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18 Austl. J. Asian L. 1 (2017)

handle is hein.journals/ajal18 and id is 1 raw text is: Australian Journal of Asian Law, 2017, Vol 18 No 1, Article 1: 1-13 The Many Facets of Constitutional Dialogue: The Case of Singapore Swati S Jhaveri* and Jaclyn L Neo' The dialogue metaphor has become a central feature in theorising about constitutional law and practice in recent times. Through an emphasis on collaboration and balance of constitutional power between the judicial and political branches of government, dialogists prefer systems where courts initiate a conversation on constitutional issues and the political branches are given the final say. There are now increasing endeavours to extend the application of the dialogue metaphor to common law jurisdictions in Asia, albeit in a distinctively minimalist form. This paper discusses the extension of the theory to Singapore. It critiques the justification offered for the application of the dialogue metaphor to Singapore, including the argument that, in contrast with a system of strong form judicial review, judicial minim alism is desirable to avoid political reltlitlion against the local c<u1rts. The paper analyses recent exinples of judicial-political interatlions to h1ighligll Ile abtsence o>f such a. 1 >(11(( backlash and the >possi bility of a stronger role for crls, beyond wat olal ogists p>ro>p>ose fo r Singapotre. The lialogue metaphor has become a cent ral fea ture in theorising about constilutional law and( pralice in receni limes. The id1e of a lialogue is applied specifically to rel'Or to the interaction between courts and the political branches of government andl 'evokes the image of an ongoing. iterative process where interloculors advance their own points of view' while, at he same time. remaining 'open to consilering opposing views in a respectful. measuredl. and reflective way' (Kavanagh, 2016: 86). In (Canada,. Ihe Unitel IKinglom. andi New Zealandl. the lialogue metaphor is utiisel to describe (and oflen jusily. wheiher properly or otherwise) Ihe constilutional arrangement where courts have the power to exercise righIs-based review. while t he legislature has Ihe power to limit. overrile. or lisagree wit h those lecisions (Yap. 2015: 1). There are now increasing end eavours to extendl the application ol the lialogue metaphor beyonl Ihese originat ing jurisdlictions. In a recently publishell monograph. 'o den Y ap argues that constilutional lialogue. as an observable pralice ol rouline instilutional interaction. is an ildeal form of insiLut ional interact ion lor common law countries in .sia. albeit in a listinct ive minimalist form ('ap. 2015: 1-3). \haI he means by this is that juIges should engage in rights-based review but not strike (down or leclare invalidl legislation. Insteadl. they shouldl use what he calls sub- constilut ional tools to provile input into the legislat ive process andl to put lirward their preel'rredI framework fIor the const ruction of constilutional meaning to be (hopelfully) used in the pursuit of legislative objectives (Yap. 2015: 2-:1). Ile argues that this is listinctive because such lialogue can occur in the .\sian jurislictions he consicers where there is an absence of explicit constilutional mechanisms empowering the judiciary to declare legislation incompatible with the rights enshrined therein. Yap's book argues there is already evidence of such review in common law Asia. Dialogue, in Yap's work, is said to be located in the middle ground between judicial supremacy (where the judiciary has the final say by being able to strike down legislation as unconstitutional) and parliamentary supremacy (where parliament can make any laws without the risk of the judiciary subsequently setting these aside) (Yap, 2015: 7-8). In dialogic systems, courts are able to assert their views on the constitutionality of laws without necessarily having the power to strike them down, leaving the final decision with the political branches of government. In his book, Yap applies his conception of constitutional dialogue to the jurisdictions he characterises as common law Asia, namely Hong Kong, Singapore and Malaysia. He identifies five sub-constitutional tools that he argues courts in these jurisdictions can, and do, use to put forward their preferred constitutional meaning for legislative consideration and action. These tools consist of: (a) non- binding advisory review by judges; (b) the use of administrative versus constitutional law grounds Assistant Professor, Faculty of Law, National University of Singapore * Assistant Professor, Faculty of Law, National University of Singapore