Akmal Shaikh - A Victim of China's Unfinished Legal Reform

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.

Roundup - 15/12/2009

• The split between China and the US at the Copenhagen summit is continuing to deepen. After reports yesterday that China may be willing to renounce its claim to financial support to implement carbon cuts, Foreign Ministry officials have anonymously commented that this was a misinterpretation of comments made by Vice-Foreign Minister He Yafei. However, Chinese academics and western analysts have suggested that China may agree to a transfer of funding from China to poorer countries as part of a deal.
  
  The US meanwhile is concentrating on finding a way to monitor China's progress on carbon intensity cuts. China is insisting that it can monitor itself, saying that Chinese law provides a guarantee that its promises will be kept. The US and other western powers want independent monitoring.
  
  The conference was further hampered by a five-hour walkout led by several African delegations. They refused to come back to the negotiating table until it was agreed that the continuation of the Kyoto treaty would be discussed. The G77+China favours Kyoto because it contains the principle of differentiated responsibility, thereby placing most of the burden of combating climate change on the developed world.
  
  There is now only two days of negotiations before world leaders arrive in Copenhagen for an intense final round of negotiations.
  
  
  
• Vice-President Xi Jinping has begun a tour of four Asian countries by visiting Japan. In a meeting with Prime Minister Yukio Hatoyama Xi said that he supported Hatoyama's concept of an East Asian Community and welcomed Hatoyama's comments that Japan should face up to its past.
  
  The visit was marred slightly by irregularities surrounding a meeting between Xi Jinping and Emperor Akihito. Meetings are traditionally scheduled at least a month in advance but the Chinese request for a meeting arrived only on Nov. 26^th. Much of the Japanese media has condemned this irregularity saying that the Prime Minister is using the Emperor for political purposes. However, many analysts point out that Xi Jinping's visit is important given Japan's strengthening economic ties with China and Xi Jinping's possible future succession to the role of President.
  
  
  
• Calls to release the dissident Liu Xiaobo have sent to China from the US and the EU. Liu was a founding signatory of Charter '08, a document which called for political reform. He has been detained for a year and last week was charged with inciting the subversion of state power, he now faces up to 15 years in prison. As well as international support liu has been supported by his fellow signatories. In an article on news.boxun.com, many signatories wrote that they were as guilty as he was and that they would be willing to accept punishment by his side.
  
  Meanwhile, US Secretary of State Hilary Clinton has emphasised 'principled pragmatism' in a speech to students in Georgetown University. She pointed out that coercion and isolation are not the only tools for promoting democratic reform.
  
  
  
• Railway police in Shanghai have arrested 47 child traffickers and rescued 21 children in a month-long crackdown. Most of the babies were kidnapped from poor families in Yunnan to be sold to wealthy but childless families in Jiangsu and Shandong. It is unknown whether any of the babies were to sold in Shanghai. The Ministry of Public Security has said that it is setting up a DNA database in an attempt to reunite kidnapped children with their families.
  
  
  
• The trial of a Chongqing mafia boss has been delayed after he implicated his own defence lawyer. Gong Gangmo, billionaire and suspected gang leader, is believed to have handed over his defense lawyer, Li Zhuang, in an attempt to earn lenient treatment. Gong says his lawyer advised him to lie to the courts about allegedly being tortured while in police custody. Several suspected gangsters have made similar claims. An arrest warrant has been issued for Li Zhuang.
  
  Meanwhile Yue Cun, a Chongqing local police chief, is on trial for leading another gang. 15 guns, 16 cars, 13 properties and 52 million RMB have been seized. Yue Cun began gathering decommissioned soldiers to work as security guards for his cinema in the late 1990s. The gang then moved into loan-sharking and blackmail, even using high-tech equipment to spy on government officials. The gang is thought to be responsible for at least three murders.
  
  
  
• Construction has begun on the Hong Kong-Zhuhai-Macao bridge. The bridge will be 50 km long, 36km of which will be over water. The six-lane motorway is designed to increase the flow of traffic between mainland China, Hong Kong and Macao.
  
  
  
• A survey of China's historical sites has revealed enormous losses in China's cultural heritage. A nationwide survey of China's cultural sites has never been completed but the latest attempt has already revealed that a 1982 attempt contained over 30,000 sites which no longer exist. This is partly due to new methods of counting but mostly due to China's rampant development over the last twenty years. The sites lost include entire town centres such as Dinghai in Zhejiang and parts of the Great Wall in Mongolia.
  

Roundup - 14/12/2009

• Negotiations are continuing at the climate change summit in Copenhagen. Delegates are trying to finalize a draft document to show visiting leaders during the intensive two-day negotiations at the end of the week.
  
