Participation as a criterion for deference in Brazil

The increase of human rights judicialization in Brazil at the end of the 20th century has led to an ever more intense intervention of the Judiciary in public policy choices, effectively shifting the decision-making process from the Executive to the Courts, in turn hindering proper policy-making, as more often than not judicial decisions do not converse with administrative choices. With this in mind, we propose a deference-based model that does not impede the analysis of administrative decision’s merit, while also stimulating better institutional practices, both in the Executive and Judiciary branches. We also suggest that, in the specific subject of public policies, public participation must be included among the criteria for judicial deference, so as to ensure public interest is respected.