Saneamento básico no Brasil: quais são os deveres definitivos da Administração Pública

Abstract

Having verified the large percentage of the Brazilian population lacking services of water supply, sewage, solid waste management and rainwater, through official data, it was preliminarily concluded by the Brazilian State's deficit in relation to basic sanitation. From this, an investigation was begun on the location of basic sanitation in the national legal order, in order to identify the legal nature of the related law, and then to understand the definitive duty of the Public Administration regarding its effectiveness. In this first stage, a review of the literature on the subject was promoted, especially with regard to the impact of basic sanitation on human health and life, as well as the compilation of Brazilian legislation on these subjects. All the analysis was permeated by the intelligence that was extracted from the theoretical framework, embodied in the doctrine of Legal Positivism, whose contribution translates into greater clarification about the normativity of the Constitution, the structure of the norms of fundamental rights - with a special focus on the nucleus essential - and its relation to the principle of the dignity of the human person and, consequently, with the existential minimum. The indirect sources that composed this framework were worked mainly in the deductive perspective and qualitative research began. As a result, the fundamental right to basic sanitation, its intersection with the essential core of the right to health and its consequent mandamental character, has been proven, as well as the immediate application, by constitutional force, in an integral and universal manner, under the terms of the specific law . Faced with the budgetary question, it was recorded on the moment of application of the theory of the reserve of the possible, which does not anticipate the content of the existential minimum, and can do so only when the scarcity of resources is fully proven. In this sense, alternatives were proposed to the Public Administration to make provision possible according to the Constitution, demystifying the discourse of incapacity and contributing to more optimistic perspectives of the realization of this fundamental right, which is extremely essential.