Da (in)estabilidade funcional ao direito fundamental à boa Administração Pública: Possível relativização com o projeto de Lei no 116/2017

Abstract

The article analyzes the law no 116/2017, which intends to regulate the art. 41, § 1, III, of the Federal Constitution, to provide for the loss of public office due to insufficient performance of the stable server. The research deals with the procedures prior to the leave of absence, specifically, the periodic evaluation of performance, as a requirement of the probationary internship. In order to do so, the legal nature of functional stability is approached, which is ambiguously understood by common sense, because, sometimes understood as ex officio immunity that overloads public resources, sometimes as a functional coercion that keeps the agent hostage to arbitrary valuations of transitory leaders. This object is critically analyzed from the concept of a fundamental right to good Public Administration, as theorized by Juarez de Freitas. The legal-reflective bibliographic research draws on national and foreign doctrinal and legislative sources, with emphasis on the Charter of Fundamental Rights of the European Union and the Ibero-American Charter of Citizens' Rights and Duties in Relation to Public Administration. Despite the necessary regulation proposed by the aforementioned bill, there is still a lack of instruments to promote institutional improvement, going beyond the personalistic focus on the quality of the individual work of public servants, which tends to be in detriment to the realization of the fundamental right to good Public Administration.