As the Supreme People's Court (SPC) reviews the death sentence to British citizen Akmal Shaikh, there are pleas and even diplomatic representations for the verdict to be rewritten.
The 53-year-old Briton was caught carrying 4 kg of heroin on arrival at Urumqi in the Xinjiang Uygur autonomous region in 2007 and sentenced to death on Oct 29, 2008 in the first instance trial by the city's intermediate people's court. Since all death sentences are now subject to review and approval by the SPC, theoretically, there exists a chance for sparing the life of Shaikh.
To date, no questions have been raised about jurisdiction and measure of punishment. The verdict of the court in Urumqi is flawless on these points.
Under Article 347 of China's Criminal Law, for those guilty of smuggling, trafficking in, or transporting heroin, the threshold for a death sentence is 50 grams. Shaikh brought with him 80 times that quantity. There is no legal ground available for a lesser sentence, unless the law stipulates otherwise because of his specific circumstances.
Our Criminal Law is applicable to anyone who commits a crime in China. And there is no clause exempting someone like Shaikh from punishment. His only hope then lies in his being confirmed mentally incompetent.
According to Article 18 of the Criminal Law, a mental patient can have his or her criminal responsibility exempted only when the crime was committed when he or she had no control of his or her conduct. Even if his or her mental illness is of an intermittent nature, he or she shall bear criminal responsibility if a crime was committed when he or she is in a normal mental state.
Yet we have heard contradictory accounts about his mental state - his family and sympathizers portraying him as not of sound mind, while the plaintiff reportedly ruled out the possibility of himself or his family having a history of mental disorder. That the court delivered the death sentence indicates it had no doubt about the plaintiff's state of mind. The counterclaim, on the other hand, lacks the support of evidence to make the justices believe.
The possibility of a medical examination should not be excluded completely at this point. For that to happen, however, the SPC justices reviewing the case have to believe Shaikh's mental state needs re-evaluation. Unless backed up by solid medical evidence, that chance appears slim.
That the SPC committed itself to reviewing all death sentences delivered by local courts is a result of concern about potential abuses and the idea to limit the use of capital punishment. The SPC's recent record in that regard gives us confidence in its prudence in approving such verdicts.
Whatever the SPC does, it should be the way the Shaikh case should be construed under Chinese law.
(China Daily 10/15/2009 page8)