Why Military Justice Matters in Singapore
Mention National Service (NS) in Singapore, and the typical reaction is one of ambivalence or cynicism. Even though over time some people have begun to recognise a need for it, NS still evokes mixed sentiments among the general population. This cynicism has somewhat spilled over into the Military Justice System. It is the aim of every justice system to ensure that everyone views it as a fair and just system that treats accused persons fairly in accordance with established legal principles. Any justice system requires a balance of power and respect, too much of either, you find that you are either a hated dictator or a toothless tiger. It is thus unfortunate that all too often, the general impression of it has been marred by people’s own unrelated experiences in NS, experiences which they mistakenly ascribe to the Military Justice System or most tragically, their own poor experience with the Military Justice System itself.
Often, when I tell others about the Military Justice Project, a common reaction is to ask in good humour, “is there justice in the military?”. The problem is a classic one—an imbalance of information between the various stakeholders: commanders and servicemen. This imbalance of information may result in a serviceman feeling that he has been either let down by the law or wronged by his commander, when in fact the law was applied correctly, but in an opaque process that remained unexplained. Even in the odd case where it is applied wrongly, the system provides options to redress this but servicemen often remain needlessly ignorant to them. It is this failure to communicate, to know your legal rights as a military serviceman, that is the cause of this cynicism towards the military justice system. As much as communication is a issue with regards to legal rights, misunderstandings may also arise due to the unique features of the Military Justice System that differ from those of the “civilian” courts. Outlined below are various explanations regarding the uniqueness of the Military Justice System.
I. An Emphasis on Discipline
NS resentment aside, the SAF is a military force and as such, requires a certain level of discipline, backed up by a system of legal repercussions for any wrongdoing.
“After the organization of troops, military discipline is the first matter that presents itself. It is the soul of armies. If it is not established with wisdom and maintained with unshakeable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy” - Maurice de Saxe: Mes Reveries, 1732
When we talk about military law, it often denotes the laws governing conflicts and the use of force by armed forces. We will instead focus on laws governing the servicemen within the SAF, which are mainly contained in the SAF Act. The SAF’s Military Justice System is unique as it forms a separate legal system of its own, has its own courts, and laws that apply exclusively to military servicemen. However in certain circumstances, the Attorney-General’s Chambers along with MINDEF Legal Services (the prosecuting arm for military offences) may decide to have a military offence tried under civil law as seen in S Balakrishnan v Public Prosecutor (known to the public as the “Commando Dunking Case”) and Ng Keng Yong v Public Prosecutor (the “RSS Courageous Collision Case”). Reasons for this mainly centre around the great public interest regarding these cases. This is of course not to say that our military courts operate in some shadowy world beyond our knowledge; the military courts are open courts and in fact the Military Court of Appeal conducts hearings in the Supreme Court which anyone can attend. But for the most part, military cases are directed towards the administration of discipline and the public interest is not aroused in most cases.
This is an important point most people overlook when we discuss the Military Courts, because unlike the normal “civilian” courts, military courts have different priorities in dispensing justice. When an Accused person is convicted by the State Courts, they are focused on his identity as an independent member of society, his rehabilitation into society beyond his sentencing is sometimes not the focus of the Court. However in a Military Court, though the primary aim is to ensure discipline within the ranks, the Accused serviceman must be dealt with in accordance with external considerations such as his role within his unit and the value inherent in that. A serviceman convicted and incarcerated will still have to return to service once he has served his sentence, if not as a NSF then as a NSman. It is not just a simple matter of locking him up and throwing away the key. Indeed in the military justice system, every convicted soldier is a yellow green ribbon project!
II. Military Personnel as Panel Judges
In military trials, know as General Court Martials, there are a panel of judges that hold military rank and there are often military officers present on the panel. The presence of military officers alongside judges during a trial is meant to benefit the accused serviceman.
