V. THE LEGAL CONTEXT
Legal Norms and Judicial Process
In an article published in 1974 in the British Medical Journal summarizing his findings from a recent study visit to Soviet psychiatric hospitals, the British psychiatrist J.K. Wing expressed with neat precision the unusual ethical dilemma he encountered in evaluating his Soviet colleagues' handling of cases of political offenders alleged to be mentally ill. After discussing two other problematic issues that arose,129 Wing wrote,
The third conceptual problem concerns [legal] "responsibility." This is the most difficult one for the British psychiatrist to comment on since it means trying to answer a ludicrous non-question: should a person who is not severely mentally ill by our standards be regarded as responsible for an action which we would not regard as a crime?130
The same central issue hovers disquietingly over any discussion of the formal legislative and procedural aspects of the ways in which "political lunacy" cases are handled in the Chinese forensic psychiatric context. The range of cases falling within the system's scope and purview is much wider, of course, than this one specific category, and it seems reasonable to assume that the great majority of cases dealt with under the system involve the commission of genuine and serious offenses (such as murder, rape and arson) by mentally ill people. The following descriptive account thus has a general applicability, and critical observations are directed toward the significant minority of cases where the system claims and applies jurisdiction over people, such as peaceful dissidents, sane or otherwise, who have not committed any internationally recognized criminal offense.
Until 1979, the main judicial yardstick in this field was a brief directive issued by the Supreme People's Court in 1956, according to which persons found to have been mentally ill at the time of committing criminal offenses were not to be held legally responsible for their actions.131 The mental state of the defendant was to be ascertained by "the relevant medical departments" and through interviews with the person's neighbors.132 In 1979, the first Criminal Law of the PRC codified this longstanding policy, although in somewhat simpler terms than before.133 Then in March 1997, an extensively revised version of the Criminal Law was promulgated which significantly amended the previous provisions in this area:
Article 18. If a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family members or guardian shall be ordered to keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment.
Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.
If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.
Any intoxicated person who commits a crime shall bear criminal responsibility.134
The main changes were as follows. First, "expert forensic evaluation" must now be performed in order to ascertain whether or not a defendant was mentally ill at the time of committing an offense. Except during the Cultural Revolution, in practice this was hitherto also generally the case, but the statutory inclusion of a forensic-psychiatric appraisal procedure is still important. Second, the new law stipulated for the first time that mentally ill defendants may be ordered by the government to undergo "compulsory medical treatment." While not specifically mentioned, involuntary committal is certainly among the intended range of available legal options. Again, this merely codifies a longstanding police prerogative, but the new law's mention of compulsory medical treatment has particular significance in light of the Chinese government's post-1987 program for creating a nationwide network of Ankang institutions. Finally, whereas previously a judgment of either full legal responsibility or total absence of such responsibility had to be officially rendered when evaluating a defendant's mental state, the intermediate option of "limited legal responsibility" (xianding zeren nengli) can now be adopted; while this too was frequently done in the past, it is now fully lawful. Significantly, the lack of such an intermediate option in the legal code of the former Soviet Union was a frequent target of criticism from the dissident community there.
The legislative basis for conducting "expert evaluations" had been formally laid down in March 1996 in a revised version of the Criminal Procedure Law of the PRC. According to Article 119 of that law, "When certain special problems relating to a case need to be solved in order to clarify the circumstances of the case, experts shall be assigned or invited to give their evaluations." Article 120 of the same law added, "If an expert intentionally makes a false verification, he shall assume legal responsibility." And Article 121 continued: "The investigation organ shall notify the criminal suspect and the victim of the conclusion of the expert verification which will be used as evidence in his case. A supplementary expert verification or another expert verification may be conducted upon application submitted by the criminal suspect or the victim." An especially problematic area where criminal defendants suspected of mental illness are concerned relates to the lawful time limits on pretrial detention. According to Article 9 of the government's 1984 "Supplementary Provisions" on this question, all time limits on detention specified in the 1979 Criminal Law could be dispensed with during the period that a criminal defendant was being held in custody for forensic-psychiatric appraisal,135 and Article 122 of the revised Criminal Procedure Law proceeded to formalize this dubious legal practice: "The period during which a criminal suspect is undergoing appraisal for mental disorder shall not be included in the calculation of time limits for handling the case."136
Separately, the police are accorded wide legal powers to detain and hospitalize alleged offenders who are suspected of being mentally ill. According to Article 14 of the 1995 Law of the People's Police of the PRC,
The people's policemen of public security organs may take protective measures to restrain a mentally ill person who seriously endangers public security or other people's personal safety. If it is necessary to send the patient to a designated institution or place for guardianship, the matter shall be reported for approval to the public security organ of a people's government at or above the county level, and his or her guardian shall be notified without delay.
This law does not require the police to arrange either prior or subsequent forensic psychiatric assessment of persons whom they decide to send to a "designated institution," which in practice may be either an Ankang custodial facility or, in the case of lesser offenses, the secure ward of a regular mental hospital; they merely have to report the matter to a superior police authority.137 The police may choose, at their discretion, to send the detainee for forensic psychiatric examination; and in cases where the alleged offense was a serious one, the procuracy, the prosecuting authority, would no doubt require that such an examination be carried out and a subsequent finding made of non-imputability by reason of mental illness as a precondition for agreeing to suspend criminal proceedings against the person. However, Chinese law remains highly vague in this general area, and in practice offenders suspected of being mentally ill may end up being first committed by the police, and then left in prolonged custodial limbo while other authorities decide if and when an expert evaluation of their mental state is needed. In most criminal cases, the authority of the courts is circumvented at an early stage, since either the police or the procuracy normally suspend criminal justice proceedings once a forensic finding of non-imputability has been made. The latter authorities then decide, on the basis of their assessment of the "degree of dangerousness" of the offense in question, whether or not custodial care is required.
