Military Law in Singapore is unique due to its separate legal system and jurisdiction.
To most, “Military Justice” (or “Military Law”) is simply a body of law and system of rules which only applies to military personnel. Being a nation known for its mandatory conscription (National Service), many of us have probably heard the military-related terms, viz, “AWOL”, “court-martial”, “honourable/dishonourable discharge”, “insubordination”, etc.
But what are some of the differences between Military Law and Civilian Law? In a two part series, the four main differences between military law and civilian law are noted and discussed.
3rd Difference: The objective of Military Law
As pointed out by the Honourable SAF Judge-Advocate General (as he then was), “Whilst the object of civil law is to secure to every member of the community his rights and interests consistent with the rights and interests of the community, the object of military justice is to promote national security and the maintenance of an effective armed force. But an effective armed force cannot be maintained without discipline. Therefore, the object of military law is to maintain discipline.”[1]
Indeed, it is clear that the objective of Military Law is to secure the discipline and professionalism of its servicemen/women, whilst ensuring that it is enforced in a fair and consistent manner. This requirement is crucial for the effectiveness of any armed forces. As the SAF is a citizen army, it is even more crucial to ensure that the institutions and procedures enforcing our Military Laws are seen to be fair.
Consequently, the rationale behind having a unique set of laws for servicemen/women is, presumably, the assumption that military personnel are best placed to enforce and maintain discipline within their own ranks. It then follows from this that military personnel are (again, presumably) better placed to decide whether an offence has been committed and the degree of punishment that should be imposed.
As such, it is unsurprising that the Military Law in Singapore adopts a justice system separate from its Civilian counterpart.
4th Difference: Separate Legal System
Chief Military Prosecutor vs Attorney-General
In our criminal justice system, the Attorney-General plays the role of the Public Prosecutor and has the power to conduct or discontinue any criminal prosecutions and/or proceedings.[2]
Conversely, under the SAF, the Chief Military Prosecutor (“CMP”), who is also the Director of Legal Services (“DLS”),[3] has the exclusive power of directing prosecutions in the military courts for offences committed by servicemen/women, and his powers are outside the commanding structure of the SAF. The wide powers of prosecutorial discretion ensures that the CMP is able to play the crucial role in ensuring the object of Singapore’s Military Law.[4]
That said, the CMP’s powers are not without limitations. Factors which are relevant to the Public Prosecutor in determining the prosecution of offenders in the civil justice system are also relevant to the CMP in the prosecution of servicemen/women.
The CMP may perform his prosecutorial role in two ways.
Special Investigation Branch (SIB) Investigations
First, upon the conclusion of an investigation by the military police against an errant serviceman/woman, the investigation officer would forward the investigation papers to the CMP for consideration. Upon being satisfied that there is sufficient evidence to connect the errant serviceman/woman with the commission of an offence under Military Law, the CMP has the power to direct a military prosecutor to frame a charge and to submit the charge to either the disciplinary officer (for summary trial) or the convening authority[5] (for trial by a subordinate military court[6]). The choice of forum is at the CMP’s discretion.
Unit Investigations
Alternatively, where an offence is investigated by a unit and is first surfaced to a Junior Disciplinary Officer (JDO), he has the option to refer the case to a Senior Disciplinary Officer (SDO) should he feel that his powers of punishment are inadequate in addressing the gravity of the offence.[7] In a similar vein, the SDO has the power to refer the case to the Superior Commander (SC), should he feel that the offence is beyond the ambit of his disciplinary powers.[8] At this juncture, the SC would then decide if the errant serviceman/woman should be tried summarily or referred to the CMP.[9] Thereafter, the CMP would evaluate the evidence and if appropriate, direct that a charge be submitted to the convening authority.
Note: A serviceman/woman, being dissatisfied with the punishment imposed, may at the conclusion of a Summary Trial elect for his/her case to be tried at a General Court Martial.
However, while a military offence can only be tried in the military court, a civil offence can also be tried in a civil court. Therefore, under Section 112 of the SAF Act, the Attorney-General may on its own motion, or on the application of the CMP, order that a civil offence be transferred from a military court to a civil court for trial.
Military Law Courts and Civilian Law Courts
In terms of the trial process, different courts are used in place of the civilian court in Military Law, depending on the severity of the offence. The table below provides a brief overview of the respective court of laws in Singapore.
| Military Law Courts | Civilian Law Courts[10] |
| Summary Trial – For general military offences which are considered to be less serious in nature (such as absence without official leave, non-compliance with lawful orders, insubordination and failure to complete the yearly required IPPT over repeated warnings), such offences can be dealt with by way of a Summary Trial.
Possible sentences may include fines or detention.
|
State Courts – comprises of the Magistrates’ and District Courts, both of which oversee civil and criminal matters of varying degrees of severity. |
| Subordinate Military Courts – comprises of the General Courts Martial and Field General Courts Martial
General Court Martial – The General Court Martial (GCM) deals with a wider range of offences, with punishments including imprisonment and discharge with ignominy (dishonourable discharge), on top of sentences like detention and fines. The GCM is also a more public and open forum, and its proceedings are conducted using similar legal rules and procedures as those used in a civilian criminal court. Offences covered by the GCM include drug-related offences, cheating and assault.
|
Supreme Court – comprises of the High Court and the Court of Appeal.
