Tuesday, May 20, 2014

"The Chinese military legal framework must be improved"

Apparently unnoticed in the roar of recent articles and statements by policy analysts about China's People's Liberation Army is that improving Chinese military law is part of the Chinese government's plans for reforming and modernizing China's national defense establishment and People's Liberation Army.

The November 2013 "Decision of the Central Committee of the Communist Party of China on Several Major Issues on Comprehensively Deepening Reforms" (the Third Plenum Decision), which sets out the roadmap of the current Chinese leadership for reform,  contains a section on reform of national defense and the military with the following phrase about military law:
The military legal framework must be improved... (健全军事法规制度体系)...
Other aspects of military reform highlighted in that section also anticipate an increased role for military law.

Why does Chinese military law need improving?

Although it may not be generally known by the world outside of China, senior Chinese military legal officials for some years have been pointing out the weaknesses in the current military legal framework in academic articles. In their view, they have to deal with a range of complex issues, but have an inadequate body of legislation to deal with them. They also identify as an issue the fact that the military courts and procuratorate are directly under the PLA General Political Department (the Communist Party organization within the military). (This article from the Congressional Research Service provides excellent background (and structure charts) on the structure of the Chinese government and military.)
Senior military legal officials see it as a particular problem when the Chinese military has to increasingly interact with other domestic institutions and foreign and international organizations.

In some of their scholarly writings, they look to other legal systems with what they see as a more developed body of military law (US, UK, Japan, and Germany) and some suggest that suitable foreign models may be borrowed and adapted for use in China.  This may explain why Global Military Justice Reform receives a significant number of Chinese visitors, who can monitor world military justice developments with a click of the mouse.

It appears that an important step forward was taken in early May, when the Legislative Affairs Office of the Central Military Commission organized a training session on military legislation to which experts from the principal Chinese legislative drafters were invited to speak, including the Legislative Work Committee of the National People's Congress (NPC) Standing Committee (drafters for the Chinese national legislature) and the Legislative Affairs Office of the State Council (lawyers and legislative drafters for the Central Government).

What does improving the military legal framework mean?

The short answer is that we know little about what "improving the military legal framework" is intended to mean.  What we know is that two national laws partially or substantially related to military law are on NPC's annual legislation plan and that senior military lawyers, current or former, have raised a range of structural and substantive issues.

What is on the legislative agenda?

Military related legislation that we know is on the 2014 NPC's legislative agenda are amendments to the 2000 Legislation Law and 1990 Military Facilities Protection Law.

According to the published legislative history, the amendments to the latter law were initially drafted by the General Political Department of the PLA and then sent to the Central Military Commission Legislative Affairs Office and State Council's Legislative Affairs Office for review and further research, which, accordingly to the usual Chinese legislative practice, included a review of foreign legislation. After a year and a half of review and consultation with affected central government departments, provincial governments, and military departments, it was forwarded to the NPC Standing Committee for further review and public consultation.

Less is known about the intended amendments to the Legislation Law and whether it will provide more details on military legislation, including its review.

We know from 2009 regulations on military legislation that the Central Military Commission has its own annual legislation plan.  However its legislation plan has not been made public.

Although the Central Military Commission's chief lawyer General Wang Lihong was asked about legislative plans for the next five years in an article published shortly after the Third Plenum, he would not be drawn into revealing any details.

What we do know from statements that General Wang and other senior military legal officials that they have raised fundamental issues concerning legislative drafting, the structure of military legal institutions, and substantive military law.  Related concerns have been raised by a retired PLA Air Force General, writing under a pseudonym in Global Times, a conservative Beijing tabloid.  The retired general suggests that the closed and centralized military system, with inadequate checks on the exercise of power, is conducive to corruption.

