THE JUDICIARY IN PUBLIC POLICIES: AN ANALYSIS OF THEME 698 OF THE STF AND ITS IMPLICATIONS FOR THE SEPARATION OF POWERS IN BRAZIL

Abstract

In recent decades, the evolution of the role of the branches of government in Brazil has been discussed, especially regarding the Judiciary's role in implementing public policies, with emphasis on Theme 698, recently upheld by the Federal Supreme Court (STF). Before CF/88, judicial interference in these policies was more restricted, as the prerogatives lay with the Legislative and Executive branches. With the enactment of CF/88, aimed at protecting fundamental rights, the judiciary began to act more assertively, overseeing and guaranteeing the fulfilment of state obligations related to health and social assistance, for example. However, this intervention generates controversy about its limits, as many jurists argue that the judiciary encroaches on the competences of other powers, infringing the principle of the separation of powers. From this perspective, the research is dedicated to analysing STF Theme 698, aiming to verify the role and limits of the Judiciary's role in making public policies effective in Brazil. The aim is to analyse the classic theories of the separation of powers and checks and balances, proposed by Montesquieu and Bolingbroke. To this end, qualitative methodology is used, with a hypothetical-deductive approach, as well as exploratory and bibliographical research, analysing specialised doctrine and case law. After analysing Theme 698, it was found that the prevailing view is that the judiciary has the power to intervene in public policies to guarantee fundamental rights in cases of administrative inertia, but it is limited to indicating the objectives to be achieved.