Moreover, since China broadly follows the "commensurability principle" of forensic psychiatric practice, whereby an offender deemed to be legally non-imputable by reason of insanity for a given crime is generally held in secure psychiatric custody for at least as long as the period of penal incarceration to which they would have been sentenced if ascertained to have been sane at the time of committing the offense, the authorities' inclusion of certain types of peaceful political prisoners (alongside psychotic murderers and the like) among the "most serious and dangerous" category of alleged mentally ill offenders means that such people can end up being psychiatrically detained on an indefinite or even permanent basis.
The question of the civil rights entitlements and "capacity for civil action" of mentally ill people in China is dealt with in various provisions of the 1987 General Principles of the Civil Law of the PRC. For example, Article 13 states: "A mentally ill person who is unable to recognize his own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his agent ad litem." It continues by saying that those "unable to fully recognize" their own conduct shall be regarded as having "limited capacity" for civil conduct and may engage in "civil activities appropriate" to their state of mental health. In other articles, issues relating to the guardianship of mentally ill people are addressed. The General Principles do not, however, contain any provisions on such important matters as the legal procedures and criteria for the compulsory hospitalization and treatment of the mentally ill. In particular, there appears to be little, if any, in the way of legislative interconnect or cross-over between, on the one hand, the handling of mentally ill offenders under the Criminal Law and, on the other, the broader issue of their civil rights entitlement as laid down in the General Principles.138 Whatever may be the situation of those subjected to civil psychiatric committal in China,139 it is clear from the relevant official literature that criminal detainees found not legally responsible by reason of insanity may also, by virtue of this finding, lose most if not all of their civil rights.140
In 1985, a prominent authority in the field of legal psychiatry, Wu Jiasheng, acknowledged the urgent need for China to take legislative action in this area:
Legislation to protect and safeguard society in the area of mental illness should be promptly formulated. The most pressing problems are those concerning compulsory custodial treatment; at present, there are no clear guidelines on the applicable scope of such treatment, on the means by which it should be carried out, the types and methods of treatment, the time limits on detention, or the rights of the mental patient. From the viewpoint of building a healthy and complete socialist legal system, it is essential that we formulate relevant laws and regulations soon.141
The same year, the Chinese government began preparing to enact comprehensive national legislation on the treatment of the mentally ill, and since then, ten different draft versions of a "Mental Health Law of the PRC" have been produced and widely circulated among psychiatric professionals around the country; the World Health Organization has also provided input on the draft law.142 The question of involuntary psychiatric committal and treatment has been addressed in considerable detail by the law's drafters, with provisions on such matters as the criteria for compulsory admission, the civil legal capacity of those committed, and the permissible use of restraints on inmates. In addition, the draft law contains several stipulations on the basic rights and interests of the mentally ill (for example, that "inhumane treatment of patients is not allowed" and that those compulsorily hospitalized should have their mental state "systematically assessed at least once every half year"); and it even briefly addresses the rights of mentally-disordered criminal defendants and provides a basic legal framework for the operation of forensic psychiatric custodial centers.143 The passage of a well-crafted mental health law is clearly vital to any attempt to reform the system and safeguard the rights of those psychiatrically detained.144 However, there is no indication that the government intends to enact formal legislation regulating official behavior in this sensitive area anytime soon.
In August 1989, the Chinese government issued a long-awaited set of formal rules - the Temporary Regulations for Judicial Appraisal of the Mentally Ill - specifying legal procedures for the conduct of expert psychiatric appraisals in criminal, civil, administrative and other types of cases.145 According to Article 1 of the Temporary Regulations, they were intended, among other things, "to safeguard the lawful rights of mental illness sufferers," but in fact they contained almost no specific provisions on this topic. On more institutional matters, the Temporary Regulations instructed that Psychiatric Judicial Appraisal Committees were to be established at all provincial, regional and major municipal levels of government, and that these should comprise "responsible officials and experts" from the courts, procuracy, and public security, judicial administration and health departments. These committees were also to appoint, for specific cases that arose, Technical Appraisal Groups consisting of not less than two expert assessors, and the latter's expertise was to be sought in all cases where questions of mental competence had arisen in respect of criminal defendants, parties to civil or administrative litigation, persons undergoing administrative punishment (primarily, those sentenced without trial to up to three years in "re-education through labor" camps), criminal offenders serving custodial sentences, and also "other persons involved in the case who require [such] appraisal." The only "right" specifically accorded to the subject of the appraisal appears in Article 8: "The Appraisal Committee may, depending upon the circumstances, accept a request from the person being examined for a supplementary appraisal, a fresh appraisal or a review of the [original] appraisal to be performed."
The principal task of the appraisers was to ascertain whether or not, at the time of "carrying out dangerous behavior," the person concerned was mentally ill, and, if so, to identify the specific nature and severity of the illness. Depending on the type of case involved, the appraisers would also be charged with ascertaining the level of mental capacity and responsibility of those being examined in one or more of the following areas: overall legal responsibility for criminal acts committed; capacity to distinguish between right and wrong actions; ability to control one's behavior and actions; capacity to stand trial (capacity for litigation); to serve a sentence or undergo other punishment; to testify or provide evidence; and (in the case of mentally ill victims of alleged sexual assault) to exercise either self-defense or sexual consent.146 Two other important points should be made. First, only the "judicial organs" (i.e., courts, procuracy, police) were accorded the right to present a person for forensic psychiatric appraisal. Second, although the Temporary Regulations do not state as much, it was clearly understood that the findings of the expert appraisers were not binding on the judicial organs and that any final decision on whether to institute charges or to proceed to trial would be made solely by the latter.