Chief military lawyer identifies legislative drafting issues

In the November, 2013 article, General Wang Lihong highlighted the difficulties of legislative drafting within the (relatively) closed military system, calling for a focus on improving military legislation and the system for drafting it:
  • military lawyers should be involved earlier in process of drafting military regulations;
  • increase the research and expert review of difficult and important legislation (expert review, or lunzheng (论证) is explained here
  • experts and scholars should be consulted;
  • there should be better channels and methods for consultation with officers and soldiers on draft legislation;
  • increased training and joint research between military and civilian research institutes and universities on military law are needed;
  • systems are needed for evaluating military legislation and for reviewing subsidiary regulations;
  • systems are needed for reviewing existing legislation and abolishing outdated regulations;
  • public channels should be used to make military legislation known;
  • focus is needed to find practicable legislative solutions to difficult issues.  

Former senior military lawyers identify a range of issues

In an article on military courts in the liberal Southern Weekly, former senior military legal officials were interviewed.  A former official with the Legislative Affairs Office of the Central Military Commission, Zhang Jiantian, noted that the General Political Department guides the entire military judiciary [as is set forth by regulations on PLA Political Work] and that the biggest problems for the military courts are the lack of clarity concerning their
  • role, 
  • affiliation;
  • and structure. 

Military lawyers identify substantive issues: Armed Police

Senior military lawyers have identified a range of substantive legal issues.  One set of issues relates to the paramilitary People's Armed Police.  A professor at the People's Armed Police Institute of Politics (the institute is profiled here and he is profiled here) has published prolifically on legal issues related to the armed police.  Earlier in 2014, he published an article in the journal of the Communist Party's Central Committee (reproduced on the Ministry of Defense's website) on improving armed police legislation, which pointed out:
  • Governing legislation for the People's Armed Police is unclear, and further legislation is needed which is clear and practicable.  
  • functions stated in the Armed Police Law, such as providing armed protection, providing armed patrols, assisting in the tasks of arrest, pursuit and capture, etc. need further specification concerning the duties of the armed police as well as and limits on its authority in dealing with serious violent events, terrorist events, and other events affecting public safety;
  • a system should be put in place to provide legal advice to the armed police command structure;
  • armed police officers and soldiers need better legal training.

Other important legal issues

Military lawyers have also raised the need for legislation in important areas, such as on:
  • military-related technology;
  • military procurement on the market;
  • procedural legislation for the military courts;
  • the Central Military Commission, the military courts and military procuratorate.
They mention that some military legislation is issued before it is ready, making it difficult to implement, while other legislation is held back because of unresolved institutional disagreements.

What are the goals for the military legal system?

The Third Plenum Decision calls for improvements to the Chinese legal system, such improving
legislative drafting, more transparency, public participation in draft legislation, deliberation, coordination and review mechanisms and ensuring that judicial power and procuratorial power are "independently and impartially exercised pursuant to law." It also calls for optimizing the structure of the armed police, as well as building a modern military system with Chinese characteristics which is a strong army that follows the instructions of the Party, is capable of winning battles and has a fine "work style" [this means standards of conduct for officials] under new circumstances.

Many questions remain

The fundamental question is, what type of legal framework is seen as supporting the building of a modern Chinese army that follows the instructions of the Party?  What type of legal controls on the exercise of power are seen as acceptable?  What is an acceptable level of transparency? What does "optimizing the structure of armed police" mean?  Does that mean resolving the important legal issues described above? The Chinese military legal system faces challenges in trying to control corruption, and deal with an increasingly complex Chinese society and economy, as well as a world in which the Chinese military increasingly needs to interact internationally on the basis of law.


  1. Special thanks for Global Military Justice Reform contributor Susan Finder for this extraordinary post.

    1. I am honored to be a contributor to this blog!

  2. Your two China posts I've read were both helpful and important.

    1. Frank, Many thanks for your kind words. I hope that the Chinese military lawyers are able to make progress on some of the issues that I discussed.
      Also, if any of the Chinese legal terminology is unclear, please let me know. Susan


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).