Os limites do controle da administração pública pelos tribunais de contas na efetivação do mínimo existencial em educação

Abstract

Almost 200 years have passed since the provision in the Imperial Constitution of free primary education to all, as an expression of the civil and political rights of Brazilian citizens, and more than thirty years since the promulgation of the present Constitution of 1988, when the fundamental social right to education reached the level of subjective public law, the realization of this right in Brazil is still a challenge. Several studies in the scope of fundamental rights theory were devoted to examining the effectiveness of these norms and the possibility of transforming them into reality, including the defense of a more incisive action of the Judiciary. Although there has recently been a more indepth look at the role of the Audit Courts in the control of public policies, the theme of the effects of fundamental rights on the work of these Courts still merits reflectionº In this research, the research falls on the limits of the performance of the Courts of Accounts when the effectiveness of the existential minimum in education is at stake. The general objective of the investigation is to investigate the extent to which the duties of the Audit Courts can be exercised when its external control function is carried out on administrative activity related to the existential minimum in educationº The methodology of the work is based on the method of deductive approach and on the methods of historical, comparative and monographic procedures. The research, in relation to nature, consists of original qualitative and theoretical work and, in terms of objectives, explanatory. In the perspective of the object, documentary research (bibliographical and documentary itself) was carried out. The method of interpretation is based on the parameters of neoconstitutionalism, namely in the normative force of the Constitution and in the centrality of fundamental rights in our legal system. In the first Chapter the right to education was analyzed in all Brazilian Constitutions and in the current Constitutions of Portugal and Spain, as well as in the perspective of international law. At the end, based on national and international indicators, the current reality of the right to education in Brazil was presented. In the second Chapter the examination fell on the fundamentality of the right to education in Brazil, its ownership and, more specifically, how its subjective and objective dimensions have repercussions on external control. In Chapter three, the focus of the analysis was the existential minimum in education, to understand its origin in the German doctrine and jurisprudence, how the subject is being treated in our country and its impact on the control activity. In Chapter four, the legal system of the Courts of Accounts in Brazil was studied. In Chapter five, the attributions of the Audit Courts were analyzed from the premises constructed in previous chapters, to indicate how their actions are influenced by fundamental rights, especially the existential minimum in education, and was defended the thesis that the Audit Courts, in the exercise of control activity related to the existential minimum in education, should exercise a strong action. The content of this strong performance, conditions, limits, some practical results and answers to the possible criticisms against this form of acting were presented.