中国法律博客
ChinaLegalBlog.com
examining china's expert defense of the uk execution
媒体来源: 中国法律博客

Looks like Xinhua published its defense of the execution of a British mentally ill man
in an article entitled "Experts defend China's execution of British drug smuggler". I'm actually glad they did–it makes it a lot easier to dissect. And for the poor professors (Mingliang Wang and Jinzhan Xue), I'm sorry, you lose and that's just how the game is played.

Again, caveat: I normally don't just go into attack mode like this anymore. (I don't litigate on a regular basis anymore and I try to turn off this gear that's internal to my brain) But if you want to read on, feel free.


Let's just get right into each argument, one by one. It's easier to do it that way. And for me to call out each of these alleged "experts" as a bunch of people manufacturing lame arguments for the sake of their national pride.

China's Criminal Law stipulates that the trafficking of more than 50 grams of heroin is punishable by death.

"According to China's Criminal Law, the death sentence given to him is legitimate and it has nothing to do with human rights concerns," said Wang Mingliang, professor of criminal law at Shanghai-based Fudan University.

Sure, that's true… absent any context. The criminal law says you cannot do certain things. But the law isn't blind. Law is applied to factual scenarios. And in this case, if you are going to appeal to the law to justify your conduct, then please read my last post where I call this out as the Nuremberg style appeal.

"Some Western countries also retain capital punishment, and its existence does not equate to a lack of human rights," Wang said.

IRRELEVANT. Yes, some western countries retain capital punishment for particular offenses. But capital punishment's existence isn't the issue. It's the use and/or implementation of capital punishment in this situation: on someone who is incoherent and mentally ill/disturbed. The fact of the matter is that China executed a man who had a very valid defense/mitigating factor. And they did it in a way that mocked any notion of judicial due process and fairness. That's the human rights issue, not the existence of capital punishment itself. Sorry Professor Mingliang Wang, this argument is a loser.

Xue Jinzhan, professor of criminal law at the East China University of Political Science and Law, also in Shanghai, said the administration of the death penalty related to a country's history, culture and other conditions.

China strictly enforced the law without discrimination in handling the case, Chinese legal experts told Xinhua.

Again, irrelevant. Agreed, the death penalty is not uniform. However, the issue isn't the fact that the death penalty is or is not administered. It's how. The "discrimination" language is a red herring here. The Chinese courts didn't discriminate. They just exercised massive incompetence to the point of leaving justice at the doors of their courtroom. They didn't allow a man to get a mental examination and wanted him to prove up his own mental condition. How? Did you leave your common sense at the door when you became a judge? It's idiocy in action. This is not about discrimination, unless you mean the Chinese courts decided really to discriminate against a mentally ill person.

"It's human nature to plead for a criminal who is from the same country or the same family, but judicial independence should be fully respected and everyone should be equal before the law," Xue said.

I disagree. Judicial independence is not to be fully respected if its frankly bad and/or incompetent. This case was probably a little of both. Judicial independence is a trait that we value, but that does not mean we cannot criticize the obvious failings of another country's judicial system. That's not independence. That's turning a blind eye to someone blatant.

Everyone should be equal before the law. Actually, not always. The law is applied to factual scenarios and circumstances. That's why there are mitigating circumstances, defenses, etc. That is a misapplication of that phrase. Everyone has to obey the law, that's for sure. But the application of the law, particularly punishments, are not "equal". They are often specifically tailored. (That's why people hate mandatory sentencing guidelines in the U.S. now) Or at least, they should be. Guilty/not guilty, yes everyone is equal. Sentencing/retribution/punishment, no, not everyone is equal. Do thieves who steal $25 and $25 million get equal sentences? No. You are supposed to tailor the sentence for a mentally ill person.

Wang said it could be understood that British media ran emotional stories and local people reacted with sorrow or anger as Britain did not retain the death penalty.

"But one country should respect judicial independence of another country, without any interference in internal affairs," Wang said.

"Shaikh's case serves as a testimony to China's judicial justice, which deserves full respect from other countries."

Here is China pullings its, "we're handling internal affairs, look away now" card. Come on. Or better yet, just shut up. Countries meddle in each other's affairs all the time. That's the point of diplomacy. I don't believe for a second that China doesn't the do the same with other nations. Because they don't.

And sadly Professor Wang, if you really think the Chinese judicial system deserves respect for this case handling, you are badly mistaken. It deserves disrespect in every way, shape, and form. And I don't think you even believe your own words on this one.

Western reports said British Prime Minister Gordon Brown condemned Shaikh's execution in a statement issued on Tuesday and that Brown had even personally spoken to a senior Chinese leader about the case.

"It would have interfered with China's judicial authority if the senior leader had accepted Brown's request. How could a criminal be exempted from the death penalty only because he was British?" Wang said.

Red herring again. No one said he was exempt because he was British. Why make the argument if you know its a loser?

Experts said courts in China had the right to decide whether a psychiatric assessment was necessary.

"The court, based on available evidence, decided not to do the assessment, and it was strictly in line with the law," Wang said.

China's Supreme People's Court on Tuesday issued a statement, saying it had reviewed and approved the death sentence against Akmal Shaikh and there was no reason to cast doubt on Shaikh's mental state.

Again, I call Nuremberg. Sure it was in line with the law… at least, that's what you're saying. (But as Professors Cohen and Clarke note, actually, it's not in line with the law because even the Chinese codes afford mentally disturbed people a defense) But was it in line with real justice, fairness, due process? No. (Again, see my last post if you need details) The court, based on available evidence, conducted judicial error by refusing to proceed. If this happened with a trial judge here, the appeals court would have no problem calling that judge out for this.

The Supreme People's Court here was a rubber stamp if you ask me.

So ultimately, you have two "educated" law professors going on the record in Chinese media to say that the execution was legitimate. So what? So you can force more Kool Aid on the populace? To save face for the nation? To be the expert propaganda? Whatever the reason is, these two law professors lost their credibility with me.

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