The High Court hears both criminal and civil cases as a court of first instance. The High Court also hears appeals from the decisions of District Courts and Magistrates’ Courts in civil and criminal cases, and decides on points of law reserved in special cases submitted by a District Court or a Magistrates’ Court.
The Court of Appeal hears appeals of civil and criminal cases from the High Court. The Court of Appeal is presided over by the Chief Justice, and in his absence, a Judge of Appeal or a Judge of the High Court. |
| Military Court of Appeal[11]
The MCA is the highest court in the Military Justice System. The MCA, is a panel of five members. Heading the MCA is a President appointed by the Chief Justice. By law, the President of the MCA must be a person qualified to be a Judge of The Supreme Court. Four other members—two civilian members who have at least five years of experience as qualified Legal Practitioners each, and two Senior Military Officers—form the rest of the MCA. |
Family Justice Courts – comprises the Family Division of the High Court, the Family Courts and the Youth Courts. The Family Justice Courts will hear the full suite of family-related cases including all divorce and ancillary matters, family violence cases, adoption and guardianship cases, Youth Court cases, applications for deputyship under the Mental Capacity Act, and probate and succession matters.
Youth Courts – deals with offences committed by persons below 16 years of age. |
Court Procedures and Processes
At a General Court Martial, the offender may choose to be represented by a SAF Defending Officer (“SAFDO”) or an external criminal lawyer. Whilst the SAFDO may not have undergone formal legal training/practice per se, they have undergone various training conducted by the SAF Legal Services.[12] Note: For a list of available SAFDOs, please refer to the Legal Services website, which is accessible via the SAF Intranet.
If you are not comfortable with a SAFDO, you may seek representation by a criminal lawyer.
A criminal lawyer may be better than a SAFDO in several ways. A SAFDO is an Officer of the Singapore Armed Forces that has only been shortly trained on how to defend someone in court. Conversely, a criminal lawyer might have more experience in defending people in court and may be better equipped to put your case forward in a legal setting.
Regardless of who you decide to proceed with, the procedures are similar. First, the SAFDO / the external criminal lawyer may submit a set of written representations to the prosecution (i.e. Attorney-General’s Chambers (“AGC”) or the CMP), to request that the charge to be withdrawn, compounded, reduced or altered. Thereafter, the SAFDO / the external criminal lawyer would submit a plea in mitigation (should you elect to plead-guilty) or a defence (should you elect to plead not guilty). Based on the facts of the case and the arguments put forth by the Defence and the Prosecution, the Court would then decide whether the servicemen/women is guilty of an offence and the appropriate sentence to be imposed.
As for bail, the bail process is close to a civilian court’s. The servicemen/women who has been detained may apply for bail, pending further investigation or appeal. If the application is successful, the accused will be released from detention, and entrusted to the custody of the person who posted bail for the accused.[13]
Like the civilian courts, appeals are possible and servicemen/women who are dissatisfied with their conviction or sentence can appeal to the Military Court of Appeal – the highest court authority in Military Law.
They can also petition the Reviewing Authority of the Armed Forces Council, which consists of the Chief of Defence Force, a Service Chief, and the Ministry of Defence’s permanent secretary for defence development. The Reviewing Authority can quash a court-martial sentence or reduce the sentence.[14]
In conclusion, whilst there are certain similarities between Military Law and Civilian Law, they do have their differences in terms of who is subjected to which law, the offences and the corresponding defence, the punishments stipulated by legislation and more importantly, in the judicial process.
[1] Keynote address of Mr Chan Sek Keong, the SAF’s Judge Advocate-General, at the seminar “Military justice in the SAF” held on 5 June 1993 at the Singapore Academy of Law, and reproduced in Issue No. 2 (May 1997) of the Mindef Legal Counsel.
[2] see Section 11 of the Criminal Procedure Code (Cap 68, Rev 2012) and Article 35(8) of the Constitution
[3] See Section 82(6) of the SAF Act
[4] Hee Mee Lin, April 2002, ‘The Role & Jurisdiction of the Chief Military Prosecutor’, The MINDEF Legal Counsel.
[5] “convening authority” means – (a) in the case of a general court martial, the officer of or above the rank of major, or the senior military expert of or above the rank of ME 5, appointed by the Armed Forces Council for the purpose of being the convening authority for general courts martial; or (b) in the case of a field general court martial, a convening officer. (see Section 2 of the SAF Act)
[6] See Section 80 of the SAF Act
[7] See Section 63 and 68 of SAF Act
[8] See Section 64 and 69 of SAF Act
[9] See Section 65 and 70 of the SAF Act
[10] https://www.lawsociety.org.sg/For-Public/Singapore-Court-System
[11] Lee Jwee Nguan, December 2004, ‘The Military Court of Appeal’, The MINDEF Legal Counsel (Dec).
[12] Tan Sze Yao, January 2008, ‘Debunking Myths About Military Justice in Singapore Armed Forces’, The MINDEF Legal Counsel
[13] https://lawsoc-clinic-manual.readthedocs.io/en/latest/sections/military-law.html#commonly-asked-questions-on-military-law
[14] https://www.straitstimes.com/singapore/the-military-justice-system-in-saf
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This article is written by Chooi Jing Yen from Eugene Thuraisingam LLP and edited by Tan Jian Rong from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.