By Tay Bok Chong Alvin
I am deeply saddened by Dominique Sarron Lee’s passing. I did not know him personally, but I can only imagine how gruelling the last 3 years must have been for his family.
More recently, I am disappointed by Brigadier-General Chan Wing Kai’s official statement entitled “Key Findings from the Death of PTE Dominique Sarron Lee” published on the Singapore Army’s Facebook page at about 1:32pm of 7 March 2016. It seemed to me that the issue of civil liability was passed over. In all fairness, it could have been that BG Chan did not make mention of the armed forces' immunity from suit for good reasons (eg. He is not equipped to comment on legal processes outside of military law).
BG Chan purported that there exists a “misperception that SAF servicemen injured or killed cannot seek legal recourse under military rules”.
Although BG Chan made reference to military law, in my opinion, he did not deal with what bothers (or at least what should bother) Singaporeans. Law is not merely retributive (to punish wrongdoers), it is also restitutory (to compensate for losses incurred). The legal recourse that Lee’s family sought in the High Court was restitutory. With Lee’s claim being struck out by the High Court on 3 March 2016, it has become a matter of fact that as the law stands today, SAF servicemen injured or killed cannot seek legal recourse for compensation in civil courts so far as the requirements in Section 14 of the Government Proceedings Act (GPA) are met.
And this is problematic. It does not take more than a Google search for one to become aware that the criminal law works alongside the civil courts as distinct sources of legal recourse; and not, as BG Chan could have been read as having suggested, replace the civil courts. Just because legal machinery is in place to prosecute criminally errant officers of the armed forces does not in itself justify why injured servicemen or families of deceased servicemen should be barred from seeking compensation for negligently caused injuries or death.
Criminal legal recourse is surely not in itself sufficient recourse. Otherwise, there should be no need for civil courts in Singapore, since in the alternative, criminal courts would have served the latter’s purpose.
Further, the requirements of Section 14 of the GPA might be problematic.
The Government and errant officers are immune from civil suit for death or injury caused by any reason whilst a serviceman is on duty. This immunity applies when the Government certifies that the injury or death entitles the serviceman to a compensatory award. In the case of Lee, BG Chan confirms that “an offer of compensation has been made to the family”.
This again poses great logical difficulty. Section 14 essentially allows our Government to certify itself out of liability. All injured serviceman would lose the right to any claim in tort against the Government simply by virtue of the fact that the injury is certified as being compensable. This is crucial. Section 14 is clear that this is the only requirement before the Government attains immunity from being sued. This means that even if the family eventually turns down an offer of compensation because it feels that an offer is inadequate, or if the family can only find closure through the judgment of the fair, just, and neutral judiciary that Singapore enjoys, the aggrieved family would have lost the right to their day in court anyway.
I am of the opinion that we need an honourable neutral third party (that is, the Courts) to adjudicate wrongs, even in the context of the military. Would this open the floodgates of litigation? One needs only look at how rare it has been for aggrieved servicemen to bring such legal action throughout the 50-year history of the SAF to answer this question in the negative.
While it is the case that “the two officers were summarily tried in 2013 … and punished according to military law”, what about the SAF?
Every Singaporean son (and now many daughters through the SAF Volunteer Corp) goes through National Service to protect our land. We need Singaporeans to be committed to be part of the SAF for this to work; we need public confidence vested in our armed forces. I do not have a Masters of Public Administration, but I venture to think that public confidence in the SAF cannot be borne out of SAF’s self-regulation. We can only grow more certain that SAF is committed to strengthening its training safety if it is willing to be checked against by the courts.
In any event, the court martial system is competent in bringing law and order in the daily operation of the armed forces by prosecuting errant members. But can (and will) the SAF try itself in the court martial? Quite certainly not. If then the SAF or MINDEF continues to be the sole bodies to determine what is just and fair compensation, the SAF will only need to be liable to the extent that they want to be (and not to the extent that they should be). This freedom from actual liability must be adequately justified. This must be done by our Parliament if it chooses to stand by the GPA as it now is.
We, as Singaporeans, must become acutely aware that our laws (as laws are everywhere in the world) are not perfect.
That is why we have members of Parliament that seek to make better and more relevant laws each day. In the context of our parliamentary democracy, I should think Prime Minister Lee – as leader of the House – will head the charge in reviewing this specific provision that is left untouched for 20 years so as to offer the full set of legal recourse that each citizen is entitled.
Alvin is a 23-year old law student with a vested interest in the SAF because he is a concerned Singaporean, and not least, a serviceman himself.
*This article has been edit on 11 March 2016