In early February, I published an article in The Diplomat, focusing on little understood post 4th Plenum developments on Chinese military law, which (to my surprise) was summarized and translated by Chinese official media. Professor Zhang Jiantian of China University of Political Science and Law recently published an article in People’s Court Daily on issues affecting the military courts, in which gives the outside world a glimpse of the gated Chinese military legal community and sets out his recommended reforms. My article in the Global Military Justice Reform blog summarizes Professor Zhang’s views and recommendations.
The Supreme People’s Court Observer contributed a brief blogpost to the Global Military Justice Reform blog on what the 4th Plenum Decision means for Chinese military law, linked here.The Global Military Justice Reform blog, based at Yale Law School, looks at military justice issues all over the world, including the jurisdiction of military courts, command control of military courts and other parts of the military justice system and is highly recommended!
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog, linked here, entitled “Does law have a place in China’s military and national defense reform?” The post commented on two recent articles, one by a researcher at China’s Academy of Military Sciences and the other by the Legislative Affairs Bureau of the Central Military Commission (中央军委法制局). The blogpost concludes with the prediction of the Supreme People’s Court Observer that when the Chinese leadership meets in October for the Fourth Plenum of the 18th Chinese Communist Party Central Committee to focus on the rule of law, some broad principles for military legal reform will be laid down, but notes that this prediction with be (dis)proved by events.
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog. It looks at the improvements that Chinese military experts see as necessary to improve military law as a part of the government’s plans for reforming and modernizing China’s national defense establishment and People’s Liberation Army. The post sets out the issues involved.
On 8 April 2014, the Communist Party’s Central Political Legal Committee and the General Political Department of the People’s Liberation Army (PLA) (the PLA’s highest Communist Party organization) jointly issued a document on improving the protection of the rights of the military, military personnel, and military dependents (关于加强维护国防利益和军人军属合法权益工作的意见) (PLA Legal Protection Opinion). The document itself has not been made public, but a summary has been widely distributed the press (including the People’s Court Daily website). The PLA Legal Protection Opinion has drawn caustic comments from some in the Chinese blogosphere for its request that the political legal authorities (the courts, procuratorate etc.) create a “green channel” to resolve military related disputes, by giving those disputes priority at all stages of criminal and civil procedure (from docketing cases to enforcement), and call for “special matters to be handled specially” (特事特办). .
The PLA Protection Opinion provides another glimpse into the interactions of the Communist Party bureaucracy, Chinese military and civilian legal systems, and the social and economic changes in China affecting the PLA. This blogpost describes:
- what the distribution list was;
- what the problems are;
- what the super committees are;
- the drafting process; and
- why the document was issued.
The Distribution List for the PLA Protection Opinion
The distribution list for the PLA Protection Opinion was not been made public. As a jointly issued document, it presumably was issued to the relevant Communist Party organizations in both the civilian and military bureaucracies. On the civilian side, it included the:
- Supreme People’s Court;
- Supreme People’s Procuratorate;
- Ministry of Public Security;
- Ministry of Civil Affairs;
- Ministry of Justice;
- Ministry of Finance;
- Ministry of Human Resources and Social Security;
- Ministry of Land and Natural Resources;
- National Civil Air Defense Office;
- National Leading Group on Double Support (see the following report, on the provincial level).
On the military side, presumably the General Political Department issued it to the military counterparts of many of the above authorities, including the PLA Military Court and PLA Military Procuratorate.
What are the Long Standing Legal Issues?
The long-standing legal issues are those involving both the civilian and military authorities, and include many of the unresolved ones listed in my previous blogpost. They include:
- theft and sale of military secrets;
- destruction of military facilities;
- mass incidents involving military interests;
- disputes over military technology;
- disputes over military land;
- thefts of military supplies;
- cases of persons passing themselves off as military personnel to engage in fraud and other criminal activity;
- Disputes affecting military personnel, including:
1. divorces and other family disputes;
2. personal injury disputes;
3. land condemnation;
4. disputes over compensation for compulsory land confiscation.
The Supercommittees and a glimpse into the document drafting process
The PLA Legal Protection Opinion calls for the establishment of a national coordination mechanism to support and protect military rights (全国涉军维权协调机制), (Supercommittees) replacing “the leading small groups on supporting and protecting military rights” established nationwide from 2007.
The Supercommittees are led by the Central Political Legal Committee and General Political Department (the top Party committees relating to the civilian and military legal systems), and require the government authorities to whom the document was issued (and their local counterparts at each level) to send liaison personnel. The Supercommittees are to establish counterparts at the provincial, municipal, and county level.
In an article published in the People’s Court and PLA Daily, a “responsible person” of the PLA Military Court described the drafting process, which mirrors the drafting process for Chinese legislation generally.
Staff from the Central Political Legal Committee and the PLA Military Court formed a drafting group and went to Zhejiang, Fujian, Guangdong, and Shaanxi for field research, soliciting the views of local Party Secretaries, local courts, and military district officials, PLA officers and soldiers, including areas where local policies had been drafted to deal with military/civilian issues. A consultation draft was prepared and approved by the leadership of the Central Military Commission, General Political Department, and Central Political Legal Committee for distribution for comment to the relevant central government departments (including the Supreme People’s Court), leaders of major military institutions, and some local level military officials before being finalized.
Enforcing the PLA Legal Protection Opinion
The document seeks to ensure that it is taken seriously by calling for the following enforcement measures:
- PLA legal protection matters should be incorporated into local development plans; and
- they should be incorporated into performance evaluation for “comprehensive social management work” (performance in controlling social unrest).
Why was the document issued?
The document must have been issued because the previous leading small groups were not effective, and the result has been an increase in civil unrest involving civilians and military, unresolved civil disputes involving the military and its personnel as well as criminal cases involving civilians and military that have not been prosecuted.
The principal reason for these unresolved issues (in my view), is due to the separate operations of the military and civilian systems and the difficulty of coordinating across bureaucratic systems. Moreover, a substantial number of the unresolved cases are likely tied to the performance indicators for officials within the (civilian) legal system. Performance indicators for court and other officials within the legal system are generally tied to their percentage of closed cases or other success rates. For example, a civilian court will be reluctant to accept divorce cases involving a military spouse if orders to transfer property, registered within the military system, will not be enforced and the cases cannot be closed. Civilian public security officials, similarly, will be reluctant to take a case if some of the criminal activity has taken place on military premises, because investigating the crime and collecting evidence will be extremely difficult. The document reveals social and economic changes affecting the military (such as a higher rate of divorce and other family disputes), disputes over land condemnation affecting military personnel, as well as increased social unrest involving the PLA (that seems to be kept out of the press). Finally, it reveals the complex interrelationship between the military and civilian legal and administrative systems, and the use of law (or at least legal policy) in making it operate more smoothly.