The Singapore Armed Forces (“SAF”) is expected to treat every member of its service personnel fairly and equally under the military justice system, regardless of race, rank or vocation. 1
The military justice system is based on the SAF Act (Cap 295). All servicemen/women are subjected to the SAF Act, SAF Regulations and orders of whatever form issued pursuant to them. While discipline is paramount in the military, not all offences committed by SAF servicemen/women are dealt with by formal investigations and charges. Offenders can be dealt with by way of informal or formal punishment systems. 2
Informal Punishment System 3
Commanders are empowered to mete out informal punishments or administrative measures like extra duties or weekend confinement to servicemen who have committed minor disciplinary breaches, such as being late, sluggish, or improperly dressed.
Unlike with formal punishment, there will be no records of informal punishment beyond the unit’s own administration, thus such records will not follow a Full-time National Serviceman (“NSF”) upon leaving his unit on his Operationally-Ready Date (“ORD”).
If the offence that a serviceman/woman has committed is of a more serious nature, he/she may be formally dealt with by his disciplinary officer by way of a summary trial, or brought before a subordinate military court (more commonly known as the General Court Martial). 4 Depending on the rank of the serviceman/woman being charged, he/she may be brought before a junior or senior disciplinary officer to be charged at summary trial. The presiding officer may refer the case to a higher authority at his/her discretion.
1. Summary trial
The offences that can be dealt with by summary trial are essentially military offences, such as absence without leave, non-compliance with lawful orders, and insubordination. 5
Depending on the rank of the serviceman/woman in question, and the type of the disciplinary body hearing the case, the possible sentences that may be imposed can vary, and may include fines or detention. 6
A summary trial lacks certain elements of a normal trial, most notably the absence of any requirement that the disciplinary officer abides by the rules of evidence. 7 Procedurally, it gives the disciplinary officer a lot of discretion in carrying out the trial in a manner that he/she deems appropriate or expedient for the disposal of the charge in conducting the trial.
However, the discretion conferred is not a blank cheque; the summary trial is carried out in accordance with relevant SAF regulations, and the records of the summary trial are sent to the office of the Director, Legal Services of the SAF to monitor the conduct of such trials. 8
2. General Court Martial
The General Court Martial (“GCM”) exists as a separate forum from that of the summary trial. Unlike the summary trial, the GCM deals with a wider range of offences, and can impose a wide range of punishments including imprisonment and 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. 9
Generally, only serious offences investigated by the Military Police Command and referred to the office of the Director of Legal Services will result in the accused serviceman being charged in a GCM. In such a case, a military prosecutor will draw up a formal charge sheet and present it before the GCM. 10
A serviceman that has been found guilty of an offence through a Summary Trial will be given an opportunity to elect to be heard in a GCM before he is convicted and punished. 11 However under the circumstances, if the punishment for the offence is a reprimand or a minor punishment, the disciplinary officer has the discretion to refuse this opportunity to the serviceman/woman. 12
Panel Court Martial & Judge Court Martial 13
GCMs can be further sub-divided into two categories: the Panel Courts Martial—consisting of a President and usually two other members, and the Judge Courts Martial—consisting of a single President only. The current practice is for military offences to be heard by Panel Courts Martial, while civil offences like misuse of drugs and penal code offences may be dealt with by a Judge Court Martial.
Seeking Redress 14
There are numerous safeguards and avenues set out in the Military Justice System for a serviceman/women to seek redress if he/she feels unfairly treated or sentenced.
1. Informal Punishment
Generally a serviceman/woman who is dissatisfied with an informal punishment may request that a superior commander review the punishment, or request a formal disciplinary hearing.
2. Summary Trial
Right to be tried by a General Court Martial / Subordinate Military Court
If a Serviceman/woman is faced with a summary trial, the Disciplinary officer who brought the charge will first try him/her. One the Disciplinary officer is satisfied of the available evidence that the Serviceman/woman is guilty, he/she is to give the accused a right to be tried by a General Court Martial. However the Disciplinary officer has the discretion to deny trial by General Court Martial if the punishment is a reprimand or minor punishment that doesn’t involve a fine, detention, imprisonment, deduction in rank or any other more serious penalty.
If the Serviceman/woman choses to exercise their right to be tried by General Court Martial, the Disciplinary officer shall forward the charge sheet, record of evidence and such other particulars to the director. The Director shall:
- Direct that a charge be submitted to the convening authority and a trail by General Court Martial shall proceed.
