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10/04/16  《新加坡文献馆》作者/来源:陈华彪 伦敦 2016 年4月 9日 万章翻译

当公众不同意政府对付批评者所采取的高压手段时,总是总理或他的部长受到责怪。有时法庭也被批评。但却有个职位到目前为止避开公众的许多监督,这就是总检察长。

他的工作究竟是什么呢?他是作为政府喉舌的一名公务员吗?或许他是独立于政府的吗?

现任总检察长VK 拉惹先生为他的任务下了定义:作为“公众利益维护者和法治管理“。在宪法下,他的确拥有“自行斟酌的自由来行使,制定,进行或终止任何犯罪诉讼“的权力。 作为政府的首席律师,他有向总理和他的部长对法律事务提供劝导的责任,及他们有义务听从他的劝告。还有他应该是独立自主的。这只是理论而已。

像新加坡由一支配性政党挥舞不对称权力的社会,国家机构和支配性政党的区别是模糊之下,一位勇敢的总检察长可以起着抗衡作用,来阻止这支配性政府滑入不民主与独裁体制。这本来就应该是这么样。

以现任总检察长为自己订下的标准来判断,一名理智的旁观者会给他在处理余澎彬、范国瀚、韩慧慧、鄞义林、林俊辉和李瑞峰案件的 表现打出高分吗?在每个案件中,个人的权力和国家或权势起冲突。我会倾向认为,如果总检察长职位的人选是依靠民选的话,基于上述的问题,VK 拉惹也许会很难重新获选。

总检察长是由总理选派这一事实会危害他在宪法上的独立自主吗?我翻查了不少过20本有关新加坡政治的书籍,并包括李光耀回忆录来寻找有关新加坡在 职最久的总检察长陈文德的线索。令我惊奇的是,尽管律政部长K 尚穆根形容这个人“在我们独立后的成长年代与总检察署的发展做出重大的贡献“为,几乎没有提到他。

李光耀为何选了陈文德,并续继在接下来从1967年至1992年的四分之一世纪利用这位总检察长却不值得在李的《新加坡故事》中提到他,这的确是 个大谜团。更何况陈文德在第一代的PAP领导人离开内阁 (杜进才1981年,吴庆瑞1984年和拉惹勒南在1988年) 后还读继为李光耀效劳。

2012年李光耀在写给陈的遗孀中说,作为总检察长,陈文德是“有效率、称职的及总是准备好为难题找出答案“。

这些字句让我想起电影《教父》,由马龙白兰度主演及他那死心塌地的汤姆哈根(Tom Hagen), 柯里昂 (Corleone) 黑手党家族的合格律师。在故事里,哈根是需要的,因为“律师可以比一群流氓偷取的更多” 。在现实生活中,任何流连在黑暗窄巷内并以指节铜套 (注:一种打架时行凶用的武器) 以打击他的反对者的总理,需要一名服从的总检察长来给于法治合法性。

李光耀在独立后的早期年代手头上的“难题“包括打发掉政治反对者针对不经审讯拘留的法律挑战。其中之一便是1971年内部安全法令下的拘留犯李茂 成,南洋商报四位主管之一,陈文德成功的挫败了挑战。他是为法治开倒车的佼佼者,把曾经存在的公民权力一一的取消。他也一样利害地翻出来了其他司法体系已 遗弃的陈旧法令,如渺视法庭法令来对付反对他的政治主子的人。介于1967年至1992年,任何违反人权和苛刻的法令,你必定会在“犯罪现场“找到陈文德 的指纹。

作为一位律师,让陈文德能在总检察长的职位生存了25年,为了保持他的清醒,他必需接受他的政治主子那种严厉苛刻的政治性格。问题是在这种情况下的总检察长可否行使专业独立性。另一个更重要的问题是选择总检察长的系统是否适得其用。

任何人对权力的分划看得很严格,这是个困扰脑子的糟糕问题。与在职25年的陈文德相反,后来介于2008年至2010年间任职的总检察长温长明,叙述了他在李显龙手下当总检察长的那两年“是我生命中最长的两年“。

