(Delivered in Parliament on 9 January 2017)
Deputy Speaker, sir, I would like to take this opportunity to address the House today about the Government Proceedings Act (GPA). Specifically, I would like to propose that Section 14 of the GPA should be amended to allow civil liability in the tort of negligence in respect of a member of the armed forces or the Government for causing death or personal injury during training as a result of any conduct by any officer during training that conspicuously violates safety protocols, procedures, and regulations. An example would be if an officer or instructor fails to comply with Training Safety Regulations (TSR) or any training safety protocols recommended in any SAF lesson plans or, manuals. There should be a clear distinction between training and operations for purposes of liability under Section 14 GPA. Such an amendment to the GPA can better protect our troops and better enhance public confidence in the SAF in the area of training safety.
In March 2016, I filed a Parliamentary Question to the Minister for Defence on issues relating to the death of Private Dominique Sarron Lee during SAF training. I asked a Supplementary Question as to whether the Government will consider amending section 14 of the Government Proceedings Act to allow certain situations of liability instead of the current absolute exemption from liability for all claims attributable to service. I gave a few examples for consideration: the waiver can be limited to actual operations and should not apply to training, or when a death or personal injury occurred as a result of omission from observing TSRs, or when the negligence of an officer has some causal connection with the death or personal injury. I had asked this law could be amended at least to reduce the possible moral hazard of any officers not taking sufficient care and caution in abiding by established TSRs during training exercises.
In response, the Minister for Defence said that if I felt strongly about changes to the GPA, I could put up a motion. I do feel strongly about not just the case of Pte Lee. Any loss of life is regrettable. But there are larger issues at stake as well. They have to do with ensuring that our women and men in uniform have the protection they deserve during training. This remains the case even as the SAF seeks to prepare them realistically for tough operational situations. They also have to do with bolstering public confidence in the armed forces. After all, we have an armed forces which is composed mostly of conscripts. Anything to do with the SAF has the potential to affect every single Singaporean family.
As legislators, those of us in this House have an obligation to citizens that we work to their best interests. It is for these reasons that I am moving this motion.
Training
Tough and realistic training is important for the SAF. There is no doubt about that. However, training occurs in a controlled environment by design, unlike operations that by their nature have higher levels of risk, uncertainty, and unpredictability. Action and behaviour permissible during training should be subject to more stringent limits than operations. Managing the training environment ensures that not only learning takes place, but that service personnel do not face unnecessary physical risks. Our servicemen must remain safe, healthy, fit and ready for operations when called.
All military training and operations carry some risk to be sure, but training affords the controlled circumstances that allow the careful management of such risk. The aim is to ensure that learning takes place without harm to our service personnel. These are the same personnel whom we will have to rely on during operations.
To expect service personnel to risk themselves for our country, to go into harm’s way for us when asked, it is only right for the nation to afford them adequate protection where possible, not least during training- when what is at stake is a learning outcome and not an immediate life or death situation. Given Singapore’s limited human resources, it is also in the interest of the SAF and the nation to keep injury and death in training to a minimum.
Actually, the SAF has always recognised this distinction between training and operations. That is precisely why the SAF have the Training Safety Regulations (TSR) and safety directions in lesson plans. When I was an officer cadet, we were all drilled in the TSR. We had to be tested on it. We consulted the TSR and had safety briefings before activities and exercises. When we go into the units, the same emphasis on TSR remains. This was also the case during my NSmen training. As NSmen commanders, the safety of our men during training and observance of TSR are always top priorities. After all, every NSmen is a son, sibling, spouse or father to another Singaporean. We inprocess together to do our In Camp Training once a year and we want to outprocess together with everyone safe, sound and happy to go back to our families. NSmen who have been through the usual NS cycles will understand that and it is down to NSmen commanders to ensure,as far as training safety is concerned, that will happen.
The TSR (and even lesson plans) describe safety procedures in detail, often giving very exact distances, ranges, equipment, and contingency safety measures for different types of training exercises. They lay out what should be done and spell out what needs to be avoided. There is good reason for this meticulousness. A mistake from carelessness, laziness, or irresponsibility may lead to serious injury, even loss of life. So it is important to remind commanders what to do and what to avoid when conducting training.
Lesson plans and TSR are, in a number of cases, written in blood. Safety procedures for prisoner of war training saw revision after the unfortunate death of one service personnel and serious injury to another.[1] The tragic death of Private Dominique Sarron Lee brought a revision to safety procedures relating to the use of smoke grenades in training, including a change to the type of smoke grenade the SAF uses.[2] There are other examples I do not have the time to go into now.
Operations
Training situations are and should remain qualitatively different from operational circumstances. It is important not to conflate these very different situations. Operations are not, at their core, meant for practice and learning. They have very different objectives and goals. What is at stake in operations is very different from a training exercise. They may involve conditions outside the control of commanders and the SAF.