The 1989 Temporary Regulations are still China's authoritative governing document in this area. In early 2000, however, the Ministry of Health issued a "recommendatory draft" version of a new document entitled "Administration Methods for Psychiatric Judicial Appraisal,"147 the final clause of which states that the 1989 Temporary Regulations are to be superseded by the new document once it comes into force. The Administration Methods themselves were based to a very large extent on a similar document issued by the Beijing municipal government in January 1998,148 and it is likely that they are already being implemented on a trial basis in several parts of China. It should be noted at the outset that none of these regulations list or refer to the enjoyment of any statutory rights or protections by the person being evaluated, and no provision is made for the lodging of appeals against eventual committal on grounds of criminal insanity.
The main additional measures and stipulations found in the new draft regulations are as follows. First, a new national-level governing body is to be instituted. According to Article 5, "The Supreme People's Court, Supreme People's Procuracy, Ministry of Health, Ministry of Justice and Ministry of Public Security shall jointly form a State Committee for the Coordination of Psychiatric Judicial Assessments, which shall be responsible for coordinating all such work throughout the country." This State Committee will stand at the apex of the system of provincial-level Psychiatric Judicial Appraisal Committees created in virtue of the 1989 Temporary Regulations, and will establish offices in the various health departments under the jurisdiction of the State Council, China's highest administrative body. Second, the new draft regulations stipulate a wide range of new measures aimed at imposing tighter regulation over the existing forensic-psychiatric appraisals system, especially in respect of the legal and academic accreditation of Technical Appraisal Groups and of individual expert assessors, the various time limits within which appraisals must be applied for, organized and completed (for example, assessors are to complete their appraisal within 30 days of first examining the person), and the requirement that complete case documentation, including all relevant police files, must be provided to the assessors before they can proceed. And third, the draft regulations introduced a number of significant legal-procedural safeguards. For example, officials or assessors having a close family connection with the examinee or any other personal interest in a case must withdraw themselves (the rule of recusal), and the examinee or other concerned persons have the right to request this. Technical Appraisal Groups must comprise no fewer than three assessors, and any expert opinions dissenting from the group's final recommendations should be separately noted on the official record. Also, private individuals and bodies may now also apply for expert appraisal to be carried out.
All these pending reforms are no doubt highly worthwhile, and they may well have an important impact on ensuring the overall accuracy, quality and consistency of forensic psychiatric appraisals in China. The bottom line, however, as far as our main topic, the treatment of alleged mentally ill political offenders, is concerned, is that none of those experts or officials working in the various committees and groups listed above have any say or discretion in the selection of the people whom they are required to examine. The identity of those individuals is determined solely by the nature of the country's criminal justice system; if the law says that a certain action is a crime, and if the offender is then arrested and brought for forensic psychiatric assessment, the expert assessors are required, unless they are ill or have some other acceptable reason for declining the job, to carry out an appraisal of the person's mental condition. It is not their task to determine whether or not a crime was actually committed, but rather to evaluate the detainee's sanity and then reach a conclusion as to whether or not he or she should bear "legal responsibility" for whatever offense the police claim was committed.
When the charge in question is a political one, however, this task immediately becomes, for the expert assessor, not only highly politicized in the general sense, but also, given China's overall history and track record in this particular area, potentially fraught with considerable personal risk. The safest course of action in such cases, undoubtedly, is for psychiatric assessors to "go by the book" - and as we have seen, Chinese forensic psychiatric textbooks still, even today, define certain types and instances of the uninhibited public expression of officially banned views and ideas as being clearly indicative of mental pathology. We do not have any first-hand accounts from Chinese forensic psychiatrists as to how they feel in such situations, but the following account of the situation of their former Soviet counterparts may provide some useful comparative insights into the matter:
When the psychiatrist is finally confronted with the dissident, he knows he is dealing with someone who stands accused of committing what is considered by the authorities to be a serious crime. He is on his toes. He probably does not know, in most cases, whether a high-level decision has been made by the KGB to hospitalize the dissident, or whether the KGB investigator had genuine doubts about the dissident's mental health. The safer course is to assume that the KGB would like the dissident to be hospitalized. The psychiatrist himself is often in a special group to begin with: he is a forensic psychiatrist, usually a consultant to the KGB, and is particularly sensitive to the expectations of authorities. If he is sure that the expectation of hospitalization exists, then much less evidence of illness is needed to establish a diagnosis. If he does not know, then his need to play it safe may influence him to see more symptoms than he ordinarily would - sufficiently more to justify a diagnosis of illness.149
At another level, moreover, ethically conscientious assessors face the following invidious choice: to find the defendant to be sane and hence "legally responsible" for the alleged political offense, in which case he or she will almost certainly be found guilty and sentenced to a long term of imprisonment; or to make a finding of insanity and legal non-imputability, in which case the person will most likely be committed for an indeterminate period to an Ankang or similar-style center for psychiatric custody and treatment?150
Counterrevolutionary Crimes in China
Since the police allegations in most cases involving the use of politically directed psychiatry in China have concerned the charge of "counterrevolution," we should examine this category of crime in greater detail. The world of criminal jurisprudence was first introduced to the concept of counterrevolution during the French Revolution, in a decree issued by the Jacobins on March 10, 1793 establishing the system of "revolutionary tribunals." The works of Marx and Engels are replete with references to "counterrevolution," and Lenin eventually enshrined the concept in the Soviet criminal code after describing it as being not merely a useful legal device but also an "instrument of terror" that would awe the opponents of the Bolshevik Party into submission. The term was subsequently incorporated into the criminal codes of several Soviet satellite states, although the USSR itself later dropped the term in favor of the less political-sounding "crimes of state."151 In China, somewhat ironically, the concept was first enshrined in law by Chiang Kai-shek, the leader of the KMT, whose government on March 9, 1928, promulgated a Temporary Law on the Punishment of Crimes of Counterrevolution, aimed primarily at the Communist Party of China.152 Soon after establishing its first territorial base in Jiangxi Province, the Communist Party took steps to establish a similar legal regime, but aimed at suppressing the "KMT bandits" and their supporters among the local rural elite. On April 8, 1934, the Communist Party enacted its first formal law in this area: the Regulations of the Chinese Soviet Republic on the Punishment of Counterrevolution.153
Upon the Communist Party's assumption of power in October 1949, the clear evidence of widespread wrongful executions and imprisonments perpetrated by the Party's secret police since the 1930s proved to pose no obstacle to the systematic expansion of the same kind of legal regime that had produced these earlier injustices.154 In February 1951, the Central People's Government passed a law, titled "Regulations of the PRC on the Punishment of Counterrevolution,"155 which would serve as the main legal basis and justification for the systematic persecution of political dissidents and all other opponents of the Party for most of the next three decades. With Deng Xiaoping's return to power in late 1978, the growing trend towards an official condemnation and repudiation of both the 1957 Anti-Rightist Movement and the Cultural Revolution, together with rising public demands for the rehabilitation of the legions of counterrevolutionary political victims created during those two periods, acquired major new impetus. Over the next five years or so, virtually all of the hundreds of thousands of people who had been condemned, imprisoned, or executed for alleged counterrevolutionary offenses during the Cultural Revolution decade were exonerated by the new regime and declared to have been victims of the myriad "trumped-up cases and miscarriages of justice" perpetrated by the former radical Maoist leadership, the "Gang of Four," and its followers. Similarly, the great majority of those branded as "rightists" in 1957 were finally rehabilitated, although Deng's role as Party General Secretary in overseeing the purges of that time meant that many simply had their political "hats" removed, rather than being officially pronounced innocent.