  However, some countries fear that developed countries are delaying the draft document so that they can introduce new elements once the intensive negotiations, which tend to favour powerful countries, begin. Chinese negotiator, Su Wei, said that he hopes the only thing left to discuss by the time Premier Wen Jiabao arrives will be 'how to pronounce Copenhagen.' A number of African countries have suggested that their heads of state would refuse to take part in negotiations unless significant progress was made by Wednesday evening.
  
  In the mean time Wen has been busy phoning other heads of state in an attempt to coordinate a position when leaders arrive on Wednesday and Thursday. China is still pushing for further concessions from western states, including a major increase in European emission cuts.
  
  In an interview with the Financial Times, Chinese negotiators suggested that China would no longer be asking for funding from the developed world and that funding should be directed towards poorer nations. This comes after a major row last week between the Chines negotiator Su Wei and US negotiator Todd Stern over whether money would be provided by the US and particularly if any would go to China. There is some speculation that China is worried that it will be blamed if negotiations do not lead to a deal.
  
  
  
• President Hu Jintao has opened a section of a new gas pipeline in Turkmenistan. The pipeline is to carry gas from Uzbekistan through Kazakhstan into China. It is an important sign of China's growing influence in the area, previously Turkmenistan was entirely reliant on Russia to sell its gas. A failure to renegotiate a deal with Russia since April is costing Turkmenistan around $1 billion a month.
  
  Meanwhile, Kazakhstan's President Nazarbayev has said that Khazakstan has benefited from China's handling of security issues in Xinjiang. He also said he wanted to see further cooperation within the framework of the Shanghai Cooperation Organization.
  
  
  
• As the first Sino-American Dialogue on Rule of Law and Human Rights ended on Sunday a number of related stories were in the press.
  
  Zhang Xi, previously the chief editor of the influential liberal paper Southern Weekend has been demoted. It is believed that the demotion came after pressure from the propaganda authorities because of the papers interview with Barack Obama. The interview was authorised by the Foreign Ministry but it is known that propaganda officials were not pleased and tried to control its publishing.
  
  Liu Xiaobo is awaiting trial after being indited for inciting subversion of state power at the end of last week. He was detained a year ago after taking part in the writing and publishing of Charter '08, a document which called for wide-ranging political reform which atttracted thousands of signatures before it was censored. He faces a possible jail term of 15 years.
  
  Meanwhile, China Daily, reports on a suspicious death in custody in Kunming, Yunnan. According to the report, Xing Kun, 29, was arrested for theft. Police say they then found him hanging in an interrogation room. However, the death occurred in a cctv black-spot and no noose was produced in evidence.
  
  The article also lists three other cases of suspicious deaths in detention which occurred earlier in the year.
  
  
  
• A woman in Guizhou has been executed for her role in a child-prostitution ring. Zhao Qingmei was convicted of forcing 22 schoolchildren and one older girl into prostitution and of aiding her husband in the rape of a child. Her husband received a death sentence with 2 years reprieve. This sentence is normally commuted to life imprisonment.
  
  
  
• A report by law firm Eversheds has suggested that London could lose out to Shanghai as the world second largest financial centre within a decade. New York will remain the most important centre but the impact of the credit crunch and China's economic development mean that Europe is facing accelerated competition from Chinese markets. The report points out that 90% of bosses in Shanghai are confident in their economic outlook compared to only 22% in London.
  
  
  
• Cai Zhiqiang, who resigned from the Shanghai Municipal People's Congress earlier this month, is being investigated for corruption. It is alleged that he took bribes when working as the head of human resources department under the Personnel Bureau of Shanghai.
  
  
  
  
  
  

Roundup - 07/12/2009

• Delegations from around the world are meeting in Copenhagen for the climate summit this week. The Chinese media largely avoids discussing the treats that China faces from climate change. Reports are also consistent with their negotiating position that it is largely up to the West to deal with the problems they have caused. In cloned articles in the People's Daily and China Daily the US is criticised for announcing its emissions cuts too late, Japan for not stating how its cuts would be achieved, Russia for announcing cuts that were not actually cuts at all, and Canada for announcing what amounted to only a 2% cut on 1990 levels. Meanwhile Brazil, India, and, of course, China are praised for their independent actions to curb greenhouse gas emissions.
  
  The Chinese press is also boosting China's green image by announcing China's first electric-only powered vehicle and publishing articles on a 'Green Bank' project in Guizhou which aims to turn environmental assets into a source of profit for the local community.
  
  Meanwhile, in Copenhagen, Minister for Science and Technology Wan Gang has stated in an interview that China's carbon emissions will peak at some time between 2030 and 2040.
  
