The legal basis of China’s COVID-19 response
China’s laws on emergency response and epidemic control are relatively complete. The laws deliberately leave room for the flexible exercise of powers by local governments to respond to the epidemic. However, it also leaves room for the misuse of powers. Further, while government and departmental orders are quick and effective in times of emergency, the legality of some orders is questionable.
The Legal Framework
The main statutes that give the Chinese government extraordinary powers during COVID-19 outbreak are the Infectious Diseases Prevention and Control Law 1989 (传染病防治法, last amended 2013) and the Emergency Response Law 2007 (突发事件应对法).
These laws give extensive powers to the executive government at all levels. China has a hierarchical structure of government and government departments: from the central to the provincial, regional and county levels. The decisions of each lower-level government is subject to the directions of its higher-level counterpart. One key principle of emergency management is that each level of local government is responsible for emergencies within their regions, under the leadership and coordination of the central government (Emergency Response Law art 4).
The Emergency Response Law sets out four levels of emergency alerts. Level I is the highest level of alert (art 42). Under level I or II, the Law allows for the closure or restricted use of premises and control or restriction of public gatherings (art 45(7)).
Under the Law, the State Council’s National Public Health Emergency Response Plan empowers local governments to take measures in cases of emergency to: restrict freedom of gatherings and movement, to order the closure of businesses and schools, to carry out medical tests on public transport and at borders, and to quarantine patients, probable patients and their close contacts.
The Exercise of Powers
Those powers were triggered when Hubei Province declared Emergency Level II alert on 22 January 2020, with all provinces in mainland China declaring Emergency Level I alerts between 23 and 29 January. Under the alert, cities were locked down, transportation was halted, businesses and schools were closed, quarantine was implemented and tests were carried out.
The Emergency Response Law also authorises residents committees and village committees, which are semi self-governance community bodies, to assist the local government in maintaining social order (art 55). Citizens are required to obey the arrangements of the local government, residents committees and village committees and even their employers (art 57). These wide discretions given to various bodies made the country’s fight against the epidemic very effective. But these discretions were also exercised arbitrarily at times, causing some problems.
Some arbitrary measures could be due to the principle of “localised” responsibility during emergency response. For example, some cities and counties set up checkpoints at highway exits and denied entry of people who were not permanent residents of their region. This shows local governments wanted to protect their own regions and eliminate risks from the outside. Given the size of China, it is logical to require that local governments take on responsibilities for emergency responses, but the “localised” principle also means that they could ring fence their own localities and impede a concerted and consistent effort.
Whether orders for some measures were legally binding is questionable. Orders were often made by the Epidemic Prevention and Control Headquarters in provinces or cities. They are ad hoc teams leading the emergency response, and are usually led by the head of the local executive government. As such, they are not qualified to make local government rules as prescribed by the Legislation Law, especially when the orders exceeded what was authorised by law and the State Council’s National Public Health Emergency Response Plan. Yet in reality “notices” issued by such headquarters have been implemented and enforced.
Many cities, including Beijing and Shanghai, implemented a “closed residential compound” policy, which required residents to present a permit to leave or enter residential compounds. Checkpoints were set up at entrances to take temperatures and control movements. Imposing restrictions on the frequency and the number of people exiting their compound was common. This could be a result of anxious self-governing bodies implementing measures beyond what is permitted by law. In rare but extreme cases, residential associations of apartment compounds denied entry to people who could not show ownership of the apartment (such as tenants). That practice was quickly condemned and denounced when publicised. Incidents such as this show a degree of autonomy as well as confusion on the ground.
The proper operation of China’s emergency response system needs all parties to adhere to the lawful exercise of powers, an important aspect of ruling the country according to the law (yifa zhiguo 依法治国), which has been a focus of China in the past 25 years.