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AG and the legacy of rotten durians

by Tan Wah Piow

How many durian lovers in Singapore are aware that the present Attorney-General Lucien Wong had, on 8 January 2018, used the imagery of the most famous Malaysian durian Mao Shan Wang to describe the work of the Attorney General's Chambers? I suspect very few. I do not mind him using durian as a comparator, but I think he had mistaken Mao Shan Wang for something completely different. 

A durian enthusiast would judge the fruit by its taste and texture, likewise, we judge the A-G office by its commitment to the rule of law.

To the general public, A-G Lucien Wang is known more for prosecuting “scandalising the court” cases than for anything else. There are at least three pending cases – Li Sheng Wu for using the word “pliant” to describe Singapore Judges; Jolovan Wham for making comparisons between Singapore and Malaysian judges; and lastly John Tan for commenting on the prosecution against Jolovan Wham.

Without discussing the specifics of these cases, what really is the role of the Attorney-General?

Under the Singapore Constitution, he is the legal advisor to the government and empowered to institute, conduct or discontinue any proceedings for any offence. The same is true with the role of the A-G in other Commonwealth countries such as Malaysia, and the United Kingdom.

Just as not all durians are alike, some Attorney-Generals take their role as the guardian of the rule of law more seriously than others.

Take the case of UK as an example. On the 10 May 2018, the UK Attorney-General Jeremy Wright made a statement in Parliament apologising unreservedly to a Libyan couple, admitting the UK government's complicity in their rendition and ‘mistreatment’ at the hands of the now-deposed Gaddafi's Libyan forces.

Jeremy Wright in a speech on his role as A-G said it was his duty to “ensure that the government understands its legal and constitutional obligations”, and he is “ responsible, ultimately, for ensuring that the government’s decisions and actions respect and uphold the Rule of Law.” In other words, he acts as the guardian of public interests to ensure that governmental decisions are compliant with the constitutional rights of the people.

Such professionalism is unheard of in Singapore or Malaysia.

He does not race around the country charging anyone for scandalising the courts. In fact, that archaic law was abolished, and the system is mature enough to command, rather than demand respect.

The general doctrine in the common law system is that Attorney-General sits at the heart of the Constitution. Although he exercises the discretion on prosecution, all his actions have to be guided by public interests, and not the interests of the ruling party. Unless the holder of the office of A-G is independent minded, and upright, he can easily undermine the system of rule of law he is meant to protect.

Furthermore, however good an institution is, unless there is constant public scrutiny by an independent media, and transparency, the post of the A-G can easily be open to abuse. This is definitely the case in a country where the politics, and all state institutions are dominated by one party.

Malaysia is another country where the role of the A-G has recently come under close scrutiny.

The newly minted Prime Minister Dr Mahathir has ordered the A-G Mohamed Appandi Ali, who had served under the deposed Prime Minister Najib to take enforced holidays. It is alleged that Appandi had declined to probe further in 2015 evidence by the anti-corruption unit MACC that Najib had received RM42 million from 1MDB.

Unlike the UK where the Attorney-General post is held by an MP with professional legal training, AG's in Singapore and Malaysia are lawyers appointed by the Prime Minister. As a non-elected appointee, his tenure is at the pleasure of the Prime Minister.

How Dr Mahathir government deals with the allegations against A-G Appandi will be closely watched, not since in Singapore, but in other Commonwealth countries. Malaysia may be setting a new benchmark for the office of the Attorney-General.

In the case of Singapore, the longest-serving Attorney-General Tan Boon Teik was an appointee of Lee Kuan Yew who held the post for a quarter of a century from 1967 to 1992. He served his master longer than any of Lee Kuan Yew's political lieutenants. If this veteran AG had seeded any Mao Shan Wang to establish a robust system of rule of law as Lucien Wang would like us to believe, it certainly was not noticed by Lee Kuan Yew.

In fact, Lee did not make any reference to Tan Boon Teik in his memoirs despite having employed him to serve as the independent legal advisor, and custodian of the rule of law for 25 years! The fair conclusion of this omission would be that Tan Boon Teik was dispensable.

Yet, why was Tan Boon Teik appointed in the first place? I can only extrapolate from the experiences of Francis Seow who was appointed to the post of Solicitor-General on the same day as Tan Boon Teik. Francis Seow was effectively Tan's junior.

When Lee Kuan Yew summoned Francis Seow, who was then working as a prosecution lawyer, to his PM office in 1967 to offer him the post of Solicitor-General, the opening gambit was:

LKY: “Had it not been for me, and your minister for law, you would have been passed over.”

“You have been seen walking across High Street hand in hand, with a woman who is not your wife.”

Francis: “If I am passed over, I would resign.”

LKY: “That's not the point why I have sent for you, here...”

“Wouldn't you like to be a High Court judge one day?”

“Do you not wish to be Chief Justice one day.”

As Francis Seow noted in To Catch a Tartar, Lee Kuan Yew knew that the ambition of career law officers was ultimately ascension to the Supreme Court Bench. Francis understood the drift and grabbed the offer.

Before taking up the post as A-G, Tan Boon Teik was the director of Legal Aid. He probably did not need much enticing to accept Lee's offer, and no reason to believe that similar inducement was not made to him.

According to Francis Seow who worked under the same roof as Tan Boon Teik, the A-G was universally loath, and his advice was not respected by those who supposedly required his service.

Why did Lee Kuan Yew who suffered no fools, kept him for 25 years?

The clues are in Francis Seow's revelations.

In a 1962 case against a famous leftwing trade unionist Jamit Singh, Lee wanted Francis Seow as prosecuting counsel to use materials from the Internal Security Department to smear the character of the defendant. The motive behind the criminal breach of trust case against Jamit Singh was purely political, and Lee did not fail to impress upon Francis the importance of having him convicted.

In another instant in 1967, Francis Seow was prosecuting in a high profile murder trial where the victim was the son of a Chinese tycoon. Lee Kuan Yew was so infuriated with the newspaper report of the defence psychiatric expert evidence that he summoned Francis Seow during lunch break to the Prime Minister office to insist that he wanted the witness discredited during cross examination. Reflecting over the episode during his exile, Francis noted that it was a serious breach of law and order, “to say that I was shocked would probably be an understatement.”

Such revelations behind the close doors of the Prime Minister's office are rare. These serious allegations in Francis Seow's To Catch A Tartar were published in 1994 by Yale University Southeast Asia Studies. The revelations in the book suggest a wholesale perversion of the system of rule of law by the then Prime Minister Lee Kuan Yew. If they were untrue, Lee Kuan Yew would have sued the author and the Publisher, as he did with all his local critics. He did not sue. Neither did the AG or Tan Boon Teik who was rewarded with a diplomatic posting after his retirement as AG.

Such being the legacy of A-G Tan Boon Teik's 25-year tenure, and there is nothing to suggest that the system has changed since.

The Rotten Durian Legacy

In the 8 January 2018 speech of Lucien Wong, he said:

“Previous AGs have, on earlier occasions, described our work using the analogy of planting durian trees. It is apt for me to continue this imagery by stating that AGC, and Singapore in general, is reaping generous harvests from the seeds that each of the previous AGs have sown during their respective tenures (I dare say, of the Mao Shan Wang variety). 

Lucien Wong obviously was not aware that what the first AG Tan Boon Teik sowed, together with Lee Kuan Yew, were rotten durians. When the rotten became the norm, it could be mistaken by the untutored as Mao Shan Wang.

My friends in Raub who grow the real Mckoy should raise strong objections to this analogy, giving Mao Shan Wang a bad name. In fact, they should consider registering it as a trade name to avoid further abuse.