Five months after China first reported to the World Health Organization (WHO) cases of pneumonia of an unknown cause on December 31, 2019, that disease, now known as COVID-19, continues to ravage the world, causing public health emergencies of a scale unseen in recent history. In response, governments worldwide have resorted to extraordinary measures in an attempt to stop the virus from spreading: from shutting borders to locking down cities, from closing businesses to mandating social distancing.
In China, local (especially provincial) legislatures, like other governmental bodies, have played a part in epidemic response. Acting in an almost concerted fashion, over twenty provincial legislatures[1] adopted decisions dealing with COVID-19—which we will call “COVID Decisions”—in a twelve-day period in early February. These Decisions address the responsibilities of a range of parties: government entities, businesses, medical institutions, social groups, communities, individuals, etc. (All but Shaanxi’s require individuals to wear masks in public, for example). Equally important, the Decisions also grant emergency powers to local governments.
Yet, as Professor Oren Gross wrote on Just Security, “crises present governments, both democratic and authoritarian, with an opportunity to increase and concentrate their powers often at the expense of individual rights, freedoms, and liberties.” As experience has taught us, he noted, governments tend to overreact when faced with emergencies; the executive branch tends to strengthen itself at the expense of other branches; and counter-crisis measures tend to stay even after the crisis is over. During this very crisis, for instance, the Hungarian Parliament has recently acceded to the prime minister’s “coronavirus coup,” allowing him to rule by decree, limit press freedoms, cancel elections, and shut down courts.
China’s provincial legislatures, to be sure, simply cannot do things of a comparable magnitude. But we still believe it valuable to take a look at their COVID Decisions—to see what new powers they have given to local governments and whether they have imposed any internal or external limitation on the exercise of the new powers. By focusing on the texts of those Decisions and other legal authorities, we explore some of these issues below.
The Timeline
Just three weeks after China first confirmed novel coronavirus cases, Wuhan was put under lockdown on January 23, 2020. That drastic measure came on the eve of the originally week-long Spring Festival holiday, which was later extended to ten days, ending on February 2.
During the first week after the holiday, seven provincial legislatures sprang into action. Beijing, Shanghai, and Zhejiang all adopted their COVID Decisions on February 7, followed by another four provinces in the next two days (see table below). The biggest batch of Decisions came on February 10, when another seven provincial legislatures acted. Hubei, the epicenter of the epidemic, for some reason did not pass its own COVID Decision until February 11, when it was joined by Guangdong and Ningxia. Five more provincial legislatures met and adopted COVID Decisions in the week thereafter, ending with Heilongjiang on February 18. Over a month later, on March 25, Shaanxi finally acted. Unlike other provinces’ COVID Decisions, however, Shaanxi’s paid more attention to the long-term goal of improving the emergency public health system than to dealing with the epidemic itself (Shaanxi had no new COVID-19 cases that day).
As of this writing, eight provinces—Shanxi, Inner Mongolia, Hunan, Guangxi, Tibet, Gansu, Qinghai, and Xinjiang—still have not passed their COVID Decisions and presumably will not do, so as the epidemic has been largely under control in China. The final tally is twenty-three.
| Date | Events* |
|---|---|
| Dec. 31, 2019 | China first notified the WHO of COVID-19 cases |
| Jan. 21, 2020 | The National Health Commission classified COVID-19 as a Class B infectious disease under the Law on the Prevention and Control of Infectious Diseases [传染病防治法], but treated it as a Class A infectious disease. 440 total confirmed cases by end of day. |
| Jan. 23 | Wuhan was put under lockdown. 830 total confirmed cases by end of day. |
| Jan. 24 – Feb. 2 | Lunar New Year holiday, extended by 3 days. 17,205 total confirmed cases by end of Feb. 2. |
| Feb. 7 | COVID Decision: Beijing, Shanghai, Zhejiang. 31,774 total confirmed cases by end of day. |
| Feb. 8 | COVID Decision: Jiangsu. 33,738 total confirmed cases by end of day. |
| Feb. 9 | COVID Decision: Hebei, Jilin, Anhui. 35,982 total confirmed cases by end of day. |
| Feb. 10 | COVID Decision: Fujian, Jiangxi, Henan, Hainan, Chongqing, Sichuan, Yunnan. 37,626 total confirmed cases by end of day. |
| Feb. 11 | COVID Decision: Hubei, Guangdong, Ningxia. 38,800 total confirmed cases by end of day. |
| Feb. 13 | COVID Decision: Shandong, Guizhou. 63,815 total confirmed cases by end of day. |
| Feb. 14 | COVID Decision: Tianjin. 56,873 total confirmed cases by end of day. |
| Feb. 17 | COVID Decision: Liaoning. 58,016 total confirmed cases by end of day. |
| Feb. 18 | COVID Decision: Heilongjiang. 74,185 total confirmed cases by end of day. |
| Feb. 24 | The NPC Standing Committee (NPCSC) banned the consumption of wild animals nationwide and the postponed the NPC’s 2020 session. 77,658 total confirmed cases by end of day. |
| Mar. 25 | COVID Decision: Shaanxi. 81,285 total confirmed cases by end of day. |
| Apr. 29 | The NPCSC decided to convene the NPC’s 2020 session on May 22. 82,862 total confirmed cases by end of day. |
Existing Emergency Powers
When drafting their COVID Decisions, the provincial legislatures did not have to start from scratch. Local governments already have many legal tools to respond to public health crises under existing national statutes and regulations, mainly the Law on the Prevention and Control of Infectious Diseases [传染病防治法] (IDL), the Emergency Response Law [突发事件应对法] (ERL), and the State Council’s Emergency Regulations for Public Health Emergencies [突发公共卫生事件应急条例] (Regs.). Pertinent authorities contained in the three documents for dealing with public health emergencies are listed in the table below.