Overall, the Party's use of charges of counterrevolution against its political enemies and opponents - real or imagined - during the second half of the twentieth century undoubtedly generated more miscarriages of justice and devastated the lives of greater numbers of innocent people than any other single factor on China's judicial landscape. The only just and appropriate governmental response to such an appalling judicial track record would have been for Deng and his colleagues, in the late 1970s, to have set about dismantling the entire legal category of "crimes of counterrevolution," thereby repudiating the manifest judicial failings of the past and holding out the promise of a more politically neutral criminal justice system. But instead, in July 1979, the new leadership chose to give pride of place in the country's inaugural criminal code to an entire chapter on counterrevolutionary crime, laying down penalties ranging from several years in jail to life imprisonment or even death. Since then, at least ten thousand people or more have been consigned to long terms in prison on charges of counterrevolution that were no less politically determined and legally unsound than in the past.
By the mid-1980s, however, the incidence of counterrevolutionary crime as a proportion of the total number of criminal offenses recorded each year in China had dropped, according to official figures, to a very low level as compared with the situation during the first two decades or so of the People's Republic.156 Until quite recently, the total number of imprisoned counter-revolutionaries was classified by the government as top secret, but the example of one province may serve to illustrate the general trend. In October 1959, Heilongjiang Province recorded a total prison inmate population of some 97,332 persons, of whom no fewer than 57,933, or just under 60 percent of the total, were counterrevolutionaries. By 1981, out of a total prisoner population of 23,685, the number of counterrevolutionaries had fallen to only 577, or 2.5 percent of the total.157
This reduction did not occur in a gradual or phased manner, but rather took the form of a sudden drop over a brief several-year period from December 1978 onwards. By 1982, for example, the government had officially exonerated the victims of more than 27,800 counterrevolutionary cases (involving a much greater number of actual defendants)158 that had been falsely adjudicated in courts across the country during the two-year period from September 1976, when Mao died, until late 1978, when Deng returned to power. Similarly, in Fujian province alone during 1977-78, altogether 750 counterrevolutionaries were sentenced by the courts, of whom ninety-three received the death penalty and were executed. Again, the great majority of those sentenced were eventually rehabilitated.159 These various figures show the extensive use that was still being made of such charges even after the conclusion of the Cultural Revolution.
Thereafter, according to official statistics, the numbers declined sharply. From 1980 to 1984, Chinese courts tried a total of 7,123 cases of counterrevolution (again accounting for many more defendants, only a tiny handful of whom would have been acquitted).160 The question of possible rehabilitation and release did not arise in these cases, however, since by that time the government had completed its post-Cultural Revolution "rectification of the political line," and therefore those sentenced in the 1980s and later were all considered to be "genuine" political enemies of the State. By the mid-1980s, the annual numbers of sentenced counterrevolutionaries were down to single digits in many Chinese cities. Foshan Municipality in Guangdong Province, for example, had tried and sentenced 1,861 such cases in 1951; 2,165 in 1955; 3,298 in 1959; 178 in 1972; and 275 in 1976. During the entire nine-year period from 1979 until 1987, moreover, a total of only forty-seven cases of counterrevolution were tried by the Foshan court system, representing an average of 0.5 percent of all the criminal cases tried by local municipal courts during those years.161 As of the late 1990s, the government's official accounting for the total number of sentenced counterrevolutionaries still held in prisons throughout China stood at around 2,000.
However, an analysis of the changing composition of cases of counterrevolution since the early 1980s, that is, the relative proportions of those convicted of the various types of counterrevolutionary offenses during different periods, reveals a striking trend. The 1979 Criminal Law specified more than ten varieties of counterrevolutionary crime, ranging from carrying out "subversion" and "espionage" to organizing "reactionary sects" and "counterrevolutionary groups." The main judicial weapon used by the government in the punishment of non-violent acts of speech and expression, however, was the Article 102 charge of "counterrevolutionary propaganda and incitement." The specific meaning and content of this offense was explained in detail by the Supreme People's Procuracy in 1992 as follows:
There are four main forms of expression [of Article 102 crimes]: 1) shouting counterrevolutionary slogans in public and making counterrevolutionary speeches; 2) writing, posting up or distributing in public places counterrevolutionary leaflets, banners, and big-or small-character posters; 3) extensively mailing out counterrevolutionary-propagandist letters or sending threatening and alarmist letters to [government] organs, [social] bodies, and universities or colleges; and 4) editing and issuing reactionary publications and publishing counterrevolutionary articles. The first two of these four categories...account for two-thirds of all cases of counterrevolutionary incitement.162
Between 1980 and 1991, the proportion of sentenced counterrevolutionaries convicted under Article 102 rose steeply. According to one authoritative account, the average incidence of Article 102 offenses as a proportion of all counterrevolutionary offenses during the 1980s was "approximately 20 percent."163 By 1990, however, an official law journal noted: "During the most recent period, counterrevolutionary propaganda and incitement cases have accounted for around 80 percent of all the counterrevolutionary cases accepted and dealt with by the people's courts."164 Far from declining after the Cultural Revolution, therefore, both the government's sensitivity to dissident-style criticism and the extent to which it was determined to punish such acts of free political expression had, by the early 1990s, significantly increased as compared to the frequency with which it prosecuted and punished other alleged forms of counterrevolution. It should be emphasized that dissident-style individuals brought for forensic psychiatric examination in China in recent decades have also, for the most part, been initially charged with the same offenses as those singled out for attention by the Procuracy in the passage quoted above: namely, political speech making, sloganeering, leafleting and poster sticking.
