Conclusion: Bringing Asia into the global conversation

This volume makes an invaluable contribution to our understanding of the doc­trine of unconstitutional constitutional amendments. Its focus on contextual­izing the law and politics of the doctrine in Asian countries adds a much-needed regional perspective to the global conversation already underway about the role of courts in constitutional states.

In this chapter, I have explained and illustrated the six major categories of cases in which courts have deployed the doctrine of unconstitutional constitu­tional amendment to nullify a constitutional amendment. I have shown how this power of judicial nullification has been used in the context of a procedural irregu­larity, a subject-rule mismatch, a temporal violation, a codified unamendable rule, an uncodified unamendable norm, and a supranational restriction. I have drawn from cases around the world to situate Asian examples in each category in an effort to broaden the geographical references we commonly use to show how courts exercise the power of nullification.

These six categories of cases are meant to be illustrative, not exhaustive, of the grounds that courts in Asia and the world can invoke to nullify a constitutional amendment. There are of course momentous questions about the legitimacy of the judicial power of nullification lurking beneath each of these six categories. I leave those questions for another day, though I suspect that there are no easy answers, and that the best ones will acknowledge that the doctrine should not be seen as appropriate at all times for every jurisdiction. It is a contextual ques­tion whether a given constitutional state should authorize courts to exercise the extraordinary power of judicial nullification. All constitutional actors should be aware that there exist alternatives to invalidating constitutional amendments.^[889]

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