Execution of Mr Akmal Shaikh

29 December 2009

NB: I’m not a lawyer, so the bits on the law may be wrong.

China has executed a British citizen, Mr Akmal Shaikh, for drug smuggling, and this is causing some diplomatic tension between the two countries. There has been no dispute regarding the fact that he was found with the incriminating drugs. There is no suggestion that the legal case was politically motivated to have a dig at the UK. The point is not whether China has the right to execute people or not as such (though the UK, along with other European states, does call in general for the end of the death penalty), or whether its justice system is corrupt or not, but whether Mr Shaikh’s mental conditions were given due consideration in establishing his guilt.

For someone to be found guilty of a crime, the principle in Common Law countries, such as Britain, is summarized as actus non facit reum nisi mens sit rea (the act does not make a person guilty unless the mind be also guilty). Insane people can kill other people without reason and without understanding what they are doing, but when it’s ascertained that they killed other people, they are not sent to jail but to hospitals. In this case, the question therefore is whether Mr Shaikh knew or understood what he was doing was wrong and criminal. According to many sources, such as mental health charities, there are serious doubts as to whether Mr Shaikh had the faculties to understand what was happening to him, and what he was doing.

China’s justice system seems to have considered the matter, and decided that Mr Shaikh was mentally fit. In other words, Mr Shaikh knew what he was doing, and that it was something bad. It went through different courts, and the highest criminal court of the land did not see evidence to overturn the death penalty.

China has had a strong, strict systems of law in the past. There is a long tradition of legalism (法家) dating back from around 4th century BC, which established a kind of the dictatorship of the law. The most famous is Shang Yang (商鞅), who codified the law and regulated the people’s lives very tightly. He made enemies, and later tried to flee the country, only to be refused lodging by an inn-keeper because Shang Yang did not carry a passport – a law that he himself had made. He was executed according to the system he built up. His dictatorship of the law made Qin () strong, and is often cited as a reason for its successful (re-)unification of the Chinese lands under Qin Shi Huang (秦始皇). While Confucianism may be better known, legalism has had influence over subsequent Chinese culture and governance.

Clemency fits in uneasily with the crime, tradition and context, and I feel the British government handled this case pretty badly by calling for clemency in public. Judiciary has to be (seen) independent from political influence. Chinese public opinion wouldn’t tolerate the situation, if the judiciary were (seen to be) influenced by the powers to be. There have been many reports of riots and protests against corrupt officials and police, and the government must be seen to do justice, rough and bloody they may be. Outsiders will also point out that meddling into the functions of the judiciary by government officials is not a good thing.

Any decision to pardon or grant clemency becomes a political matter in China, as it would do, for example, in the US, because the decisions are made by the government or the president who are political figures as well as heads of state. If there were a monarch who is constitutionally or usually above politics but has the right to pardon someone, then the decision can be de-politicized. This has happened in the past in Thailand. The Thai king has pardoned or granted clemency to a number of foreign nationals. Even if the decision might have been taken by the politicians, the act of pardon or clemency can be prestend as something out of goodness of the monarch’s heart. It doesn’t pose awkward questions such as whether this act of pardon constitutes a precedent for similar cases.

By making an attempt to avoid the death penaly for Mr Shaikh public, the British government made it far more difficult for the Chinese government to back down. To back down would have meant a loss of face. China is now an undisputed super-power, but it is yet to find that position natural or comfortable. China is still quite prickly, and a little unsecure, about how others see it. Criticized for its records on human rights, China dislikes any intervention into domestic affairs. Therefore a posture of strength is required, to convince itself of its power, to demonstrate the power to the people and to other states. I’m not saying that the UK government would have secured clemency, had it negotiated behind the scene, but I speculate (somewhat idly) that it would have had a better chance had it had done so.

I personally oppose the death penalty. The simplest reason I can give is that I don’t think the state (or ‘the people’) should have the right to kill someone, even if that person had committed heinous crime. But that’s a personal opinion, and I know others have different views, and I accept countries have the right to determine what punishment befits the crime.

This case is a difficult one, since I’m not privy to the evidence or procedure. It is a clash, or a misunderstanding, of different cultures and systems. As China opens up more, there will be more cases where we realize that there are many different views and values on this planet.