The next frontier of the judicial nullification power
We have thus far considered the judicial nullification power as applied to constitutional amendments. And if one accepts that the nullification power works as a shield for democracy - the claim that the judicial nullification power is an essential strategy to defend democracy - then the nullification power rests on strong theoretical foundations.
On this view, the judicial power of nullification is consistent with democracy and moreover legitimate and indeed necessary.12.4.1 An unconstitutional constitution?
But an important question nonetheless remains: what about using the judicial nullification power to invalidate an entire constitution, not just a mere amendment? Here I am not referring to a new constitution that masquerades as a constitutional amendment, a phenomenon I have identified as a constitutional dismemberment.[883] I am referring to the creation of a brand-new constitution that is subsequently scrutinized by a court for its constitutionality. That is the next frontier for the power of judicial nullification. And it is not too far off from where we are today, as Bui Ngoc Son shows in his discussion in this volume on the Vietnamese Constitution of 2013,[884] and as Mara Malagodi suggests about the Constituent Assembly in Nepal in this volume.[885]
Imagine, for instance, that a constitutional assembly is convened to write a new constitution. Further imagine that the assembly does indeed write a new constitution that is subsequently sent to the president for promulgation, as provided by the rules proposed by the constitutional assembly. Now imagine that someone challenges the new constitution on procedural grounds, arguing that the constitution should be sent to the people for ratification in a national referendum? Could a court - in Asia or elsewhere - hear the challenge and then rule on it, perhaps even going as far as validating the claim that a modern constitution requires popular ratification?
Imagine, alternatively, that the new constitution proposed by the constitutional assembly is inconsistent with the values of the current constitution to be replaced. Could the court intervene, either on its own or when presented a claim, to evaluate the substantive commitments in the new constitution and thereafter to exercise the power of judicial nullification if it determines that the new text does violence to a fundamental pre-constitutional value that inheres in the spirit of the country and its people? This scenario highlights serious questions about what courts should be able to do.
12.4.2 A challenge for scholars
There are limited examples in the world of courts issuing judgments on the constitutionality of an original constitution. The most prominent occurred in the context of South Africa's transformation from apartheid to democracy, when the court was authorized by the Constituent Assembly to review the proposed constitution for its conformity with a list of agreed-upon constitutional principles.[886] There also exists a recent example in Asia, specifically in Bangladesh, involving a court's invalidation of an amendment that had restored an original constitutional rule.[887] Yet neither of these cases quite reflects the full scope of the potential conflict: a full constitution held unconstitutional by a court, without the court being pre-authorized to exercise the extraordinary power of nullification. It has not happened yet, but it may only be a matter of time until it does. If one is comfortable with the judicial power of nullification for constitutional amendments, is there a principled distinction to be made that would exclude the nullification
Judicial nullification in Asia and the world 243 of an entire constitution?[888] Scholars should turn their attention to this question sooner than later.
12.5