Summary: 1 .- Introduction. 2 .- Concept. 3 .- General characteristics of the constituent power. 4 .- Subject of the legislature. 5 .- original constituent power and constituent power derived. 5.1 .- original constituent power. 5.2. Derived constituent power.
1. Introduction.
The existence of a state is the result of a work component. This work involves under- with the statement of Carlos Sánchez Viamonte - the interplay of three elements: the act constitutional, constituent power and the constitution.
The constituent act is the set of facts through which expresses the political will to establish a political society. Ie it comprises a plurality of events or historical events of a political nature, that expressed a desire "doer" and that such are necessary for the formation or restructuring of a state.
The constituent power, broadly defined, refers to the attitude or quality for "constitute" a political society. Implies the ability to rule effectively and existence of institutionalized power to establish a politico-legal.
For its part, the constitution refers to the set of principles, values \u200b\u200band norms that describe and regulate the political and legal order of political society "constituted"
2. Badeni
concept holds that the constituent power is "the primary manifestation of the power of a global political society, to establish a legal and political organization with a constitution, and to introduce it full or partial reforms deemed necessary in order to crystallize legally changes that occur in the dominant political idea in society. "
The Bidart Campos says it is" the ability or power to constitute or to the state constitution, is to organize, to establish its legal-political structure "
For Professor Nestor Pedro Sagüés states that the term constituent power refers to both the power or ability to adopt a constitution (power-function) as the body exercising that power (to-person.) Meanwhile
Javier Pérez Royo contends that a Constitution is above all the presence of a constituent power. States that the two notions are inextricably linked as "the creature creator"
3. General characteristics of the constituent power
We note two key features of the original constituent power and constituent power derived:
• Extraordinary. Because unlike the powers that the government, which are regular and continuous, the only constitutional function and exercise exclusively to issue or amend a constitution.
• Supreme. Because you set the ultimate manifestation of political power through an act of authority that creates and defines the powers that government subordinate to the constitutional act.
4. Subject of power constituent.
The ownership of the legislature is determined by the political system in which frame. While in monarchical or aristocratic states, ownership of power rests with one person or group of people in a democratic state the power vested in the people.
In a constitutional democratic political system the dominant political idea of \u200b\u200bownership indicates that the constituent power resides in the community, the village or the global society, composed of all those within the human element of political organization.
The title relates to the concepts of validity and legitimacy of the Constitution.
Legitimacy is an essentially political concept that is determined by the community in terms of the dominant political idea adopted by it. Has legitimacy whatsoever is accepted and agreed with the dominant political idea.
Validity is an essentially legal and depends solely on the adequacy of the Constitution to pre-existing legal order and if the natural law. The legal invalidity affects the legitimacy of the rule of law, but your score is determined solely by legal elements.
5. Original constituent power and constituent power derived
5.1. Original constituent power .- It originated when matter the foundation or re-establishment of a global political society establishing its fundamental political and legal organization, without complying with existing positive rules.
We can say that is the right of action arising out of the attribute I insist on a community or a (s) of person (s) on behalf of it, independently provided a politico-legal through the issuance of a constitution . Represents the association of the will and strength to take a decision on the manner and form of political existence.
5.1.1. Original constituent power classes .- Professor Sagüés difference to the constituent internal the outer. The inmate is one who sanctioned the establishment of their own country. That is, a product of social and political power from the source or the members of the restructured state.
external Constituent power is seen in cases in which the constitution of a country is a product of the constituent power of one or more foreign nations either total or partial way. In other cases a foreign power but does not dictate national constitutional norms, strongly influence the internal constituent power. Examples
internal constituent power are the constitutions of Spain (1978), Brazil (1988) and Portugal (1976), but instead we are dealing with constituent power were foreign constitutions as those of Canada (1867), Australia (1901) and South Africa (1909) issued by the British Parliament. Meanwhile
doctrine, also referred to the constituent and the constituent power tyrannical polycratic: the first is characterized by political hechom the practicing or operator of the original constituent power is a single person, as the case Libya, who in 1951 proclaimed its independence under the command of the sovereign Senoussi Mohamed Idriss. In 1969, following a military coup, Col. Muammar Al Gaddafi took power, who in 1977 gives the Constitution currently in force. Instead polycratic constituent power, se caracteriza por el hecho político de que el ejerciente u operador del poder constituyente originario está constituido por una pluralidad de personas, siendo un emblemático ejemplo la Asamblea Constituyente de Perú en 1978 que sanciona la Constitución de 1979.
5.1.2. Características del poder constituyente originario.- El doctor Víctor García establece como las principales características las siguientes:
a) La inicialidad, expresa el hecho de la presencia de una voluntad político-jurídica constitutiva y principal.
b) La autonomía, expresa el hecho de que ningún individuo o grupo puede invocar mérito o título alguno para “sujecionar” al ejerciente original constituent power, much less replace it.
c) The unconditional, expresses the fact that the original is practicing power is free to act in the manner, methods and content of their performance.
d) The immanence, expresses the fact an inherent attribute, nontransferable original constituent power itself, to create or recreate the structure and political organization of a nascent or reconstituted state, by the enactment of a constitution.
e) The timing, says the fact that this power is effective for a short while and for a specific purpose: to formulate a constitution.
5.1.3. Original constituent power limits .- From positivist approach, the original constituent power is not conditioned by a previous constitutional order, because it does not exist. Thus, this approach sets limits on the original constituent power.
For its part, the natural law approach while recognizing that the original constituent power has no limits of positive law, establishes that it is subject to restrictions arising from natural law. No positive law can limit the original constituent power by setting the shape and scope of the founding act of a political society. However, the freedom, dignity, justice and other absolute values \u200b\u200bfrom the natural law are above the original constituent power, setting a limit for discretionary development. In this conception natural law enlists the constitutional movement by proclaiming basic aim and justification of any constitution the guard for freedom and human dignity.
Bidart Campos, added as a constituent power limits of public international law. However, this limit does not exist in relation to the constituent originating as a state obviously was not yet another can not be forced. As for his relationship with the constituent power derivative, it is virtually impossible to admit that a treaty signed before the convention to reform, can limit this power, especially when most of these deal with human rights conventions, listed them by the Constitution expressly or implicitly by the residual clause of Article 3. In turn, must be seen as complementary, not abrogate any right of those covered by Part I of the Constitution.
5.2. .- Derived constituent power is derived when the constituent act is amended, in whole or in part, political and legal organization resulting from a pre-existing Constitution and in accordance with the procedures established by it. The essential feature of the constituent power lies in its subordination arising in respect of the original manifestation of the founding constituent power. However, when put into operation under the current constitution, can get to become a founding constituent power when establishing and organizing a new global political society.
5.2.1. Characteristics of the constituent power derived .- Víctor García Following the treatise establishes the following key features:
a) The legitimacy, the actions of that power derives from the Constitution to be reformed. It is based on its own merits and political consent.
b) The limitation, the actions of such power of budgets set by the power original constituent, ie, is subordinate to the established order in terms of performance and scope of its work.
c) The efficiency, the actions of such power is founded on the claim a bridge "between the Constitution and the political and social reality
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