In March 1997, the Chinese government finally responded to years of intense international criticism over its cavalier use of the statutes on counterrevolution as a means of suppressing peaceful political and religious dissent by ostensibly removing them from the Criminal Law. In their place, however, came a whole range of new but very similar offenses known as "crimes of endangering state security."165 In essence, the concept of peaceful and non-violent political crime in China was not abolished as a result of this move, but merely remodeled in a form ostensibly more acceptable to international legal opinion. Far from attempting to hide the fact that this was in large part a mere change of name with little change in substance, the Chinese leadership went out of its way to stress this point, in what was probably an attempt to mollify domestic conservatives who feared it was another step down the road toward liberalization. The first indication that it would be "business as usual" after the legislative changes in question came from Wang Hanbin, Vice-Chairman of the National People's Congress Standing Committee, in a speech to the national parliament introducing the revised criminal code: "The punishment meted out for crimes of counterrevolution in the past will remain valid and cannot be altered."166 This ruled out any question of amnesty or early release for those already sentenced on such charges. The protracted legal debate that preceded the new legislation's introduction made the matter even clearer. According to one commentator, "By altering the name of this legal weapon [the statutes on counterrevolution], we will be changing neither its basic nature, its tasks nor its combat effectiveness; still less will we be discarding it. All that will be involved is the adoption, in line with today's changed circumstances, of a new and more appropriate designation for the weapon."167 And as another pointed out, "The proposal to redesignate counterrevolutionary offenses as crimes of endangering state security means nothing more than a change of name; in no way does it imply the `deletion' or `abolition' of those offenses."168
Since March 1997, the Chinese security authorities have proceeded to apply the new charges to precisely the same types of people - political dissidents, ethnic rights activists, independent trades unionists, unofficial religious believers and so forth - who previously were judicially dealt with on charges of counterrevolution; if anything, the sentences passed on such people for "endangering state security" in recent years have been even harsher than those previously imposed for counterrevolutionary offenses.169 Legal reform in China since 1978 has brought many new and valuable benefits to the country as a whole. There has been no sign, however, that the authorities are prepared to slacken off or display greater tolerance in their longstanding judicial war against dissident freedom of expression and association in the key realms of politics, ideology and religion. Essentially, insofar as the country's criminal justice system is concerned, all that has changed in the post-Mao era is the specific content of what is officially regarded to be "counterrevolutionary" or "threatening to state security."
For this same reason, "cases of a political nature" will no doubt continue, much as before, to account for a significant proportion of offenses committed by the "dangerously mentally ill" in China. For much of the past two decades, certainly, the officially reported incidence of "pseudo-counterrevolutionary" cases as a proportion of all cases of forensic psychiatric appraisal (somewhere between five and fifteen percent) has been markedly higher than the reported incidence of cases of "genuine" counterrevolution as a proportion of the total number of criminal offenses committed (much less than one percent). The precise significance of these puzzling statistics is unclear, but they evidently do not point in the direction of any major systemic reforms in the medico-legal handling of the former variety of cases. In summary, so long as the notion of "political crime" continues to hold sway in police stations and courtrooms around the country, forensic psychiatry in China seems set to remain mired, to a greater or lesser extent, in the unethical practices of the past, tainting the ability of Chinese psychiatrists to perform their proper and legitimate role within the criminal justice system.
129 These were, the fact that "there is nothing in our criminal law equivalent to the Soviet category of crimes against the State," and secondly, that "the concept of mental illness, particularly of schizophrenia, is a good deal wider [in the USSR then, as in China today] than in the U.K."
130 J.K. Wing, "Psychiatry in the Soviet Union," British Medical Journal, no.1 (March 9, 1974), pp.433-436.
131 See "Reply of the Supreme People's Court on the Question of the Handling of Crimes Committed by Mentally Ill Persons," June 2, 1956. Soon after the Cultural Revolution, during which legal norms had collapsed almost entirely, the Supreme People's Court reiterated the validity of the June 1956 directive (Supreme People's Court, Document No. 17 , August 4, 1978).
132 The directive also stipulated: "Counterrevolutionary elements and their families, or landlords and rich-peasant elements, should not be dealt with differently." This seems to run counter to Article 37 of the 1954 Regulations on Reform Through Labor, which excluded "major counterrevolutionary offenders" from the rule that prisons were not allowed to admit criminals suffering from mental illness. In practice, however, any contest at that time between the court system and the prison system (which was run by the all-powerful Ministry of Public Security) would generally have ended in the latter's favor.
133 According to Article 15 of the 1979 Criminal Law (Adopted July 1, 1979 and effective as of January 1, 1980; available in U.S. Journal of Criminal Law and Criminology, Spring 1982): "A mentally ill person who causes dangerous consequences at a time when he is unable to recognize or unable to control his own conduct is not to bear criminal responsibility; but his family or guardian shall be ordered to subject him to strict surveillance and arrange for his medical treatment. A person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime during a period of mental normality. An intoxicated person who commits a crime shall bear criminal responsibility."
