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This chapter examines the uneasy relationship between indigenous constitutionalism and global norms in the specific jurisdictional context of Nepal, which is unusual within South Asia for having escaped colonialism and having a wealth of uninterrupted local tradition and custom on which to construct its constitutional system. This unusual level of historical continuity in the process of nation-building has complicated the construction of constitutional identity, as demonstrated by the fraught historical relationship between the Shah-centered “national monarchy” and democracy, the enduring and controversial position of Hinduism in the constitutional framework, and the patterns of legal discrimination on the basis of identity that persist in the new 2015 constitution.
This chapter focuses on the manner in which non-judicial actors engage in constitutional guardianship, using the Netherlands as a case study. Article 120 of the Dutch Constitution explicitly prohibits courts from examining the constitutionality of Acts of Parliament. Instead, other institutions ensure that constitutional rules and values are duly taken into account, especially when new legislation is under consideration. The chapter will focus in particular on the role that governments and civil servants play in verifying a bill’s constitutional conformity during the drafting stage; on the Council of State, which is tasked with providing non-partisan advice to the government on new bills; and on how Parliament itself goes about confronting constitutional issues during legislative debates. The Dutch experience shows that it is possible to successfully ensure constitutional supremacy even when judges are not available to act as ultimate protectors of the national constitution.
Major differences in the finality and impact of judicial review from country to country have led scholars to distinguish between “hard” and “soft” forms of judicial review. However, hard review does not give courts the last word: even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. Instead, “super-hard” judicial review has emerged in the form of judicial review of constitutional amendments. Even “super-hard” review, in turn, comes in varying degrees of hardness. Using Taiwan as illustration, this chapter develops a continuum or six-point scale of judicial review puissance.