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Sunday, December 27, 2009

Jerome Cohen on the Akmal Shaikh case

Akmal Shaikh is a UK citizen sentenced to death in China for drug smuggling. His sentence was recently confirmed by the Supreme People's Court, and he is due to be executed this Tuesday. The problem is that he is pretty clearly mentally ill. (The drugs were apparently in a suitcase given to him by others to take to China; he was told they were going to make him a pop star there. And there's more, but I don't have space or time to go into it here.) Despite pleas by the British government to take this into account, the Chinese government insists that there is insufficient evidence of his mental illness - possibly because his defense counsel were denied the opportunity to introduce expert evidence on his behalf. As I was getting on a plane in Beijing on Dec. 23rd, I picked up a copy of the nationalistic 环球时报 (Global Times), which saw the UK government's protest as a hypocritical plea for special treatment for foreigners. "西方人不是最强调`法律面前人人平等‘吗?” (Don't the Westerners most emphasize "all are equal before the law"?), asked the reporter (this wasn't even an op-ed piece!) sarcastically. The Global Times insists that "the trial process was extremely careful" (审判过程非常慎重); perhaps this is its way of understanding the fact that when Shaikh insisted on presenting his defense himself on appeal, his rambling and incoherent statement caused the judges to burst into laughter at him. But maybe I'm being unfair; it could be referring to the 30-minute trial at which he was originally convicted.

Apparently China's government feels that national honor depends on executing this pathetic and deluded man. Here's Prof. Jerome Cohen's recent comment on the matter, from the Dec. 23rd issue of the South China Morning Post (reprinted here with permission from Prof. Cohen):

Arbitrary justice
Ignoring its own laws, China is set to execute a Briton with an apparent history of severe mental illness
 
Jerome A. Cohen
Dec 23, 2009     
 
China's Supreme People's Court has just announced a death penalty decision of great importance to the British government and the European Union, as well as Chinese and foreign human-rights advocates. In September 2007, Akmal Shaikh, a British subject of Pakistani descent, was detained at Urumqi airport in Xinjiang on charges of drug smuggling. He was convicted and sentenced to death in October 2008 and now confronts execution next Tuesday.

In a country that executes thousands every year, his case would be unexceptional - were it not for his alleged history of severe mental illness.

Although transparency is lacking in this case, as in so many others on the Chinese mainland, it appears that Central Asian smugglers, manipulating Shaikh's delusional ambitions to become a pop star in China, persuaded him to take in a suitcase containing 4kg of heroin.

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.

According to Schaapveld, Shaikh's condition very likely produced a delusional psychosis that enabled professional drug smugglers to manipulate him to act as their unwitting agent.

In these circumstances, one might have expected the Supreme People's Court to comply with Chinese law and international legal standards by requiring a thorough mental evaluation of Shaikh before rendering a final judgment.

However, in some recent highly publicised capital cases, in which mentally disturbed defendants were charged with heinous offences such as multiple murders, the Supreme People's Court failed to insist on psychological evaluations in accordance with fair procedures. Last year's execution of police-killer Yang Jia is only the most notorious illustration.

Yet, Chinese courts have sometimes met the challenge. Several years ago in Beijing, for example, an American, ultimately diagnosed as a paranoid-schizophrenic, killed his Chinese wife because of the delusion that she was poisoning him. The trial court called for a thorough examination by experts at a local mental hospital.

After careful study, six specialists submitted a report that recognised the severity and relevance of the defendant's mental condition. When the victim's family objected to their conclusion, the court sought a second evaluation by another group of experts. When they rendered a similar opinion, the court reduced what would otherwise have been a death sentence to a prison term of 15 years. Although a verdict of not guilty by reason of insanity might have been warranted, and would have resulted in the defendant's confinement in a facility more likely to offer better treatment than a prison, at least his life was spared.

Sadly, it is now too late for a similar evaluation in Shaikh's case, although British clemency pleas may yet succeed. In any event, the National People's Congress should enact legislation that will confirm detailed procedural protections to guarantee a fair and accurate mental assessment whenever the defence reasonably requests.

Professor Jerome A. Cohen is co-director of NYU School of Law's US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. See also www.usasialaw.org.

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Comments

1. This is not a national honor. At least in theory, the court should adjudicate cases by itself in China. Many Chinese feel it is a shame that a democratic state – the one who planted opium in India and smuggled them to China in history - even forced (or requested) Chinese administration to interfere to the trial in the 21st century.
2. In my own opinion, it’s really absurd that a person with mental illness should be exempted from execution or punishment. Who should be responsible for the victims?
3. It’s absurd to abolish death penalty in the third world counties. A better way might be life imprisonment, but such a punishment is more ridiculous and unreasonable than death penalty. It’s ok in UK, or other Western countries to implement life imprisonment since they have money partly because they oppressed/are oppressing other countries. It will be absurd in China because China does not have so much money to feed such criminals. Many Chinese still don’t have enough food or other basic stuff. It’s a smart and human way to feed those who need food and do not transport drugs or murder someone. Death penalty, at least, can save more poor lives who deserve to be alive.
4. Even if he does have mental illness, he should be executed. China does not welcome drugs.
5. Chinese courts should do better to comply with Chinese law.
6. It’s NOT ok for anyone to violate the law, including Chinese government.

