The Direct Unconstitutionality Action (ADI) N. 1.923/DF and the role of the state and Social Organizations in achieving social rights

Abstract

Starting from the analysis of the Federal Supreme Court’s decision in ADI 1.923/DF, lodged against Law n. 9.637/98, which regulates Social Organizations (SOs), the article discusses the role of the state in the provision of services of social interest, particu¬larly in areas related to education, health, environment and culture, through these entities of the third sector. After analyzing the main opinions, it shows that, in the context of the 1988 Federal Constitution, such entities may act in partnership with the state in the implementation of social rights, but should never fully replace gov¬ernment in the provision of services that ensure full access to such rights. This is so because, by adopting the canons of the welfare state and democratic rights model, the Constitution imposes on the state the duty to ensure the provision of social services in a framework of public services, understood as material activities provided under a special publicist legal regime, which does not apply to Social Organizations. The article then analyzes the decision taken by the Supreme Court on the understanding that the promotion activity carried out by the state is not enough to fulfill the constitu¬tional objectives imposed on it with regard to the guarantee of social rights, so that a direct action of the state to accomplish the fundamental rights is imperative.

Keywords: social organizations, promotion, social services, fundamental rights.