134 Similar provisions appear in the 1996 PRC Law on Administrative Punishments (passed by the National People's Congress on March 17, 1996 and effective as of October 1, 1996, see BBC Summary of World Broadcasts, FE/2585, April 13, 1996), which governs all of the wide-ranging forms of non- or extra-judicial punishment currently available to law enforcement agencies in China. According to Article 26 of this law, "If a mental patient commits an illegal act at a time when he is unable to recognize or cannot control his own conduct, no administrative penalty shall be imposed on him, but his guardian shall be ordered to keep him under close surveillance and arrange for his medical treatment. Administrative penalty shall be imposed on a person whose mental illness is of an intermittent nature and who commits an illegal act when he is in a normal mental state." The same general provisions appear also in Article 10 of the 1994 revised version of the PRC Regulations for the Punishment of Public Order Offenses (see Guowuyuan Gongbao [Bulletin of the PRC State Council], 1994, pp.440-448), which allow police to impose (without trial) custodial sentences of up to fifteen days for minor offenses.
135 See Supplementary Provisions of the Standing Committee of the National People's Congress Regarding the Time Limits for Handling Criminal Cases (Guanyu Xingshi Anjian Ban'an Qixian de Buchong Guiding, passed by the NPC Standing Committee on July 7, 1984; in Wang Huai'an et al, eds., Zhonghua Renmin Gongheguo Falü Quanshu [Changchun: Jilin Renmin Chubanshe, 1989], p.223).
136 Another relevant provision of the new Criminal Procedure Law (adopted on March 17, 1996 and effective as of January 1, 1997, see "PRC: Amended PRC Criminal Procedure Law," FBIS, April 10, 1996), Article 48, reads as follows: "All those who have information about a case shall have the duty to testify. Physically or mentally handicapped persons or minors who cannot distinguish right from wrong or cannot properly express themselves shall not be qualified as witnesses."
137 The police in many countries are empowered, in emergency situations, to take suspected mentally ill people into custody and to transfer them to psychiatric hospitals if they fear that dangerous consequences might otherwise ensue. In the case of China, however, it is the lack of any clear legal requirement for prompt forensic psychiatric evaluation then to be conducted that renders this police power liable to misuse and therefore problematic from a human rights point of view.
138 Indeed, simply by virtue of being ill, even mentally ill people who do not commit offenses may suffer significant reduction of their civil rights; confidential regulations state, for example, that the police "should delay issuing [citizens'] identity cards to...persons who are mentally ill" - so placing them in a broadly similar category of official treatment as that applied to persons placed under formal arrest or serving terms of imprisonment, who are to be denied identity cards altogether (see Liu Guangren, ed., Hukou Guanlixue (The Administration of Household Residence), (Beijing: Zhongguo Jiancha Chubanshe [volume marked "for distribution within the public security organs only"], 1992), p.324.
139 A more detailed discussion of the civil law aspects of the treatment of mentally ill people in China can be found in Pearson, "Law, Rights and Psychiatry in the People's Republic of China," pp.417-420.
140 Specific procedures for the courts to make findings of civil competence and incompetence are set forth in Articles 170-173 of the Civil Procedure Law of the PRC (adopted by the 4th session of the 7th National People's Congress on April 9, 1991 and effective as of same date). Courts may declare a mentally ill person to have "lost the capacity for civil action" and they may also reverse such rulings (Article 19 of the General Principles of Civil Law, adopted at the 4th Session of the 6th National People's Congress on April 12, 1986 and effective as of January 1, 1987), although the former (as in other countries) is not an essential prerequisite for compulsory civil psychiatric committal. In the case of criminal psychiatric committal, however, the courts in China appear to have an almost negligible role to play, either in terms of authorizing and approving such treatment, or as regards providing those psychiatrically detained with legal channels for appeal and possible redress.
141 Wu Jiasheng, "Qiantan Jingshenbingren Weifa Zhaohuo Xingwei de Zeren Nengli (A Brief Discussion of the Legal Capacity of Mentally Ill Persons Who Behave Unlawfully and Create Disastrous Incidents)," Faxue (Jurisprudence), no. 40 (1985), pp.43-45.
142 The law-drafting group is headed by Professor Liu Xiehe of the Institute of Forensic Medicine at the West China Medical University in Chengdu. The most recent joint initiative between China and the WHO on drafting a mental health law was a high-level symposium held in Beijing on November 11, 1999, attended by Dr Gro. Harlem Brundtland, the WHO's Director-General, and thirteen vice-ministerial-level Chinese officials. The full text of Brundtland's speech at the conference can be found at http://www.who.int/director-general/speeches/1999/english/19991111_beijing.html.
143 In the 1988 draft, these were referred to as "Guardianship Hospitals for the Mentally Ill" (Jingshenbingren Jianhu Yiyuan), which were to be organized and led by the Public Security departments; such hospitals were therefore clearly the same as the ones now more commonly referred to as "Ankang."
144 For useful and authoritative practical guidelines on this field of legislation, see World Health Organization, Mental Health Care Law: Ten Basic Principles, 1996 (WHO/MNH/MND/96.9). The legislative experience of the former Soviet states in this area also provides an important comparative frame of reference. According to two well-qualified observers,
Establishing a proper legal foundation for mental health care has been the top priority for reformers in transforming psychiatry in practically all post-Soviet and post-socialist countries... The [July 1992] Russian law merits particular attention because it has provided a sound model for the other countries of the former Soviet Union. The law has many positive features that will help to facilitate the transformation of Russian psychiatry. (1) It codifies the fundamental norms and principles that should guide psychiatric care, including confidentiality, informed consent, and medical necessity. (2) It declares and reinforces the fundamental idea that psychiatrists are expected to be independent in making their decisions, which - as the law states - should be based only on "medical indications, medical duty and the law." (3) It establishes formal procedures for judicial review of involuntary hospitalizations, and of alleged violations of the rights of hospitalized patients. (4) Finally, the law opens psychiatric institutions to outside scrutiny and thereby promotes accountability to patients' families and to the society at large. The State is directed to "set up a service independent of health agencies for the protection of rights of psychiatric patients," and the law also specifically authorizes associations of psychiatrists, families or other citizens to monitor the observance of patients' rights and to file complaints on behalf of aggrieved patients. Enactment of this law was itself a remarkable achievement... (Bonnie and Polubinskaya, "Unraveling Soviet Psychiatry," pp.292-294.)
