CFC Aloysius Pang’s family cannot sue MINDEF even if they want to

After the unfortunate death of CFC Aloysius Pang during his reservist training in New Zealand, many netizens commented that perhaps his family should sue MINDEF for the death of their son.

Unfortunately, Section 14 of the Government Proceeding Acts grants immunity to MINDEF or any of the SAF commanders or officers who may be involved with any deaths or injuries of NSmen of NSFs against any civil suits.

Case of Private Dominique Sarron Lee

In 2012, Private Dominique Sarron Lee, an NSF, collapsed with breathing difficulties during an exercise where excessive smoke grenades were used. He later died from an acute allergic reaction from inhaling zinc chloride fumes.

His family sued his then-platoon-commander Captain and chief safety officer of the exercise after both were summarily tried and found guilty in military court for negligent performance of lawful order or duty.

In 2016, the High Court dismissed the civil suit. Judicial Commissioner Kannan Ramesh ruled that the two officers qualified for immunity from being sued under Section 14 of the Government Proceedings Act (GPA). The statute states that as long as any deaths or injuries occurred during service, the Government or any SAF officer involved are not liable to be sued.

“Whilst the tragedy behind this case, and the pain and anguish it has engendered, should be recognised, we should not forget that this case also engages a matter of great importance — the ability of the SAF and its members to safeguard our nation and her security without being burdened by the yoke of tortious civil liability,” the judge said.

“The immunity accorded by (Section 14 of the GPA) does not mean that the SAF and its officers have carte blanche to act without sufficient regard to the safety of the young men and women whose lives are entrusted to them. Indeed, to the contrary, the fact that such immunity exists in and of itself imposes an even heavier moral burden on the SAF and its officers to exercise utmost care in looking after their young charges.”

The judge added that whether a mishap was the result of negligence did not matter under the GPA. As long as the victim was on duty, immunity from a lawsuit applies.

“I am entirely convinced that the SAF and all who command it fully recognise the weight of that burden, and do their very best to sedulously discharge it. However, despite the best intentions and careful and meticulous planning, mistakes can and unfortunately sometimes do happen,” he said.

WP tried to change the law but failed

In 2017, Workers’ Party NCMP Dennis Tan then filed a motion in Parliament proposing that Section 14 of the GPA be amended to allow for certain situations of liability to be prosecuted in civil court — specifically during training and when safety protocols, procedures and regulations have been violated.

This was in view of Private Lee case being thrown out by the High Court. Mr Tan stressed that he was not proposing a “blanket civil liability for accidents”, just for accidents during the “controlled environment” of training, where training protocols were violated.

He also pointed out that the independence of the judicial process through the civil courts will also help to prevent any “undesired impression or accusation of cover-up and underscore that Mindef and the SAF are above board”. “This willingness to allow for legal scrutiny builds public confidence,” he added.

The PAP-dominated Parliament however, rejected Mr Tan’s call to amend the law so as to allow for civil liability in negligence against the government or a member of the armed forces for causing death or personal injury during training.

Defence Minister Ng Eng Hen said that the statute in question continues to serve a “vital” purpose — to allow soldiers to train realistically. He said that the legislative intention behind Section 14 was to ensure that the government and the members of the armed forces are shielded from liability to ensure effectiveness and decisiveness of the armed forces in training and operations, “without being burdened by the prospect of legal action” when training or having to “second guess” the consequences of every action.

However, Minister Ng did note that those who have been reckless or negligent are not protected from criminal prosecution.