Controle judicial das nomeações 'ad nutum': uma releitura sobre o mérito administrativo e os limites da discricionariedade

Abstract

This article reflects on the fact that the freedom granted to public agents to appoint people to commissioned positions, based on the criterion of trust, raises questions as to its compatibility with the pursuit of an efficient and impersonal Public Administration. Discretionary appointments, although legally provided for, often disregard technical and meritocratic criteria, compromising the quality of public management. Given this scenario, this study analyzes to what extent discretionary appointments, when based exclusively on trust, may represent a violation of the principle of efficiency if anchored solely on the argument of discretion. In response to such questions, the hypothesis is defended that judicial control of administrative merit may be a necessary tool to ensure that such appointments comply with constitutional principles. To this end, the research is based on a qualitative, exploratory, bibliographical and interdisciplinary approach, with analysis of official documents, court decisions and relevant doctrines, in order to assess the impacts of the politicization of commissioned positions in public administration.