Candidaturas independentes no Brasil: a interpretação pelo Supremo Tribunal Federal da exigência da filiação partidária

Abstract

The Federal Constitution of 1988 announces in first article, item II, citizenship as one of the principles of the Federative Republic of Brazil, an element that links the citizen to the nation and allows the exercise of political rights to elect or exercise elective mandates. The discussion about the independent candidacy in Brazil gained notoriety from the action filed by two wouldbe candidates for the mayor of the city of Rio de Janeiro, a matter that today is the subject of Extraordinary Appeal 1.238.853/RJ, with general repercussion recognized by the Supreme Court Federal (STF). The Constitutional Text, in its article 14, § 3º, announces that it is a condition of eligibility, in the form of the law, the party affiliation. It so happens that this requirement was regulated through ordinary legislation - Law on political parties (Law 9.096/1995) and Law on elections (Law 9.504/1997) - which require affiliation for the exercise of passive electoral capacity. Such norms are in line with what asserts articles 23 of the Pact of São José da Costa Rica and 25 of the International Pact on Civil and Political Rights - human rights treaties that enjoy supra-legal status and duly ratified by Brazil - which do not list party affiliation as a requirement for participation in the electoral process. Therefore, it is questioned whether the condition of party affiliation present in the Constitution includes restrictive regulation or whether such a requirement can constitute an obstacle to the full exercise of the republican principle of citizenship. The relevance of the research rises even more in the face of the control of conventionality carried out by the STF, based on the impossibility of the civil prison of the unfaithful depositary, based on art. 7 of the Pact of San José of Costa Rica. The objective of this dissertation is to evaluate the legal possibility of candidacies without party affiliation in Brazil. Methodologically, bibliographic research and the deductive method are adopted. The legal analysis was carried out in the research of the doctrine on democracy and political representation, as well as in the jurisprudence of foreign law and the International Court of Human Rights to study the specific case of the possibility of admission of independent candidacy by the Brazilian legal system. In the initial chapter, some premises will be stipulated from the study of the democratic principle, political rights and the questioning of the current model of political representation. With these assumptions, the case of Extraordinary Appeal 1.238.853/RJ will be addressed in the following chapter, with a counterpoint assessment of the risks of party oligarchy and the personalization of the vote. Then, it will be examined how the control of conventionality to be exercised by the STF in the judgment of the Extraordinary Appeal 1.238.853/RJ can allow the coexistence between members of political parties and independent candidates in Brazilian law. In the final chapter, the phenomenon of constitutional mutation will be addressed, as well as the adequacy and models in case of adoption of a representative system that allows independent candidacies. The investigation concludes that, after controlling for conventionality, it is possible to affirm the possibility of an independent candidacy in Brazil, however, this finding stimulates relevant complementary research.