如何来评价在这重要25年作为总检察长陈文德,如果引用温长明在2010年4月所说,一位好的总检察长“必需是个在有必要时敢于放弃工作。原因是如果那个人太需要这份工作,那他会在不符合公众利益下作出妥协。”

我们不知道陈文德在职时是否有任何时刻因专业良心而挣扎,但我们知道他做的是高压力的工作。

要感谢萧天寿的《擒住凶悍的人》这本书,现在有了通过锁匙孔看到的陈文德。萧天寿在1968年被委任为副总检察长,同时陈文德也被李光耀确认为总检察长。

陈文德在工作时常常发脾气是众所周知的,在同一座建筑内工作的萧天寿,很快的找出了原因。

“我发现他发脾气的根源可直接追索到好几种不同原因而导致的极度不安稳感觉。它可归类于因某些法律咨询或事务而受到总理或部长责备,因反复猜想总 理立刻传召见面的原因,因大法官或公务员委员会主席对他傲慢举动与行为,因他在出席公众活动按礼节的排列位置,还有他在股票投机买卖遭受损失“。

我们不知道是不是工作压力造成陈文德沈溺于分心的事物。我们却知道尽管他公务烦重,他却能找出时间来追求利润。萧天寿对陈文德 在股票,货币和黄金市场的知识印象相当深刻。萧天寿时常造访他的老板的办公室,并发现他的桌上摆满财经报纸和期刊。陈文德偶尔邀请萧天寿在工余拜访不同的 股票经纪,包括了一位曾被冠上马来西亚与新加坡股市皇帝的人。当时,陈文德同本地某些最有钱的人、商界、银行和工业界领袖交往。就这样地的小心翼翼溜出沉 闷的总检察署以避开闲言闲语。可是萧天寿发现这一切都逃不过政治部窥探的眼睛。

1987年陈文德涉及一宗资深银行家对他的指责,指他身为总检察长却在大华银行主席黄祖耀的指使下来陷害他。这项指责具有潜在的爆炸性,当时的高 级部长拉惹勒南通知李光耀注意这件事。接踵而来的是激动的电话对话、会议与报告,其所涉及的人脉包括总统,银行家,公务员和陈文德。陈文德算幸运,李光耀 向国会报告了他的调查的结果,免除了他的过错。李光耀这项十五分钟的声明提拱了罕见的政治精英,公务员与银行界之间个人意气相投关系的透视,那里每个人只 隔着一台电话。(新加坡国会1988年1月27日调查导至黄宝明(Allan Ng)被控与他对总检察长陈文德的指控的总理声明) (http://www.nas.gov.sg/archivesonline/data/pdfdoc/lky19880127.pdf)。

如果设立总检察长这一职位的目的是为了宪法有个独立的维护者,那人们不禁要质疑不止是李光耀的才智,而是连同让陈文德在职25年的总统职权的作 法。从这样的问题并没被提出来这一事实看来,即使1988年国会中提出陈文德的问题,显示了新加坡的政治结构在系统上的缺陷及全体行动党议员在政治上的破 产。

在任何人合适当总检察长之前,我们需要的是那种具有严厉对待宪法人格的人。在寻求一位总检察长时,总理根本不应该以这样的说法来开头” 你想有一天会当上大法官吗?“。这听起来似乎暗示要乖乖听话的一种引诱。这也是李光耀在1967年要萧天寿担任副总检察长职位时提出的课题。

要限制支配性政党的一个办法是拥有一位由选举产生出来向人民负责的总检察长。

当专业正直与主子的愿望起冲突时,现任与将来的总检察长可以从美国的做法中得到启示。当1973年水闸门丑闻在调查时,尼逊总统命令开除被派往调查非法电话窃听的特别检察官时,美国总检察长和副总检察长在一个星期六相继辞职。他们的辞职引发了尼逊在一个星期内辞职。

在绝望的时候,我们需要一些英雄。

 

The AG – What’s his job?

By: Tan Wah Piow

Related link : http://theindependent.sg/the-ag-whats-his-job/

 

When  the public disapproves of the government’s heavy handed action against an individual critic, the blame is often leveled at the Prime Minister, or his ministers. At times the court too comes under criticism. But a post which has so far avoided much public scrutiny is that of the Attorney-General.

