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作者/来源:陈华彪 26/03/16    翻译:万章

光天化日下洗劫司法制度

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林俊辉和李瑞峰的家属是人们感觉被司法制度所背叛的最新例子。网络上对我的文章《待审未决倒底是怎么一回事?》和《法律在哪里呢?》的反应显示了一部份新加坡人当他们的权力与政府对立时,对司法程序一点信心都没有。在这样的情形下,去那里寻找正义公道呢?

从前我在伦敦遇到了一位对新加坡法律程序非常失望的很好绅士。他过着勤奋专业的生活。他唯一的“弱点“就是对公正、自由和正义的热忱一点也不妥协。

他在1981年突破性的选举胜利成为国会中唯一的反对党议员后不久,麻烦也开始在酝酿着。最后他被定了刑事罪、关入监牢、国会议席被剥夺并被禁止在接下来五年内参加竞选国会议席。这位绅士就是JB惹耶勒南。

1987年夏天,当我们在伦敦相遇时,他显的疲倦和精疲力竭,这也许是他政治生涯的最低点。可是JB 惹耶勒南到底犯了什么重大罪过而要受到这么样的惩罚?案件涉及三张工人党支持者捐赠的$2000,$200 和 $400 面额支票的处理,控方断言这些支票是捐给政党的。控方也指控钱财被滥用以及JB 惹耶勒南对这些钱财做了不诚实的申报。JB 惹耶勒南从一位正直的公民被打成一个刑事罪犯。

陈华彪在英国枢密院

作为新加坡司法制度中的终极上诉庭,英国枢密院没有司法权来处理初级法院案件的上诉,JB 惹耶勒南1987年前往伦敦为寻求正义的行程也因此流产了。

JB 惹耶勒南的命运即将改变,在他回来新加坡后不久,律师协会按照总检察长以判决为根据的投诉,在高等法庭对他采取行动成功禁止他当律师。

丝毫不畏惧的他,有信心地认为他在枢密院至少会得到公平的审讯,隔年JB 惹耶勒南飞了八千哩去了伦敦。事情结果出乎了惹耶勒南意料之外。

五位代表英国司法界佼佼者的枢密院高级法官 (law lords)一致裁决支票是“在每个案例中依照捐赠者的指示合法地处理了“。他们得出JB 惹耶勒南并没犯任何罪行的结论。他们也表达了对“一系列误判的深切不安“,JB 惹耶勒南遭受到“极为严重的不公正对待“。高级法官命令律师协会恢复 JB 惹耶勒南在新加坡的律师资格,并偿付他的费用。他们也建议采取步骤推翻定罪的判决。

所有新加坡人应该庆祝这令人惊讶的结果,因为它证实了新加坡有一个不受到政治左右,不偏不倚的司法制度。可是事实上并不是如此的。

枢密院的决定足以舒缓被扣留在卫理路的蓝色栅门后的狭小牢房里贵为政府宾客的一小群新加坡人。张素兰就是其中之一。

在1988年6月27日,枢密院判决前五个月,女皇律师安东尼莱斯特 (Anthony Lester) 代表张素兰告诉高等法庭的黎嘉才法官,如果人身保护令的申请不成功,他已接到指示向枢密院提出上诉。

凑巧得很,黎嘉才法官正是之前审理并推翻JB 惹耶勒南针对定罪与判刑提出上诉的法官。他也裁决不允许向更高的法庭提出进一步的上诉。

在监狱内的张素兰从随身听得知枢密院的判决时,她非常的兴奋。她回忆录中叙述了那时在拘留中的情形,她写道:

“我很高兴惹耶勒南终于取得一次胜利。同时,几个想法在我脑海中闪过。政府会取消向枢密院提出上诉吗?惹耶勒南的案件对我的上诉有什么涵义呢?一位友人猜测枢密院会做出有利于我的判决。可是我来得及吗?”

枢密院的判决是那些被拘禁在恐怖地牢者的一道希望曙光。反之,在统治体制内者却为此而大皱眉头。

总检察长陈文德在一份书面的声明中坚持枢密院的判决只对JB惹耶勒南恢复律师这个事件上对律师协会有约束力。除此之外,总检察长说“我不能同意定罪是错误的“,他也否认有任何误判。对一般人来说,很难明白为什么终极法庭按事实得出的判决竟被总检察长贬低为“评论“而已。

最后,JB 惹耶勒南赢得道义上的胜利,恢复了律师的资格。一半的正义至少好过什么都没有。

张素兰希望得到公正审讯却是短暂的。就在枢密院下判后两个月内,一部取消涉及内部安全法令向枢密院提出上诉的草案仓促在国会通过。这关闭了那些在不经审讯的被拘留者寻求公正审讯的途径。

张素兰:

“我认为这是一部孤注一掷和可耻的草案。只有陷入绝境的政府才会制定这样的草案。它寻求阻止莱斯特从所有立场向高等法庭与上诉庭所提出的申请的成 功机会。它也寻求排除为内部安全法令案件向枢密院提出上诉。我无法理解为什么在81个议席的国会中拥有80席的政府竟需要通过这样的修正案“。