145 See Guanyu Jingshen Jibing Sifa Jianding Zanxing Guiding (Temporary Regulations for Judicial Appraisal of the Mentally Ill), issued jointly by the Supreme People's Court, Supreme People's Procuracy, Ministry of Public Security, Ministry of Justice and Ministry of Civil Affairs, July 11, 1989. The regulations came into force on August 1, 1989. This followed an earlier set of rules on the same topic issued in October 1985 by the Anding psychiatric hospital in Beijing, which were "to be adopted by all provinces" in China (see Pearson, "Law, Rights and Psychiatry in the People's Republic of China," p.411).
146 The Chinese terms for these various criteria are (in order of listing above): "xingshi zeren nengli," "bianren nengli," "kongzhi nengli," "susong nengli," "fuxing (shou chufa) nengli," "zuozheng nengli," and "ziwo fangwei nengli."
147 See Ministry of Health, Jingshen Jibing Sifa Jianding Guanli Banfa (Administration Methods for Psychiatric Judicial Appraisal), issued informally sometime in early 2000. The full Chinese text of this document can be found on the Internet at http://www.fmedsci.com/sfjs/sfjs11.htm.
148 See Beijing Municipal Bureau of Health, Beijing Shi Jingshenbing Sifa Jianding Guanli Banfa (Beijing Municipal Psychiatric Judicial Appraisal Management Rules ). The full Chinese text is available on the Internet at http://www.fmedsci.com/sjfs/sfjs3.htm. The document came into force on January 1, 1998.
149 Walter Reich M.D., "Diagnosing Soviet Dissidents," Harper's, August 1978, pp.31-37. At the time of writing this article, Dr. Reich was Lecturer in Psychiatry at Yale University and chairman of the program in the medical and biological sciences at the Washington School of Psychiatry. Over the previous six years he had interviewed a number of Soviet dissidents and psychiatrists.
150 In his report to the British Medical Journal, J.K. Wing posed a tantalizing ethical question that might also be asked of Chinese legal psychiatry: "Assuming for the moment that the Soviet psychiatrists have made their diagnosis in good faith, the question looks quite different to them: is a person who is suffering from a slowly developing form of schizophrenia responsible for an action that is likely to land him, at the very least, in a labor camp for three years? The Soviet doctor claims that he is acting humanely and that, in essence, the part he plays is no different from that of the American psychiatrists who saved Ezra Pound from execution" (J.K. Wing, "Psychiatry in the Soviet Union").
151 The Chinese term for "crimes of state" is "guoshi zui."
152 See Zanxing Fan'geming Zhizui Fa (Temporary Law on the Punishment of Crimes of Counterrevolution). According to the latter law, "All attempts to subvert the Chinese Nationalist Party and the National Government...are defined as crimes of counterrevolution." As the KMT's Judicial Yuan expressly proclaimed, moreover: "Cases involving the Communist Party are to be dealt with as counterrevolutionary offenses."
153 See Han Yanlong & Chang Zhaoru, eds., Zhonghua Suweiai Gongheguo Chengzhi Fan'geming Tiaoli, (Regulations of the Chinese Soviet Republic on the Punishment of Counterrevolution), in "Zhongguo Xin Minzhuzhuyi Geming Shiqi Genjudi Fazhi" (Legal System of the Base Areas During the Revolutionary Period of New Democracy)," in Wenxian Xuanbian (Selected Documents), vol. 3 (Zhongguo Shehui Kexue Chubanshe, Beijing, 1981), pp. 5-11.
154 For example, as the State Council noted in 1983: "Some work-units and individuals have recently submitted petitions on behalf of comrades who were unjustly killed during the period of the Second Revolutionary Civil War [1927-37]...requesting that these wrongly executed comrades be commemorated as martyrs" (PRC State Council, State Council Document No. 91, 1983, Guowuyuan Pizhuan Minzhengbu Guanyu Dui Di'erci Guonei Geming Zhanzheng Shiqi Sufanzhong Bei Cuosha Renyuan de Chuli Yijian de Tongzhi [Notification of the Ministry of Civil Affairs, As Approved and Circulated by the State Council, Concerning the (Ministry's) Opinion on How to Handle the Cases of Persons Wrongly Killed in the Course of Campaigns to Suppress Counterrevolution During the Period of the Second Revolutionary Civil War], in Xinfang Gongzuo Shiyong Zhengce Fagui Shouce, Zhonggong Zhongyang Bangongting [A Handbook of Policies, Laws and Regulations for Use in Petitions and Visits Work], issued by the Office of the CPC Central Committee [document marked "for internal distribution only"], [Falü Chubanshe, July 1992]).
155 Zhonghua Renmin Gongheguo Chengzhi Fan'geming Tiaoli.
156 This reduction in the number of counterrevolutionary cases in China does not mean that the authorities have become substantially more tolerant of political criticism than before. Rather, a clear trend has been evident since 1980 towards sentencing political dissidents and other "enemies of national stability" on alternative and less obviously political legal grounds: for example, on common criminal charges such as alleged economic malfeasance, soliciting prostitutes, and even for violating restrictive regulations on the ownership of fax machines. In many cases, these charges have clearly been trumped-up and devoid of factual basis. Another recent trend has been towards imposing "administrative sentences" on dissidents and others in the form of up to three-year terms of "re-education through labor" (laodong jiaoyang) - an extremely widespread form of detention without trial that is applied solely at the discretion of the police authorities.
