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The Attorney-General — What’s His Job?

By Tan Wah Piow

 

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 (AG).

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 Teik 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 mindboggling issue for anyone who takes separation of power seriously. In contrast to Tan Boon Teik’s 25 years in office, a latter 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 to Francis Seow’s To Catch a Tartar, we now have a key-hole view of Tan Boon Teik. Francis Seow was appointed 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’s 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.

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 of “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.

One 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 inspiration on 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 the illegal telephone taping. Their resignations triggered the resignation of Nixon within a week.

In desperate times, we need heroes.