Public interest litigation and co-participative judicial enforcement of public policies

Abstract

This article discusses a proposal to redevelop the judicial enforcement stage of processes, mainly in regards to public interest litigation. That is to say whenever the judiciary finds itself with the responsibility to provide an answer for the cases involving the execution of public policies, it must focus on ensuring the adversarial as much as a co-participative result. The constitutional proceedings require a new approach from the judiciary with regards to dealing with old and new types of litigation. In the case of public interest litigation it is necessary to rebuild the foundation of mainstream judicial process theory so that it can go beyond the debate between the liberal and socializing stances, and thus enable a discursive formation of the decision and of its enforcement. Based on paragraph 5 of article 461 of the Brazilian Civil Procedures Code (CPC), this article argues that a procedure should be created in the judicial execution step whereby the parties (and others) may deliberate about its form, timing and scheduling, while being supported by an expert mediator, the role of whom would be to technically assist the parties' settlement efforts. In this way, the enforcement of public interest litigation, in acquiring a “soft character”, becomes more effective since it allows that its form will not come from a monocratic organ, but from the deliberation of the very people affected by the public policy in question and, thus the execution thereof, being more likely to succeed.