| Emergency Power | Legal Basis | # Grants |
|---|---|---|
| Temporarily requisitioning the necessary sites, houses, means of transportation, equipment, and facilities | IDL art. 45, para. 1 ERL art. 52, para. 1 | 15 |
| Ordering emergency mobilization of personnel or activation of strategic reserves | IDL art. 45, para. 1 ERL art. 49, item 5 Regs. art. 33 | 10 |
| Closing or restricting the use of sites that may cause the epidemic to spread | IDL art. 42, para. 1, item 5 ERL art. 49, item 4 | 8 |
| Implementing transportation health quarantine | IDL art. 44 Regs. art. 38, para. 2 | 8 |
| Restricting or suspending mass gatherings | IDL art. 42, para. 1, item 1 ERL art. 49, item 4 | 7 |
| Suspending work, businesses, and schools | IDL art. 42, para. 1, item 2 ERL art. 49, item 4 | 6 |
| Implementing traffic control | IDL art. 43 (requires an “epidemic area” [疫区] declaration) ERL art. 49, item 2 | 4 |
| Ordering private entities to ensure the supply of emergency supplies and daily necessities | ERL art. 52, para. 1 Regs. art. 32 | 4 |
All COVID Decisions (except Jilin’s) cite all three laws and regulations. Many also redundantly re-grant some combination of the eight powers listed above, perhaps to confirm the legality of the actions local governments had already taken. The Wuhan government, for instance, had requisitioned dozens of schools, stadiums, and expo centers—which provided over tens of thousands of beds for quarantine and treatment—by the time the Hubei legislature adopted its COVID Decision on February 11. Interestingly, not all powers were treated equal. Almost two-thirds of the COVID Decisions (15 of 23) confirm the governments’ requisitioning power, but only seven mention the no less crucial power to stop mass gatherings.
National law and the COVID Decisions have imposed no meaningful ex ante restriction on the exercise of those emergency powers. The Constitution requires only that private property be requisitioned “in the public interest” (art. 13, para. 3)—a condition that pandemic responses easily satisfy. The IDL and ERL (as do some COVID Decisions) further require that emergency measures be taken only where “necessary” or “needed to control the epidemic” (IDL arts. 42, 45; ERL art. 52), but the government has full discretion to decide whether that threshold is met. There is also a general lack of procedural requirements for taking emergency actions. For emergency requisitions, for instance, there are no national procedural rules. We counted only six cities and one province[2] that have permanent rules on emergency requisitions, leaving most of the country without any. Shanghai’s, Fujian’s, and Tianjin’s COVID Decisions do require local governments to issue a certificate of requisition to each private party affected, but that is likely the full extent of the governments’ procedural obligations, absent any ad hoc rules.
Local governments have an obligation to provide “just and fair” compensation for requisitioning private property (Gen. Provisions of the Civil Law art. 117). That obligation attaches both when the private property is simply used or is damaged or lost by the government (IDL art. 45; ERL art. 12). The government must also return any property that could be returned (id.). Only one provincial legislature (Shandong) imposes an additional obligation on local governments—that they must keep all returnable property “clean and hygienic.” Again, there is no national rule on how compensations are to be made or how their fairness is to be assessed.
