Our last episode, China's Leadership Is Prisoner of Its Own Narrative, cherry-picked some cogent comments on Beijing’s zero COVID policy and how it was playing out. Citing EU Chamber of Commerce chair Jörg Wuttke at some length. it diverged from Beijing Baseline’s aspiration to use Chinese voices whenever possible.
In terms of Beijing Baselines’ interest in ‘new understandings of sincerity and rationality’ the point of this post was to foreground the intense debate that COVID prevention/control has posed over the rationality of state action.
One reader objected to the post as ‘just another version of "China must become like us to succeed”. Classic imperialism.’
Our reply was that ‘it would not be too hard to show that the points cited are no different to points made by very senior people in the PRC government.’ This is still the case, relevant material to that effect and will be posted in due course.
This episode turns to a closely related piece of analysis, coming from a respected PRC legal scholar, Tong Zhiwei, who is
a Shanghai resident, a distinguished professor of Guangdong University of Finance and Economics, and a professor of East China University of Political Science and Law; during the formation of this article, a total of more than 20 professors from East China University of Political Science and Law, Fudan University, Shanghai Jiaotong University, Shanghai Academy of Social Sciences, South China University of Technology, Wuhan University, Hubei University, Peking University and other educational and academic institutions expressed their opinions; Professor Sang Yucheng of Fudan University proposed important revisions.
Tong Zhiwei 童之伟
The article appeared on a WeiXin public account on 8 May 2022, was swiftly removed but has been archived and reproduced many times.
NB: Professor Tong’s argument refers to what he credits as ‘socialist law’, making it hard to label his views ‘imperialism’…
Legal Opinion on two measures in Shanghai's COVID-19 Prevention and Control1
Tong Zhiwei
The dialogue between Shanghai officials and relevant residents disclosed on video and audio show that the situation caused by two measures taken to prevent COVID-19 in Shanghai is very serious; the reaction among the citizens is also very strong, which is likely to cause some kind of rule of law disaster. My opinions are as follows, for the reference of all parties.
1. Any practice of using coercive means to force residents to be sent to the shelter for quarantine is illegal and should be stopped immediately
A video of the dialogue between the personnel of a sub-district office and police station in a certain district of the city and the residents shows that the relevant officials insisted that all people in close contact on the same floor would be sent to isolation in mobile medical shelters if they did not obey, they would use coercive means to enforce it. Relevant officials claimed that this was a unified deployment of the whole city, and the enforcement was based on the provisions of Public Security Administration Punishment Law §50.1. In fact, these officials’ statements clearly misunderstood and even deliberately misinterpreted the law. The Public Security Administration Punishment Law §50.1 cannot be the legal basis to support their coercive behaviour.
The original text of §50.1 reads: ‘Anyone who commits any of the following acts shall be given a warning or a fine of less than 200 yuan; if the circumstances are serious, he shall be detained for not less than five days but not more than 10 days, and may concurrently be sentenced to a fine of 500 yuan. A fine of not more than 100 yuan for refusing to enact decisions or orders issued by the people’s government in accordance with the law in the state of emergency.’
Why is it said that the above provisions cannot be the legal basis to support coercion by sub-district offices or police station personnel? For people with a little sense of socialist law, the reason is actually very simple:
A ‘state of emergency is a legal state, which, to appear or exist, must be declared by the competent authority in accordance with the constitution. It is definitely not something that any agency or official can arbitrarily identify and declare. Paragraph 21 of Article 67 of the PRC Constitution stipulates that the NPC Standing Committee ‘decides whether the nation as a whole, or individual provinces, autonomous regions or municipalities are to be in a state of emergency’. The PRC Constitution §89.16 stipulates that the State Council ‘decides to enter a state of emergency in some areas within the province, autonomous region, and municipality directly under the Central Government in accordance with the law". Except for the NPC Standing Committee and the State Council, no organisation or official in my country has the right to decide and declare a state of emergency in Shanghai or parts of Shanghai.
The reality is that neither Shanghai nor any part of it is in a state of emergency in accordance with the law, so it is impossible for the State Council or local people’s governments at any level there to issue decisions and orders that can only be issued in a state of emergency; indeed they have not issued them. Corresponding decisions and orders that can only be issued in an emergency.
Even taking into account the provisions of the Prevention and Control of Infectious Diseases Law §39, relevant agencies have no right to use coercive means to force residents to be quarantined in mobile medical shelters. Paragraph 1 of this article states: ‘When a medical institution discovers a Class A infectious disease, it shall take the following measures in a timely manner:
(1) Patients and pathogen carriers shall be treated in isolation, and the period of isolation shall be determined according to the results of medical examinations;
(2) For suspected patients, separate isolation and treatment in designated places before diagnosis;
(3) For patients, pathogen carriers, and close contacts of suspected patients in medical institutions, medical observation and other necessary preventive measures shall be taken in designated places.
Paragraph 2 of this article stipulates: ‘If the person refuses to be isolated for treatment or leaves the isolation and treatment without authorisation before the isolation period expires, the public security organ may assist the medical institution to take compulsory isolation and treatment measures.’ ‘Compulsory measures’ here refers to compulsory isolation and treatment, obviously only aimed at the patients, pathogen carriers and suspected patients mentioned in Items (1) and (2) of the preceding paragraph, excluding the close contacts of item (3), not to mention other residents.
