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The legal supervision of People’s Congresses that watches the enforcement laws in general has gradually gained in substance. For example, the NPC and the local People’s Congresses have strengthened the scrutiny of budgets.[45] A controversial issue is the examination of cases by People’s Congresses. They review cases already decided by the courts if people bring a petition to them or they think it is necessary to do so. However, the Standing Committee of the NPC has been cautious to react. It is believed that a draft concerning this kind of supervision has been delayed for a long time.[46] The major concern of the delay is to avoid harming judicial independence.[47]
The supervision of procuratorates is a specialized supervision. The people''s procuratorates of China was built up according to Leninism.[48] They play a double role- one of state organ for legal supervision and the other, a public (criminal) prosecution organ. Their task is to maintain the uniformity of the national legal system and they are considered as an important part of the nation’s judicial organs (Si Fa Ji Guan) along with the people’s courts. Both of them have the authority to deliver judicial interpretations that must be followed by the courts and procuratorates at lower levels. The future question will be how to balance the authority of the procuratorates and the authority of the courts in the coming judicial reform with regard to the rule of law.
C. Human rights and the relevant development on criminal procedural law
The Chinese government acknowledges the connection between the rule of law and human rights through legal institutions.[49] China has signed and ratified the International Covenant on Economic, Social and Cultural Rights in 1997 and 2001 [50] and signed the International Covenant on Civil and Political Rights in 1999. The revised Criminal Procedure law entered into force in 1997. A research group of Institute of Law of CASS has made four suggestions to the policy-makers to confirm the two above-mentioned covenants and include “respect and protection of human rights” to the Constitution as an amendment.[51]
The new developments in the revised Criminal Procedural law and in the proposals of the legal scholars include the presumption of innocence of the defendant, expressive prescription of Miranda warning, and prevention of double jeopardy in law.[52] The idea of the law is clear that anybody is not guilty until a court of law convicts him and defendants can get more help from lawyers in the criminal procedure from an early stage, although there is not a provision concerning the presumption of innocence of the defendant. Most of all, it institutionally prevents policemen from abusing their power and protects the human rights of suspects, defendants and other citizens as well. Also, apparently the notion of Miranda warning has started to be accepted by Chinese officials of law enforcement. A Public Security organ in Wuhan City has removed a warning asking suspects to confess in interrogating rooms.[53] The procuratorate of Shuncheng District of Fushun City has started a new working regulation called “ Zero confess regulation of the prosecutors” according to which the prosecutors do not have to get a confession from suspects, rather, they need to collect other evidences and prove them. This gives suspects actual rights of silence.[54]
D. Judicial review in the starting point
The question of whether there is judicial review in China remains an open one. A very influential book on administrative law answers the question with a “yes”.[55] Other legal scholars, including the author, do not think that there is judicial review in China yet. This is for three reasons. First, as there are no legislative acts of national legislature, central government acts enacting administrative rules and administrative regulations, or local level administrative rules, there can hardly be any real judicial review. Second, the key to understanding judicial review is the words of “refer to” in article 53 of the Law of Administrative Procedure. That article prescribes that the People’s Courts may refer to administrative regulations and local government regulations when they judge administrative cases. “Refer to” means an authorization to the courts. If the courts think that what they refer to does not conform to the administrative regulations of a higher level or there is an inconsistency among those regulations the courts may not apply them. However, “to refer to” does not mean a power of making judicial judgements. The courts do not have the authority to say that a regulation or the making of that regulation is illegal or unconstitutional in their judgements. It is the Supreme Court that sends the cases to the State Council for interpretations or decisions when the courts think that there is an inconsistency or complexity that they are not equipped to deal with. Third, “the judicial review is based on the law, administrative rules and local rules” is to take the objects of judicial review as the legal grounds of judicial review.
Article 53 of and the all other relevant legal prescriptions can be seen as an important starting point of development from which the courts are able to check the unlawful behaviors of the governments step by step. But, the courts ought to be empowered to review the legislative acts of national legislature and the other acts discussed above. It is an indispensable way to guarantee the constitutionality and uniformity of the legal system in China.
The role of Chinese courts is amusing. On the one hand, the people’s courts, mainly the Supreme Court of China actually quietly enjoy a vast power to make laws or develop laws through legal interpretations many of which take the form of statute. On the other hand, they follow the instructions of the party, cooperate with the governments and legislature and never cross boundaries delimited by the political structure of the state. Nevertheless, the courts have begun to say “No!” to the administrations in China.[56] Another significant event happened on August 13, 2001. The Supreme Court of China took a crucial step forward, by giving a judgment that stated that the courts could cite the prescriptions of the Constitution directly to protect the basic rights of the citizens. The Justice of the Court considered it as a milestone of further development of constitutional litigation [Xianfa Sifahua] (Chinese expression of constitution review) following the American model of ordinary courts dealing with constitutional issues.[57] Frankly speaking, the only foreseeable direct influence of that judgement will be on the area of private law. It will be more significant once the constitutional litigation enters into the area of public law.
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