China watchers the world over were amazed on January 15, 2015 when the Chinese Ministry of Defense made public a list of 16 high ranking corrupt PLA officers. The future prosecution and conviction of these officers by China’s military criminal justice system brings Chinese military law and legal institutions into international focus. Chinese military legal officials have identified the inadequacy of those institutions as one of the underlying causes for significant corruption in the Chinese armed forces and national defense industry.
In the Third and Fourth Plenum Decisions, the Party leadership flagged the importance of improving Chinese military law as part of modernizing the Chinese armed forces and national defense, although it attracted little attention outside of China. During the fall of 2014, General Ding Xiangrong, one of the named drafters of the Fourth Plenum Decision, was appointed head of the Central Military Commission (CMC)’s Legislative Affairs Commission, the military equivalent to the State Council’s Legislative Affairs Office.
General Ding and several other senior military officials have provided few details about the major legal policy initiatives on the CMC’s agenda to overcome this crisis within the PLA, as there is much less transparency in the military legal system than in the civilian legal system. But press reports are slowly being released.
Anti-Corruption in the PLA
Although little known outside of China, one of the first steps the CMC took to improve its anti-corruption efforts was to promulgate a legal policy document, Detailed Regulations on Work to Prevent Duty Crimes (Detailed Regulations), which went into effect on December 1, 2014. The text of the document has not been made public, although summaries appeared in the press and on Chinese television. The Detailed Regulations identify eight major areas, 44 problematic areas, and 130 hot issues, supplanting 2006 and 2009 documents on the same topic. The eight major areas, which account for over 90 percent of cases of military corruption, are:
- Personnel, in other words, bribes taken in exchange for promotions;
- Financial management;
- Construction;
- Fuels;
- Procurement of goods and military equipment;
- Health services;
- Real estate;
- Hospitality.
An unnamed PLA prosecutor (presumably very senior) commented on one of the PLA’s websites that the most frequently committed crimes in these areas include:
1. Economic crimes, such as:
- graft and embezzlement of public funds;
- giving and taking bribes;
- privately distributing state owned assets;
- owning huge sums of money with unclear origin;
2. Crimes involving abuse of authority, like:
- selling military real estate without authorization;
- divulging military secrets;
- bid rigging in military construction projects;
- approving project by taking under the table payments;
- fraud in financial reporting to hide corruption;
- embezzlement of payments hidden from accounts;
- bribe-taking for personnel promotio , position transfers and conscriptions;
- military procurement from suppliers with bribery.
These cases place pressure on the military procuratorate (prosecutors) and courts to prosecute and try these cases. The CMC has promoted existing senior prosecutors and judges, and likely appointed additional prosecutors and judges to the military courts.
Reforming the Military’s Legal System
Senior Colonel Wang Haiping, head of the Department of Military Law at the PLA Xian Institute of Politics was interviewed for an important recent article in which he revealed some of the developments that Chinese military legal experts would like to see (which he must have done with approval). He highlighted that the legal infrastructure for the military courts and procuratorate is inadequate and must be reformed, voicing what had been said more subtly by Chinese military law experts earlier. He noted that the first step is the “scientific” establishment of a military justice system and the issuance of a Military Court and Military Procuratorate Law. A former official with the Legislative Affairs Commission of the CMC, Zhang Jiantian, noted that under current law military courts are under the General Political Department (the Party organization of the PLA), as is set forth by regulations on PLA Political Work.
In an important development, Senior Colonel Wang also highlighted the need for transparency in the military courts, and advocated that military courts make public all cases except those involving military secrets. This would be a tremendous step forward, as military cases are currently not made public and this seems to be one of the first public expressions of this intention.
Colonel Wang noted what others have said as well: that the military legal system needs to attract more qualified personnel. It is likely that many of the most qualified law students would rather join law firms than the PLA. A study several years ago by a law student found that military judges lacked the qualifications of their civilian counterparts. This is also true for the military legal advisers (analogous to JAG lawyers) that the Fourth Plenum Decision intends to put in place. Colonel Wang also recently spoke on the need for military legal advisers, suggesting that in addition to military lawyers, the military should make use of leading academics.
The inclusion of a section on military law in the Fourth Plenum Decision means that the senior Party leadership is convinced that China needs to have military law and a military legal system commensurate with its place in the world. But as Chairman Xi Jinping pointed out, the vitality of the law — and its prestige — is in its implementation. If law isn’t implemented strictly, the law will become a “paper tiger” or a “straw man.” As General Xi Qiliang wrote in People’s Daily, “We need to correct the phenomenon of having law but not enforcing it, not enforcing the law strictly, and not pursuing those who break the law.”
Susan Finder blogs as the Supreme People’s Court Monitor. In doing so, she draws on experience and observations of the Chinese legal system gained as an academic at the City University of Hong Kong, where she wrote the first comprehensive analysis of the Supreme People’s Court, and in practice with the China business group of Freshfields, Bruckhaus and Deringer and two U.S. law firms. She also served as an arbitrator in China, which has enabled her to be on the cutting edge of Chinese legal developments.