In conclusion:
According to the Constitution, at present, decision on or declaration of a state of emergency in Shanghai, or a certain place there, any organisation or official in Shanghai must be unfounded and false. The illegality of the statement should be exposed and resisted
Statements or practices of any organisation or official in Shanghai claiming that—according to decisions or orders that can only be issued by the People’s government in an emergency—it has the right to coerce citizens’ being quarantined in mobile medical shelters is illegal and invalid
The practice of any organisation or official in Shanghai forcibly sending any residents other than patients, pathogen carriers, and suspected patients to mobile medical shelters for isolation by coercive means constitutes an illegal violation of their personal rights that should bear corresponding legal responsibility
Public authorities at all levels in Shanghai have a responsibility and obligation to immediately stop coercively sending residents other than patients, pathogen carriers, and suspected patients to mobile medical shelters for isolation within the scope of their own authority, so as to protect citizens’ legal personal rights and liberties;
Any citizen whose personal rights and freedoms are threatened shall have the right to demand of staff executing the compulsory order to produce the paper text of the decision issued by the people’s government, or the order or the text of the state agency website.
1) Any citizen whose personal rights have been violated has the right to file a lawsuit in a People’s Court in order to obtain legal protection and remedy.
2) No institution in Shanghai has the right to forcibly require citizens to hand over their residence keys, or enter the residences of citizens for ‘disinfecting"
The audio recording shows that the relevant officials of the city’s Hongkou District forced the residents of Feihong Road to hand over their house keys, leave their homes, and claimed that they wanted to enter their homes to disinfect the virus. Their attitude was very tough. This practice is probably not an isolated case in Shanghai.
Relevant laws and regulations:
The PRC Constitution §39 stipulates: ‘Residences of PRC citizens are inviolable. Illegal searches or trespassing of citizens’ residences are prohibited. No law in the PRC authorises any institution or individual to make residents hand over their residence keys to public officials and leave the residence. home, or let them enter the residential house for virus disinfection.
In conclusion:
1. Relevant Shanghai officials forcing residents to hand over their house keys, sending people to enter their homes to ‘disinfect’ (this practice has already been enacted in some areas), is an act of illegal trespass on citizens’ houses;
2. All levels of Shanghai public agencies have a responsibility and obligation within their own authority to stop forcing residents to hand over their house keys and sending personnel to their homes to ‘disinfect’ them;
3. ‘Disinfection’ provisions on of the Law on the Prevention and Control of Infectious Diseases cannot, and indeed do authorise any organisation or individual to, forcibly obtain the keys of residents’ houses or enter their homes to ‘disinfect’.
3. If the Shanghai Municipal Party Committee and Municipal Government think there is a state of emergency, it may request the NPC Standing Committee or the State Council to take steps in accordance with the Constitution
The virus is not very toxic and the harm is not too big. It is necessary to prevent excessive epidemic prevention and prevent serious losses.
If the Shanghai Municipal Party Committee and Municipal Government think there is a state of emergency, it may request the Shanghai People’s Congress Standing Committee to hold an emergency meeting, and through the NPC Standing Committee request the it or the State Council to declare a state of emergency in Shanghai or certain areas in accordance with the Constitution, and then develop a systematic work plan.
Preventing COVID-19 must be balanced with protecting citizens’ rights and freedoms; state organs and officials at all levels should act in strict accordance with the Constitution and laws, and must not, for the sake of convenience in doing things, violate the principle of the rule of law or undermine the legal system.
Shanghai has ever since the PRC’s founding been known nation- and even worldwide for its enlightenment, rule of law and prosperity. Its ‘16 Character Spirit’,2 recited for many years, has become the pride of the general public. At present, the epidemic prevention situation in the PRC is still severe; Shanghai’s is not optimistic. Under such circumstances, how Shanghai sets an example to the whole country in terms of scientific epidemic prevention and democratic epidemic prevention is the responsibility and mission of leaders and citizens at all levels in Shanghai.
The above legal opinions are hereby put forward, and I would like to ask you to think deeply!
(The author is a Shanghai resident, a distinguished professor of Guangdong University of Finance and Economics, and a professor of East China University of Political Science and Law; during the formation of this article, a total of more than 20 professors from East China University of Political Science and Law, Fudan University, Shanghai Jiaotong University, Shanghai Academy of Social Sciences, South China University of Technology, Wuhan University, Hubei University, Peking University and other educational and academic institutions expressed their opinions; Professor Sang Yucheng of Fudan University proposed important revisions.)
Tong Zhiwei, "Legal Opinion on two measures in Shanghai's COVID-19 Prevention and Control”Yibao, 8 May 2022 [童之伟:“对上海新冠防疫两措施的法律意见”,议报,2022年5月 8日 (in Chinese).].
海纳百川、追求卓越、开明睿智、大气谦和: ‘Embracing all rivers, the sea pursues excellence, is open-minded, wise, generous and modest’.