Sunday, February 15, 2015

How should Chinese military courts be reformed?

Prof. Zhang Jiantian in uniform
Zhang Jiantian, former Central Military Commission (CMC) Legislative Affairs Commission official (and former military judge), and currently a professor at the China University of Political Science and Law, set out his thinking on the problems of the military courts and how they should be reformed earlier this month on the Chinese national court website (and the People's Court Daily).  His views appear on this blog for the second time.

In this article, he provides the world outside the gated Chinese military legal community a window into the issues confronting the reform of Chinese military justice.

Professor Zhang notes 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, which has created a whole set of problems:
  • Complete lack of legal protection for the military courts;
  • Unclear status of the military courts;
  • Difficult role for military judges;
  • Military courts operate as a functional department in each military region.  Personnel management of military judges is split from management of their work.
  • 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 command leadership wherever the court is situated interferes in the trial of cases. 
  • 2008 judicial reforms approved by the Communist Party Central Committee, which included military judicial reforms, were not effectively implemented, which he attributed to the absence of a legal framework.
What reforms are required?
  • In considering the reform of the Chinese military courts, review systems and practices abroad and consider what can be borrowed or what lessons can be learned and used in China.  However, reform of the Chinese military courts must be based on the realities of China and its military.
  • In Zhang's view, reform of the military courts requires a national law to escape the current situation in which  a patchwork of judicial interpretations and military regulations serves as an inadequate framework.  Reform of the military courts requires a legal basis.  The law should set out the status, organization, jurisdiction, selection of judges, and staffing of the military courts, among other issues. 
  • Get rid of the current system of personal jurisdiction and establish a territorial based system of jurisdiction, establish unified military courts in each military theater (background information available here) instead of the current system of military courts in each service and military region, and allocate personnel based on the number of cases. Consider establishing circuit courts for major criminal cases, when needed, such as in war time, or involving secrecy. Retain the current system of three levels of courts.  This would create a system which met efficient use of manpower while removing interference and enable military courts to independently handle cases.
  • Reform the current personnel, finance, and property management system.
  • Consider establishing a jurisdiction for the military justice system separated from the command system.
  • Separate the military courts from the military political authorities.  Create a single military court system.  Link the military system to the civilian system, but if that is not possible, it should become its own system within the military and should be separate from military headcount.
  • Establish a military tribunal within the Supreme People's Court, which would be headed by the chief of the PLA Military Court and its members would have both military and civilian appointments and the appointments of judges would be approved by the National People's Congress (NPC) Standing Committee, with the appointments of the heads of the courts in the military theaters approved by the NPC Standing Committee and the appointment of other judges made by the Central Military Commission (CMC). 
  • If a military tribunal cannot be established witinh the Supreme People's Court and the military courts remain within the military [this commentator believes this is more likely], the reforms of the military courts should follow the model of the establishment of the PLA Auditor, so that it is directly under the CMC, and the appointment of military judges is done by the CMC as authorized by the NPC Standing Committee. 
  • Increase transparency.  Transparency and openness increase judicial credibility and prevents judicial corruption. Not only military cases but its personnel system and reforms were all secret, which meant the public, in and out of the military knows very little about the military courts.  The January 15, 2015 announcement of the corruption cases of 16 senior military officials has changed the practice of protecting the prestige of the military by not reporting on negative cases.  
Professor Zhang concludes with the thought that how to reform the military courts to assure fairness and justice is something we must pay close attention to.

In the outside world, we hope that Professor Zhang can be called upon as a trusted adviser as China works out the reforms of its military judicial system.

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