In this regard, considerations of risk during operations are very different from training. There is a different case to be made for exempting commanders from legal liability during operational situations. Training safety protocols obviously do not readily apply. A clear line exists between operations and training.
I was a little bit surprised when the Minister for Defence equated examples of operations with breaches of safety protocol during training in his reply to my Supplementary Question in Parliament last March. The Minister cited examples of: a) a police officer discharging a firearm when in pursuit of a suspect that the officer “thinks is going to commit harm”; b) service personnel who “see a significant threat” at a key installation they are protecting; and, c) the police shooting incident after a vehicle tried to breach the barricades at last year’s Shangri-La Dialogue and was shot by a Gurkha police officer.[3]
The Minister’s examples all pertain to police operations, not even training. Training personnel to make operational decisions does not involve completely replicating a real world situation. It is peculiar at best to think that training personnel to make snap judgments about responding to significant threats or vehicles breaching barricades requires the use of live weapons on real people, for instance. A line can and should be drawn between training and operational considerations. This is a line that is clear in principle and in fact.
Accidents
In the Minister’s response to my Parliamentary Question in March, he said, “injuries and deaths can happen despite best efforts.” He went on to discuss two accidents that involved negligence, a rash act, and an attempt to “pervert the course of justice.” These incidents involved “acts that amount to criminal offences under general law,” as the Minister noted. I agree with the Minister that accidents can and do sadly occur.
Accidents, however, can take place for a variety of reasons, under a range of conditions. They may occur on the road, in the regular operation of equipment, or because of unforeseen circumstances. In training situations, safety protocols laid out in lesson plans and the TSR seek to minimise accidents and other incidents. When a training accident occurs because of clear, and especially, deliberate breaches of established safety codes by officers responsible for conducting the training or recklessness as to its compliance, there should be channels for civil liability, just as there are channels for criminal liability.
There may be situations that are not criminal, but where victims and their families should still be able to seek legal recourse directly. I am not calling for a blanket civil liability for accidents, just for accidents during the controlled environment of training. Training conditions have clear safety codes laid out, and commanders have a duty to comply.
Reducing Moral Hazard, Providing Recourse
Deputy Speaker, sir, when commanders violate established safety protocols, they are sending a signal that they do not care enough about measures put in place for protecting those under their charge. That they are willing to put their men at unnecessary risk. The SAF should not tolerate, much less condone such behaviour, and it is important to make this clear both within its ranks and to the public.
If commanders choose to engage in such behaviour, if they choose to endanger our children, siblings, spouses, and parents in situations that do not warrant such risk, they should answer for it, and not just to the state, but to the servicemen or to his or her family. Section 14 of the GPA should be amended to reflect this. If someone endangers or, worse, harms our women and men in uniform because of a lack of care with regard to established safety protocols, they need to answer to those they have a responsibility for. This should be the case even if an act is not criminal. Answering to the SAF through the military justice system does not achieve this. In effect, at least from a civil law perspective, errant officers or instructors are not directly accountable to the people they are in charge of. At best, officers are only accountable to MINDEF or to the state.
The Minister for Defence is right that civil suit is not trivial. That is precisely why there are circumstances where civil claims should be allowed and I submit that violation of safety procedures during the controlled environment of training should be one of them. Knowledge of the potential seriousness of consequences can encourage those responsible for the lives of our women and men in uniform to be more careful and treat their duties more seriously, and be less cavalier about non observance of TSR or safety considerations in lesson plans.
Knowledge of the possibility of a civil suit reduces moral hazard by making the gravity of consequences more evident. One common claim about the Singapore legal system is that clear, consistent, and proportional sanction deters violations of the law. Allowing civil liability for violations of training protocol is an extension of this principle of deterrence through law. The point about deterrence is that civil liability can be quite easily avoided by adherence to established safety regulations governing the type of training in question.
Even if an accident happens, and they unfortunately do, once commanders have shown that they have taken all necessary precautions and have complied with TSR requirements, they should not be held responsible. They would not have to worry about any civil liability.
The Minister has, in response to my supplementary question in Parliament on 24 May about lifting the right to sue for training cases, said that: “the Member says, why not lift it from training? You cannot train at one pace and expect your security forces to ramp up their capabilities when in real operations. There is a saying, you know, when you do not sweat in training, you will spill blood in real operations. You have to make your training realistic so that when we meet those circumstances, the guard who fired at the car and stopped the car in time, you can get that level of proficiency if they think they are not protected during training?”
