O contingenciamento orçamentário de recursos para educação : a previsão do § 2o do artigo 9o da Lei de Responsabilidade Fiscal

Abstract

This paper intends to investigate whether it is possible to use the budget contingency mechanism (limitation of commitment and financial movement - § 2, art. 9 of the Fiscal Responsibility Law) in expenses related to education. This objective is based on the relationship between fundamental rights and the public budget in the context of budget execution, considering that this is the State's instrument to achieve the purposes constitutionally established by means of public policies that serve society. Social rights have a priority position in these policies, and education is among these rights, to which the Constitution has given special attention as an essential right in the legal system and in the social environment, having, in this context, its own financing, structuring, and protection mechanisms. The methodology adopted was a bibliographical research with subsequent literature review, consulting doctrinaire texts, legal diplomas and jurisprudences in the area of Constitutional and Budgetary-Financial Directives. During the work, it was found the establishment, by doctrine and jurisprudence, of the budget as a formal law with administrative act content and authorizing character, which is based on a set of classical legal principles, which guide its preparation and establish its objectives. Structured by a solid system of constitutional and legal provisions that complement and regulate its production, the budget is composed of laws that are systematized in a logical configuration. Framed within a new paradigm of Financial Law, fundamental rights, especially social rights, are placed as priority targets for enforcement via the budget. However, these are benefits that require financial expenditure by the State, thus establishing that rights have a financial cost. This leads to a serious question regarding the relationship between budget and fundamental rights: scarce resources versus public needs. This scenario imposes difficult choices on the State. Which rights to prioritize? These are the "tragic choices". This panorama leads to the budget execution phase. As the budget piece is prepared based on estimated revenues, the amounts actually collected may not be sufficient to realize the fixed expenses, which leads to the need for some flexibility. At this point, the LRF establishes the contingency as a way to control and maintain the balance of public accounts, being a legal and mandatory mechanism. However, there are expenses for which the LRF itself prohibits the use of contingency. These are legal and constitutional obligations. This is the case of education. Thus, we conclude that public spending on education cannot be contingent, due to the constitutional and legal scope of this right, as well as the constitutional guidelines for the organization and maintenance of education systems bequeatheds to the federated entities, which protect the right to education, making the expenses related to it as a priority and constitutionally obligatory, which also imposes on the entities responsibility in its treatment.