Between Judicial Oligarchy and Parliamentary Supremacy: Understanding the Court's Dilemma in Constitutional Judicial Review

Abstract

This article considers the dilemma that constitutional judicial review presents to the most well-meaning of judges — that of navigating the narrow and difficult road between parliamentary supremacy and judicial oligarchy. It examines the Singapore Court of Appeal’s delineation of legal and extra-legal considerations in view of Ronald Dworkin’s theory of adjudication in determining the constitutionality of section 377A of the Penal Code in Lim Meng Suang v. Attorney General. It proposes an alternative natural law approach to constitutional judicial review based on Radbruch’s formula, which helps courts to avoid the pitfalls of judicial idiosyncrasies and usurpation of legislative mandate while staying true to constitutionalism.