Ruling the PLA According to Law: An Oxymoron?

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One of the least transparent and least understood parts of Xi Jinping's program to "rule the country according to law," announced in October, 2014, is the creation of a body of military law with Chinese characteristics. Is it any more than the slogan of "Ruling the Military According to Law and Ruling the Military Strictly" (依法治军从严治军)? This article will answer that question and describe what is known about the reforms thus far.

For over ten years, within the confines of academic discourse, Chinese military legal officials-serving and retired-have pointed out weaknesses in Chinese military law. As they describe the current military legal framework, military law and military legal institutions are isolated from their civilian counterparts, legislation underpinning basic military legal institutions is missing, commanders think their word is law, and military courts and prosecutors lack professional autonomy and security. [1] These concerns remained the subject of academic discussion until late 2013. [2]

The high level policy decision to modernize military law was first flagged by the Central Committee of the Communist Party during the Third Plenum in 2013, in the Decision On Several Major Issues Of Deepening Reform (中共中央关于全面深化改革若干重大改革的决定). The Central Committee set out more details concerning its policies for military law reforms during the Fourth Plenum in October, 2014 in the Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law (中共中央关于全面推进依法治国若干重大问题的决定) (Beijing Morning Post, October 29, 2014; Xinhua, October 28, 2014). In the Fourth Plenum Decision, the Party highlighted the importance of creating a complete body of military law with Chinese characteristics and stressing the Communist Party's absolute leadership over the Army as a core and fundamental requirement for ruling the military according to the law. The Decision additionally called for the overhaul of all aspects of military law, as well as educating officers and soldiers that following the law is part of the new normal in the PLA (Xinhua, November 15, 2013).

Like the legal reforms in other Chinese legal institutions, the principles laid out in the Fourth Plenum Decision were further developed in a lengthier document, which was issued by the Central Military Commission (CMC) in late February and entitled Deeply Promoting Administering the Military According to Law and Administering the Military Strictly Under the New Situation (Military Law Reform Decision) (China Military Online, April 22). Unlike the reforms of the judiciary and procuratorate, the Military Law Reform Decision has not made public.

However, by drawing on detailed summaries issued by the Central Military Commission's Legislative Affairs Bureau, parts of China's National Defense White Paper and the legal press, important details about the nature of these reforms are revealed (State Council Information Office, May 26; Legal Daily, August 13). The Military Law Reform Decision reflects themes seen in other areas of Chinese legal reform:

· Primacy of Party control;

· Lifetime responsibility of officials for mistaken decisions;

· Clear body of legal rules;

· Drafting of legal rules that bind military officers and military institutions, and encouraging a culture of law observance;

· More effective legal institutions to enforce legal norms;

· More legal advisers;

· A justice system with greater professionalism, autonomy and institutional protection;

· Greater transparency;

· Improved salaries and benefits to attract better qualified personnel.

Party Control

The Military Law Reform Decision repeatedly stresses that the Chinese military (like its legal institutions) must be led by the Communist Party, and that nationalization (国家化)-the separation of the military from the Party's leadership-goes against the principles of the Communist Party. The corollary to this is that Communist Party institutions that lead the military must act in accordance with law.

Lifetime Responsibility of Officials

Article 20 of the Military Law Reform Decision calls for establishing a comprehensive lifetime responsibility system for major strategic decisions, and a system for monitoring that system, and establishing a system for transparency. This reflects a basic principle that was set out in the Fourth Plenum Decision for judicial and other government officials, establishing life-long responsibility investigation and responsibility tracing mechanisms for major policy decisions, where grave mistakes in policymaking or a long-term delay in the making of policies that should have been made earlier result in major damage or deleterious influences. The summary does not specify the persons who are intended to bear this responsibility (China-US Focus, October 31, 2014).

