Sunday, April 17, 2016

Further thoughts from the experts on China's military courts

Chinese military law experts have long decried the absence of a military court law (see these blogposts, for example).  Two of them recently published articles that shed light on the weak status of the military courts and suggestions for reforms: Professor Zhang Jiantian of the Chinese University of Political Science and Law and retired Central Military Commission (CMC)'s legal department official, and Professor Li Youbiao, of the People's Armed Police Institute of Politics.  Professor Zhang's article was published in late November, 2015 in the People's Court Daily (the Supreme People's Court's newspaper) in late November, 2015, while Professor Li's article was republished by a criminal procedure website sponsored by the China University of Political Science and Law. A summary of their views is set out below, followed by a few comments.

Historical background

Work on the drafting of military court legislation began in 1955, and drafting was re-started after the Cultural Revolution.  In the 1990's, the central Party authorities approved the inclusion by the National People's Congress Standing Committee (NPC SC)  of the "military court organizational law" in the national legislative plan, but the draft never saw the light of day.

The issues

The Chinese military courts are under "dual leadership"--by law, they are under the leadership of the Supreme People's Court, but their personnel headcount and finances are are under the military, in particular the political department.  It has been this way since the middle of 1957.  The Political Work Regulations, amended in 1991, specifically provide that the political department supervises the military courts and military procuratorate. This, in the view of Professor Zhang, violates the law and constitution.  Under current legislation, military judges and prosecutors are appointed and removed just as any military cadre (official).  Although military judges (and prosecutors) may be well intentioned, when they are dealing with cases they inevitably consider their own self-interest because they are dependent on others in being appointed or removed from office, and for any benefits [i.e. housing] that they enjoy.

Although in 2004 the Supreme People's Court (SPC) issued a document with the PLA General Political Department on ranking judges, it has never been able to be implemented properly. A core issue is the control of headcount.  Conflict between the General Staffing Department and the drafters of legislation on the military courts and procuratorate meant that the draft was not able to move forward.

Professor Li also decries the lack of transparency concerning the military courts. He says "sunshine is the best anti-corruption drug."

Looking forward

The cases of Generals Xu Caihou and Xu Junshan have brought the military courts and procuratorate to the attention of the public and the leadership and now is the time for taking the military courts out from under the Political Departments. As Professor Li says, given the status of military judicial (judges and prosecutors) personnel, it is difficult for them to be independent in handling cases.  "The independence of judges is the core of judicial independence.  If judges are not independent, there cannot be real judicial independence."

Comment from an outside observer

While I understand the desire of senior Chinese military law experts to have a law that puts the military courts on firm ground, I believe it is unlikely to happen until the judicial reforms underway in the civilian courts are settled, because those reforms relate to some of the fundamental institutions within a court (see my analysis of some of the judicial reforms underway so far).  As the professors have pointed out (and one of the points I mention in my analysis), one of the principles of the judicial reforms is that judicial power is a (central) state power.  What does this principle mean for the military courts?  The SPC is intending to reform judicial committees (a committee of senior judges that decides cases without having heard the case--my analysis links to further explanations)--it seems likely that those institutional reforms, once settled, will be implemented in the military courts as well. I believe that it is only when there is certainty about the judicial reforms in the civilian system that a military court law will be promulgated.
In the meantime, we will need to wait for further information on what the transfer of the military courts to the new political legal committee means in practice.  We are likely to hear further from Professors Zhang and Li on this.

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