Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions

Geertjes, Gert Jan; Uzman, Jerfi

doi:10.1007/978-3-319-95141-6_4

Cited by 18 publications

(1 citation statement)

References 42 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…This is consistent with an approach that has been called 'covert unamendability', in which judiciaries in systems with strongly-positioned legislatures employ judicial creativity and 'disobedience' when necessary to mitigate the effect of certain purported constitutional alterations, as though there exists 'a particular convention that the legislature will not abolish or significantly alter a given constitutional arrangement'. 201 In Semenyih Jaya, the Federal Court certainly did an excellent job of invoking numerous core principles, stressing inter alia that the Judiciary is entrusted with keeping every organ of the state within its legal boundary; and that judicial power, judicial independence and the separation of powers are critical and sacrosanct within the constitutional framework. 202 Although I have highlighted above the inherent risks of this particular approach, if it ultimately succeeds, this could carry new implications for our understanding of the 'basic structure doctrine' and the means by which the objectives of the doctrine can be achieved.…”

Section: A Uniquely Moderate Approach?mentioning

confidence: 99%

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

Tay¹

2019

Asian J. Comp. Law

View full text Add to dashboard Cite

In Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court of Malaysia asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary notwithstanding earlier constitutional amendments, and also gave substantive effect to the ‘basic structure doctrine’ for the first time in Malaysia. This has contributed significantly to the long-standing discussion of whether, and to what extent, the ‘basic structure doctrine’ applies in Malaysia. Situating that landmark decision within the context of the evolving judicial practice in Malaysia and other jurisdictions on the ‘Westminster model’, this article evaluates the extent to which Semenyih Jaya has contributed towards strengthening constitutionalism and the rule of law in Malaysia. Considering that the apex court stopped short of directly invalidating the relevant constitutional amendments, this article argues that Semenyih Jaya represents a sophisticated modification of the ‘basic structure doctrine’ to fit the current context of Malaysian constitutionalism. This article also examines how Semenyih Jaya advances the ‘constitutional dialogue’ between the judiciary and its co-equal branches of government, and assesses the strengths and weaknesses of the approach taken by the Federal Court in that case.

show abstract

Section: A Uniquely Moderate Approach?mentioning

confidence: 99%

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

Tay¹

2019

Asian J. Comp. Law

View full text Add to dashboard Cite

show abstract

Credible Commitment or Paternalism? The Case of Unamendability

Michel

Cofone

2018

An Unamendable Constitution?

View full text Add to dashboard Cite

The Scope of City Autonomy in the Constitutions of the Netherlands and the United Kingdom: Informality, Subsidiarity, Identity

Geertjes

2023

Hague J Rule Law

View full text Add to dashboard Cite

One of the main issues in the debate on urban constitutionalism is how constitutions can recognize the increasingly important role of cities in relation to the nation-state. This paper examines what we talk about when we talk about city autonomy. This is a pressing question, particularly in the context of European unitary states. This paper pays special attention to the context of two of such states, namely the Netherlands and the United Kingdom (especially England). First, it explores the notion of subsidiarity, which implies that consideration should be given to the distinctiveness of the city as regards the allocation of power to the central and regional levels respectively. However, this idea in itself cannot justify the case for city autonomy, as the claim that the attribution of autonomous powers to cities may improve the quality of decision-making in the state as a whole needs additional empirical evidence. Second, it investigates the concept of city autonomy by exploring the fuzziness of the notion of the city. In addition, it introduces the concept of ‘spatial identities’ in order to explain the interdependence of (large) cities and their surrounding (rural) areas. Lastly, it concludes that if the importance of cities as constitutional actors is to be increased, it should be done so in an informal way rather than by the introduction of formal constitutional arrangements both from a pragmatic and a normative perspective.

show abstract

Conventions of Unamendability: Covert Constitutional Unamendability in (Two) Politically Enforced Constitutions

Cited by 18 publications

References 42 publications

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia

Credible Commitment or Paternalism? The Case of Unamendability

The Scope of City Autonomy in the Constitutions of the Netherlands and the United Kingdom: Informality, Subsidiarity, Identity

Contact Info

Product

Resources

About