In late February, the Supreme People's Court (SPC) issued two bilingual white papers to provide the official view on its institutional and transparency reforms, an update of the reports issued the year before. In this year's
judicial reform white paper (link to English version), the SPC devoted a paragraph to military court reform, providing a bit more transparency to the world outside the People's Liberation Army (PLA):
Reforming the organizational system of military courts. Military courts are judicial organs set up by the State in the army. According to the overall arrangement by the Central Government, the basis for the setup of military courts was changed from branches of services and systems into combat zones. After the said reform, the new organizational system of military courts includes the PLA Military Court (at the level of higher court), the Military Court of the East Combat Zone of the PLA, the Military Court of the South Combat Zone of the PLA, the Military Court of the North Combat Zone of the PLA, the No. 1 and No. 2 Military Courts of the West Combat Zone of the PLA, the Military Court of the Central Combat Zone of the PLA and the Military Court Directly under the Headquarters of the PLA (at the level of intermediate court), and 26 military courts of the PLA in Shanghai, Nanjing, and Hangzhou and other cities (at the level of primary court).
Readers of this blog read about the
reorganization in June, 2016!
As I pointed out in a comment to Susan’s June 2016 post, it is the Standing Committee of the National People’s Congress and not the Supreme People’s Court that has the authority to deal with the organization, functions and powers of the Chinese military courts. The 2001 Legislation Law of the PRC, a statute of arguably quasi-constitutional significance, makes this explicit in Art.8:
ReplyDeleteThe following matters shall only be governed by laws [falu]:
…
(2) The formation, organization, and functions and powers of the people’s congresses, the people’s governments, the people’s courts, and the people’s procuratorates at all levels. (emphasis added)
So, whither the “rule by law” in the reform of Chinese military courts?
In a remarkably candid article in Law Science Magazine, 2016 Issue No.2, Professor Zhang Jiantian of the China University of Political Science and Law posits that while Chinese military courts are nominally established by the state in the armed forces, in fact they belong to the established military political organs. As a consequence, he claims “Military courts are inevitably subject to interference from political organs and leading cadres at all levels.” He argues that military courts must be separated from military political organs as a fundamental prerequisite for their institutional integrity, and that reform of the Chinese system of military justice can only be carried out by legislative measures at the national level – by an Organic Law on the Military Courts and Military Procuratorates. Successive attempts to do so, going back as early as 1955, have not proceeded past the stage of a draft law, and the legality of Chinese military courts is in serious question. Now is the time to advance this legislative project, says Professor Zhang.
In August, 2015 the Standing Committee published a legislation plan that included amendments to the Organic Law of the People’s Courts and the Organic Law of the People’s Procuratorates. The drafting authority for both legislative projects is the Internal and Judicial Affairs Committee of the National People’s Congress. Although subsidiary organs with legislative authority subordinate to that of the NPC, such as the State Council, the Supreme People’s Court and the Supreme People’s Procuratorate, have been given drafting responsibilities for some items on the legislative agenda of the Standing Committee, the Central Military Commission does not appear to have any role in the drafting of amendments to the Organic Law on the People’s Courts. One is left to wonder then whether the anticipated amendments will take any steps to put the military court system, including its jurisdiction, on a statutory basis. At the moment that seems unlikely, and as a result the military courts of the PRC will continue to operate in a kind of legal vacuum notwithstanding the current efforts at court reform.
Peter, Thank you for your comment. Zhang Jiantian and others have made that point several times. I addressed this in my Jamestown article: In the view of Zhang and other military legal officials, reform of the military courts requires a national law to supersede the current patchwork of judicial interpretations and military regulations. In their opinion, reform of the military courts requires a firm legal basis (Yangguang Military, January 27). The law should set out the status, organization, jurisdiction, selection of judges, and staffing of the military courts, among other issues.
DeleteThe law is likely to be eventually drafted, but after the PLA reorganization takes shape as well as the People’s Court Organizational Law and Judges Law. The rationale for this would be that the Central Military Commission will need to decide whether the military courts follow the civilian model or something different. Press reports have revealed that work has begun on the redrafting of the Judges Law and People’s Court Organizational Law. [3] The drafting of a military court law requires a policy decision about the new framework for a reformed military court system.
At this point the framework for the military court reforms is clear. The Judges' Law and People's Court Organizational Law are still being drafted.