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Title: | Popular Sovereignty and Constitutional Referendum: Can “The People” be Limited by Human Rights? | Authors: | NUGRAHA, Yordan | Issue Date: | 2022 | Publisher: | Source: | German law journal, 23 (1) , p. 19 -43 | Abstract: | 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. 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. | Keywords: | Referendum;popular initiative;human rights;constitution;popular sovereignty | Document URI: | http://hdl.handle.net/1942/36692 | e-ISSN: | 2071-8322 | DOI: | 10.1017/glj.2022.2 | ISI #: | 000746932600003 | Rights: | © The Author(s) 2022. Published by Cambridge University Press on behalf of the German Law Journal. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited. | Category: | A1 | Type: | Journal Contribution |
Appears in Collections: | Research publications |
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