Tuesday, November 21, 2017

Military law and discipline at the danwei level in the People's Liberation Army

“First, we must keep in mind that the military must unswervingly adhere to the Party’s absolute leadership and obey the Party’s orders. Second, being able to fight and win a war [is] absolutely necessary for a strong military. Third, the PLA must maintain its discipline. The military must be governed strictly according to laws.”[1]

Modern military forces the world over are usually governed by a body of national military law that is intended to promote and maintain a high level of military discipline among those who are charged with the responsibility of the national defence. A large and growing English-language literature explores these national laws of many countries around the world, with the curious exception of the People’s Republic of China – and this, despite the size of China’s armed forces and the rising influence of the state (and Party) they serve. Such scholarly attention as the subject has garnered has focussed on the operation of Chinese military courts, with scant attention paid to the role of law in the maintenance of military discipline at the unit (danwei) level. In China, the Regulations on Discipline of the Chinese PLA is one of the key instruments for maintaining discipline at the unit level within the PLA. Discipline regulations were first instituted in the PLA in 1951 replacing the venerable Three Main Rules of Discipline and Eight Points for Attention that were the earliest formal rules applied from 1928 in the Chinese Workers’ and Peasants’ Red Army, the forerunner of the PLA. The Regulations have been modified or supplanted on several occasions since, and the most recent iteration was adopted by the Central Military Commission in May of 2010, coming into force the following month. The current version of the Regulations on Discipline has not previously appeared in English translation, but excerpts are now available [here] on the website of China Law Translate.

The Regulations consist of 179 Articles divided into seven chapters dealing, in Chapter II, with rewards such as medals and commendations, and in Chapter III with punishment. (The formal application of both rewards and punishments in the maintenance of military discipline in China predates the empire. The civil reforms of Lord Shang in the pre-Imperial state of Qin introduced a system of rewards and punishments that became a hallmark of Qin military discipline, and was continued in the army of the new empire after 221 BCE.) The remaining chapters deal with introductory matters (Chapter I), special measures (Chapter IV), complaints and appeals (Chapter V), the duties of leading cadres and discipline inspection (Chapter VI) and supplementary provisions (Chapter VII).

The Regulations apply to all officers, civilian cadres, non-commissioned officers and soldiers of the PLA, as well as to reservists when engaged in hostilities. They also apply to cadets attending military academic institutions and to members of the People’s Armed Police Force, the branch of China’s armed forces with particular responsibility for internal security.

Offences

Art. 82 through 118 of the Regulations on Discipline create a number of offences many of which are typical of the disciplinary codes that govern military forces in other countries. Others seem to be more distinctively Chinese. Taken together they give observers some insight into the nature of discipline problems within the PLA and how those problems are addressed.

In addition to their liability to discipline under the Regulations, members of the PLA are also subject to Chinese criminal law, and several offences created by the Regulations on Discipline find analogues in some provisions of the 1997 Criminal Law of the PRC, notably in Chapter X of Part II entitled “Crimes of Violation of Duty by Military Personnel”. Art. 83, 84 and 85 of the Regulations contain the only disciplinary offences that address misconduct in the course of armed conflict. Art.83 punishes those who fail to do their utmost in battle, and closely resembles the offences found in Art. 424 and 428 of the Criminal Law. Art. 84 and 85 of the Regulations contain the disciplinary equivalents of the criminal offences of harming civilians or prisoners of war who are protected by the Geneva Conventions, and the disciplinary offence in Art.89 of neglect of duty causing harmful effects is very similar to the offence in Art.425 of the Criminal Law. Leaking military secrets is a criminal offence under Art.432 of the Criminal Law, but the violation of secrecy regulations is also a disciplinary offence under Art 92 of the Regulations where the security of military secrets is merely put at risk. Art. 103 and 104 deal with disciplinary misconduct that is also criminal under Art.375 of the Criminal Law, that is, the unlawful dealing in military uniforms, military vehicle licenses and military certificates or seals. Art.107 of the Regulations creates a general offence of abuse of subordinate personnel, whereas the similar criminal offence in Art.443 of the Criminal Law applies only where serious consequences result from the abuse. Corruption and bribery are disciplinary offences under Art.111, while bribery is specifically punished under Art.386 of the Criminal Law. Abuse of one’s position in the various processes of personnel selection generally is a disciplinary offence under Art.113 of the Regulations, while Art.374 of the Criminal Law specifically criminalizes such conduct in the process of the recruitment of conscripts. And corrupt dealing in military real estate contrary to Art. 442 of the Criminal Law is also a disciplinary offence under Art.115 of the Regulations. Finally, the criminal offences of stealing and fraud are also disciplinary offences under Art.101 of the Regulations.

