Constitutional Foundations: Principles, Review, and State Powers

Constitutional Principles and Legal Application

Constitutional principles are derived from the legal system and assist in the application of the law, especially in cases lacking specific legal rules. The principle of legality dictates that public authorities cannot contravene the legal system.

Constitutional Review: Ensuring Compliance

Constitutional review is the legal mechanism designed to ensure compliance with constitutional norms and to ensure that lower-ranking norms do not override or contradict them.

Classifications of Constitutional Review

Positive Systems

These systems, either explicitly stated in the constitutional text or implicitly recognized by customary constitutional law, admit the existence of constitutional control. Sagüés distinguishes within this category between complete systems, which meet five specific requirements, and incomplete systems, which do not comply with all of them. Most systems are considered incomplete.

Negative Systems

These systems do not support constitutional review despite needing it, often due to the nature of their 'block' Constitution.

Special States: Martial Law and State of Siege

Martial Law

Martial law is a special legal status (usually regulated by the State Constitution) that grants extraordinary powers to the armed forces or police regarding the administration of justice and safeguarding of public order. Common applications include times of war or to quell rebellions.

State of Siege

The state of siege is a concept equivalent to a state of war, granting preponderant powers to the armed forces for acts of repression. During a state of siege, constitutional guarantees are suspended, to a greater or lesser extent, depending on the specific legislation.

Situations of Emergency

Situations of emergency are any disturbances to the normal functioning of society whose severity necessitates exceptional measures. These situations are unpredictable; while their nature is understood, their exact timing cannot be determined. The most common include:

• War or international conflict
• Internal alterations or strife
• Economic emergencies

Requirements for the Rule of Law

1. Different organs of state power must be created, with each assuming distinct governmental functions.
2. State organs of power must act independently; their opinions or decisions cannot be invalidated, modified, or annulled by another body.
3. The method for appointing the holders of each organ, as well as the formalities and procedures for terminating their positions, must be established.
4. Power must be institutionalized, not personalized; it should reside in legal-political institutions rather than specific authorities who hold temporary power while in office.

The Preamble

The preamble refers to the narrative that precedes a constitution, law, or regulation. It may also be called a preamble or recitals. Its typical parts include:

• Initial presentation
• Enunciation of purpose(s)
• Clauses invoking a deity (if applicable)
• Mandatory clauses