  
  
• The opposition Democratic Progressive Party has gained ground in local elections in Taiwan. There are now fears in the Nationalist Party that current President Ma Yingjiu, if current voting trends continue, will have difficulty winning reelection in 2012. While a slow reaction to Typhoon Morakot and the economic slump were major issues, President Ma's relationship with the mainland is believed to have been the biggest factor. The president has tried to forge closer economic ties with the People's Republic and to reduced military tensions. However, with fewer and fewer Taiwanese having any direct link to the mainland, the pro-independence DPP is winning popular support.
  
  
  
• Key Chinese leaders have stated at the Central Economic Work Conference that China will continue its current economic policies until the end of the current 11^th five-year plan in 2010. The policies, designed to counteract the global recession, will remain in place while experts monitor China's recovering exports, industrial output, and domestic consumer demand. Leaders expressed hope that these policies would allow for a solid economic basis to begin the 12^th five-year plan.
  
  
  
• Zheng Dajing, a Chinese activist who has spoken out against China's black jails, was detained on Friday. He and several other activists were held after planning protests to mark China's 'Legal Publicity Day.' Zheng, speaking to The Associated Press on Saturday through locked metal door in an alleyway in Beijing said he did not know when he would be able to leave. China has often denied the existence of a system of illegal jails meant to discourage petitioners from coming to Beijing. However, last month, the state-run Outlook magazine run a feature on the prison system detailing 73 prisons.
  
  
  
• Chinese regulators have announced that they have shut down hundreds of video-sharing sights in a new drive to control online content. 414 sites including the popular BTChina and Uubird sites have been ordered to close or to stop showing audio and video content.
  
  Meanwhile, a new reward scheme for reporting pornography has led to a surge in calls to the China Internet Illegal Information Reporting Centre. The rewards range from 1000 to 10,000 RMB and will be decided by a special committee.
  
  
  
  

Roundup - 27/11/2009

• China's announcement that it will cut its carbon intensity by 40-45% by 2020 is still making news. Opinion is still divided on the announcement. Some disappointed that they did not go further, others impressed that they went so far. While the Chinese media is predictably positive about the cuts, the rest of the worlds media is divided, the International Herald Tribune and the Independent (UK) for example hold a fairly positive view while the Guardian (UK) and Al Jazeera English are more cynical.
  
  China has attempted to bolster its claims by releasing a declaration of commitment by the Political Bureau of the Central Committee which is led by President Hu Jintao.
  
  Meanwhile Isabel Hilton writes an interesting article in the Guardian(UK) about China's attempts to secure patents for green technology. She suggests that while China's commitment to international climate change deals may lack enthusiasm it does understand that newer, greener technologies are necessary for both combating climate change and developing the Chinese economy.
  
  
• An accident at a coal mine in Guizhou has left nine dead and one missing. While most global media is reporting this as an explosion Xinhua and other Chinese media are reporting it as a gas leak. 162 people escaped of whom three are being treated for minor injuries.
  
  The accident follows the catastrophic blast last Saturday at a coal mine in Heilongjiang which killed 108 miners. China's coal industry is the most dangerous in the world. 1,175 lives were lost in the first six months of this year although this does represent a drop of 18.4% on the previous year.
  
  
• Chinese media is carrying reports on China's lunar mission. The Chang'e 2 lunar probe will be sent into orbit around the moon in October 2010 as part of China's plans to send a probe to the moon by 2013.
  
  Chang'e 1 was heralded as a national success story when it was launched in 2007, even being praised in song during the following new year celebrations.
  
  
• Two Child traffickers were executed yesterday morning. Hu Minghua, 55, and Su Binde, 27, were convicted of abducting and trafficking 15 children between them as well as of other charges including theft and posession of heroin.
  
  Child trafficking is a growing problem in China where a preference for boys over girls, restrictions on childbirth, a large number of unmarried men and a rise in organised crime all contribute to make children a lucrative commodity. The government has stepped up efforts to combat the trade in recent years. They claim to have rescued around 2,000 children this year and have set up a website so that parents can identify and claim their missing children. According to Xinhua 1,714 people were punished for abducting and trafficking children in the first ten months of this year.
  
  
• Andrew Jacobs at the International Herald Tribune reports on an article published in the state-run magazine Outlook (瞭望Liaowang) about China's secret prisons. The report details a system of 'black jails' used to deter petitioners from bringing their complaints to Beijing.
  
  The article claims that at peak times as many as 10,000 retrievers roam the capital searching for petitioners to place in one of 73 secret prisons. The article also points out that it is turning into a 'chain of gray industry' as the whole affair can be quite lucrative.
  
  Although the right to petition to central government is enshrined in the constitution, it reflects badly on the local governments that are being reported on. It is these local governments who run many of the prisons.
  