With respect, during the Parliament sitting on 24 March 2016, I was not asking for unbridled or unrealistic restrictions to training. That is quite clear from the scenarios I cited in my Supplementary Question to the Minister. Nevertheless, I have said today that civil liability should be allowed for limited circumstances where, for instance, officers have clearly failed to comply with TSR or safety directions in lesson plans. Surely the Minister was not implying that training in compliance with TSR is not realistic or that any breaches of TSR to make training realistic is acceptable to the SAF.
The Minister had, in response to my PQ last March, mentioned that punitive actions have, in the past, been taken against errant officers by way of criminal proceedings or proceedings under military law. By military law, it can of course be court martial proceedings or summary trials. But such actions are very different from the rights of an injured serviceman or the family of a deceased serviceman having to commence a civil claim in negligence against any errant officer. The serviceman or his family has no say whether criminal proceedings, court martial proceedings or summary trials are to be commenced. It is completely at the discretion of MINDEF or AGC. This is unlike the right to a civil claim, where the decision to commence action lies with a serviceman or his family.
By allowing the serviceman or his family to have the right of suit, once such suit is commenced, the courts will decide on liability based on the evidence and arguments that are presented before it. The defendants have the right to defend themselves. The injured serviceman or the family of the serviceman bringing the suit still has the burden to prove his or their case as is required for all civil cases. Ultimately, it is up to the civil courts to decide based on the merits of the case.
‘Without prejudice’ compensation or settlement schemes
MINDEF has also mentioned in their press release of 7 March 2016 of an offer of compensation to Pte Lee’s family which was rejected. It appears that the offer was “based on the full extent allowed by the compensation legislation”. MINDEF also said that “To respect privacy and maintain confidentiality, compensation amounts are not disclosed, but are generally 2-4 times that of amounts provided under the Work Injury Compensation Act” (WICA). It is not very clear what was offered to Pte Lee’s family but for avoidance of doubt, the awards under WICA are usually less than awards under common law negligence claims.
I have two further reservations about MINDEF’s system of compensation. This seems to be strictly on a confidential and without prejudice basis. While as a lawyer I have familiarity with this kind of thinking in litigation, for the lay person, without having the right of civil suit, the entire culture of this internal system of compensation ie to have offers couched in confidential, ‘without prejudice’ language and with MINDEF’s denial of liability as a basis for such compensation, just does not augur well for the confidence of the injured serviceman or the family of a deceased serviceman in such a system and in the organization. Furthermore, such settlement will be subject to the discretion of MINDEF. Above all, the availability of such offers of compensation does not in itself encourage officers to comply with TSR. If the law were to allow civil liability in negligence, and MINDEF would still like to make a ‘without prejudice’ offer during negotiations for future claims, it may well be looked upon quite differently by the claimants.
On the other hand, 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. Allowing civil proceedings is not about pinning guilt on particular individuals, which is ironically the case with the current regimes used by MINDEF such as summary trial, court martial or criminal proceedings. It is about giving a serviceman or his family an unfettered right of recourse not dependent on an organization which might otherwise have been vicariously liable for the tort but for the current statutory exemption from liability. Above all, it is about bolstering legitimacy of our institutions through more effective due process, which is central to a society that prides itself on effective rule of law.
Conclusion
Making commanders more accountable and more careful during training helps ensure that the learning outcomes are safe for our service personnel by the standards the SAF has set for itself. This is consistent with the SAF Core Values.
Declaring values and laying out safety regulations are but one step toward greater safety for our troops during training. Compliance is key. By allowing independent judicial oversight through civil proceedings when there are violations of safety standards, the SAF further encourages commanders to be mindful of safety protocols in the controlled environments that training is supposed to be. Such an amendment to the GPA helps to enhance adherence to training safety protocols and bolster public confidence in SAF.
There is always room for improvement. We can and should always strive to do better. This includes enhancing training, which includes more attention to promoting safety for our troops. It also involves taking steps that further bolster public confidence in the SAF as a key national institution. We owe it to our citizens and our women and men in uniform. I believe that the GPA should be amended to allow civil liability in negligence against a member of the armed forces or the Government for causing death or personal injury during training as a result of any conduct in training that conspicuously violates safety protocols, procedures, and regulations.
[1] http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/12680-s-balakrishnan-and-another-v-public-prosecutor-2005-4-slr-249-2005-sghc-146
[2] https://sprs.parl.gov.sg/search/report.jsp?currentPubID=00008950-WA
https://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00008996-WA¤tPubID=00008950-WA&topicKey=00008950-WA.00008996-WA_3%2Bid-dab07251-0d24-421e-be89-3af7b4821791%2B#
[3] https://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00008996-WA¤tPubID=00008950-WA&topicKey=00008950-WA.00008996-WA_3%2Bid-dab07251-0d24-421e-be89-3af7b4821791%2B#