Clear Body of Legal Rules

Given the previous glacial pace of Chinese military legal developments, the measures set out in Article 10 of the Military Law Reform Decision for promoting a body of military legal rules that are better integrated with civilian law are significant. Specific measures are mentioned which will ensure that lower-echelon military rules comply with higher level regulations. Article 13 calls for promulgating organizational regulations for military departments, so that the exercise of their authority can be monitored and the concentration and abuse) of authority can be avoided. Importantly, this set of regulations significantly reduces the autonomy of lower echelon commands.

Party Committees, Military Institutions, Operations, Officers and Soldiers are Bound by Legal Rules

Four articles of the Military Law Reform Decision require military Party committees, institutions, operations and officers to comply with legal rules. This reflects longstanding concerns of Chinese military legal officials, now made evident by the revelations of widespread corruption and abuse of power within military institutions. These articles call upon military Party Committees to have major decisions reviewed by military legislative affairs offices (similar to the civilian legislative affairs offices, and analogous to Judge Advocate General's Corps, or JAG, lawyers) and consider their views, in order to prevent and correct illegal decisions. These articles also direct the military to use legal rules to resolve disputes within the military, as well as with civilian parties.

Legal Rules Require Effective Monitoring Institutions

Article 19 of the Military Legal Reform Decision calls for strengthening specialized monitoring and enforcement institutions. Those institutions are not limited to legal ones, but also include the CCP, audit, and Party disciplinary bodies. The intent appears to be having more effective law and Party discipline institutions, thereby reducing abuses.

Military Legal Advisers

The Military Law Reform Decision calls for the establishment of a system of legal advisers, by expanding the number of legislative affairs offices (法制办) described above.

Military Justice Requires a Degree of Professional Autonomy and Institutional Protection

Section 24 of the Military Legal Reform Decision calls for reforming the military justice system (referring to both the courts and procuratorate), establishing a rational court and prosecution system and improving its personnel administration.

In February, Zhang Jiantian, a former Central Military Commission (CMC) Legislative Affairs Commission official (and former military judge), who is now a professor at the China University of Political Science and Law, published an analysis of the Chinese military courts along with his own reform proposals, in the Supreme People's Court newspaper. The article was reprinted by other authoritative media outlets Xinhua and Legal Daily (Legal Daily, February 11). His proposals could be understood to apply to the military procuratorate because it has an analogous status to the military courts. He writes that although in name Chinese military courts appear to be courts established in the PLA and People's Armed Police, in reality they are a department of the military political authorities (政治部门). In a 2014 article, the former head of the PLA Military Court conveyed the same point, but in softer language (Southern Weekly, May 1).

Under current law, military courts are under the General Political Department (the Party organization of the PLA), as provided in the regulations on PLA Political Work. Because the military courts operate as a functional department of the political authorities in each military region, the following problems have arisen:

Complete lack of legal protection for the military courts;

Unclear legal position of the military courts, because no law has been promulgating setting out their functions and jurisdiction;

Commanders are in charge of military judges, which means a judge can be demoted if the commander dislikes a judicial decision;

Operating funds are allocated by the political departments of each service, so the independence of the courts is affected by the control of the finance department of the military service over funding.

The current system means that local military command leadership interferes in the trial of cases.

The concept paper also suggests drafting legislation for the military courts, although the summary provides fewer details (Legal Daily, August 13).

Proposed reforms

In the view of Zhang and other military legal officials, reform of the military courts requires a national law to supersede the current patchwork of judicial interpretations and military regulations. In their opinion, reform of the military courts requires a firm legal basis (Yangguang Military, January 27). The law should set out the status, organization, jurisdiction, selection of judges, and staffing of the military courts, among other issues.

The law is likely to be eventually drafted, but after the PLA reorganization takes shape as well as the People's Court Organizational Law and Judges Law. The rationale for this would be that the Central Military Commission will need to decide whether the military courts follow the civilian model or something different. Press reports have revealed that work has begun on the redrafting of the Judges Law and People's Court Organizational Law. [3] The drafting of a military court law requires a policy decision about the new framework for a reformed military court system.