- With the approval of the Armed Forces Council, direct that no action be taken against the accused either by way of Summary Trial or by a General Court Martial, thereby acquitting ehe Serviceman/Woman of the charge
Petition for Review
Alternatively, an aggrieved Serviceman/Woman may request that the Armed Forces Council or any other appropriate authority as delegated by the Council review his/her conviction or punishment imposed at the Summary Trial.
3. General Court Martial
General Court Martial and Field General Courts Martial are collectively referred to as “Subordinate Military Courts”.
Representation
In the case of a General Court Martial, a Serviceman/woman may choose to be represented by a lawyer or an SAF Defending Officer if a Court Martial will hear his/her Case. Accepting the appointment of an SAF Defending Officer incurs no cost to the Serviceman, but the costs of a privately engaged lawyer must be borne by the Serviceman/woman.
Petition for Review and Appeal
At the end of the trial, a Serviceman/woman who is dissatisfied with the decision of the Court Martial may petition the Reviewing Authority (the Armed Forces Council or a Committee of its members) for a review of his/her case. The Serviceman/Woman can also appeal to the Military Court Of Appeal (“MCA”) for a reconsideration of his/her conviction, his /her sentence or both. All decisions of the MCA are final.
4. Military Court Of Appeal
Composition of the MCA
The MCA is the highest court in the Military Justice System. The MCA, when convened to hear an appeal, sits as a aanel 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 are qualified Legal Practitioners with at least five years experience each, and two Senior Military Officers—constitute the rest of the MCA.
Use Of Civilian Legal Procedures
The General Court Martial and the MCA are tribunals headed by Presidents who are outside the SAF chain of command. The Presidents of these forums will hear the case impartially like any other civilian criminal case. The proceedings in the General Court Martial and the MCA are also heard in a public forum, and these military courts adopt many of the same legal procedures and safeguards as those used in civilian criminal courts. All Servicemen/women formally charged with offences can bring their cases to these forums.
1. Accused servicemen/women under the rank of Warrant Officer
Either a junior disciplinary officer or a senior disciplinary officer can issue a charge and hold a summary trial. 15
- A “junior disciplinary officer” is an officer or a warrant officer commanding a squadron, battery, company or equivalent sub-unit16.
- A “senior disciplinary officer” is an officer in command of a base or unit equivalent to a battalion or larger, usually the Commanding Officer of the serviceman/woman’s unit 17.
- The serviceman/woman may be able to elect to be tried by a General Court Martial (“GCM”) instead. (Refer to the previous section for details)
2. Accused officers under the rank of Lieutenant-Colonel
Only a superior commander who is at least 2 ranks above him can issue a charge. 18
The superior commander can be an officer commanding a command or formation, or designated as a superior commander for the purpose of discipline by the Armed Forces Council. 19
“Arrest” includes both close arrest and open arrest. “Close Arrest” means that the Serviceman/Woman is detained in a designated place (e.g. detention barracks). “Open Arrest” means that he/she is still able to go about his/her daily activities in the barracks/ship.
A Serviceman/Woman may be placed under arrest pending investigation. During this time, he/she will be permitted access to counsel as long as there is no prejudice to the investigative Process.
In general, a person will not be detained where the offence is not of a serious nature. However, a person may be placed under close arrest if he/she is likely to injure him/herself or others, suborn witnesses, has been apprehended as being absent without leave (“Awol”), or under any other circumstances where close arrest is deemed desirable.
An accused person who has been detained may apply for bail, pending investigation or appeal. 20 If he is successful in his application, he will be released from detention, and entrusted to the custody of the person who posted bail — the surety. 21 If the accused person absconds, the surety is liable to forfeit the sum specified when the bail is granted. 22
1. Application for bail
To apply for bail, the accused must first have lodged a notice of appeal to the Registrar of the Subordinate Military Courts. The court will then commence a hearing of the bail application.
2. Surety and bond
The accused must also have a surety who is willing to provide a bond as a guarantee for the accused’s attendance in court.
The court decides the value of the bond, 23 and the bond itself may take the form of an undertaking to pay, or even an actual cash deposit. Depending on the value of the bond, as well as the surrounding circumstances, a court may allow multiple sureties.
3. Considerations in granting bail
Some considerations the court might take into account in granting bail are:
- The seriousness of the offence.
