Banca de DEFESA: GILVAN MARTINS DE SOUZA FILHO

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : GILVAN MARTINS DE SOUZA FILHO
DATE: 18/11/2022
TIME: 10:30
LOCAL: Ordem dos Advogados do Brasil - OAB
TITLE:

Independent candidatures in Brazil: the interpretation by the supreme federal court of the requirement of party membership.

KEY WORDS:

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PAGES: 134
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUBÁREA: Direito Público
SPECIALTY: Direito Constitucional
SUMMARY:

The Federal Constitution of 1988 provide in first article, item II, citizenship as one of the foundations of the Federative Republic of Brazil, an element that links the individual to the nation, which brings permission to exercise political rights to elect/assign or exercise elective mandates. The discussion about the “independent candidacy” in Brazil gained notoriety from the action filed by two would-be 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, § 3, provides 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 foundation 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, and with respect to the deductive examination, from a major premise - constitutional, supralegal and infraconstitutional norms - to a minor premise - the specific case of the possibility of independent candidacy by the Brazilian legal system. In the first chapter, some premises will be stipulated from the study of the democratic principle and political rights and the questioning about the current model of political representation. With these assumptions, in the second chapter, the case of Extraordinary Appeal 1,238,853/RJ will be approached, with a counterpoint assessment of the risks of party oligarchy and the personalization of the vote. In chapter three, it will be examined how the control of conventionality to be exercised by the STF in the judgment of 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, adequacy and models will be discussed in case of adoption of a model 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.

BANKING MEMBERS:
Presidente - 2121407 - ANDREAS JOACHIM KRELL
Interno - 1548876 - ADRUALDO DE LIMA CATAO
Externo à Instituição - LEAN ANTONIO FERREIRA DE ARAUJO - CESMAC