But most of the offences found in the Regulations on Discipline address non-criminal behaviour that nonetheless has an adverse impact upon military discipline. These include disobedience of orders or military training regulations, failing to apply oneself industriously, deceiving superiors or subordinates, violating operating procedures causing accidents, breaching regulations on the use of the Internet or mobile telephones, leaving the country without permission, unauthorized absence from duty, brawling, and drunkenness or driving a vehicle or operating weapons while drunk. A few disciplinary offences deal with issues of morality with proscriptions on gambling, improper sexual behaviour, and pornography. There are also offences of misuse of equipment, violation of regulations on standards of deportment, and the spreading of rumours. Art.165 provides that an offender who brings an appeal should not be interfered with or retaliated against, and so it is a disciplinary offence to take advantage of one’s position to “retaliate against or create difficulties for” a soldier who exercises a right of redress. Other specific duties that are punishable when breached are the duty to render assistance when the lives of comrades or the property of the state are endangered, and the obligation to take up a new duty upon transfer or reassignment. Finally, there are two species of corruption offences – abuse of one’s position in order to divert the financial benefits to which soldiers are entitled, and a general offence of misappropriating public funds or property, or otherwise violating financial discipline.

The Regulations on Discipline also include a small number of distinctively Chinese offences that reflect aspects of Chinese public policy. Art.82 creates the only specifically political offences to be found in the Regulations on Discipline. It is an offence to publish or otherwise disseminate writings with erroneous political opinions, or to participate in prohibited political organizations or activities. In the late 1990’s under a large-scale divestiture program the PLA withdrew from many commercial activities, and so it is a disciplinary offence for members of the PLA to participate in business activities. And lastly, the Chinese national policy to limit the size of families, until recently the “one-child policy”, is reflected in the Regulations on Family Planning made by the CMC in 2003. The Regulations on Discipline punish the offence of violating family planning regulations.

Art.118 is a basket clause provision intended to capture breaches of discipline that, while similar, do not fit within the specific terms of Art. 82 to 117.

Punishments

The punishments that may be given to soldiers (conscripts and non-commissioned officers) of the PLA are set out in increasing order of severity in Art.79 of the Regulations on Discipline as follows:

(i) disciplinary warning
(ii) serious disciplinary warning
(iii) recording of a demerit
(iv) recording of a serious demerit
(v) demotion to a lower post grade or military rank
(vi) dismissal from post
(vii) striking of name from the roll
(viii) disciplinary discharge from military service

Most of the disciplinary offences are punishable by a maximum penalty of dismissal from post. The exceptions are found in Art.92 (violating secrecy regulations not resulting in the disclosure of secrets), Art.93 (violating regulations on the use of mobile telephones or the Internet) and Art.105 (violating the regulations on routine service) all of which are punishable by a maximum penalty of demotion in post grade or rank.

Demotion in post grade or rank is usually by one post grade or rank only. Demotion in post grade does not apply to a deputy squad leader, the most junior supervisory position in a platoon. Demotion in rank does not apply to a private or a Junior Sergeant (the lowest non-commissioned officer rank), and when given to a Senior Sergeant or a Third-Class Sergeant the offender is automatically reduced in one of the three grades of non-commissioned officer - senior, intermediate, and junior.

The punishment of striking the name from the roll (the Chinese term chuming is often translated as “expulsion”) applies only to conscripts and is imposed for an unauthorized absence from duty for a period exceeding 30 days contrary to Art.95. It may also be imposed where the violation of discipline involves concealing a criminal offence that occurred prior to enlisting for which the offender is held criminally responsible by civil authorities after enlisting, or persistently refusing to carry out one’s duty. Conscripts who are struck from the roll are returned to the locality whence they were recruited and provided with settlement assistance by civil authorities, but are not allowed the preferential treatment and benefits given to former active duty servicemen under regulations.

A disciplinary discharge from military service can be imposed under Art.120 where the violation of discipline amounts to an intentional crime for which the offender is punished by imprisonment for more than 5 years or death or any crime that endangers national security, or if sentenced to less than 5 years (or more than 5 years for an offence of negligence) or a period of re-education through labour, if the offender resists reform in a serious way. Apart from criminal conduct, a disciplinary discharge can also be imposed in cases of serious violations of discipline where the soldier has made “a very bad impression, having lost the fundamental qualifications of a serviceman”. Again, the preferential treatment and benefits normally accorded to veterans are denied to offenders who are given a disciplinary discharge.

Other financial implications of punishments are dealt with in Art.81. If the offender is absent without authorization for 8 days or more contrary to Art.95, or fails to report to a new duty post contrary to Art.117, or a punishment higher than a recorded demerit is given for any offence, then the offender loses his or her annual salary increase.

