Ruptura de monopólio político-partidário : uma análise da construção histórica e jurídica das candidaturas independentes no Brasil e América Latina

Abstract

The study of democracy and its historical and principled evolution ends up being a source of inexhaustible studies. These elements were envisioned by the Brazilian State since the transition from the Empire to the Republic in 1889. This time, changes took place in the course of history and in the Brazilian nation itself. Among these, one can highlight the emergence and rupture of monopolies in relation to the candidate selection system. Taking the Federal Constitution of 1988 as a basis, which announces in its article 1, item II, citizenship as one of the foundations of the Federative Republic of Brazil, an element that binds the citizen to the nation and allows the exercise of political rights to assign or exercise elective mandates . In this way, discussions about validation, as well as its reception to the national legal system when Brazil became a signatory of the Pact of São José da Costa Rica, gained notoriety in endless discussions in the various instances of the Brazilian Justice, reaching the Federal Supreme Court (STF), after an action by two alleged candidates for mayor of the municipality of Rio de Janeiro, subject matter of Extraordinary Appeal 1,238,853/RJ, with general repercussions recognized by the Federal Supreme Court (STF). It happens that the debates that were built by the acceptability of the independent candidacy in Brazil and Latin America, although there is divergence between several democracies about the acceptability and insertion of Art. 23 of the Pact of São José da Costa and 25 of the International Pact on Civil and Political – human rights treaties that enjoy supralegal status and duly ratified by Brazil – that do not list party affiliation as a requirement for participation in the electoral process. The analysis of several graphs and comparative studies from renowned institutes that presented recent studies on the acceptability of the democratic regime, as well as the acceptability of political party associations and worrying indicators of systemic corruption in Latin American politics. In this vein, it is perceived that there is, within society, an acceptability and support for independent candidacies, whose debate in the legal sphere configures only an empirical threshold and accommodation of political mechanisms that will have to be redone with the changes in the current electoral legislation. Party affiliation as one of the requirements for candidacy for elected office has provoked debates about the receptivity and its scope of the Pact of San José de Costa Rica. All this problem was addressed by the Minister of the Federal Supreme Court, Roberto Barroso, rapporteur in the general repercussion action and excerpts from the speeches of the authorities invited to participate will be part of this work, as their expressiveness needs to be analyzed from different angles of legal and historical incidence. The objective of this dissertation is to build, through evidence found in vast literature and official records, the legal justification for the independent candidacy arising from a previous social acceptance. The methodology adopted is based on a vast and diversified bibliographical research complemented by the deductive method. Doctrines about democratic systems, as well as the jurisprudence of alien law and the International Court of Human Rights. In the opening chapter, analyzes and assumptions about the democratic concept, its evolution in Brazil and Latin America, rupture with party-political monopoly, systemic corruption in democratic institutional mechanisms and recent positions on the receptivity of independent candidacies in Brazil. In the final chapter, the approach to the general repercussion on independent candidacies forces the construction of a structure based on a constitutional mutation with new social representations.