157 Heilongjiang Provincial People's Procuracy, Heilongjiang Jiancha Zhi (Annals of the Heilongjiang Procuracy), (Harbin: Heilongjiang Renmin Chubanshe, 1988). Of the 577 persons imprisoned in 1981, just under half were said to be "historic counterrevolutionaries," that is, political prisoners who had probably already been held in jail for several decades.
158 Many criminal "cases" (anjian) in China involve multiple defendants, and this was especially true in the case of counterrevolutionary offenses carried out during the early 1980s, when numerous "reactionary organizations" dedicated either to the restoration of Cultural Revolution-era policies or (at the other end of the political spectrum) to the promotion of Western-style democracy appeared in many parts of the country.
159 For documentary sources on the above statistics, see Sichuan Shengqing (A General Account of Sichuan Province), published "for internal use only" by Sichuan People's Press, December 1987, p.548; and "Many `Unjust, False and Erroneous' Verdicts Also Found Among Cases Tried Between 1977 and 1978," Renmin Sifa Xuanbian (A Compilation of Articles from "People's Justice" Magazine), (Law Publishing House, February 1983), pp.116-8 (volume also marked "for internal use only"). Among twenty-one of the counterrevolutionaries sentenced by the Fuzhou Intermediate Court, the latter report added, "Seventeen, or 77 percent of the total, were found to have been completely innocent... The original verdict was upheld in only one case." And of nine such verdicts rendered by the Xiamen Intermediate Court, "All were found to have problems."
160 Dangdai Zhongguo de Shenpan Gongzuo (Judicial Work in Contemporary China), vol.1, (Contemporary China Publishing House, 1993). According to this book, the figure of 7,123 counterrevolutionary cases accounted for 0.43 percent of all criminals sentenced during the period in question.
161 Foshan Shi Fayuan Zhi (Annals of the Foshan Municipal Courts), compiled and published by the Foshan Municipal Intermediate Court (year of publication not known, but probably 1988 or 1989).
162 Supreme People's Procuratorate, Xingshi Fanzui Anli Congshu - Fan'geming Zui, (Criminal Case-Studies Series: Vol.1: Crimes of Counterrevolution), (Beijing: Zhongguo Jiancha Chubanshe, November 1992), p.238.
163 Ibid., p.238. According to the same source, the incidence of counterrevolutionary crimes as a percentage of all criminal offenses committed during the period 1980-89 varied from between 0.08 percent and 0.8 percent; and "even in the highest year, it did not reach 1 percent of the total."
164 Li Li and Li Shaoping, "Lun Fan'geming Xuanchuan Shandong Zui de Rending (On the Determination of Crimes of Counterrevolutionary Propaganda and Incitement)," Xiandai Faxue (Contemporary Jurisprudence), no. 1 (1990). One factor behind this relative surge in Article 102 offenses was no doubt the government's June 1989 nationwide crackdown on the Tiananmen Square pro-democracy movement, which had been officially condemned as a "counterrevolutionary rebellion." However, the incidence of all categories of counterrevolutionary offense (notably "leading and organizing a counterrevolutionary group" [Article 97] and "counterrevolutionary sabotage" [Article 100]) rose dramatically after the June 1989 crackdown, so the high predominance of Article 102 offenses at this time was still of considerable statistical significance.
165 A detailed analysis of the significance of these legislative changes can be found in Human Rights Watch/Asia and Human Rights in China, "Whose Security? An Analysis of "State Security" in China's New Criminal Code," A Human Rights Watch Report, vol. 9, no. 4 (c), April 1997. Another very detailed and informative account of the topic can be found in Donald C. Clarke, Wrongs and Rights: A Human Rights Analysis of China's Revised Criminal Code, (New York: Lawyers Committee for Human Rights, 1999).
166 Speech by Wang Hanbin to the Fifth Session of the Eighth National People's Congress, March 6, 1997.
167 Guo Qun, "Guanyu Fan'geming Zuizhang de Tiaozheng (On Readjusting the Chapter on Crimes of Counterrevolution)," in Cui Qingsen, ed., Zhongguo Dangdai Xingfa Gaige (Reform in China's Contemporary Criminal Code), (Shehui Kexue Wenxian Press, November 1991).
168 Li Wenyan, "Fan'geming Zui Gaiwei Weihai Guojia Anquan Zui Qianyi (My Humble Views on the Changeover from Counterrevolutionary Crimes to Crimes of Endangering State Security)," Fazhi Ribao (Legal Daily), March 14, 1991.
169 The following examples illustrate the draconian manner in which the new state security laws have been applied. On December 21, 1998, the veteran dissident Xu Wenli, 55, was sentenced to 13 years' imprisonment for "conspiring to subvert state power" after he attempted to legally register a peaceful opposition group, the China Democracy Party (CDP); the following day, his colleague Qin Yongmin, 49, was sentenced to 12 years' imprisonment on the same criminal charge. On December 27 the same year, Zhang Shanguang, a Hunan labor activist, was sentenced to 10 years' imprisonment after a two-hour trial held behind closed doors which found him guilty of "providing intelligence to institutions outside the borders," a charge relating to his attempts to establish an "Association to Protect the Rights and Interests of Laid-off Workers" in Xupu County. In July 1999, Yue Tianxiang, a labor rights activist, was sentenced to 10 years' imprisonment for "subversion"; Yue, who was detained on January 11 and formally charged on January 26, 1999, formed the China Labor Rights Observer in Gansu Province to protect the rights of laid-off workers. And on August 6, 1999, Liu Xianbin, a leading CDP member in Sichuan, was sentenced to 13 years' imprisonment for alleged conspiracy to subvert state power; Liu was unable to find defense counsel as a series of lawyers withdrew from the case following pressure from the authorities.