Public policies and the judicial power

Abstract

This article analyses the Judicial Power action parameters in the public policies exams arising from programmatic constitutional principles. Th ere is a search to establish the view that the previous “discretionary” immunity situation of the public administrator now tends to yield considering a new understanding related to the administrative legality and public policies, which seek to accomplish in the social practice the diff use rights, foreseen in the Brazilian Constitution of 1988. Th e conclusion expressed in the article is that the judge impossibility to question the administrative act merits, conception born from a non-interventionist liberal ideology, has been changing by the jurisprudence, making room to a principle conception that the Judiciary can analyze the convenience and opportunity reasons. In this sense, the direction that is composed throughout this work is that the judge can and must order the public administrator to proceed on the motivation of the impossibility to implement public policies, especially when they involve individual and collective unavailable rights. Finally, the article has essentially the innovating special virtue to present the legal-administrative tendencies involving the relationship between the Judicial Power and administrative decision makers.