NYU law professor Jerome Cohen, in an opinion piece in the South China Morning Post, laments China's courts' refusal to allow psychiatric evaluation of the defendant in the drug smuggling prosecution of a British citizen, Akmal Shaikh, who is to be executed tomorrow. China's obstinacy in the face of an appeal by British Prime Minister Gordon Brown on behalf of the UK citizen has drawn much criticism.
Cohen observes:
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.
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.
China's leaders continue to affirm their commitment to advancing the rule of law, so I welcome the passage of the tort law which I translated, and welcome the recent vigorous legislative discussion of the State Compensation Law - a means of redress for governmental misconduct.
But China's leaders are equally committed to disappointing those of us who want to see adherence to the norms that we have come to consider elementary. The other day Lu Xiaobo, author of a liberal manifesto, was sentenced to 11 years in prison for incitement of subversion under Art. 105 (2) of the Criminal Code. The judgment was by a court of the first instance and is subject to second instance trial and appeal.
But there is little reason for optimism that liberal advocacy such as Lu's will be tolerated, given the breadth of the statute's prohibitions. Banned are efforts to subvert the socialist system by "publishing, printing, reproducing, disseminating or airing publications", according to an Interpretation by the Supreme Peoples Court. ( 最高人民法院关于审理非法出版物刑事案件具体应用法律若干问题 的解释)."
Similar advocacy was criminalized in America 60 years ago in the Smith Act under which the leaders of the Communist Party were tried and convicted in U.S. v. Dennis. This law was determinedly beaten back by the Communists, their sympathizers, but more consequentially by civil liberties advocates, and, ultimately, the members of the United States Supreme Court who in the Yates case, 354 U.S. 298 (1957) limited prosecution to speech which presented a clear and present danger. Finally, in Brandenburg v. Ohio (1968) the United States Supreme Court limited criminal prosecution to speech "likely" to produce "imminent" lawless action.
The prospects for successful push back against anti-libertarian measures in China is markedly poorer than it was in the United States. The Chinese constitution's rights measures are not guaranteed by a court system that has neither a tradition of autonomy nor of using the Constitution to provide protections not afforded by legislation. That a legislative majority can amend the Constitution of China deprives the courts of a foundation for independent interpretive judgment.
Nor does China have the tradition of the trial as contest that is embedded in the 6th Amendment to our Constitution. The right to counsel, to confrontation of witnesses, to compel favorable testimony are not similarly embedded in Chinese criminal law or practice. It is the lack of the tradition of the trial that perhaps most dramatically divides our criminal justice system from China's. The things that flow from that - autonomous bar organizations and a bar committed to preserving the right and duty of vigorous advocacy - are absent in China. Disappointment is likely our fate - but for us, as observers, it matters little. For citizens of China the consequences are great.
Images: Akmal Shaikh, Gordon Brown, Jerome Cohen
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