A titularidade do mandato eletivo no sistema proporcional

Abstract

It was decided, with a majority of 6 (six) votes to 1 (one), by the Justices of the Supreme Federal Court in response to the query number 1398/2007 made by the Liberal Front Party (PFL), that the terms obtained by the proportional system elections belong to the political parties rather than the candidates, which was followed by the Supreme Federal Court when it voted to reject the injunction numbers 26,602 and 26,603 and the partial granting of the warrant number 26,604, which called for a loss of term of the Representatives that had changed political party. We describe in this paper the characteristics of both proportional and majority electoral systems with the doctrinal currents that defend them and those that criticize them and then, because mainly proportional system are tied to the existence of political parties, we made an analysis of these institutions. In the analysis of the political parties we investigated its historical origin, its current concept, its evolution in the Brazilian Constitutions and its present situation in our legal system. We approached the Institute of party loyalty from its inception to nowadays, drawing a constitutional and legal panorama of the institute. Finally, we studied the response the Superior Electoral Court gave the query 1398/97, where it decided that the mandate belongs to the party and not to the elected person and we also studied the decision of the Supreme Federal Court (STF) which corroborated the position of the STF assigning ownership of the mandate to the political parties, even though this possibility was not expressed in the Constitution and we questioned the constitutionality of these decisions on grounds of lack of constitutional provision for loss of the mandate for party loyalty