After a period of time, ranging from a minimum of 6 months for those punished with a warning to 24 months for those who are dismissed from post, offenders who “have really corrected their mistakes” are thereafter no longer held back in their prospects of promotion. In circumstances demonstrating special dedication or contribution, the waiting period may be reduced.

Officers and civilian cadres are liable to all of the same punishments as soldiers except the punishment of striking of name from the roll. Civilian cadres are reduced in level (ji) rather than in post grade or in military rank. The most junior officers at the grade of platoon leader or rank of Second Lieutenant (or equivalent level for civilian cadres) are not liable to demotion. Specialized technical officers occupying an administrative post, and civilian cadres, may be reduced in either post grade or specialized technical level, but where the usual reduction of one grade or level does not reduce the material rewards to the individual offender, then reduction is to be to such lower grade or level as will adversely affect the offender’s living conditions and perquisites. The punishment of dismissal from post for specialized technical officers occupying an administrative post, and civilian cadres, may result in a loss of both the administrative post and the specialized technical post, or only the administrative post. But where the discipline violation involved the technical expertise of the offender, conviction results in the loss of both of the administrative and specialized technical posts.

Otherwise, the provisions mentioned above apply equally to soldiers, to officers, and to civilian cadres. Non-commissioned officers (which includes all personnel who are not conscripts or commissioned officers) enjoy a privileged position. Those who “refuse to perform their duties or are unable to fulfill the backbone role, and having undergone criticism are not corrected by education” can be put on probation pursuant to Art.155 for a period of not more than 6 months. During this time they are paid as conscripts. If at the end of the probation period their errors remain uncorrected then disciplinary punishment can be imposed. The unit leading cadre, who in practice is the unit political officer, approves the implementation of probation upon non-commissioned officers.

Most of the disciplinary offences created in Art.82 to 118 provide that offenders:

“…in less serious circumstances shall be punished with a disciplinary warning or serious disciplinary warning; in more serious circumstances they shall be punished with recording of a demerit or serious demerit; in especially serious circumstances they shall be punished with demotion to a lower post grade (or level) or military rank (or level), or dismissal from post.

Thus the seriousness of the case is the salient factor in deciding upon the punishment for a particular offence. Disciplinary action is to be taken on the basis of the facts of the case, and everyone is to be treated equally, in order to “learn from past mistakes to avoid future ones, and cure the sickness to save the patient” (Art.78). Offences committed by two or more people are to be treated more severely, but only one punishment is given whether one or more disciplinary offences are committed (Art.132). The severity of punishment in a particular case is mitigated where the offender confesses, returns anything the offender gained by the offence or reduces the harmful effects of the offence, or if the offender informs about breaches of discipline committed by others (Art.133). Punishment will be more severe if there is interference with or obstruction of the investigation (and interference apparently includes refusing to admit mistakes), tampering with evidence, or involving other persons in the breach of discipline (Art.134). The individual circumstances of the offender do not seem to play a significant role in the consideration of the appropriate punishment.

Detention or imprisonment is not available as a punishment for a breach of military discipline in the Chinese PLA, but Art.146 to 154 of the Regulations on Discipline set up a system of administrative custody (xingzheng kanguan). For a maximum period of 7 days, or exceptionally 15 days, those who seriously disrupt normal orderly behaviour by engaging in fighting, posing an armed threat to superiors and others or disobeying orders can be given administrative custody. This is clearly a temporary measure intended to deal with a breakdown of discipline rather than a punishment imposed after a finding of responsibility. Regiment/brigade-level officers and higher, or the political officer at the equivalent level, can order members into administrative custody. Military headquarters are responsible for the administrative custody of soldiers while the political organs within the PLA implement administrative custody for officers and civilian cadres.

Processes

Art.3 of the Regulations on Discipline lists the basic elements of the discipline of the PLA and they include, firstly, “implementing the line, principles and policies of the Communist Party of China”. Communist party politics suffuses the administration of military discipline at all rank levels throughout the PLA. From the earliest days of the Chinese Workers’ and Peasants’ Red Army tensions arose between the professional officer corps and the political leadership over the control and development of the new army as an institution. Mao Zedong, then the army political commissar, won the point at the Party congress held in Gutian in 1929, and since that time political officers (zhengzhi junguan) have been attached to each level in the military hierarchy at the company level and above. The role of politics was certainly as important in the Nationalist army of Mao’ s rival, Chiang Kai-Shek, but the influence of politics in the administration of modern Chinese military discipline is part of the legacy of Mao. Indeed, it may be said that the purpose of Chinese military discipline is primarily to inculcate and foster a political consciousness in both soldiers and officers, and only secondarily to promote their fighting effectiveness. Thus Art.5 of the Regulations on Discipline states that, “The discipline of the People’s Liberation Army is a strict discipline built on the basis of political awareness, and an important factor in combat effectiveness…”. As a consequence, political officers at all levels administer and enforce the rules of discipline through political structures at the various stages of the discipline process.

