What more do we know about Chinese military court reform?

This blog was the first to report on the Chinese government's plans for military court reform. As signalled in the previous blogpost, the details are starting to emerge on the reform of the Chinese military courts.  Those developments include:

• the publication of the structure chart below (published in the Chinese press, as part of a graphic on understanding the PLA reforms), that signals the new place of military courts in the revamped military structure; and 
• the issuance of a document relating to the military court reforms by the PLA Military Court. 

Establish a new Central Military Commission Political-
Legal Committee--adjust the military justice system

This chart relates to new monitoring institutions and the establishment of a Central Military Commission (CMC) Disciplinary Commission and Political-Legal Committee, with the military courts, procuratorate, legal and security authorities, a counterpart to the civilian Central Political-Legal Committee (see further information here). As mentioned in an earlier blogpost, the military courts are to be established geographically, in strategic zones and joint operation command systems. 

Policy document on implementing legal reforms

On November 27, the PLA Military Court issued a policy document: "Opinion on Providing Sufficient Judicial Protection in Fully Developing Military Legal Work Capacity for National Defense and Military Reform (关于充分发挥军法工作职能作用为国防和军队改革提供有力司法保障的意见). As is usual with Chinese military legal documents, the full text was not released.

According to the summary, the policy document called for the following measures, some of which relate to court functions and others to legal functions generally. It appears that it is an "all hands on deck approach" to dealing with PLA legal issues:


• Promote the military reforms among officers and soldiers (with 300,000 military staff to lose their positions, there are likely to be many unhappy people. 
• Because the military reforms will involve the transfer of large amounts of funds, property and other assets and complex legal relationships, there should be proactive coordination to resolve all sorts of legal problems encountered by the military. 
• Pay close attention to the following issues that may cause conflicts related to the termination of employment: resettlement of employees (finding new jobs for them); settlement of wages, demobilization and placement of military staff, particularly the transfer of injured, disabled and sick, the construction, allocation and sale of housing; fairly and efficiently resolve legal issues that officers and soldiers have. 
• Strictly punish according to law all types of crime, maintain security and stability of the military forces, educate and warn the troops, engage in effective crime prevention. 
• Adhere to the high standards of military courts to reform and improve service, provide more high quality and efficient judicial services for the troops and officers. 


It is clear that the PLA is concerned that the downsizing may lead to unrest in the ranks and that disabled service members may lose out in particular. Employment discrimination against the disabled is wide-spread in China. Further, it is also clear that allocation of military housing is also an issue for staff.  It appears that the PLA needs to recruit more legal personnel to deal with the complex civil law issues that the institution as well as its personnel will face in the forthcoming reforms.  Will the PLA recruit more international lawyers, also, to deal with the international law aspects of its operations?  

International Commission of Jurists statement on Pakistani hangings

The International Commission of Jurists has issued the following statement concerning the execution of four men convicted by military courts in Pakistan:

Bangkok: The International Commission of Jurists (ICJ) today denounced the execution of four individuals convicted for their involvement in terrorism in secret trials by military courts. 

Four civilians, namely Maulvi Abdus Salam, Hazrat Ali, Mujeebur Rehman and Sabeel alias Yahya, were hanged in Kohat early morning today after being sentenced to death by military courts earlier this year. In a press statement issued on 13 August, the media wing of the armed forces announced they were convicted for their involvement in “terrorist activities”, including harboring, funding and  transporting “suicide bombers” who attacked the Army Public School in December last year. According to the statement, they are all “active members” of the “Toheedwal Jihad Group”.

The ICJ considers that the executions are unlawful, in breach of Pakistani law and its international legal obligations. 

“The failure of the government and military authorities to make public information about the time and place of their trials, the charges and evidence against them, as well as the judgments of military courts have confirmed fears of human rights groups and the legal community that military trials in Pakistan are secret, opaque and constitute a violation of the right to a fair trial,” said Sam Zarifi, ICJ’s Asia Director. 

The ICJ emphasizes that under international standards, civilians may not be tried before military tribunal. As highlighted by the ICJ in a briefing paper released in April, proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts: judges are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied. In addition, the procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and detailed about the alleged offences are kept secret. 

“The ICJ supports the pursuit of justice for all victims of terrorism in Pakistan, including the horrific attack on the Army Public School last year”, added Zarifi. “However, justice will not be done by subverting the foundational pillars of justice: the right to a fair trial and independence of the judiciary.” 

The UN Human Rights Committee, the supervisory authority for the ICCPR, has emphasized that in trials leading to the imposition of the death penalty, “scrupulous respect of the guarantees of fair trial is particularly important” and “imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.” 

Pakistan has hanged more than 300 people since it lifted a six-year moratorium on the death penalty in December 2014. Initially lifted only for terrorism-related offences, the Government resumed executions in all cases in March 2015. Less than ten per cent of the total executions relate to terrorism-related offenses. “These executions only fulfill a desire for retribution and add to the disturbing trend of hanging people in the name of fighting terrorism in Pakistan and the region,” said Zarifi. “The death penalty has not been shown to have any deterrent effect on crime or terrorism anywhere in the world.” 

The ICJ opposes capital punishment in all cases without exception. The death penalty constitutes a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment. 

In December 2014, the UN General Assembly adopted a resolution, for the fifth time since 2007, emphasizing that the use of the death penalty undermines human dignity and calling on those countries that maintain the death penalty to establish a moratorium on its use with a view towards its abolition. 

Some 117 UN Member States, a wide majority, voted in favor of a worldwide moratorium on executions as a step towards abolition of the death penalty. In line with the present international trend, the ICJ reiterates its call on Pakistan to impose an official moratorium on executions, with a view to abolishing the death penalty.

AFT reduces court-martial sentence

The Chennai Bench of the Armed Forces Tribunal of India has set aside as grossly disproportionate the dismissal portion of a summary court-martial sentence for a year's AWOL, and substituted a term of rigorous imprisonment in its place, permitting Sapper Neelam Moyyi to return to duty. The court expressed concern about a false government representation on appeal that the accused had a record of previous disciplinary actions:

[W]e are baffled by the pleadings of the respondents that the applicant was a habitual offender and had various disciplinary cases against him. The respondents, i.e., the Union of India, and the Army being responsible organizations ought not to make such submissions on Affidavit without verifying the records.

Details of the case appear here. The September 21, 2015 decision of the AFT in Moyyi v. Union of India can be found here.

Confinement issue in Philippine case

There's been a hiccup in the Philippines over where and under what conditions a U.S. Marine convicted of homicide by the local court should be confined. Details here, thanks to Inquirer.net. Excerpt:

Until the Philippine and American governments agree where he would be detained, [Lance Cpl. Joseph S.] Pemberton “should be committed in the New Bilibid Prison where national prisoners are confined or detained under [the supervision of the] Bureau of Corrections,” [the trial court judge] said. 

The case revived a debate over which government should have custody of US military personnel who run afoul of local laws under the VFA the two allies signed in 1998. 

The [Visiting Forces Agreement] says the Philippines can prosecute American service members, but that the United States has custody over them “from the commission of the offense until completion of all judicial proceedings.” 

However, the Philippine Supreme Court ruled in 2009 that convicted US personnel must serve their sentences in the Philippines.

4 hanged in Pakistan

Four men convicted in military courts have been hanged in Pakistan. Details here. This article from the Wall Street Journal refers to failed appeals on behalf of the condemned men. If any reader has access to any judicial decisions relating to these cases, please post a link in a Comment.