- The severity of the punishment awarded by the GCM (in the case of an appeal).
- Whether the sureties are satisfactory.
- Previous imprisonment or detention of the accused;
- Previous failures to appear in court;
- Likelihood of recidivism if released on bail (particularly in AWOL cases); and
- Where the accused is charged with offences of assault/offering violence/indecent conduct, so as to safeguard the public.
A serviceman may choose to be defended either by privately engaged counsel, or by an appointed Defending Officer. Defending Officers are appointed, usually from within the unit, and may or may not be legally trained.
Access to legal representation by a practitioner of the accused person’s choice is guaranteed under the Constitution. 24 However, this entitlement only arises after “a reasonable time” after arrest so as to facilitate the investigative process. 25 What constitutes “a reasonable time” is based on the circumstances of the case, 26 but in general the onus is on the investigative authority to justify the denial of access to counsel by explaining why it would be prejudicial to the investigative process.
Representations are written memorandums to the prosecution, and are written to persuade the prosecution to reduce the number of charges brought against the serviceman. Representations may be written in the same style as a mitigation plea, and are submitted well in advance of the trial date. If you require more time to prepare for the trial (such as for the purpose of interviewing the serviceman and writing representations), you may request a postponement of the trial date.
Upon interviewing the accused serviceman/woman and informing him/her of the charges, the Defending Officer/legal representative should note if he/she would like to contest any of the charges, either because they contain details which he/she feels are inaccurate, or if he/she is not amenable to admitting to the charge at all. Representations can therefore be made to the prosecution for the purpose of reducing or altering the charges.
The Defending Officer/legal representative might want to make representations to the prosecution especially in cases where there are multiple charges drawn against the serviceman form a single incident, or when the modification of a few particulars of the charge would make the serviceman agreeable to admitting to it.
The prosecution may respond in a number of ways:
- An agreement to withdraw a charge means that the charge will be stood down entirely
- Taking a charge into consideration means that the court will not treat the charges individually during sentencing, but will take them into consideration in the judgment. This usually is conditional on the serviceman’s agreement to plead guilty to the charges to be taken into consideration.
- Lastly, the prosecution may choose to continue with the charges, in which case the charges will be brought up during the trial.
Whether charges will be dropped, taken into consideration or proceeded upon is entirely up to the discretion of the prosecutor.
1. Mitigation 27
Mitigation is adopted only when the accused has already pleaded guilty. If a serviceman/woman pleads guilty, he/she essentially accepts full admission to the charge(s) brought against him/her, and the GCM must then decide on the appropriate sentence.
Therefore, the main objective of a mitigating plea is to reduce the sentence by raising appropriate mitigating factors. These include previous good conduct, remorse and adverse family backgrounds.
Besides mitigation based on existing charges, another avenue for reducing the overall sentence is to reduce the overall number of charges. This involves making representations to the prosecution. (Refer to Chapter 18.2.6)
2. Defence
If the accused pleads “not guilty”, the prosecution will then submit evidence to prove the charges. The accused may then submit a defence to rebut the allegations made by the prosecution. In general, a defence is more difficult to conduct than mitigation. Although it is possible for a serviceman/woman to represent him/herself, or to request a Defending Officer, most servicemen/women privately engage lawyers if they are contesting the charge.
The following sub-chapter outlines peacetime offences in the SAF Act (Cap. 295) that servicemen/women are more commonly convicted of and the corresponding sentences for each offence.
Disobedience of general orders (s 21): This is a catch-all provision regarding the contravention or failure to comply with a lawful general order which the serviceman/woman might have or ought to have known about.
Maximum sentence: 2 years imprisonment
Conduct to prejudice of good order or discipline (s 25): This is another catch-all provision regarding a serviceman whose conduct or omission is considered to be to the prejudice of good order or discipline.
Maximum sentence: 12 months imprisonment
Malingering (s 32): There are three forms of malingering:
- Falsely pretending to suffer from an illness.
- Deliberately injuring oneself or any person, or causing oneself to be injured by any person, and doing so with the intent to render oneself or the other person to be rendered unfit for service.
- Doing anything to produce, prolong or aggravate any sickness with the intent to render or keep himself unfit for duty or service.
Maximum sentence: 12 months imprisonment
Intoxication (s 33): This offence is applicable whether the serviceman/woman was on duty or not when found to be intoxicated.