New Emergency Powers
Twenty of the twenty-three COVID Decisions also authorize local governments to take “temporary administrative emergency management measures” [临时性行政应急管理措施] in one or more of the areas listed in the table below. Unlike the eight types of emergency powers discussed above, these measures are not clearly authorized by national law. To the extent national law does allow local governments to act in some of those areas, it is usually more specific about what action is permissible and never grants freewheeling authority to take all emergency measures.
| Area | # Grants |
|---|---|
| Administration of epidemic control (or epidemic screening and investigation) | 20 |
| Isolation and observation (including centralized isolation and treatment) | 20 |
| Community management (or community governance) | 20 |
| Market regulation | 20 |
| Labor security | 20 |
| Urban sanitation and environment (and hygiene) | 20 |
| Transportation | 19 |
| Medical and health care (or medical treatment) | 18 |
| Site management | 18 |
| Business activities | 18 |
| Wildlife management (and protection) | 17 |
| Roads and ports management [道口管理] (or road traffic) | 16 |
| Environmental risks (or protection) | 2 |
| Administrative requisitions | 1 |
| Activation of strategic reserves | 1 |
| Domestic drinking water | 1 |
While four of the twenty Decisions[3] explicitly or implicitly require that the emergency management measures be consistent with upper-level legislation—including national law and provincial regulations (i.e., the enactments of provincial legislatures)—the remaining sixteen do not. They instead purport to broaden the room within which local governments can act. The wording in Henan’s Decision (art. 2) is representative:
The people’s government at or above the county level may, as needed to prevent and control the epidemic, take temporary emergency management measures and promulgate governmental rules [规章] or issue decisions, orders, notices, and so forth, [in certain areas], provided that they do not contravene the Constitution, [national] laws, or administrative regulations, and do not violate the basic principles of the local regulations of the Province . . . .
The italicized part is the key: it implies that local governments may take actions that violate provincial regulations, so long as those actions are consistent with the regulations’ “basic principles.” It is clearly modeled on the division of legislative authority between the NPC and its Standing Committee (NPCSC): the latter may partially amend the NPC’s enactments as long as their basic principles are not violated (see P.R.C. Const. art. 67, item 3).
Legality of the Grant of Emergency Powers
Are these grants of emergency powers legal? Take the emergency rulemaking authority granted to provincial governments.[4] Three paragraphs of article 81 of the Legislation Law [立法法] bear on this question:
- Paragraph 1 requires that provincial governmental rules be consistent with upper-level legislation—which, again, includes provincial regulations.
- Paragraph 6 bars those rules from impairing the rights of private parties or increasing their duties without a basis in upper-level legislation.
- Paragraph 5 allows a provincial government to promulgate rules that otherwise must be enacted as regulations by the provincial legislature, only if the legislature has not acted and the rules are urgently needed for administrative management. But it also requires such stopgap rules to be replaced by provincial regulations when they are in force for two years.
If Paragraph 5 allows a provincial government to write stopgap rules on its own initiative, there is no reason why the corresponding provincial legislature cannot affirmatively authorize such rules. But these stopgap rules must still comply with Paragraph 6, which was added in 2015 as part of a general effort to restrain the rulemaking power of local governments.[5] A contrary reading would allow the governments to bypass the restrictions placed on their rulemaking authority. Put another way, even if a provincial government is to promulgate stopgap rules with provisions affecting private rights and duties pursuant to an express legislative authorization, those provisions must still have a basis in some upper-level legislation, which could be the authorization itself.
Presumably, in granting broad emergency powers to local governments with a “basic principles” restriction, a provincial legislature aims to achieve either (or more likely, both) of two things. First, provincial regulations may bar some of the government’s planned emergency measures, so the legislature wishes to allow those measures without violating Paragraph 1. Second, because those measures (say, requiring citizens to install an app on their phones for contact tracing) are likely to impair private rights or increase private duties without any basis in upper-level legislation, the legislature wants to supply such a basis. The question then becomes whether provincial legislatures can—and whether their COVID Decisions did—lawfully achieve either of these goals.
Arguably, the COVID Decisions have lawfully achieved the first goal. In our view, they could—within the bounds of reasonableness—be read to preemptively abrogate any provision in provincial regulations that does not concern the regulations’ basic principles, if that provision turns out to bar future emergency government rules. In other words, we interpret the Decisions to actively avoid any future conflict that would doom as-yet unwritten emergency rules under Paragraph 1.
