A perda do mandato eletivo no processo jurisdicional eleitoral e suas repercussões na democracia representativa e na gestão pública: uma análise crítica sob a perspectiva da teoria dos sistemas de Niklas Luhmann

Abstract

This study aims to explore, with a view to Niklas Luhmann's Theory of Systems, the consequences of the impeachment3 of an electoral mandate (from the cancellation of the registration or diploma of an elected candidate), issued in the context of the electoral jurisdictional process , on representative democracy and public administration. The central hypothesis is that the legal regime related to the loss of mandates for electoral reasons, especially after the elected ones take office, can cause systemic dysfunctions between Electoral Governance – understood as a subsystem of Law – and Politics, Administration and Citizens – perceived as subsystems of Politics, exposing risks to institutional integrity and to representative democracy, governability and governance. To this end, the research is based on two main methodological approaches: (a) legal-dogmatic, which is dedicated to understanding the current legal system regarding the electoral jurisdictional process of revocation of mandates, and (b) legal-social, which focuses on strives to understand the legal phenomenon in relation to other systems outside of Law, according to the division proposed by Luhmann. Electoral actions processed in Brazil in the last two municipal elections were analyzed, as well as the volume and context of municipal supplementary elections for the renewal of the mandate of the Chief Executive since 2017. This analysis allowed a better understanding of the extent and impact of the process electoral jurisdiction over the candidates for mayor and deputy mayor – especially on the elected ones - and on municipal public administrations. Finally, based on the results of the secondary hypotheses and the application of the theoretical framework to the data obtained, the main hypothesis was confirmed. Thus, this work began to suggest possible solutions to mitigate the identified problem.