Two chairs will solve the problem. Or will it?

In a commentary published in the Straits Times, 29 September 2017 (link), former Attorney-General (AG) Walter Woon argued for splitting the position of the AG into two. His reasoning was that as presently constituted, the position has two very distinct functions: that of being the government’s legal adviser and separately, the one who decides on  prosecutions.

Woon wrote:

When giving advice on civil cases by or against the Government, on legislation, on matters of international law, the Attorney-General is the Government’s Attorney-General. He is obliged to defer to the Cabinet when it comes to issues pertaining to civil litigation, international law and the drafting of legislation. If he is instructed to fight a case, he must follow his client’s instructions just like any other lawyer, even if he thinks the case cannot be won or that it is ill-advised.

But when it comes to his role as public prosecutor, the Attorney-General is not the Government’s Attorney-General. He is given discretion over prosecutions by the Constitution. It cannot be the case that he should just prosecute if a senior minister wants that to be done.

After mentioning the possibility of political interference in decisions about prosecutions, for example when opposition politicians are charged for incitement of racial unrest or government officials themselves are suspected of embezzlement, Woon suggests that the role be split into two: an AG who is in charge of prosecutions; and elevation of the Solicitor-General to be the government’s chief legal adviser. Two chairs will solve the problem, he says.

Who shall appoint the Attorney-General then? Woon asks. He does not think it necessary to amend anything of the current arrangements, which is a little bit of a surprise considering all the foregoing that he has said. Possibly referring to Article 22(1) of our much-blemished constitution, he wrote:

At present, the Constitution provides that the Attorney-General is appointed by the President on the advice of the Prime Minister. The President does not have to accept the Prime Minister’s advice, which is the major safeguard against blatant abuse by appointing a political hack to the post.

Since the President has an independent mandate from the people and constitutional discretion, he (or she) should be the one to make the decision, ideally in consultation with the Chief Justice and the incumbent Attorney-General. This will ensure that, optically, the Attorney-General is not seen to be a political creature of the ruling party.

Article 22(1) says:

22—(1)  Notwithstanding any other provision of this Constitution, the President, acting in his discretion, may refuse to make an appointment to any of the following offices or to revoke any such appointment if he does not concur with the advice or recommendation of the authority on whose advice or recommendation he is, by virtue of that other provision of this Constitution or any other written law, to act:

(a) the Chief Justice, Judges of the Supreme Court, and the Judicial Commissioners, Senior Judges and International Judges of the Supreme Court;

(b) the Attorney-General;

…etc.

Woon is making a mistake that is all too common in Singapore: reading too much substance from form. It is a mistake much relied upon by the ruling party and our government. When a problem or neglect is brought to light, the response is to point to something textual in our laws or regulations and say it has been addressed.

That which ought to be is thus conveniently confused with what is.

In truth, substance is only realised with practice and within the possibilities of the environment. Just because Article 22(1) says the President may refuse a recommended appointment of an Attorney-General or revoke that appointment does not mean that we the citizens can rely on whichever puppet is in the Istana to do just that. The environment — the way such State positions are filled by persons drawn from the same inbred elite, with similar worldviews and ideological leanings, and with the certainty of life in the political and economic wilderness should one defy the party overlords — does not permit the possibility.

It gets worse. Woon repeats the old saw that the President has an independent mandate (see above extract). No one who has noticed the chicanery surrounding ‘elections’ to that post should want to disgrace himself by saying so.

Even in Donald Trump’s America

A cursory glance at the United States will be instructive. There, the Attorney-General isn’t just doing both the jobs that Woon in his commentary considers incompatible (at least in terms of public optics). The AG in the US is also the head of the Justice Department, i.e. equivalent to Law Minister in Singapore. He is a member of the cabinet.

And yet, they have had presidents investigated for party-political skulduggery (Nixon), perjury and obstruction of justice (Clinton), and now inappropriate relationships with foreign powers (Trump). How so?

I am repeating the obvious as I point out some of the many pillars that make public scrutiny a daily fact of life there:

• robustly defended freedom of speech
• independent media
• genuinely free elections
• vibrant civil society, not hobbled by political pressures from the government of the day

and so on.

And thus my point: the environment permits. Practice makes the substance. The lived experience of politics, not textual wishful-thinking, is what matters.

The United States is a liberal democracy. Singapore is not. We are a one-party banana republic with pretentions. Tinkering with the definition of the AG’s role is like moving furniture within a prison.