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Where’s the law?

By Tan Wah Piow

In response to the recent High Court decision to strike out her civil suit against the Singapore Armed Forces (SAF) for compensation over the death of her son, Felicia Seah, the mother of the late Private Dominique Lee wrote these anguish and heart-wrenching remarks out of sheer frustrations:

“They must be right, of course - the judge, the ministers, the SAF and their officers. They are experts in their fields. Individuals who studied and trained for years to be in their current positions. What do I know? I'm only a mother …”

These are the words of one who felt the law has betrayed justice, and its logic is beyond the comprehension of ordinary folks.

Her question “What do I know?” deserves some serious reflections.

The unfortunate death of Private Lee took place in 2012 in the course of a training exercise. It was not in dispute that there was breach of SAF safety regulations when  more than two smoke grenades were deployed, and that Dominique Lee died of acute allergic reaction to the smoke.

Since there was negligence, why can’t the family seek recompense through the civil courts against the SAF in the same way as any other civil disputes?

The Singapore High Court accepted the defence raised by the Attorney General Chambers on behalf of SAF that under S14 of the Government Proceedings Act, a soldier cannot sue for negligence if the death or injuries occurred during service.

What’s the logic and philosophy behind this legal creature that insulates the government from being sued by its soldiers for negligence; yet in a different context, an employer can be sued by an employee for injuries or death arising from work?

This exchange in Parliament between JB Jeyeretnam and Lee Hsien Loong, then Defence Minister in 1986 is important.

JBJ: (MP for Anson)

There is a provision in the Government Proceedings Act which prevents anybody or the dependants of someone who has died from bringing any action against the Army (the Government), in respect of any injury or death. There is a blanket ban on this. I questioned this sometime ago and I was told that this was also the practice in Britain. Well, I ask again. It does not follow that all British practices are good. I said then that if the victims or the dependants of the deceased victims brought proceedings in court and the Ministry, the Armed Forces, are shown to be negligent, then the compensation that would be awarded would be much more than they would get under the pensions provided for in the Armed Forces Act. I ask, why should the families of soldiers, pilots, sailors, be discriminated against when other ordinary citizens can recover the full amount of damages and compensation in respect of any injuries or death occurring outside the Armed Forces?

LHL: (Minister for Defence)

As for the Government Proceedings Act and why the government cannot be sued, we do not follow British precedent blindly. We follow it when there are good reasons to do so. Why can you not sue the State in case a serviceman dies in training or in action? The reason as given by the British is that in this case, the State is fundamentally different from a private citizen, and therefore cannot be treated on the same standing. I will quote here from a submission in the House of Lords in 1947, when the Crown Proceedings Bill was introduced in Britain and it applies to us. 

 'The private citizen does not have the same kind of responsibility as the Crown for protecting the public. He does not have the care of public safety. He does not have the defence of the Realm to consider. In these matters, the functions of the Crown involve duties and responsibilities which no subject is required to undertake and these distinctions are inevitably, necessarily and properly reflected by various provisions in the Bill.' In other words, that is the reason why you cannot sue the government under such cases. And to be able to sue the government under such cases would be destructive to the morale, discipline and efficiency of the service. We concur with these views and we have adopted the same practice. 

At first glance, Lee Hsien Loong in 1986 was eager to adopt the “best practices” from Great Britain on this matter. Little did Lee Hsien Loong realize that this piece of legislation which dated back to the philosophy of 13th Century Britain that “the king can do no wrong” was soon to be jettisoned to the dustbin of history.

On the 19 March 1987, Mr Winston Churchill Conservative MP for Davyhulme and grandson of the British war time Prime Minister moved a bill in the British Parliament to repeal Section 10 from the Crown Proceedings Act. Section 10 was the equivalent of Singapore’s Section 14 Government Proceedings Act.

Mr. Churchill (Davyhulme)

The Bill seeks to rectify an injustice that has become increasingly more glaring—the discrimination between members of the armed forces and the ordinary citizen in seeking damages in cases of injury or death arising from the negligence of others. An ordinary citizen or his dependants may sue through the courts and obtain substantial damages, but members of the armed forces are denied that right. This discrimination has given rise to much bitterness and a sense of injustice among those who have served their country loyally and suffered for it, not once, but twice—first, in suffering injury or death in the course of their duty and, secondly, in being denied the proper level of compensation that would be their due if they were in any other walk of life. I count myself fortunate that the opportunity has fallen to me to rectify this injustice.

Was Lee Hsien Loong aware that Section 10 of the British’s Crown Proceedings Act was repealed in 1987?

Instead of adopting the progressive approach of the British government, Singapore's dominant party took yet another regressive step in 1996 to further amend Section 14 to ensure that servicemen who are injured while on his way to or from work could not sue the government.

Unfortunately, JB Jeyeratnam was no longer an MP in 1996, and the amendment was passed without any debate.

Hence when Madam Felicia Seah took the government to court, the SAF could seek cover under Section 14 of the Government Proceedings Act to defeat her claim. Even then, the outcome could still be different if one takes the human rights of Dominque Lee seriously, as we can see in a recent judicial development in the United Kingdom.

By coincidence, two month before the Singapore's August 2013 coroner's  inquest into the death of Dominique Lee, the Supreme Court in the United Kingdom had made a landmark decision confirming that soldiers who suffered injuries or death during military actions could sue the government for negligence.

The case* before the UK Supreme Court involved three deaths and two serious injuries of British servicemen in Iraq. The ruling is of great jurisprudential significance firstly because it stated that a government owes a duty of care to a soldier’s right to life under Article 2 of the European Convention of Human Rights (ECHR). Furthermore it ruled that the doctrine of  'combat immunity' used by the State to avoid being sued, should be strictly restricted to serious combat situations. Such immunity should not be extended to “decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy”.

In Dominique Lee's case the incident took place during a military exercise and not in 'active operations against the enemy".  If it was the latter, the government could seek cover under the doctrine of combat immunity.

If this UK Supreme Court doctrine is applied to the Dominique Lee case, the outcome could be the very different, and Felicia Seah would be able to proceed with her case against the SAF.

The British soldiers in the Supreme Court case relied on their Article 2 Right to Life to sue the government for negligence. Article 2 of the ECHR provides as follows: “Everyone’s right to life shall be protected by law...” As a consequence of this right, the British government owes a duty of care to its soldiers.

Notwithstanding Section 14, it is arguable that Dominique Lee could rely on Article 9 of the Singapore  constitution which states  'No person shall be deprived of his life or personal liberty save in accordance with law'.

Why Dominique Lee’s Article 9 right to life was not considered by the Singapore judge is beyond my comprehension. The UK Supreme Court judgment is at least a persuasive authority in favour of Dominique Lee's case.

For this reason, it was certainly the height of arrogance for the Attorney General Chambers to describe Felicia Seah’s claim as 'frivolous, vexatious and an abuse of process' .  Mr V K Rajah, the Attorney General, an industrious lawyer in his own right,  ought to be familiar with the UK Supreme Court judgment because it is his job to know. And anyone professionally engaged in this field of military jurisprudence ought to know as well.

So back to Felicia Seah's 'what do I know'. She knew about Dominique's right to life, and that's enough. She did the right thing.

The only question is 'Where's the law?'

*Smith and others (FC) (Appellants) v The Ministry of Defence

First published in The Online Citizen. Chinese translation available elsewhere.