Compromisso significativo: contribuições sul-africanas para os processos estruturais no Brasil

• Ano de defesa: 2021
• Autor(a) principal: Serafim, Matheus Casimiro Gomes
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Palavras-chave em Português: Poder judiciário e questões políticas; Direito constitucional - África do Sul; Tomada de decisões; Participação popular
• Link de acesso: http://www.repositorio.ufc.br/handle/riufc/56376

With the constitutionalization of economic, social and cultural rights (ESCRs), the Judiciary Power has been demanded to face cases involving the implementation of complex material benefits, in areas such as health, housing and education. To deal with this type of demand, structural litigation arise, which can increase the judicial role, to a greater or lesser extent. Because of this, they are usually criticized with at least three objections: the threat to the separation of powers, the technical inability of the Judiciary to create and supervise public policies and the possibility of a backlash effect. In this context, this dissertation analyzes a model of structural remedy developed by the Constitutional Court of South Africa, called Meaningful Engagement, which can minimize the impact of these objections, as it expands community participation and institutional dialogue among the various actors responsible for solving the problem. In addition to the traditional documentary and bibliographic research around the doctrine developed on the subject, a comparative legal study with South African experience was carried out, focusing on three paradigmatic cases: Olivia Road, Mamba and Joe Slovo. The purpose of the comparative study is not to transplant a foreign structural remedy, but to learn from the success and failure of the South African Constitutional Court in structural litigation. Based on the study carried out, it concludes that the Meaningful Engagement has two essential characteristics, which can contribute to the structural litigation in Brazil: the institutional dialogue and the participation of the affected group in the resolution of the structural dispute. While institutional dialogue contributes to mitigate criticism of structural litigation, public participation has an intrinsic value, for treating the affected social segment with dignity, and extrinsic values, for promoting an epistemic gain in decision-making, opening entrenched bureaucratic institutions and promoting Public Administration transparency and accountability