Maximum sentence: 6 months** imprisonment
Possession, etc., of drugs (s 34): Any person who possesses, smokes or consumes any controlled drug is liable under this section. What is considered a “controlled drug” is defined in any written law relating to the misuse or control of drugs, such as the Misuse of Drugs Act (Cap. 185). A possible defence is that the serviceman/woman was authorised to do so.
Maximum sentence: 5 years imprisonment
Contempt (s 48): This offence is applicable mainly to disobedience of lawful judicial procedural orders, such as failing to comply with a summons/order to attend as a witness at the Military Court of Appeal (s 48(1)(a)), or refusing to take an oath when required to do so (s 48(1)(b)).
Maximum sentence: 2 years imprisonment, but if the court requires the offender to be tried summarily instead of at trial, then the maximum sentence is 21 days imprisonment or a $50 fine
Absence without leave (s 22):
Absence without leave is commonly referred to as “AWOL” (Absent Without Official Leave). Any serviceman/woman who is absent from where he/she is lawfully required to be present is liable under this section. It is a defence that the serviceman/woman was absent due to a result of circumstances over which he/she had no control (s 22(2)).
Maximum sentence: 2 years imprisonment
Desertion (s 23):
Absence without leave escalates into the offence of desertion if the serviceman/woman is not only absent from where he/she is lawfully required to be present, but is also found to have intended to remain permanently absent from duty without lawful authority when/after he/she has failed to report to his place of duty (s 23(2)(b)).
Maximum sentence: 10 years imprisonment
Abuse of authority (s 29): A serviceman/woman is liable under this section if he/she knowingly exceeds his/her authority over a subordinate.
Maximum sentence: 2 years imprisonment
Personation and excess of authority (s 30):
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When a serviceman/woman holds himself out to have a rank, status, or assignment in the SAF, or who wears any military dress, insignia or badge that he is not authorised to wear, is liable under s 30(1).
Maximum sentence: 12 months imprisonment
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When a serviceman/woman who, without authority does any act while holding him/herself out to have authority to do so, is liable under s 30(2).
Maximum sentence: 2 years imprisonment
Endangering life or property (s 41): Any serviceman/woman who does an act that endangers life or property, and which causes or is likely to cause injury to the person or property, is liable under this section.
Maximum sentence: 5 years imprisonment for wilful acts (s 41(a)) and 3 years imprisonment for negligent acts (s 41(b))
Damage to, and loss of, SAF property, etc. (s 42):
Any serviceman/woman who wilfully damages or causes the loss of, or is concerned in the wilful damage or loss of any SAF property or any property belonging to a person subject to military law is liable under s 42(1). This includes acts of wilful neglect.
Maximum sentence: 3 years imprisonment
Any serviceman/woman who causes through a negligent act or omission any damage to, or loss of, SAF property, or has committed a wilful or negligent act or omission which is likely to cause damage to, or loss of, SAF property, is liable under s 42(2).
Maximum sentence: 2 years imprisonment, or 3 years imprisonment if the property concerned consists of arms, or is an aircraft, a vessel or a vehicle
Unlawful arrest (s 45):
Any serviceman/woman who either unlawfully holds a person in custody, or does not comply with the regulations governing the placing of a person in custody, is liable under this section.
Maximum sentence: 2 years imprisonment
Misappropriation & Misapplication of Property
Dishonest misappropriation of SAF property (s 43):
Any serviceman/woman is liable if he/she steals or dishonestly misappropriates any SAF property, or:
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Is involved in the stealing of any SAF property (s 43(a)); or
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Receives any property belonging to the SAF or to a person subject to military law while knowing that it was stolen or dishonestly misappropriated (s 43(b))
Maximum sentence: 3 years imprisonment, or 7 years imprisonment if the property in question consisted of an aircraft, a vessel, or arms.
Misapplication and waste of SAF property (s 44):
Any serviceman/woman who misapplies or wastefully expends any SAF property is liable under this section.
Maximum sentence: 2 years imprisonment
Abetments and attempts (s 58):
Any person who aids, abets, counsels or procures the commission of a military offence, or who attempts to commit a military offence, shall be liable for the same punishment as for the offence. However, if the offence is punishable by death, the maximum sentence for an abetment or attempt shall be imprisonment.
Justification, excuse and defence (s 59):
Rules and principles regarding justifications, excuses and defences as established in the civil courts are also applicable to any charge under the SAF Act.
