Constituent Assembly

The Federal Constitution, also called Magna Carta, is the maximum legal instrument of a country, establishing the material and formal limits to all its laws. In this article we will provide you the information about the Constituent Assembly

Norberto Bobbio, in his dictionary of politics, defines the Constituent Assembly as:

“a collegiate, representative, extraordinary and temporary body, which is entrusted with the function of drafting the State Constitution, of establishing – in other words – the fundamental rules of the state legal order.”

Based on the definition made by Bobbio, it is possible to perceive some basic characteristics of the Constituent Assembly:

The Constituent Assembly is the body responsible for drafting the Constitution of a country , initiating a new legal order. Being extraordinary, an Assembly of this nature will only exist once during the period of existence of a State , as its constitution will initiate a new democratic period. The organ is, therefore, also temporary, since, once its functions are completed, it will cease to exist. As a collegial and representative body, the Assembly is composed of several individuals, chosen to represent the people of their State.

How does the will for a Constitution arise?

The notion of Constituent Power , materialized in the Constituent Assembly, is closely linked to the idea of ​​social contract, conveyed by the philosopher Hobbes, who questioned the absolutist regime defending a king with almost unlimited powers, emanated from God.

Especially from the end of the 18th century, with the milestones represented by the Independence of the 13 British Colonies and the French Revolution, there was an increasing demand for the imposition of limits to the royal will, guaranteeing the interests of the people and giving vent to the logic of a Constitutional monarchy, regime in which the king accepted the limitation of his powers, usually through a written constitution. Since then, numerous Assemblies have been formed around the world, claiming power that would emanate from the people.

When is a Constituent Assembly convened?

The need to convene a Constituent Assembly is perceived when the Constitution in force (or its absence) does not represent the reality experienced by a country and does not have its legitimacy validated by the popular will. According to Pedro Lenza:

“From the breakdown of the constitutional process, that is to say, in the face of the non-correspondence between the proposed text and the social reality, space may arise for the so-called democratic ‘constituent moment’ and, thus, in view of the manifestation of the original constituent power, the elaboration of a new document that finds social legitimacy.”

This Original Constituent Power is represented by the Constituent Assembly and, when elaborating a new Magna Carta, completely breaks with the previous legal order, initiating a new State. It is worth mentioning that, although the Constituent Assembly is a temporary body, the Original Constituent Power is permanent, since it will survive the Constitution, passing through the entire legal order, as a form and expression of human freedom.

And how important is it?

Understanding what the Constituent Assembly consists of is fundamental for any citizen, since the people hold the power of this body, being responsible for determining when its institution is necessary. Even in dictatorial periods, its ownership does not cease to exist, as Alexandrino states:

“… the holder of constituent power is the people (and no longer the nation), as only the latter has the legitimacy to determine when and how a new Constitution should be drawn up, or the existing one modified. Popular sovereignty, which is, in essence, the constituent power of the people, is the sole source from which all the public powers of the state proceed. Even in dictatorial regimes, the people are the sole and legitimate holder of constituent power (what happens, in this case […] is the usurpation of that power).”

the limitations

There are intense doctrinal discussions about the limitations of the Original Constituent Power, especially between the currents called Positivists and Natural Law.

In fact, when starting a new legal order, the Constituent Assembly is not linked to previous legal norms, and may even break with them. Reinforcing this thesis would be the fact that two of the principles that govern the International Legal Order are State Sovereignty and Non-Intervention in the Internal Affairs of Other Countries . Thus, there is no institution above the will of the state, capable of creating norms that must be obeyed by all countries.

In turn, Natural Law authors argue that this would not give the Constituent Assembly an arbitrary and absolute power, which could ignore any precepts of justice. International Law currently recognizes the existence of norms that, by their very nature, would be above the will of the State and should always be respected.

These norms, called Jus Cogens norms , although few in number, have already been affirmed by the International Court of Justice and concern mainly Human Rights issues , prohibiting practices such as Genocide, Human Trafficking and Piracy. In this sense, not even the Original Constituent Power, embodied in a democratically elected National Constituent Assembly, could accept in a new Constitution mechanisms that violate these basic precepts.