execution of mentally ill man is two steps back for china
媒体来源: 中国法律博客

CNN just published an
article, "China executes British citizen for drug smuggling". I normally don't try to weigh in and blatantly criticize the Chinese justice system despite certain corrupt documented incidents and obvious issues because it's been improving over the years, and I have been hopeful that the rule of law has a chance to survive there. I am, however, severely disturbed about the recent execution of the mentally ill British man when there were obvious due process issues, despite
The Global Times insisting that "the trial process was extremely careful".

The CNN article reads:

Akmal Shaikh was convicted of carrying up to 4 kilograms (8.8 pounds) of heroin at the Urumqi Airport in September 2007. China says he received due process under its laws, and he exhausted his appeals last week.

The British Foreign Office confirmed Tuesday's execution, however, there was no immediate comment from China.

Ahead of carrying out the death sentence, China said it had followed the law.

"This case has always been handled according to law. During the trial, the defendant has been guaranteed his legal rights," Jiang Yu, spokeswoman for China's Ministry of Foreign Affairs, said last week. "Everyone knows that international drug smuggling is a grave crime."

Oh yes, I agree that it's a grave crime. I am not minimizing what happened because it is serious. But frankly speaking, so is murder. The fact that China has to go back to the defense of "we followed the law" attests to the fact that (1) this really is an atrocious situation, (2) they probably know better but are unwilling to do anything about it, and (3) care more about saving their face (as usual) than about actual justice. In fact, these words remind of one thing: the Nuremberg trials. The Germans insisted that they followed the laws in annihilating the Jewish people during the Holocaust too. No, this situation isn't quite as atrocious as that, but there is something chilling when this is your fall back excuse.

For those of you who haven't been following this case, just how much due process has there been here? I will let
Professor Jerome Cohen speak to this,
courtesy of Professor Donald Clarke's blog:

Chinese legislation exempts from criminal responsibility someone unable to recognise or control his misconduct, and provides for reduction of punishment in cases of partial mental capacity. But Shaikh's 30-minute first instance trial ignored this major aspect of justice.

By the time of Shaikh's second instance trial, on May 26, the London-based rights organisation, Reprieve, had sent British forensic psychiatrist, Dr Peter Schaapveld, to Urumqi in the hope of conducting an examination that would confirm Shaikh's condition and inform the court's review. Unfortunately, without explanation, Schaapveld was denied an interview with Shaikh. He was also not permitted to attend the judicial hearing.

Moreover, the authorities, which had initially indicated that they would allow a local doctor to evaluate Shaikh, changed their mind. The reviewing court thus had the benefit of no expert opinion on this crucial issue. It did, however, apparently allow the defendant the opportunity, against the advice of his lawyers, to deliver a rambling, often incoherent, statement that caused the judges to openly laugh at him.

The second instance court affirmed Shaikh's death sentence and, although both his fitness to stand trial and his mental state at the time of the offence were in doubt, the Supreme People's Court has now agreed.

Yet there has been no indication that the mental condition of the condemned has ever been professionally evaluated, despite concerns expressed by the British government and the EU, as well as Reprieve and other organisations that have compiled massive evidence that Shaikh has long suffered from a serious bipolar disorder.

I don't think I need to comment at length about this. Even an elementary school (primary school) student could probably tell you that something is seriously wrong about this. 30 minute trial? Judges laughing at someone who is obviously mentally disturbed? Denying a local professional evaluation? Need I say more? This is a miscarriage of justice… though the Chinese adamantly claim that they followed proper procedures, thereby implying that justice was done. It wasn't.

On a tangent, people often wonder why Americans stay on death row for so long and criticize that fact. (Don't get me wrong, I'm not a strong supporter of this practice, but then again, I'm still on the fence about capital punishment outside of very extreme circumstances) The positive effect: repeated appeals and an long habeas can sometimes lead to revelations of procedural mishaps, ineffective counsel, etc., which gets them out of their death sentences. Maybe China could learn something from America and at least allow some time before executing a person–particularly in a case like this that has attracted international attention.

This is one step back for the development of the Chinese judicial system. So why do I say two steps back? It's the fact that China has lashed out against the criticism in its usual hear-no-evil-see-no-evil-do-no-evil sort of delusion, intentional blindness, or whatever you want to call it. Professor Clarke blogged this:

As I was getting on a plane in Beijing on Dec. 23rd, I picked up a copy of the nationalistic ???? (Global Times), which saw the UK government's protest as a hypocritical plea for special treatment for foreigners. "?????????????????‘??” (Don't the Westerners most emphasize "all are equal before the law"?), asked the reporter (this wasn't even an op-ed piece!) sarcastically.

Apparently China's government feels that national honor depends on executing this pathetic and deluded man.

Special treatment? Please. All are equal before the law, but the law isn't blind. The law looks at facts and circumstances, including mental illness. I also find it ironic that if this happened to a Chinese person in a western nation, the public outcry of the Chinese would be out of control and probably be much nastier, far more rabid, and more widespread on the internet. This is not a hypocrisy issue. And I think Professor Clarke nails it on the head: China, as always, thinks that their national honor and face is at stake. It is. Sadly, the nation got it wrong this time. Dead wrong. For someone to admit there is a problem is not saving face. It's being stupid and then deluded about it too.

This is two steps back for China because now China will: (1) have to continue to justify itself for at least some period of time, leading to an adamancy that does not help judicial progress and change; (2) act like nothing is wrong, and set a precedent for the future… in a bad way. How can the nation ever admit that it screwed up in the past? Especially a nation so proud and so concerned about its image as China? It will be near impossible. (3) Continue to try to message to its people using its state owned propaganda… I mean media… and end up forcing its people to drink the Kool Aid a little longer. Which will harm your nation if your people don't know how to be critical, how to properly dissent, etc.

I know my posts normally don't contain this sort of tone. Again, I try to not criticize as harshly on a normal basis. But in this case, I had to because I found this so startling a situation. The second to last paragraph of the CNN article states:

Before the execution, Philip Alston, the U.N. special rapporteur on extrajudicial executions, said it would be a "major step backwards for China" to execute a mentally ill man.

I couldn't agree more. What do others think?