30 December 2009

Thoughts in Reaction to the Execution of Akmal Shaikh

Akmal Shaikh, a naturalized British citizen, was executed by lethal injection in Urumchi yesterday after being sentenced to death for the crime of drug smuggling. I wrote about this case before briefly and have thought about it more since then. I offer these thoughts as a sort of summary of my reaction. (I don't know whether it's fully coherent, and I should probably come back and add a few links here and there when I have a bit more time.)

As far as I'm concerned, this case was less about the morality of capital punishment and more about due process. Chinese law provides a mechanism for psychiatric evaluation of mental competence at the time of the crime to be introduced as evidence that could exempt the defendant from punishment or mitigate that punishment. In practice, that mechanism is flawed in many ways, because the court has near total discretion in deciding whether an evaluation is warranted, evaluations are not independent, and the defense has little recourse to challenge the evaluation or submit its own evidence.

There's still a lot about this case I don't know. My understanding, based on some of the Chinese reporting, is that Akmal Shaikh was from the very beginning opposed to any "insanity defense," but that such was at least raised at the insistence of his (court-appointed?) attorney. I also understand that it is that it's often difficult to get the court to consider new evidence after the first-instance verdict has been handed down, which may have contributed to frustrations as the case went on.

Akmal Shaikh's mental state appears to have been the sole point of controversy in the entire trial, a controversy made manifest by the rambling, incoherent testimony he presented at trial that reportedly so amused the judges. Given that the existing procedure is so heavily tilted in favor of the state, I still cannot understand why the court didn't order an evaluation simply to provide itself some cover from that particular controversy.

Though international appeals were often framed in terms of leniency, that only wound up enflaming the (in many ways justifiable) Chinese reactions about hypocrisy, interference in the judicial process, etc. But to have the court order a psychiatric evaluation on a man of questionable sanity facing the law's ultimate sanction is not to ask for leniency or an exception to be granted by virtue of foreign citizenship; it is to ask the court to grant Akmal Shaikh the same procedural protections that a Chinese defendant should have under the same circumstance -- but, to be sure, is also not guaranteed.

The British and European governments may oppose application of the death penalty in principle, in which case the death penalty would be unacceptable regardless of whether the judicial process had been carried out differently. But what makes this case so disturbing (to me, at least) is the refusal to acknowledge the need for visible justice by not one, but three courts.

(There is some ambiguity about whether the Supreme People's Court ever initiated a formal psychiatric evaluation during its review. That was stated in a China Daily article yesterday, attributed to an elderly law professor from Hubei who, as much as I respect him, I don't believe to be intimately familiar with the case. Based upon what I've read in the Chinese press, including the SPC's own statement, it seems more likely that the SPC, like the lower courts, made a judgment based on other evidence—AS's own statements, in particular—that no evaluation was necessary.)

Finally, what may ultimately have been a deciding factor in the case was the possible difference in the understanding about what sorts of psychiatric conditions can qualify for mitigation. I've seen some acknowledgement in the Chinese press that Akmal Shaikh may have suffered from a "personality disorder" but that this not only did not meet the criteria for mitigation but also did not meet the criteria for necessitating a psychiatric evaluation. (This would at least better explain the courts' refusal to order an evaluation.) Something worth investigating (probably by someone other than me) is whether bipolar disorder (the illness Akmal Shaikh is said to have suffered) is recognized in Chinese psychiatric diagnosis and whether there is any precedent for its use in mitigating criminal culpability in China.

16 December 2009

Liu Xiaobo Set for a Christmas Trial?

The other day, someone posted on Twitter that Liu Xiaobo had been informed that his trial for "inciting subversion" would open "next week." I've been trying to find out more information, but so far I've only seen other hints that a trial may be imminent, nothing definite.

According to Article 119(4) of the Supreme People's Court "Interpretation on Several Questions Concerning Implementation of the Criminal Procedure Law of the PRC," the Beijing Number One Intermediate People's Court is required to notify a defendant and his or her defense attorney five days before the trial is set to open and get information about defense witnesses and evidence. If this was the basis for the notification given to Liu Xiaobo, it would suggest that the trial could open as early as Monday, 21 December.

If the case is to be tried in open court, the court is supposed to make a public announcement three days prior, which, if the trial were set for Monday, would mean today. (Anyone in Beijing want to venture over to the courthouse and have a look at the announcement board?)

Of course, it's not clear to me at this point whether Liu's case will be tried in open court or whether authorities will invoke the need to protect state secrets in an effort to keep everyone out of the courtroom. (Even if the trial is nominally open, however, good luck finding a seat in the courtroom that's not already occupied by some off-duty law-enforcement officer or government official.)

Nearly every year in my recent memory, some arrest, conviction, or other incident that would otherwise receive international scrutiny gets carried out during the week between Christmas and New Year's Day, when foreigners' attentions are turned elsewhere. (Hu Jia's arrest in December 2007 is a good example.) Even if Liu's trial opens next week, there's no guarantee that he'll be sentenced by Christmas, though the process appears now to be moving with an alacrity rarely seen in cases against people charged with political crimes in China.

Watch this space . . .