What exactly is his job? Is he a civil servant, acting as the mouthpiece of the government? Or is he independent of the Government?

The present AG Mr V K Rajah defined his mission as the “Guardian of the public interest, and steward of the Rule of Law.” Under the Constitution, he does have the power, “exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”. As the chief legal officer of the government, he has a duty to advise the Prime Minister and his ministers on matters of law, and they have an obligation to heed his advice. And he is supposed to be independent. This is the theory.

In a society such as Singapore where the dominant party wields disproportionate power, and the distinction between the institutions of the State and the dominant party is blurred, a bold AG could be a counter-balance to prevent a dominant party from sliding into an undemocratic dictatorship. This is what it ought to be.

Would a reasonable bystander, judging the current AG by the standard he sets for himself, award him high grades for the handling of the Amos Yee, Jolovan Wham, Han Hui Hui, Roy Ngerng, Benjamin Lim and Dominique Lee cases? In each of these cases, individual rights collide with the State or the powers that be. I am tempted to think that if the post of the AG were an elected one, V K Rajah could have a hard time seeking re-election based on those issues.

Would the fact that the AG is selected by the Prime Minister compromise his constitutional independence? I have researched no less than twenty books dealing with Singapore politics, including the memoirs of Lee Kuan Yew in search for some clues relating to Singapore’s longest serving Attorney-General Tan Boon Teik. To my surprise, there was hardly any mention of him despite the fact that he was described by the Minister for LawK. Shanmugam, as the man who “contributed greatly during the formative years of our independence and the development of the Attorney-General Chambers”.

Why Lee Kuan Yew chose Tan Boon Teik, and continued to use him for a quarter century from 1967 to 1992 as the Attorney General is a great mystery as he was not even worth a mention in Lee’s The Singapore Story. This is despite the fact that Tan Boon Teik continued serving Lee Kuan Yew long after the first generation PAP leaders had left the Cabinet – Toh Chin Chye in 1981, Goh Keng Swee in 1984 and S Rajaratnam in 1988.

Lee Kuan Yew wrote to Tan’s widow in 2012, saying that as AG, Tan Boon Teik was “efficient, competent and always ready to find a solution to difficult problems”.

These words reminded me of the film Godfather, played by Marlon Brando, and his ever loyal Tom Hagen, the qualified lawyer of the Corleone Mafia family.  In the story, Hagen was needed because “lawyers can steal more than a phalanx of gangsters”. In real life, any Prime Minister who wandered around in dark alleyways armed with a knuckle duster to mug his opponents would need a compliant AG to give legitimacy to the rule of law.

The ‘difficult problems’ that Lee Kuan Yew had in those early days after independence included having to see off the legal challenges to detention without trial of his political opponents. In one of the challenges in 1971 launched by Internal Security Act detainee Lee Mau Seng, one of the four executives of the Nanyang Siang Pau newspaper, Tan Boon Teik successfully defeated the challenge. He was a man good at driving the rule of law vehicle at speed in reverse gear, taking away rights where they had once existed. He was equally good in raking up archaic legislations such as the Scandalising the Court Act which were abandoned in other jurisdictions, against the opponents of his political master. Between 1967 and 1992, where there were breaches of human rights and draconian laws, you are bound to find Tan Boon Teik’s fingerprints at the scene of the crime.

In order for Tan Boon Tei as a lawyer  to survive in the post as AG for 25 years, he would have to imbibe the draconian political ethos of his political master in its entirety in order to maintain his sanity. This raises the question of whether an AG in such a situation was able to exercise his professional independence. It also raises the more important question of whether the system for the selection of the AG is fit for purpose.

This is a truly mind boggling issue for anyone who takes separation of power seriously. In contrast to Tan Boon Teik’s 25 years in office, a later day AG, Walter Woon, who served between 2008 and 2010, described his two years as AG under Lee Hsien Loong as “the longest two years in his life”.