Art.11 of the Regulations on Discipline apportions the responsibility for disciplinary punishment of members of the PLA between the political organs, who have overall responsibility for the punishment of officers and civilian cadres as well as the disciplinary discharge of soldiers, and operational commanders who are in charge of all punishments of soldiers below a disciplinary discharge. But between these two groups of leading cadres it is the political officers who are the primary actors in the discipline process.

Art.135 describes the major steps in that process, and demonstrates the key responsibilities of political actors. Under Art.135 the investigation of disciplinary offences is the responsibility of the unit leading cadres (shouzhang), either the operational officers in the case of violations of discipline by soldiers, or the political officer in the case of violations by officers or civilian cadres. But the Party committee of the unit, an organ that is chaired by the political officer, makes the punishment decision. Where a proposed punishment is beyond the jurisdiction of the unit the matter is referred to a higher Party committee with jurisdiction. In urgent circumstances the leading cadre himself can simply decide the punishment and report the same to the Party committee. The soldier has no role to play in the process leading to the adjudication of his punishment, except perhaps to cooperate in the investigation. No individual officer or organ carries a brief for or assists the accused soldier at any stage, and once the investigation is concluded, the role of operational commanders is limited to implementing the punishment decision of the political organs.[2] Thus in the Chinese PLA there is no counterpart to the position of regimental sergeant major or coxswain, so familiar to western military forces, whose responsibilities include ensuring a high degree of discipline among non-commissioned officers and the junior ranks, by precept and by example, or as occasion requires, by the formal institution of a disciplinary charge. Unlike their counterparts in many systems of military discipline elsewhere in the world, PLA operational commanders, absent urgent circumstances, do not adjudicate the responsibility for disciplinary offences, nor decide upon the type or degree of punishment.

Art.122 and 123 of the Regulations on Discipline set out the jurisdiction of the various levels within the military hierarchy to approve specific punishments. The regiment/brigade level can approve serious warnings for senior non-commissioned officers, and demerits, demotion or dismissal from post for conscripts and both junior and intermediate non-commissioned officers, as well as warnings or demerits for junior and field grade officers, and civilian cadres. Thus all but the most minor disciplinary matters are dealt with by leading cadres at the regiment/brigade level, except for the striking of name from the role or a disciplinary discharge, both of which are dealt with at the level of the corps or higher. Together with the authority under Art.149 to approve administrative custody for conscripts, both junior and intermediate level non-commissioned officers, as well as the most junior officers, it appears that most of the decision-making with regard to formal discipline in the Chinese PLA is undertaken at the regiment/brigade level.

Disciplinary action and punishment is to be taken ordinarily within 45 days of the discovery of the offence. Punishment decisions are announced either orally or in writing, and either in the presence of other soldiers on parade or in a meeting, or privately only to the offender himself. Prior to the announcement of the decision the offender is asked if he has any objection, and if he does he may make a complaint or appeal within 10 days of the announcement, but a complaint or appeal does not stop the implementation of the punishment. Complaints and appeals are made in writing and dealt with by leading cadres at the next higher level who do their own investigation and have wide authority to redress a wrong, but who are also instructed that “false accusations and willfully making trouble should be investigated”. Whether this particular formulation of the power of appeal authorities chills the exercise of the right to appeal in practice is not known.

The translators wish to acknowledge the assistance derived from consulting the translations of various Chinese legal materials made by ChinaLawInfo Co., Ltd. and WestLaw China, as well as Professor Wei Luo’s translation of the 1997 Criminal Law of the PRC. Kenneth W. Allen’s “Introduction to the PLA’s Organizational Reforms: 2000-2012” being chapter one of “The PLA As Organization v.2.0” (Kevin Pollpeter and Kenneth W. Allen, eds.) is an invaluable treatment of the current rank and grade structure of the Chinese PLA, and as well offers suggested English-language translations of some terms that are peculiar to Chinese military usage.

[1] Xi Jinping, President of the People’s Republic of China, addressing officers of the People’s Liberation Army in December of 2012 during a tour of military bases in Guangdong province, within weeks of becoming General Secretary of the Communist Party of China and Chairman of the Central Military Commission.

[2] Art.174 of the Regulations on Discipline requires servicemen’s committees to “exercise supervision over the implementation of discipline…”. The committees are established at the company level under the Regulations on the Work of Servicemen’s Committees of the Chinese PLA and are mandated “to guarantee the servicemen’s exercise of their democratic rights…” . Although these elected bodies are charged to, among other things, “protect the legitimate rights and interests of officers and men” the servicemen’s committee “works under the leadership of the Party branch (grassroots Party committee)”.

No comments:

Post a Comment

Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).