. Considering that the proposed topic and the issues it contains are contingent on Contemporary Western Constitutionalism, the inclusion of the current research in this line is justified. The methodology used is the one of deductive approach, and the methods of procedure used are historical and analytical. The research technique used is that of indirect documentation through the literature, as the consultation of books, journals and jurisprudences, especially those on the subject under discussion at the hearings on health held by the Supreme Court. Thus, this research is justified not only by the currentness and complexity of its theme, but also due to its relevance to more accurately verify the performance of the Brazilian Constitutional Jurisdiction, especially the Supreme Court, considering what a democratization process may represent, due to its undeniable and growing role in ensuring fundamental rights, including the social ones.