Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

A Member of the Law Professor Blogs Network

Saturday, January 2, 2010

The Deng Yujiao case: a follow-up report

Here's a fascinating follow-up report on the Deng Yujiao case from the Southern Metropolis Daily (南方都市报) [Chinese | English]. It shows, among other things, the essential seamlessness between the worlds of law and politics and between the state and the Party. It also demonstrates why I disagree with attempts to distinguish between "political" or "sensitive" cases on the one hand and other kinds of cases on the other, with the further claim that we can have much more confidence in the system in the latter type of case. The problem is that this claim becomes true by tautology, because any case in which we see political interference becomes, by definition, a political case, regardless of how it might have started out. Any case, under the right circumstances, can become a political or a sensitive case. The issue, then, is not the abstract one of whether the case involves advocacy of a multi-party system or the Falun Gong, but rather whether channels for interference exist and whether there is something about the case in question that makes it probable that they will be used.

January 2, 2010 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Thursday, December 31, 2009

Top 10 crackdowns of 2009

Here's the list (in English) from the China Daily.

December 31, 2009 in Commentary | Permalink | Comments (0) | TrackBack (0)

Life imitates art: cruel murders in coal mines

This is the kind of thing that makes it hard to maintain a principled opposition to the death penalty.

Chinese police have arrested nine people suspected of trafficking mentally disabled people from Leibo County in southwest China' Sichuan Province to other areas and then murdering them in coal mines to blackmail the mine owners, police said Wednesday.

The rest of the story is here.

If you follow Chinese cinema, you'll think right away of Li Yang's (李杨) excellent movie Blind Shaft (盲井). Here's the Wikipedia plot summary:

Song Jinming (played by Li Yixiang) and Tang Zhaoyang (Wang Shuangbao) are professional con artists, running an intricate scam they have perfected through repeated practice. They find a naive young man looking for work, and convince him that they have arranged three lucrative coal mining jobs for themselves and a relative. The relative has not arrived in time, leaving a gap which they generously offer to the victim, on the condition that he pretend to be the missing relative. After a few days of working in the mine, they murder the victim, and by making the murder look like an accident, they use his death to extort compensation money from the mine's management.

December 31, 2009 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

The Guardian on Akmal Shaikh's mental condition

Was Akmal Shaikh's mental condition such as to warrant decreased or even no culpability? We will never know for sure. The legal system that just executed him seemed uninterested in the question; the courts refused to order, or allow, a psychiatric evaluation. (This is not, of course, to say that psychiatry is infallible.) Was there a prima facie case to be made that Shaikh had serious mental problems that warranted further investigation? Here the answer is pretty clearly yes. Check out this story from The Guardian.

December 30, 2009 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Verdict in Liu Xiaobo case: English translation

Here's an English translation (with Chinese text appended) of the Dec. 25, 2009 verdict against Liu Xiaobo. A couple of interesting points:

1. There are no allegations of anything other than pure speech.

CORRECTION (Dec. 31, 2009): A colleague has pointed out that this is not correct. The verdict states:

Between September and December 2008, the defendant Liu Xiaobo colluded with others to draft and concoct the "Charter 08", that proposed views such as "eliminate the monopoly of one party on the exercise of political power", "to create a Chinese federation under the framework of democratic constitutional system of governance", seeking to incite the overthrow of state power. Liu Xiaobo collected the signatures of over 300 people and sent "Charter 08" together with the signatures in an email to websites outside of the borders of mainland China publish it on websites outside the borders of mainland China such as "Democratic China" and "The Independent Chinese Pen Association".

On the whole, however, I believe the main charges still relate to pure speech.

2. I'm struck by the extent of government fears about Liu's impact despite the apparent lack of interest (as far as the evidence shows) that the wider world showed in Liu's on-line writings. Athough the verdict claims that Liu used the internet in order to take advantage of the wide circulation and broad social impact it could offer, none of the offending articles cited in verdict had been visited more than several hundred times. The most popular got 748 clicks; the least popular got 57 clicks. Not exactly a prairie fire.

Many thanks to the translator, who wishes to remain anonymous.

(Here's an alternate source for the translation.)

December 30, 2009 in Commentary, News - Chinese Law, People and Institutions | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

My China-side blog closed

Blog-closed

As some readers may know, this blog is blocked inside of China. As a workaround, I set up a blog inside the Great Firewall on Sina.com. Such a blog can't be blocked, but the blog host (acting on its own or under direction from the authorities) can of course delete individual entries, and if fed up can delete the whole blog. This has apparently now happened. I'll see if I can get anyone to tell me the specific reason (I'm not optimistic) and report back.

December 29, 2009 in Commentary, News - Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Chinese government rejects foreign pressure, saves national honor

Not wishing to fall below the standard set by Arkansas in the execution of the mentally pathetic (Ricky Ray Rector, who saved the dessert from his last meal "for later"), the Chinese state executed Akmal Shaikh today. (Actually, this beats Arkansas, since Rector was a killer, whereas Shaikh's crime was non-violent.)

December 29, 2009 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

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.

December 27, 2009 in Commentary, News - Chinese Law | Permalink | Comments (6) | TrackBack (0)

China adopts Tort Law

The National People's Congress Standing Committee adopted a tort law on Saturday, Dec. 26th. It comes into effect in July. Here's the full text.

December 27, 2009 in News - Chinese Law | Permalink | Comments (0) | TrackBack (0)