Hybrid Constituent Power as a Subcategory of the Original Constituent Power

Carina Barbosa Gouvêa () and Pedro H. Villas Bôas Castelo Branco ()
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Carina Barbosa Gouvêa: Federal University of Pernambuco
Pedro H. Villas Bôas Castelo Branco: State University of Rio de Janeiro

Chapter Chapter 6 in UN Interventions and Democratization, 2023, pp 109-159 from Springer

Abstract: Abstract The six chapter conceptualizes hybrid constituent power that opens a new door to reflection on the theory of original constituent power. The idea of internationalization of constituent power represents the approach of the influence of international law on the normative content of constitutional law, causing the rules that should order citizens’ activities not to be produced only by the national legislator, which creates a problem of legitimacy for the regulatory bodies, corresponding to an increasingly high degree of penetration of International Law in Constitutional Law. It can be mentioned that the hybrid constituent power causes a distortion of the institutional balance of the State because international norms interfere in the formation of material or procedural internal norms, affecting State structures, namely: the political organization and the distribution of competences. Among the experiences of the hybrid constituent power, from the consummated UN interventions, some lessons were learned through the practical perspective by those who were directly or indirectly involved in peacebuilding operations, in which one of the objectives was to consolidate democracy. For the purpose of delimitation of the research object and contributing to the construction of the legitimacy and effectiveness of the constitution, we proposed some guidelines that can be outlined for the improvement and legitimacy of the hybrid constituent power. Case studies that provided an overview of the role of UN constitutional assistance in the constituent phase were also presented: Cambodia, Bosnia-Herzegovina, East Timor, and Afghanistan. Thus, the overview of the legal framework was addressed; the description of the process, taking into account the degree of inclusion, transparency, and participation of the local population; the focus and ways of intervention. The case studies presented do not, however, represent a definitive answer to what the broad set of UN experiences in the field of hybrid constituent power meant.

Date: 2023
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DOI: 10.1007/978-3-031-32715-5_6

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