O desvio de poder orçamentário

Abstract

The State has its objectives established by the Constitution of 1988, from article 3 on. Among them, there is the well-being of all, what means, for many, the common good. Explicit or implicit regulatory purposes provide course, guidance and direction as well as leverage State activities. Diversion from such paths turns out to be the vice of power deviation, of legal nature, thus imposing invalidation as a rule. A theory originated from the jurisprudence of the French Council of State, known as détournement de pouvoir, has now been controlling the discretionary acts and invalidating administrative ones that have not been practiced according to the law. In order to achieve its aims, to build a structure, maintain it and grow the State needs means like money, assets and personnel. The State budget is set up by law, but its implementation takes place in the exercise of administrative functions. It is a government plan that unfolds between revenue and expenditure, in three phases: definition of purposes, diagnostic and action scheduling .The Constitution systematizes the State budget on the basis of three laws: Multiyear Plan (PPA), Budget Guidelines Law (LDO) and Annual Budget Law (LOA). This legal Triduum, integrated teleologically, set guidelines, objectives, goals and budget priorities. Under the principle of an indepth budgetary analysis, all expenses go through the budget. The legal instruments - PPA, LDO and LOA- must observe the constitutional purposes. LDO and LOA are also required to follow PPA goals while LOA has to follow PPA and the LDO goals. Failing to do so, will result in the vice of diversion of legislative power. In the budget execution phase, to divert from the purposes stipulated by those instruments of law represents the vice of Budgetary Power Deviation (DPO), to be invalidated or co-validated whenever possible, provided it is done within the same fiscal year. Budgetary changes and maneuvers, authorized by law to meet the dynamics and adjustments of society, cannot deviate from the outlined purposes. Budget offenses, including DPO, has constitutional provision for receiving rather rigorous sanctions. This means intervention of Federal government in states and intervention of states in their respective municipalities, retention of constitutional transfers and even cancellation of elective office of the Chief of Executive Power. DPO is the most effective control mechanism of the public budget, which ensures and enforces that the purposes approved by those instruments of law are effectively implemented without deviations from legal directions