Democracia, cidadania e inelegibilidades: entre a moralidade e o princípio da estrita legalidade eleitoral

Abstract

This study analyzes the meaning of democracy and the fundamental right of people to participate in the formation of political will, especially under the prism of absolute infraconstitutional ineligibilities reformulated by the “Lei da Ficha Limpa”, proposing an interpretation of these ineligibilities based on electoral constitutional principles. In a context in which public opinion and the population press for a firm application of the rules of ineligibility, it debates the need to reconcile the fundamental right to passive citizenship with the principle of the legitimacy of elections and morality for the exercise of the mandate, in analysis by the principle of strict electoral legality. In order to do so, it relies on the deductive method, based on assumptions reached according to bibliographical analysis, without, however, leaving aside a critical analysis of the jurisprudence of the Superior Electoral Court from the use of the dialectical method. It notes that democracy presupposes the coexistence not only of ideas, but also of the majority and of minorities, who will participate freely in the state government. From there, it identifies the candidacy as a fundamental right, which can not suffer free and unfettered restrictions of a greater value that justifies the limitation. Noting that the ineligibilities are negative limitations of the right to the candidacy, it proposes that the rules of ineligibilities are interpreted according to the principle that confers meaning, which passes through the observance of hermeneutical methods, as the maximum effectiveness. It concludes by interpreting the ineligibility resulting from convictions for abuse of political and economic power, crimes, electoral illicit acts capable of leading to the cassation, administrative improbity, besides that resulting from the disapproval of accounts of public managers.