O direito fundamental à efetiva tutela administrativa : uma proposta de releitura dos atos de improbidade administrativa na descontinuidade das políticas públicas.

Abstract

This research focuses on a theme that, despite not being central, has been increasingly relevant to the Brazilian jurisprudence and doctrine, especially due to the repercussion of the performance of Public Administration regarding the promotion of public policies. The counterpoint to this optimistic view is the undeniable occurrence of acts of misconduct in public offices, which sometimes end up eclipsing the good conducts, i.e., those which respect the fundamental right to effective administrative tutelage. This issue regarding the fundamental right to effective administrative tutelage is encompassed by the line of research of the Contemporary Constitutionalism - which studies the novel position of the State as intervening in and executing public policies prone to correct inequalities, and as implementing rights not only considered as individual, but also social and collective ones, such as housing, health, sanitation, and education. Thus, the question guiding this research was “Can discontinuing or altering a public policy imply - based on certain criteria such as lack of motivation to the act, lack of publicity, absence of impersonality, among others – an administrative improbity act under the light of the right to effective administrative tutelage, according to the 1988 Federal Constitution? To answer this the hypothetical-deductive method was used as an approach, due to the assumed possibility of testing hypotheses based on deductive inference; as a procedure method, the bibliographic one was used, also selected as the research technique. This study was divided into three parts: the first chapter will deal with the connection between the duty-authority of implementing public policies and the right to effective administrative tutelage; the second one will focus on the connection between public policies and administrative improbity acts due to their discontinuation or alteration; and the last one will establish interpretation criteria of the Law of Administrative Improbity based on the consequences originated in the right to effective administrative tutelage, more specifically about decisions related to continuing or suspending public policies. The conclusion is that the right to effective administrative tutelage comes from the Brazilian constitutional setting, equipped with a duty-authority transferred to the public agents so they can implement and enforce the public policies. The fundamental rights – including the social ones, which are the main focus of the public policies – are expanded to conform with the administrative performance. The mismatch between the public agent’s decision who chooses to substantially alter or to discontinue a public policy and the fundamental right to effective administrative tutelage may imply an act of administrative improbity, demanding an investigation, in any event, of the volitional element required by the law governing it. Verifying the decision made is part of the analysis by the public agent, and one has to know whether his/her reasons demonstrate he/she has chosen “the” right answer among the possible ones. Otherwise, and concerning public policies and their relevance, deciding to discontinue or alter them will characterize an act of administrative improbity.