Military court reform
Some information about military court reform was made public in a press release concerning a May 20 meeting between the head of the Guangxi Higher People's Court and a delegation from the military courts:
- head of the Political department of the Guangxi PLA District
- head of the Military Court of the Southern Theater Command, Li Shiping
- head of the Nanning Military Court, Su Xuejun
Improving military legislation
The second development concerns a policy document recently issued by the Central Military Commission (CMC) (approved by Xi Jinping) on improving military legislation--"improving the construction of military legislation during the period of deepening reform of national defense and the military" (关于深化国防和军队改革期间加强军事法规制度建设的意见). The full text was not released, and it appears that most news outlets carried the Xinhua report. The picture below is from the CCTV news report. The document sets a deadline of 2020 for a review and clearing out of outdated military legislation (this part of a nationwide initiative, as described here). It calls for legislation to be interpreted or amended to fit current needs, and efforts focused on drafting of new legislation. The CMC document appears clarify the legislative authority of the successor institutions to various military institutions, giving guidance on interpreting the provisions in Article 103 of the updated 2015 Legislation Law in light of the reorganization of the PLA:
- CMC: issues military administrative regulations (军事法规)(reiterating the first sentence of Article 103);
- Theater Commands, Services, and the Armed Police issue military rules within their jurisdiction (军事规章)(reiterating in part and updating in part the second sentence of Article 103);
- CMC Departments and subordinate organs issue military normative documents. (Military normative documents do not have any formal status under the Legislation Law).
Both Art.13(5) of the Law on National Defense of 1997 and Art.93 of the Legislation Law passed in 2000 give the CMC the authority to make military regulations (fagui) in accordance with the Constitution and the law. Acting under this authority in 2003 the CMC made the Regulations on Military Regulations and Rules (RMR&R) with a view to clarifying the authority, and standardizing the process, for rule-making across the Chinese armed forces. Art 1 specifies the purposes of the RMR&R to be "...to regulate the formulation, amendment and repeal of military regulations and military rules, guarantee the quality of military regulations and military rules, and promote the governance of armed forces in accordance with law..."
ReplyDeleteUnder Art.93 of the Legislation Law and Art.9 of the RMR&R, the four Headquarters General Departments of the PLA (zongbu) - the General Staff Headquarters, the General Political Department, the General Logistics Department and the General Armaments Department - may make rules (guizhang) known as "rules of the headquarters" that apply to the whole of the armed forces. But with the reorganization of the CMC announced in February of this year the four Headquarters Departments no longer exist and have been replaced by 15 "functional departments" of the greatly enlarged CMC.
The question is, what body can now exercise the rule-making authority that formerly belonged to the four Headquarters Departments? Or, are amendments to the Legislation Law and the Regulation on Military Regulations and Rules required before the successors of these subordinate rule-making authorities can act?
These kinds of questions would not arise under a system of government where large-scale organizational change, of the kind now being implemented by the PLA, is accomplished by statute. The Chinese preference for a series of policy statements of greater or lesser authority over, say, a National Defense Re-Organization Act creates large problems for any system of government that purports to follow the rule of law.
Peter, thanks, some of what you mention is set out in Article 103 of the amended Legislation Law. It is likely that that the policy statement is meant to clarify the successor institutions. I would expect that the Regulation on Military Regulations and Rules will be amended, but in the mean time these institutions need to legislate. I'll amend the text, though
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