在把阻止政治拘留者通往枢密院这扇门关上后的不久,另一部草案又被提出来。就在枢密院下判后少过一百日之内,法律专业修正草案1989也仓促完成并且在国会通过。新法令取消了涉及律师纪律案件可向枢密院提出上诉,同时将所有基于刑事罪的纪律诉讼的判决定为最终和结论性的。

在国会辩论时,工人党的非选区国会议员李绍祖医生提出了一项尖锐的观察:

李绍祖医生:

“很多在国会外面的人士 (正如部长已经有稍微带过) 认为这修正案是政府针对最近枢密院的JB 惹耶勒南提出上诉的判决。这难道是对的吗?……

……我们见证了总检察长公开宣称枢密院的结论是错了。我听起来觉得很奇怪,我所接受的教育告诉我,在民主社会中,主控官和法庭必需分开来。现在看来,总检察长先当主控官然后又当起对枢密院判决的法官。其实,这是由新加坡法庭诉讼而开头的一连串事件的最终结果“。

这引起尚穆根起来为政府辩护。

K 尚穆根先生 (三巴旺集选区):

“议长先生,把他们的判决归罪于政治动机对我们的法官是不公平的。这样的声明使我感到恶心。这是完全没根据的造谣中伤的指责,对民主体制造成重大的损害“。

1994年一切已成定局,枢密院作为最终的上诉庭被取消了。

如果枢密院对JB 惹耶勒南案件的判决是不一样的话,政府会这么仓促地取消终极法庭吗?如果拘留者向枢密院提出上诉,或者他们尝试要避免的另一次难堪局面。从长远来看他们是 否担心,一个不受不正当影响力的终极法庭的运作,足以损害占支配性政党政治上的垄断。“不正当影响力“正是李光耀在27年前使用过的词汇。

占支配性政党在1994年的所做所为正如李光耀在1967年讲话中发出的警告:

李光耀:

我只能表示我希望对司法制度的信任不会消失,当明显地在不能容许的情况下受到不正当的影响,只要我们允许在这里实施的司法程序在别处的法庭接受复 审,我肯定它就不会消失。只要政府有足够的智慧允许在新加坡以外某些高等机构拥有上诉的权力,我们的司法过程序的正直性的可信度必定会更高。

在1994年,李光耀制度化了占支配性政党。他不须要“新加坡外的某一高级机构“来保护他的权力。

可是对新加坡人民而言,如果枢密院没有被取消,将会获得更好的司法公正。

在国会一伙人的突袭下,司法系统就如此地被洗劫一空。

 

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Daylight mugging of the justice system

By: Tan Wah Piow

Families of Benjamin Lim and Dominique Lee are the most recent examples of people who felt betrayed by the legal system. The response on the internet to my articles “What’s Sub-Judice” and  “Where’s the law?” suggests that a sector of Singapore’s population has little confidence in the legal process when their rights are pitted against the Government. In such circumstances, where could one go to seek justice?

Once upon a time I met a very fine gentleman in London who was badly let down by the legal process in Singapore.  He led an industrious professional life. His only weakness was his uncompromising passion for fairness, freedom and justice.

Soon after a breakthrough election success in 1981 against the dominant party by being the sole opposition MP in parliament, troubles started to brew. Eventually he was criminalized, thrown into prison, removed from his seat in parliament, and banned from contesting any parliamentary seat in the following five years. This gentleman was JB Jeyaretnam.

When we met in London in the summer of 1987, he looked tired and worn. He was probably at the nadir of his political life. But what hideous crime did JBJ commit to warrant such punishment?  It involved the handling of three cheques, $2000, $200 and £400 given by supporters. These cheques, the Prosecution alleged, were for the party. The funds were misappropriated, alleged the prosecution, and JBJ made a false declaration relating to those funds. From an upright citizen, JBJ was reduced to a common criminal.

JBJ’s London trip in 1987 to seek justice before the Judicial Committee of the Privy Council was abortive. The Privy Council, as the Apex Court of the Singapore’s judicial system did not have jurisdiction to deal with an appeal from the subordinate court.

JBJ’s fate was soon to change. After his return to Singapore, the Law Society, acting upon a complaint by the Attorney General based on the convictions, successfully took action in the High Court to debar him.

Undaunted, JBJ flew 8000 miles to London the following year, confident that he could at least get a fair hearing before the Privy Council. The outcome probably exceeded JBJ’s wildest expectation.

Five law lords who represented some of Britain’s best legal minds unanimously ruled that the cheques were “in each case lawfully disposed of in accordance with the donor’s instructions.” They concluded that JBJ was innocent of any offence.  They also expressed their “deep disquiet that by a series of misjudgments”, JBJ had suffered “a grievous injustice”. The Law Lords ordered the Law Society to reinstate JBJ to the Singapore legal profession, and to pay his costs. They also recommended the steps to take to reverse the convictions.

