The execution of Akmal Shaikh today saw the conclusion of a case which provides a clear example of the transitional state of China's legal system. Chinese political reforms have progressed rapidly over the last two decades, from a system where cases were decided purely on political grounds with little written guidance on sentencing, China now has a written and ratified codex of laws which provide, in theory, for both the prosecution of crimes and the rights of the defendant. Why then has China's legal system failed to protect the rights of a vulnerable and confused man?
China insists that the case of Akmal Shaikh was conducted according to Chinese law and indeed it seems that it was. The law is very clear that anyone convicted of smuggling large quantities of drugs can be sentenced to death. Chinese law provided for a lesser sentence being given in cases involving mental illness. Article 18 of China's Criminal Law (中华人民共和国刑法第十八条) states that a mentally ill person who commits a crime when he has 'not yet completely lost his ability to recognize or control his own conduct shall bear criminal responsibility but he may be given a lesser or a mitigated punishment.' However, there is no compulsion to reduce the sentence.
Normally this would provide the defense with an opportunity to request medical evidence to be considered when passing sentence. However, in the case of Akmal Shaikh reports suggest that he denied that he was suffering from mental illness during his trial. It seems that this was enough for the judge to ignore any medical evidence submitted.
It is this moment of the trial that shows the key problem with China's legal system. It is the judge's responsibility to ensure that the trial is fair and that both the prosecution and the defense have their chance to put forward whatever evidence is relevant to the case. At the crucial moment Akmal Shaikh, stressed, facing the death penalty, suffering from bipolar disorder and with dubious translation services at his disposal, and in a trial which lasted only 30 minutes denies his mental illness, almost certainly without understanding the consequences of his action. A rational judge whose responsibility was to the fairness of the trial must surely consider that a statement of that nature was not a sound basis on which to sentence a man to death. But where does the responsibility of Chinese judges lie? They are not independent, they are part of the state, they are also part of the Communist Party. Their roles are political as well as judicial.
The message that can be taken from this case is that it does not matter how good China's laws are, there will always be cases of injustice as long as China's judiciary is not independent. It is the the creation of a judiciary whose sole responsibility is the administration of justice that will mark the real change in China's legal system.
Fascinating commentary. Would the lesser sentence have been life imprisonment? Also, out of curiosity, is it true that the Chinese bill families for the bullet used in executing a prisoner, and if so do they charge the families of foreigners who are executed? Do they accept Visa or is it cash only, I wonder...
ReplyDeleteCommon lesser sentences are life imprisonment or death with two years reprieve which is then commuted to life imprisonment. China used to bill the family the price of the bullet but this is no longer the case. In fact China is fazing out execution by gunshot in favour of lethal injections which was the method used in this case.
ReplyDeleteMany Chinese reports seemed to consider it quite quaint that the state didn't execute criminals in the UK.
When Liaoning province became the first province to completely give up execution by gun shot last month Xinhua reported it as 'a symbol of democracy and civilisation as it is the last form of respect for human life.' Perhaps not quite as respectful as, say, not killing people but I suppose it is progress of a kind.