How should one evaluate Tan Book Teik as an AG in those crucial 25 years if we use the yardstick of Walter Woon who said in April 2010 that a good Attorney General “got to be a person who’s ready to walk off the job if necessary. Because if you have someone who wants the job too much, then he makes compromises which may not be in the public’s interests.”

We do not know if at any point Tan Boon Teik had to struggle with his professional conscience while in the post, but we know that he was in a very stressful job.

Thanks for Francis Seow’s To Catch a Tartar, we now have a key-hole view of Tan Boon Teik. Francis Seow was appointed as Solicitor General in 1968 at the same time when Tan Boon Teik was confirmed as Attorney General by Lee Kuan Yew.

Tan Boon Teik was known for his temper tantrums at work, and soon Francis Seow, who worked in the same building, found the cause.

“I discovered that the source of his tantrums was directly traceable to an acute sense of insecurity over a variety of causes. They ranged from his having been reproved by the prime minister or the minister over some legal advice or matter, to second-guessing the reasons why the prime minister had summarily summoned for his presence, to the condescending demeanor and conduct of the chief justice or the chairman of the Public Services Commission towards him, to his listing at public functions in accordance to protocol, and to his losses from share speculations.”

Whether it was the stress at work that caused Tan Boon Teik to indulge in other distractions we know not. But what we do know is that despite the burden of his office, he found time for other profitable pursuits. Francis Seow was rather impressed by Tan Boon Teik’s knowledge of “stocks and shares, the money and the bullion markets”. Francis Seow who frequently dropped in to his boss office noticed that his desk was full of financial newspapers and periodicals. Occasionally, Francis Seow was invited by Tan Boon Teik after work to visit his various stock brokers, including one who was dubbed the ‘emperor’ of the Malaysia and Singapore stock markets. There, Tan Boon Teik was rubbing shoulders with some of the richest men in town, leaders of commerce, banking and industry. These innocent escapades from the dull AG chambers were done discretely to avoid gossips. Francis Seow, however, observed that it did not escape the prying eyes of the Special Branch.

Tan Boon Teik ran into a spot of problem in 1987 when allegations were made against him by a senior banker that Tan, as AG, had fixed him at the behest of Wee Cho Yaw, the Chairman of UOB. The allegations were potentially explosive and was brought to the attention of Lee Kuan Yew by S Rajaratnam, the then Senior Minister. This was followed by a frenzy of telephone calls, meetings, and reports involving a network of people including the President, bankers, civil servants and the A-G. Fortunately for Tan Boon Teik, Lee Kuan Yew reported his findings to Parliament, exonerating him from any wrongdoing. Lee Kuan Yew’s 15 minute statement provided a rare insight into the cosy personal relationships amongst the elites in politics, civil service and the banking world, where everyone was just a telephone call away.[Singapore Parliament 27.1.1988 Ministerial Statement Investigations leading to the prosecution of Allan Ng and his allegations against Mr Tan Boon Teik, A-G].

If the purpose of having the post of AG is to act as an independent guardian of the Constitution, then one has to question not just the wisdom of Lee Kuan Yew, but also the Presidency which was instrumental in keeping Tan Boon Teik in the post for 25 years. The fact that this was not raised as an issue, even in 1988 when the question of Tan Boon Teik was raised in Parliament, shows a systemic defect in the Singapore political structure, and the political bankruptcy of the entire PAP parliamentary team.

What we need is the type of personality who would take the Constitution seriously before he is eligible to become an AG. When scouting for an AG, a Prime Minister should not start with a chat-up line “How would you like to be the Chief Justice one day?” That would sound like an implied inducement to toe the line. Anyway, that was how Lee Kuan Yew broached the subject when he asked Francis Seow in 1967 to take up the post as Solicitor General.

On way to limit the power of a dominant party is to have an elected AG who is accountable to the people.

The current and future AGs could look at the United States to draw inspirations as to how they should act when professional integrity collides with the master’s wishes. During the 1973 investigation into the Watergate Scandal, the Attorney General and the Deputy Attorney General of United States resigned in quick succession on a Saturday when they were ordered by President Richard Nixon to sack the special prosecutor assigned to investigate illegal telephone taping. Their resignations triggered the resignation of Nixon within a week.

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