The Supreme People’s Court Observer contributed another post to the Global Military Justice Reform blog. It commented on an article in the July 9, 2014 edition of the South China Morning Post. The newspaper article quoted several retired PLA officers on the subject of greater transparency for the Chinese military courts, advocating General Xu Caihou (see this earlier post) be tried publicly. The blogpost expressed the view of the Supreme People’s Court Observer that bringing transparency to the Chinese military courts will be a long-term enterprise, and something unlikely to happen in the short term. The analysis in the post listed several possibly relevant factors.
The Supreme People’s Court Observer contributed a post to the Global Military Justice Reform blog (a fascinating new blog that highlights military justice issues worldwide). The post highlights reasons given by Chinese military law experts for having General Gu’s trial closed to the public and possible reasons that Chinese military courts have a stealth presence on the internet (although more transparent than 20 years ago).
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.
A short notice on the Supreme People’s Court’s websites and Wechat on 2 March (linked here) announced the launch of an 8 month campaign in the military courts to clear out a backlog of major civil disputes. The announcement (and related information) gives the outside world a peek behind the curtain of the almost 100 military courts. Any lawyer involved in due diligence projects in China in the last 15 or more years will have encountered issues related to Chinese military law, particularly land issues, but the issues targeted in the campaign are much broader.
This blogpost will look at:
- the military court system;
- transparency of the military courts;
- judicial reforms in the military courts;
- civil jurisdiction of the military courts; and
- the clearup campaign.
Military Court System
The Chinese military court system, a system to itself within the Chinese court system, apparently has attracted little attention outside of China (or at least in open sources). The military court system is headed by the PLA Military Court, which is under the Political Department of the Central Military Commission, and under the Supreme People’s Court. Below the PLA Military Court there are courts in the military regions as well as the military services–Navy, Air Force, Armed Police and below those courts, basic level courts within each of these regions, military services, and other units (see this description.
Although several articles in the Chinese press suggest that the military courts are more transparent than before, national security concerns apparently mean that the transparency measures being pushed by the Court leadership have not yet extended to the military courts. For example, the judgment debtor database established in the fall of 2013 includes all the courts but the military ones (although some military-linked companies can be found in the database). The Court’s websites link to websites of the provincial-level local courts, but not that of the military courts. However, internet searches (as well as searches of legal databases) will turn up many reports of cases involving both the civilian and military court systems.
Judicial reforms in the military courts
The Third Plenum Decision called for improvement in military legislation, and it is understood to include judicial reforms in the military courts. The head of the PLA Military Court stated that judicial reforms included improving the quality of military justice, including the quality of cases handled. What that involves has not been revealed in the open press, although presumably these are issues for the leadership of the PLA military court. It is likely that increased training of military judicial personnel will be part of the solution,both within the military system and outside it.
Civil jurisdiction of the military courts
Civil, rather than criminal cases, are the focus of the clear up campaign. The military courts have heard over 2500 civil cases, most of which have been settled. The Chinese military courts have civil jurisdiction, most recently under a judicial interpretation in the form of regulations issued by the Supreme People’s Court in 2012, “Provisions on Several Issues Concerning the Jurisdiction of Military Courts in Civil Cases” （Civil Cases Jurisdiction Provisions, linked here) and a previous 2010 notice. The rationale for giving military courts civil jurisdiction is to enable certain types of civil disputes to be resolved more effective, because the local court have encountered difficulties in dealing with them. Difficulties cited range from serving military personnel or military entities, freezing military assets, obtaining evidence held by military entities, having military personnel attend hearings in the civilian courts, and enforcing judgments against military entities.
The Civil Cases Jurisdiction Provisions deserve more discussion than this quick blogpost can provide, and stipulate:
- certain civil cases must be exclusively heard in the military courts (including cases in which both parties are military personnel or military entities):
- parties have the choice whether or not to file a civil suit in the military courts under certain circumstances:
- tort cases in which military personnel or entities are tortfeasors;
- family disputes in which one party is in the military;
- tort cases that occurred within a military facility; or
- military real property disputes with a military individual or entity as party.
- civil cases can be transferred to and from the military and local courts, respectively.
The PLA Military Court has issued regulations further specifying the jurisdiction of various levels of military courts, that have been summarized in the press but not made public.
The clear up campaign
The campaign, undertaken with the concurrence of the Political Department of the Central Military Commission, focuses on the following types of cases:
- construction of military installations;
- ownership of military land;
- defense technology (and presumably other intellectual property-related cases);
- family law cases involving military personnel;
- condemnation of property; and
Although reports have not given further details on specific cases, the following is generally known or presumed:
- In many cities, PLA entities hold real estate in prime areas and the ownership disputes may involve significant sums of money;
- it is likely that military families have not escaped greater social trends of increased rates of divorce, particularly in the major cities, and some of those divorces are likely to involve disputes over valuable real property;
- there are likely are disputes over the intellectual property rights held by military personnel and military entities (one reported case involved infringement of copyright (by civilian publishers) of writings by military personnel);
- military entities have contract disputes involving construction of military installation as well as military goods and services procured.
Greater engagement with the outside world?
It is unclear whether military exchanges with foreign armed forces have included the military courts, or whether the PLA Military Court (or the Central Military Commission) would welcome further engagement with the outside world. Presumably efforts aimed at increasing the role of law within the military and strengthening the military courts would benefit all.