(In)aplicabilidade do princípio da reserva do possível nas decisões dos tribunais superiores na efetividade da política pública de educação obrigatória e gratuita : afastamento das limitações da lei de responsabilidade fiscal

Abstract

The right to education in Brazilian constitutionalism presents an evolutionary process which aligns with international standards for the protection of compulsory and free of cost education. In the domestic legislative process adequate conventionality is identified when compared to the global and regional system, which recognizes human rights as rights nherent to human nature. Inspired by this global and regional normative system for protection of human rights, the Brazilian constitutional order of 1888 included material and formally the right to compulsory and free of cost education as a provision fundamental right. In the constitutional state, individuals were no longer recognized as object, but acquired the status of subjects with rights. To achieve the new social missions, the Constitutional State was submitted to a new fiscal order, within which the discipline conveying mean was the implementation of the budgetary norms, from the perspective of the parliamentary reserve, whose role is inconsistent in the equalization of revenue and expenditure ratio. The Federal Constitution recognizes education as a fundamental instrument for the very existence of the State, establishing even a minimum financing. The manipulation of State’s financial activity, which has as consequence irregular or unsatisfactory supply of the right to compulsory and free of cost basic education, culminated in the intervention, since the 90’s, of the Judiciary in the implementation of public policy for its accomplishment. In preserving the separation of powers, the national doctrine and jurisprudence, inspired by the German, Portuguese and Spanish doctrines, developed theses to recognize the effectiveness of the fundamental provision rights and to resolve the collision of fundamental rights. At the current fiscal scenario, it is necessary, based on the existing theses and with indication of new elements, included in this study, the disengagement of fiscal limits, to ensure the fundamental right to compulsory and free of charge education regularly and with quality.