Abstract

AbstractThe rise of referendums has led to the concern that they could lead to liberticide and discriminatory results. This article intends to determine whether the concept of popular sovereignty would immunize constitutional provisions that are passed through a constitutional referendum from any human rights limitation. In answering the question, I formulate a theoretical framework called “constituent-constituted duality,” while also distinguishing “the constituent people,” which is mythical, and “the constituted people,” which is empiric. In the end, this article argues that the only possible form of limitation from the perspective of popular sovereignty is an ex ante limitation. Meanwhile, an ex post facto limitation remains unacceptable from the angle of popular sovereignty, which implies that a judicial review of popularly-enacted constitutional amendments is conceptually illegitimate.

Highlights

  • The rise of referendums has led to the concern that they could lead to liberticide and discriminatory results

  • This article intends to determine whether the concept of popular sovereignty would immunize constitutional provisions that are passed through a constitutional referendum from any human rights limitation

  • This section will focus on two states that best illustrate the matter, namely Switzerland and Ireland. The reason for this selection is that Switzerland and Ireland are among states who have organized the most constitutional referendums in the world.[13]

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Summary

20 Ignatius Yordan Nugraha

The concept of popular sovereignty, has raised a commonly-expounded criticism that it could lead to the “tyranny of the majority” whereby, as James Madison put it, “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”[4]. As observed by Marthe Fatin-Rouge Stéfanini, popular sovereignty implies that “the sovereign people, original holder of power, are by nature unlimited.”[11] As a result, if these ideas were to be taken at face value, it would seem to imply that the people’s sovereignty cannot be constrained by any form of limitation, including human rights. With this debate in mind, the purpose of this article is to analyze whether popular sovereignty would immunize a constitutional amendment that is passed through the mechanism of constitutional referendum from any form of human rights limitation. This article will conclude whether human rights can legitimately limit a popularly‐enacted constitutional amendment in a constitutional order based on popular sovereignty

Comparative Study of Human Rights Limitation to Popularly-Enacted Constitutional Amendment
Human Rights Limitation in Various Constitutions
Human Rights Limitation in Switzerland?
Human Rights Limitation in Ireland?
Constituted Sovereignty
Limitation to Popularly-Enacted Constitutional Amendment?
Limitation to the Constituted People?
Ex Post Facto Natural Rights Limitation?
Ex Post Facto Limitation as a Corollary of Sovereignty?
Findings
Conclusion
Full Text
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