Da necessidade de controle jurisdicional do ato de criação e nomeação dos ocupantes de cargos em comissão: um estudo sobre o atual sistema administrativo constitucional brasileiro

Abstract

The purpose of this study was to analyze the judicial control of the administrative act of creation and provision of the commissioned positions, with the purpose of assuring the possibility of more effective investment of the Judiciary Power in this relation, in the analysis of convenience and opportunity in the editing of these acts, without interfering in the principle of Separation of Powers, in accordance with the discretionary merit provided for in CRFB / 88. Bibliographical researches, scientific articles, jurisprudential decisions related to the subject, and other bibliographical means that resemble the judicial control of the commissioned positions elaborated by renowned jurists and authors as a basis to certify the unlawful acts committed by the public authority legitimized to appoint the occupying the position, due to too many contractions that do not respect even the constitutional principles guiding the Brazilian Public Administration, many times because of the lack of regularization as the minimum amount of positions of commission in each organ, as well as the interest particularly involved in hiring the occupants of the commissioned posts, to the detriment of the public interest. In view of this, the conclusion is that the Judiciary Power can analyze the legality in the broad sense existing in the relationship between the occupant of the position and the public authority that appointed him, to avoid arbitrariness in this sense, by investigating the peculiarities of each concrete case.