Posted by: Law | Dec 29, 2009 10:41:09 AM

The comment above raises several points that deserve a response.

1. This displays the fallacy of viewing "Britain" and "the British" as a specific entity unchanging over time. A group of people constituting the government of Britain acted aggressively toward China in the 19th century. Why a British citizen of Pakistani origin should suffer as a result in the 21st century is not clear to me. Second, Chinese governments interfere all the time in trials in China. Does the writer imagine that the court in Liu Xiaobo's case, for example, decided the verdict all by itself? This is just how the Chinese legal system works, and everyone knows it. Why should Britain respect a fiction when the Chinese government itself does not?

2. The writer is entitled to his opinion, but Chinese law does not agree with him. Virtually all criminal law systems require a particular type of mental capacity for a conviction.

3. Of course, killing criminals would save imprisonment costs. But killing the terminally ill would save hospitalization costs. Why not kill the terminally ill? Because they don't deserve it, presumably. But this shows that the question is whether someone deserves death, not whether money will be saved. The financial argument can't answer the question of desert.

4. Would the writer execute a 5-year-old child for bringing in a suitcase full of heroin? I hope not. Again, this shows that the question is not whether China welcomes drugs or not. It is a question of the moral culpability of the accused. And criminal law systems the world over recognize that certain states of mind are not morally culpable.

5. This is all that anyone is asking for. Chinese law provides for the possibility of evaluation of the mental state of the accused.

6. This is often true, but surely the content of the law or the procedures by which it was enacted matter. In any case, that's not the issue in this case.

Posted by: Don Clarke | Dec 31, 2009 8:16:45 AM

This is absurd, the independent mental evaluation was denied because neither Shaikh, his family, nor the British government could provide medical history containing diagnosis of bipolar disorder made before his arrest. This criterion is needed in Chinese legal system to prevent fraud - you can't claim to be crazy whenever you feel like. Professor Cohen conveniently disregarded that fact in shaping his opinion.

Up to 2% of world's population suffers from bipolar disorder and it usually onsets at adolescence. How Shaikh survived 30-40 years suffering from bipolar disorder without any records in his medical history means that: a) it is not severe and therefore requires no attention, hence not eligible for reduction of sentence or insanity defense. b) he faked it.

Moreover, bipolar disorder is not an cognitive impairment, it affects mood. Therefore, in Chinese criminal law whether it could be used as insanity defense is still under much debate. According to Chinese legal textbooks (刑法学I Tianjin University) patients suffering mania or depression still holds criminal responsibilities.

Well I guess when it comes to China-bashing, all facts and reason are irrelevant.

Posted by: Kesaer | Jan 5, 2010 11:16:15 PM

I don't believe any of the critical commentators in this case have suggested that the Chinese legal system - or any legal system - should allow people to "claim to be crazy whenever you feel like". That is a straw man. They are suggesting that the courts should have examined the issue, and that there were sufficient prima facie indications of a problem (for example, the judges at his appeal laughed out loud at his absurd self-defense) to warrant this. How many times does this need to be repeated? I guess some people just don't want to hear it.

Incidentally, although the above commenter purports to have thorough knowledge of Shaikh's medical history - I don't know how - he doesn't seem to know that in fact, Shaikh did NOT claim to be crazy. He claimed to be quite sane and objected to the insanity defense. Perhaps the commenter believes this was a clever subterfuge cooked up by Shaikh and his lawyers to reinforce their argument that he was mentally ill.

Posted by: Don Clarke | Jan 8, 2010 12:55:28 PM

I think Don has a very good point. There is a basic inconsistency with the plea where one seeks mitigation because of mental illness which the defendant kicks into touch by unequivocally declaring he is sane. You can't have it both ways: Shaikh claimed to be perfectly sane, and wanted an evaluation to prove that. It seems that his lawyers submitted his request to the court and it was refused, quite within reason.

Having said that, I agree there is a severe problem with due process in China. One major issue is the quality of legal advice and the conflict of interest which lawyers typically face in highly politicised cases. Lawyers typically sanctioned/appointed by the Chinese state are those who can be trusted to work towards a "harmonious society"(in other words, to toe the party line and not rock the boat). THAT is fundamentally where justice fails to be done.

Posted by: Lawrence | Jan 12, 2010 6:35:40 PM

Lawrence, your comment brought to mind the following:

'There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. 'Orr' was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
"That's some catch, that Catch-22," Yossarian observed.
"It's the best there is," Doc Daneeka agreed.'

Posted by: stephen123 | Jan 17, 2010 10:50:02 PM

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