The Moderating Power it is a prerogative of the monarch within the parliamentary monarchy regime.
Conceived by Benjamin Constant, it was incorporated in the Constitution of 1824, in Brazil and in the Magna Carta of Portugal, in 1826, under the influence of Dom Pedro I.
Abstract
The Moderating Power was created by Swiss politician and intellectual Benjamin Constant.
He started from Montesquieu's scheme that divided the three powers into Executive, Legislative and Judiciary, but adds one more:the pouvoir royale (real power) translated into Portuguese as Poder Moderador.
For Benjamin Constant, the monarch should not follow the English model of being a simple representation of the nation expressed in the phrase “the king reigns, but does not rule ”.
The sovereign should have a special position, always limited by the Constitution, Parliament and/or Council of Ministers.
The name itself says that it is a power that moderates the clashes between the three powers. In case of disagreement between the members, the sovereign would intervene until finding a conciliatory solution.
The Moderating Power would not be authoritarianism, as all matters should first pass through Parliament and the Council of Ministers. Thus, the king did not run the risk of becoming an absolutist monarch.
Constitution of 1824 - Article 98
The Moderating Power was expressed in article 98 of the 1824 Constitution. This said that its function was to take care “about the maintenance of Independence, balance, and harmony of the most Political Powers ”.
The Moderating Power would be exercised in the following situations:
I. Appointing Senators.
II. Convoking the General Assembly extraordinarily in the intervals between the Sessions, when the good of the Empire so requests.
III. Decrees and Resolutions of the General Assembly were sanctioned, so that they have the force of law.
IV. Approving and temporarily suspending the Resolutions of the Provincial Councils.
V. Prolonging or postponing the General Assembly, and dissolving the Chamber of Deputies, in cases where the State's salvation demands; immediately summoning another to replace it.
SAW. Appointing, and freely dismissing Ministers of State.
VII. Suspending the Magistrates in the cases of Art. 154.
VIII. Pardoning, and moderating the penalties imposed and Defendants sentenced by Sentence.
IX. Granting Amnesty in an urgent case, and that they advise humanity, and the good of the State.
Additional Act of 1834
The Moderating Power was suspended during the Regency Period. As it is an attribute unique to the sovereign, regents could not use it.
Therefore, through the amendment known as the Additional Act of 1834, the Moderating Power was suspended.
Curiosities
- The Moderating Power was questioned by those who led rebellions that took place at this time. Frei Caneca, during the Confederation of Ecuador, for example, was one of the biggest critics of this attribution of power by the monarch.
- The Moderating Power was used by Dom Pedro II to expropriate a coffee plantation located in Tijuca, Rio de Janeiro. He had it replanted with Atlantic Forest seedlings to preserve the city's water supply. Today the forest is a UNESCO World Heritage Site.
Read more :
- Montesquieu
- Three Powers
- Constitutional Monarchy