The Obstructive Face of Judicialization: Public Prosecution Service Oversight of the Non-Competitive Hiring of Artists

Abstract

This article examines an underexplored asymmetry in the Brazilian literature on the judicialization of public policy. While existing scholarship has focused on judicial decisions compelling the State to fund social rights, particularly health and education, this study examines the opposite movement. It analyzes the actions of the Public Prosecution Service, in conjunction with the Judiciary, to prevent public spending arising from the non-competitive hiring of artists by small municipalities under waiver-of-bidding provisions. The research seeks to understand how this pattern manifests empirically, particularly in municipalities subject to decrees or official recognition of a state of emergency or public calamity. A qualitative, documentary study was conducted, based on multiple case analysis of Public Civil Actions and judicial decisions. The sample comprises five core municipalities and two complementary cases, spread across five Brazilian states, covering the period from 2022 to 2026. The results suggest an emerging decision-making pattern, not yet consolidated into binding case law, linking the disproportion between the artistic contract's value and the municipality's financial capacity to the existence of an active emergency or calamity decree, a pattern that holds even when the waiver of competitive bidding is formally regular. The cases also reveal institutional self-regulation mechanisms designed to anticipate this form of judicial control, although their effectiveness proves limited in cases of noncompliance. Based on these exploratory findings, spending-containment judicialization is proposed as an initial analytical category capable of expanding the understanding of the judicialization of public policy in Brazil and of orienting future research with broader samples, contributing to theoretical and empirical debate in administrative and financial law.