Introduction: The power of judicial nullification

Courts around the world have either asserted or exercised the power to nul­lify a constitutional amendment. Relying on this extraordinary power of judicial nullification, courts have sometimes prevented the ratification of an amendment even before political actors have proposed it and they have sometimes invalidated an amendment after its promulgation.¹ Yet the power of judicial nullification is not a global norm that all courts embrace.

Much is known about this power of judicial nullification in the Americas and Europe. But much less is known about the existence, uses, and limits of this power in Africa and Asia. This book on the politics of unconstitutional amend­ments in Asia is therefore an opportunity to shine a light on the power of judicial nullification in the region. Surprisingly, the phenomenon of an unconstitutional amendment in Asia remains understudied despite its deep roots in the region. Scholars of constitutionalism know well that Indian courts have innovated and exercised this immense power of judicial nullification. Yet scholars around the world are relatively unaware of the region's other jurisdictional encounters with the possibility of an unconstitutional amendment. In this chapter, I situate the judicial nullification power in Asian countries within the larger global context, both to uncover the shared conceptual roots of this controversial power across borders and regions, and also to bring cases from Asia into conversation with cases from beyond. I begin by examining the pillars of the judicial nullification power, then I identify and illustrate six forms of judicial nullification in Asia and the world, and I close by turning to the future, to inquire into the next frontiers for the judicial nullification power as it continues to evolve in new directions.

12.2