Do you know what constituent power is? The AGU explains. Constituent power is the power, force, or authority to create, modify, alter, revise, revoke, or add something to the constitution of a State, the fundamental law of the country. For most doctrine, constituent power belongs to the people. On the other hand, the exercise of this constituent power is reserved for elected representatives. Constituent power is quite broad and can be basically divided into two types: original constituent power and derivative constituent power. Original constituent power, also called initial, inaugural, genuine, or 1st degree, establishes a new legal order, completely breaking with the previous order. Therefore, the fundamental objective of original constituent power is to create a new State, different from what already existed. The Federal Constitution of 1988, for example, was drafted through the National Constituent Assembly, convened through Constitutional Amendment 26/1985. Original constituent power is characterized as initial, autonomous, unconditional, and unlimited. It is initial because its work, the Constitution, is the basis of the legal order. It is also unconditional because it is not subject to any predefined form for the manifestation of will. It is unlimited and autonomous because it is not limited in any way to the previous law. But that does not mean that the original constituent power.

It holds a supreme and arbitrary power. This is because there are political limitations that must be observed, under penalty of making its actions illegitimate. The original constituent power belongs to the people, and those who propose to represent it must take into account the ethical, cultural, social, and religious values that truly represent the will of the populace. On the other hand, the derived constituent power, also known as instituted, constituted, 2nd degree, secondary, or residual, has an eminently legal nature. It must comply with the legal rules imposed by the original constituent power, which creates limitations and conditions for its exercise. It can be subdivided into the reforming derived constituent power, the derived, and the revising. The reforming power is a constitutional reform power through a specific procedure established by the original constituent power. This is the case of constitutional amendments. The derived power is granted to the member states to draft their own constitutions. It was through this power that the state constitutions and also the Organic Law of the Federal District were structured. Finally, we have the revising derived constituent power. It is provided for in Article 3 of the ADCT, to review the Constitution in a simpler way five years after its promulgation. It led to the drafting of six constitutional revision amendments.

and can no longer be used, as its effectiveness has been exhausted and its applicability depleted. To learn more about the AGU and the legal world, #AGUexplains. Until next time! Caption: Amariles Sodré

AGU Explica - Poder Constituinte

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