  A Human Rights Watch report recently prompted the Foreign Ministry to deny the existence of black jails in China. Due to the officially backed nature of Outlook, some hope that the publication of this article is a sign of changing opinions within China's leadership as to the validity of these prisons.
  
  
• 6 in 10 Taiwanese oppose the Economic Cooperation Framework Agreement with China according to a poll by National Taiwan University. The trade treaty, supported by President Ma Yingjiu, is designed to improve trade and create jobs. However, popular feeling is running against China and this has been used by the opposition Democratic Progressive Party which claims that the agreement will reduce Taiwan to the status of a local government in future negotiations with China.
  

Roundup - 25/11/2009

• The Chinese press is reporting a statement by Vice-Foreign Minister Zhang Zhijun that greater flexibility may be introduced in the Renminbi's exchange rate. China has already made the exchange rate slightly more flexible after the recession and the People's Bank of China said it was in the process of reforming the exchange rate system a month ago but there is still strong international pressure for further reform.
  
  The statement is in part aimed at the European Union. The 12^th China-EU Summit is due to be held in Nanjing next week and exchange rate reform is expected to be the central issue alongside trade and climate-change. EU Central Bank President Jean-Claude Trichet, Luxembourg Prime Minister Lean-Claude Juncker and Joaquin Almunia, EU Commissioner for Economic and Monetary Affairs will hold talks on the issue with Premier Wen Jiabao and central bank officials the day before the summit.
  

• 'Fog' has delayed at least 280 flights in and out of Beijing today. The 'fog,' often a term used instead of pollution, followed several days of hazardous pollution levels reported by the US embassy's Twittered air quality index.
  

• Xinhua reports a statement by Li Gao from the National Development and Reform Commission and a key negotiator at the upcoming Copenhagen summit. He says that China will make a 'constructive contribution and 'will not accept that it ends with an empty and so-called political declaration.' The statement follows US President Obama's attempts to dispel widespread pessimism surrounding the summit.
  

• The BBC reports that web browser Opera has closed a loophole allowing users in China to access government banned websites. Users were asked to upgrade to a Chinese version at the weekend to find that the new version does not allow access to sites such as Facebook. The BBC reports that Opera was not prepared to discuss the 'background for this decision.'
  

• Xinhua reports that three Chinese policemen have been jailed for torturing a student to death to extract a confession. Xu Gengrong was questioned over the death of a female student in Shaanxi and died on the 8^th of March shortly after 'suddenly falling ill.' The police, including a county-level police chief, were jailed for between 1 and 2 and a half years for charges including criminal abuse of power and using torture to extract a confession.
  

• The People's Daily carries an article on Hu Jintao's elaboration of his Theory of Profound Changes. Stating that the time we live in is full of 'opportunities and challenges' he highlights the importance of science and technology, newly-emerging industries and the knowledge economy for China's future. This seems to be a way of countering the current relationships of power; 'strong north and weak south, strong west and weak east.'
  
  He also points to the issue of global security and make a veiled comment on the US presence in Central Asia, 'certain hot issues can not get resolved for a long time.'
  
  
  

Roundup - 24/11/2009

• All outlets are reporting on the executions of Zhang Yujun and Geng Jinping over their involvement in the the tainted milk scandal that hit the news last year.
  
  Zhang Yujun was found guilty of endangering public safety for selling 770 tonnes of milk laced with melamine between July 2007 and August 2008. Geng Jinping was convicted of selling the milk to the now-bankrupt Sanlu Group.
  
  Six children died from drinking the milk and more than 300,000 were made ill.
  
  
  
• The jail sentence given to Huang Qi is also a widespread story outside of mainland China. Huang Qi gave advice to the families of five children who died in the Sichuan Earthquake in 2008. The family members wanted to bring a court case against the government over the shoddy construction of school buildings which contributed to the deaths of their children.
  
  Huang Qi was sentenced to three years in prison for illegally holding state secrets although no details were given about the charge.
  
  
  
  
• The Straits Times reports that China is backing its writers in a complaint against Google. They accuse Google of copying the work of Chinese writers without permission. Wang Ziqiang, a director-general of China's National Copyright Administration said, “I personally think Google is involved in copyright infringement, we support Chinese writers, the China Written Works Copyright Society and the Chinese Writers Association to defend their rights based on law and facts.”
  
  The copyright society claims at least 17,922 books by 570 Chinese authors have been added to Google Books.
  
  
  
• According to China Daily, Health Minister Chen Zhu announced that by the end of this year there will be an estimated 740,000 people living with HIV on the mainland. This seems out of sink with an number of external reports, notably one by the US National Intelligence Council which predicted that the number of HIV positive people in China could rise to 10 million by 2010.
  
  
  
• China is mourning the loss of esteemed translator Yang Xianyi. A brief obituary will be posted shortly.