THE SEPARATION OF POWERS AND JUDICIAL OVERSIGHT OF PUBLIC POLICIES: A NECESSARY TENSION?

Abstract

To begin this analysis, it is necessary to situate the reader in the context of the constitutional organization of the Brazilian State, especially with regard to the separation of powers and the role of the Judiciary in the realization of fundamental rights. The separation of powers, expressly provided for in the 1988 Constitution, constitutes one of the pillars of the Democratic State of Law, but it has been constantly strained by the phenomenon of judicial activism, especially when it comes to judicial control over public policies. This type of control, although necessary on several occasions, sparks intense debates about its limits and the possibility of undue interference by the Judiciary in the typical attributions of the Executive and Legislative Branches. Thus, it is essential to analyze how this action can be seen as a safeguard of fundamental rights or, on the other hand, as a risk to the autonomy of the other constitutional branches. We will focus on three main aspects that permeate this problem: the institutional implications of judicial action on public policies, the legal foundations that support this intervention, and the social and democratic repercussions of this phenomenon, considering the delicate balance between respect for the separation of powers and the enforcement of rights provided for in the Constitution. Finally, we propose a critical reflection on this tension, inviting the reader to position themselves in the face of the following dilemma: to what extent is judicial control of public policies legitimate, necessary and desirable in a constitutional democracy?