Will I be charged in a civil court after being charged in a military court?
If you have been charged in a military court, you cannot be charged in a civil court for the same offence or for an offence arising from the same facts.
Can I choose to stand trial in a civil court instead of a military court?
As a military charge is not a civil charge, once you have been charged in a military court you cannot request to be charged in a civil court.
Will I have a civil criminal record as a result of a military charge?
No.
If you have been charged with a military offence under the SAF Act (as opposed to the Penal Code), the SAF will record the offence internally but you will not have a criminal record.
Will I be sent to the detention barracks immediately upon arrest?
You may be detained in the detention barracks while waiting for the court martial. The wait in detention may be counted as part of your subsequent sentence.
Will a military charge affect my employment or education prospects?
In general, any military offence may be reflected in your ORD transcript and will be viewed by potential employers and educational institutions. Certain universities and employers may also include a request for any conviction by a court of law including a military court.
What happens if I can’t pay a fine imposed on me?
If you default on a fine, you may be detained in the Detention Barracks for a period of 10 days for a fine of $100 and below, a period of 20 days for a fine between $300 and $100 and a maximum of 40 days for larger amounts. 28
Can I work while serving in the SAF?
NSFs can apply to their Commanding Officer for permission to work outside of military duties provided there are pressing personal circumstances and that such work does not conflict with military duties.
Can my items be confiscated during a search?
Confiscation of items can only take place when you are under arrest. Only a military policeman who is making an arrest can confiscate your personal items if there is reason to believe that the items were used in the offence or are relevant evidence of the offence. Your items may be detained until your discharge or acquittal. Any other military personnel are only able to search for and seize offensive weapons.
Can my parents / relatives / girlfriend visit me in the Detention Barracks?
Detained serviceman can only have 1 visit per week from immediate family members only but there is no limit on the number of visits by legal counsel or Defending Officers. You may also receive letters, and write 1 letter per week. 29
Footnotes
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Ministry of Defence (“MINDEF”), Cyber Pioneer: Military justice system treats all fairly and equally (25 January 2008), available at http://www.mindef.gov.sg/imindef/resourcelibrary/cyberpioneer/topics/articles/news/2008/January/25jan08_news.html, last accessed on 17 June 2014 ↩
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Ibid ↩
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Ibid ↩
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Ibid ↩
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Ibid ↩
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Ibid ↩
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Singapore Armed Forces (“SAF”) Act (Cap. 295) s 76 ↩
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MINDEF, Cyber Pioneer: Military justice system treats all fairly and equally (25 January 2008), available at http://www.mindef.gov.sg/imindef/resourcelibrary/cyberpioneer/topics/articles/news/2008/January/25jan08_news.html, last accessed on 17 June 2014 ↩
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Ibid ↩
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Ibid ↩
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SAF Act (Cap. 295) s 77(1) ↩
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SAF Act (Cap. 295) s 77(3) ↩
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MINDEF, Cyber Pioneer: Military justice system treats all fairly and equally (25 January 2008), available at http://www.mindef.gov.sg/imindef/resourcelibrary/cyberpioneer/topics/articles/news/2008/January/25jan08_news.html, last accessed on 17 June 2014 ↩
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Ibid ↩
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SAF Act (Cap 295) s 62(4) ↩
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SAF Act (Cap 295) s 2(1) ↩
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Ibid ↩
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SAF Act (Cap 295) s 62(3) ↩
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SAF Act (Cap 295) s 2(1) ↩
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SAF Act (Cap 295) ss 130, 182B ↩
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Criminal Procedure Code (Cap 68) s 104(1) ↩
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Criminal Procedure Code (Cap 68) s 104(2) ↩
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SAF Act (Cap 295) s 182C ↩
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Constitution of the Republic of Singapore, Art. 9(3) ↩
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Jasbir Singh v PP [1994] 1 SLR(R) 782; James Raj s/o Arokiasamy v PP [2014] SGHC 10 ↩
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Ibid ↩
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See Law Gazette, Plea in Mitigation, available at <http://www.lawgazette.com.sg/2006-1/Jan06-feature2.htm, last accessed on 19 June 2014 ↩
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SAF Act (Cap 295) s 71 ↩
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SAF Military Police Command, FAQs: SAF Detention Barracks, available at http://www.mindef.gov.sg/imindef/mindef_websites/atozlistings/safmpc/faqs.html, last accessed on 19 June 2014 ↩