The military takes the legal needs of its servicemen very seriously. Instead of using any legally-trained judge to hear the case of service, the SAF like all militaries, uses a panel of judges which includes, along with a legally-trained judge, military officers who are best placed to understand military life, and who are thus in a better position to decide on the standards of discipline required in a unique situation. This is especially important given that Singapore has no full-time military judge serving in the General Courts Martial (they are all District Court judges serving their NS liabilities). Including military officers allows to Panel to bring in a perspective on dicipline which would not normally apply to “civilians”. In his speech on the opening of the new Court Martial Centre, then Judge Advocate-General Chan Sek Keong said that
“Only a military mind can fully understand what the military requires to fulfil this role. That is why military personnel who commit offences under military law are disciplined by their superiors or tried by military courts made up entirely of military personnel. This is a universal practice in all countries which have a long tradition of maintaining professional standing armies to defend their sovereignty and protect their peoples.”
III. Importance of the Rule of Law
The Military Justice System serves both the interests of justice as well as the need to maintain a disciplined and professional armed force. This is in line with the common idea of the rule of law, that the law is supreme, not the commander.
It has been said that all is fair in love and war, thus the concerns of upholding discipline in a military have often been the cause of great dispute. The need for military discipline and efficiency may trample upon certain rights that a serviceman was used to as a civilian, and this is inevitable. If a serviceman has breached guidelines, rules and codes of conduct, he will have to answer for it. However this should be done against the backdrop of a legal system that makes its rules simple and accessible for serviceman. In the context of a military trial, serviceman are not well placed to access legal advice, thus it is important that serviceman are aware of and know what is expected of them in the eyes of the law. And the administrators of such laws should take it upon themselves to educate all servicemen. This is not so that they can ‘siam’ (avoid) responsibility if they flout rules (people who generally break the law don’t do it because they didn’t know it was illegal), this is to ensure confidence in the system.
The idea of ‘rule of law’, a concept that extends rights to all and equalizes both the servicemen and commander before it, is critical if we are to move away from this general suspicion of the military justice system as one that ‘rules by law’ instead. The latter is definitely not the case in Singapore; however bad impressions last longer than good ones and the military justice system cannot remain as one that relies on fear and ambiguity to retain an aura of control, instead as we move on to a more progressive and enlightened society, the system must have the confidence of those who are subject to it. It should clearly and transparently provide for the standards of discipline expected from every soldier and must be done within a legal framework that gives every serviceman a chance for his case to be heard.
IV. Checks and Balances in Summary Trials
A serviceman may be tried via summary trial, which is a condensed trial conducted by his superior officer that eschews a few legal procedures. Of course such trials are limited both in the scope of the offences the officer can deal with and the degree of the punishment meted out. Even though units have a certain freedom to charge their own servicemen through a summary trial, there are rules in place to keep check on how units dispense punishments and charges.
Is SAF law is the law of the Encik? Can military regulations and laws be abused? Of course there is a possibility that laws can be abused, especially since summary trials are held within the unit, and largely out of sight of the general public. However, there are stringent safeguards against abuse; this is where MINDEF steps in, requirng that all summary trial reports have to be submitted to the Legal Services Department. Moreover, if the serviceman feels that he has been unfairly treated, he could claim Court Martial instead of a summary trial. This is yet another avenue for a serviceman to vindicate himself, provided that he can prove his case in open court.
Thus the criticisms of the military justice system tend to be caused by misconceptions. Sadly this shows the real problem—servicemen need to know their rights. The SAF, through MINDEF Legal Services plays a vital role in
providing and ensuring the necessary information reaches the serviceman. Furthermore this also would require a serviceman to have an active interest in his legal rights, which sometimes gets ignored in the spirit of a rather typical Singaporean way of thinking that it “won’t happen to me one”.
Above all, we need to remember that the Military Justice System, though not perfect, is in itself fair. Its procedures and provisions are nothing different from various militaries around the world. We must remember the system’s function as one that serves to maintain discipline and looks at the offending serviceman within the greater picture of his unit and combat function rather than just his personal self. However even if the worse should happen and a serviceman is to be charged, we should not hesitate to ensure that he is fully aware of the various rights that he is entitled to.
*All opinions discussed remain that of the author and do not reflect the views of the Military Justice Project.