Separação dos poderes, ativismo judicial e políticas públicas: análise jurídico-constitucional da judicialização das políticas públicas.

Abstract

The principle of separation of powers is ironclad clause of the Federal Constitution of 1988, and aims to prevent the concentration of state power in a single hand, ensuring no abuse of power. The constituent provided for the division of state powers between the legislative, executive and judicial powers respectively fitting functions to legislate / monitor, administer and judge. It turns out that in the current social context we are in the midst of a performance crisis of legislative and executive powers, which is gener- ating a need for more action by the judiciary in order to address the shortcomings of other powers. The inertia of the legislative and executive ineffectiveness triggered a so-called judicial activism phenomenon caused by the operation of the judiciary, ut- tering normative decisions and political, when provoked by society, that seeks the re- alization of their rights and guarantees provided by the Constitution. The inefficiency of the Executive in relation to public policies implemented to the guarantee of the so- cial rights results in a frustrated attendance to the existential minimum to the society, requiring a performance of the judiciary power to guarantee the second-generation rights established in the Constitution. There are totally contrary opinions to that of the judicial role, thinking that it is an affront to the principle of separation of powers. On the other hand, some argue the legitimacy of the judiciary in order to ensure the real- ization of fundamental rights and maintaining the rule of democratic rule, fulfilling its role as guardian of the constitution.