Professor Zhang and most other officials who have commented advocate retaining the current system of three levels of courts, while establishing a territorial based system of jurisdiction with unified military courts in each military theater instead of the current system of military courts in each service and military region. Under his proposed structure, personnel would be allocated based on the number of cases. This would use manpower most efficiently while removing interference and enabling military courts to handle cases independently.

The Military Law Reform Decision does not provide clarity on what model will be adopted. The reorganization of the military courts is likely to be linked to the restructuring of the Chinese military.

Transparency

Principles of transparency are mentioned several times in the Military Law Reform Decision, although it fails to set out key specifics such as whether the military courts will become more transparent than before. Military law experts both inside and out of the military are advocating greater transparency, and the Military Law Reform Decision itself calls for greater military transparency in a number of areas, including in the recruitment of students for military academies, hiring, procurement of materiel and engineering services and real estate. However, it appears no policy decision has yet been made. [4]

Improving the Status of Military Legal Personnel

Article 27 of the Military Law Reform Decision concerns improving the treatment of military legal personnel, recognizing what many legal officials have been saying for some time: that the military legal system needs to attract more qualified personnel and they need to be given better treatment. Among the measures mentioned is exchanges with other departments that military legal personnel need to interact. It is likely that many of the most qualified law students would rather join law firms than the PLA. An article published several years ago by a lecturer in the Northwest University of Political Science and Law found that military judges lacked the qualifications of their civilian counterparts, because most had not had a formal legal education, but were political officers who learned law through short term courses or on their own. [5] The Military Law Reform Decision also calls for selecting some outstanding legal personnel to study or participate in exchanges abroad.

Improve Military Legal Research and International Military Legal Exchanges

The Military Law Reform Decision calls for greater research into military legal theory, and the creation of a common legal syllabus for all branches of the military. Surprisingly, it calls for greater participation in international military legal exchanges. Reflecting the general principles seen in the Fourth Plenum Decision, it promotes Chinese participation in the drafting of international military legal rules and increasing the voice and influence of China in international military legal matters.

Conclusion

The Military Law Reform Decision represents an important part of President Xi Jinping's comprehensive reforms of the current political system and military modernization program. The decision gives Xi's endorsement to the principle that a modern military requires a body of law with corresponding legal institutions. This shift is directed at creating legal institutions that will achieve the goals of the political leadership. Those goals include:

(1) A military legal system commensurate with China's place in the world, (2) that remains firmly under Party control, but (3) is better integrated with the civilian and international world, as China moves to the greater use of military-civilian integration and becomes a more active participant in international military operations, such as the UN. Judging by the sparse press reports on the subject, implementing "rule by law" in the military a may involve even greater challenges than in the civilian sphere. In the next several years, we will be able to see whether its implementation means:

A more predictable and rule-based PLA;

Less corruption within the PLA;

better justice for Chinese soldiers and officers; and

A more professional Chinese military legal community.

Given the importance and sensitivity of the military in the Chinese political system, the reforms listed can be expected to be implemented in a considered way.

Susan Finder has been observing the Supreme People's Court for over 20 years. She is an Adjunct Professor with the Faculty of Law of the University of Hong Kong, after many years in law practice. She has written for The Diplomat, Nikkei Asian Review, the South China Morning Post, the Global Military Justice Reform blog, and other publications. Earlier in her career, she taught in the Law Department of the City University of Hong Kong.

Notes

1．Zhang Jiantian, "Concerning the Matter of Establishing and Improving Our Country's Military Legal System," (关于我国军事法体系的建立和完善问题)

2．See an overview in "The Chinese military legal framework must be improved," Global Military Justice Reform [blog], May 20, 2014.

3．Shen Deyong, "Work hard on legal research and consensus, overcomes difficulties to complete a draft law," (沈德咏：凝聚共识加强修律调研 攻坚克难完成修律草案), Faguanfa, October 23, 2015.

4．Susan Finder, "Sunshine, the great disinfectant, coming to the Chinese military legal system?", Global Military Justice Reform (blog).

5. Liu Jun, "Comparing Chinese Military Court Judges With Local Court Judges," (比较我国军事法院法官与地方法院法官).