The astonishing outcome should have been celebrated by all Singaporeans as evidence of an impartial legal system free from undue political influence. But it was not to be.

The decision certainly gave comfort to a small group of Singaporeans holed up against their will in the small cells behind the Blue Gates in Whitley Road as ‘guests’ of the State.  Amongst them was Teo Soh Lung.

On the 27th June 1988, five months before the Privy Council decision, Anthony Lester QC acting for Teo Soh Lung told Justice Lai Kew Chai in the High Court that if his application for Habeas Corpus failed, he was instructed to appeal to the Privy Council.

Coincidentally, Justice Lai Kew Chai so happened to be the Judge who had earlier dealt with JBJ’s appeal against conviction, sentence and who ruled against any further appeals to the higher courts.

When Teo Soh Lung heard about the Privy Council’s verdict in prison, she was elated. In her memoirs about the period in detention, she wrote:

I was very happy that Jeyaretnam had finally scored one victory. At the same time, several thoughts crossed my mind. Would the government abolish appeals to the Privy Council? Would Jeyaretnam’s case have any implications on my appeal? A friend speculated that the Privy Council may rule in my favour. But would I be able to make it on time?

Privy Council verdict was a ray of hope to those held in the dungeons of horror. Conversely it was frowned upon by those in the establishment.

The Attorney General Tan Boon Teik in a written statement insisted that the Privy Council ruling was only binding on the Law Society on the matter of reinstatement of JBJ as a lawyer. Beyond that, the AG said “I am unable to agree that the convictions were wrong”, and he denied any miscarriage of justice. For the man in the street, it must be difficult to comprehend how the findings of facts by the Apex court could be reduced to mere “comments” by the Attorney General?

At the end JBJ won a moral victory, and regained his status as a lawyer. Justice half done was at least better than none.

Teo Soh Lung hopes for justice were short lived. Within two months of the Privy Council’s decision, a bill was rushed through Parliament to abolish appeals to the Privy Council in respect of Internal Security Act cases. That closed the route to justice for those who were held without trial.

Teo Soh Lung: It was in my view a desperate and shameful bill. It was a bill which only desperate governments would enact. It sought to prevent all grounds raised by Lester in his submissions before the High Court and the Court of Appeal from succeeding. It also sought to rule out appeals to the Privy Councils for ISA cases. Why a government with 80 out of 81 seats in Parliament would choose to pass such amendments was beyond my comprehension.”

Soon after slamming the doors to prevent political detainees access to the Privy Council, yet another Bill was introduced. In less than hundred days of the Privy Council’s decision, the Legal Profession (Amendment) Bill, 1989 was rushed through and passed in Parliament. The new law abolished appeals to the Privy Council in disciplinary cases involving lawyers, and made all underlying criminal convictions on which disciplinary proceedings might be based, to be final and conclusive.

During the debate in Parliament, Dr Lee Siew Choh, an NCMP for the Workers Party made a poignant observation:

Dr Lee Siew-Choh:

Many people outside the House … see this amendment as a knee-jerk reaction of Government to the recent judgment of the Privy Council on the appeal of J.B. Jeyaretnam. Is that correct? …

…We have witnessed the Attorney-General publicly pronouncing that the Privy Council is wrong in its conclusions. This sounds rather odd to me, as I have been taught that in a democratic society, the prosecutor must be separate from the judge. Now it would appear that the AG acts first as a prosecutor and then again as the judge on the Privy Council judgment which, in fact, is the final outcome of a sequence of events initially started from prosecutions in the courts of Singapore.

This provoked Shanmugam to rise to the defence of the government.

Mr K. Shanmugam (Sembawang GRC): …. 

Sir, it is unfair to our judges to impute political motives for the decisions they make. It sickens me to hear such statements. It is scandalous, wholly unsupported – allegation and does great disservice to the institutions of democracy.

The die was cast. By 1994, the Privy Council as the Apex court of appeal, was abolished.

If the Privy Council decision on the JBJ case was different, would the government be in such haste abolish the Apex court? Or were they trying to avoid yet another embarrassment should the cases of the detainees proceed to the Privy Council? And are they worried that in the long term, an Apex court operating without “undue influence” could undermine the political monopoly of the dominant party? ‘Undue influence’ incidentally were the exact words used by Lee Kuan Yew twenty-seven years earlier.

What the dominant party did in 1994 was exactly what Lee Kuan Yew warned against in 1967 when he said:

LKY: I can only express the hope that faith in the judicial system will never be diminished, and I am sure it will not, so long as we allow a review of the judicial processes that takes place here in some other tribunal where obviously undue influence cannot be brought to bear. As long as governments are wise enough to leave alone the rights of appeal to some superior body outside Singapore, then there must be a higher 
degree of confidence in the integrity of our judicial process.

By 1994, Lee Kuan Yew had institutionalized the power of the dominant party. He did not require ‘some superior body outside Singapore’ to protect his rights.

For the people of Singapore though, justice could be better served if the Privy Council was not abolished.

That was how justice was mugged – during the gang raid of Parliament.

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