The second goal is theoretically attainable, but we do not believe the COVID Decisions have lawfully accomplished it. As an initial matter, the COVID Decisions could be seen as an exercise of the provincial legislatures’ power under Paragraph 5 to affirmatively authorize stopgap governmental rules. But as discussed earlier, were these rules to limit rights or increase duties, there must be some basis in the Decisions for them to do so. Yet none of the Decisions’ authorizing clauses even mentions private rights or duties—much less specifies what rights may be impaired or what duties may be imposed by the stopgap rules. Because they fail to supply the basis required by Paragraph 6, the latter likely renders some emergency rules promulgated by provincial governments illegal. (This illegality is mitigated, however, by the fact that some provisions in the IDL and ERL could plausibly be read to cover some of the areas listed in the table above.)
We should note that the NPCSC Legislative Affairs Commission has reached a contrary conclusion. It has found the COVID Decisions “overall lawful and appropriate” and consistent with national law. It did not elaborate on its reasoning, but has suggested in a separate WeChat post that rules may permissibly be bent during emergencies and that 100% compliance should not be expected.
Restrictions on the Exercise of Emergency Powers
Of the twenty-three COVID Decisions, only three have placed additional restrictions on the exercise of emergency powers beyond what existing law puts in place. Yunnan’s Decision provides that “temporary administrative emergency management measures shall protect the rights and interests of citizens, legal persons, and other organizations to the greatest extent” (art. 3). Similarly, Guizhou’s Decision instructs local governments to reduce to the greatest extent the inconveniences caused by epidemic control on businesses and people’s lives (art. 3, para. 1). It also bars the governments from “escalating” emergency measures without authorization (id.).
The most elaborate set of restrictions is found in Heilongjiang’s Decision, although they are not so much directed against local governments as against private entities. Article 3, paragraph 3 of the Decision provides:
In adopting the above-mentioned temporary administrative emergency management measures, [the governments] shall adhere to the principles of legality, science, and democracy, tailor [the measures] to the nature, degree, and scope of the social harm that may be caused by the epidemic, and implement human-based management to ensure the people’s inelastic demands for businesses, living, travel, and so forth; and shall promptly carry out publicity and guidance work to avoid disputes caused by crude and rigid emergency management measures. Without authorization, work units and individuals shall not take actions that violate the lawful rights and interests of citizens, such as setting up checkpoints, damaging or blocking roads, and blocking traffic; shall not adopt rigid isolation measures such as sealing doors, welding entrances and exits shut, and stacking materials to lock down villages and communities; and, except persons for whom isolation treatment or medical observation measures shall be taken according to law, shall not restrict other homeowners or tenants who have taken protective measures and cooperated with inspections from returning home.
Heilongjiang was the second last among the twenty-three provinces to adopt a COVID Decision. The legislature was clearly influenced by the more drastic (and illegal) measures that governments and communities had adopted elsewhere in China, and decided to expressly proscribe them in this Decision.
Termination of Emergency Powers Granted
Mindful of governments’ tendency to prolong counter-crisis measures, we also looked at whether the COVID Decisions have included mechanisms to terminate the emergency powers granted. An initial observation is that all twenty-three Decisions explicitly reference COVID-19 in their titles and operative provisions, thereby making it impossible for local governments to invoke them to deal with future crises. (As alluded earlier, however, Shaanxi’s is an exception.)
Nine COVID Decisions[6] include sunset provisions (of sorts): that they will expire upon the end of the period to “prevent and control” the COVID-19 epidemic, but do not specify which body has the authority to determine, or how to determine, that period has ended. Similarly, Zhejiang’s, Hebei’s, and Anhui’s Decisions imply that they are to be in effect only when there is still an epidemic, but fail to further elaborate. Five other provincial legislatures have opted to separately announce the expiration of their COVID Decisions; none has done so as of this writing, to our knowledge. The remaining six Decisions do not touch on expiration issues. Shaanxi’s Decision, the exception mentioned earlier, has in fact permanently authorized local governments to take temporary emergency measures whenever there is a “major epidemic,” as long as they do not violate national law (art. 6, para. 1).
Mechanisms for External Control
Finally, we reviewed the twenty-three COVID Decisions for any provisions on external control of governmental exercise of emergency powers.
The Decisions do not address judicial review of local governments’ emergency measures, whether clearly authorized by any upper-level legislation or not. The reason might be twofold: first, local legislatures have limited legislative authority over the judicial system (see Legislation Law art. 8, item 10); and second, the Administrative Litigation Law [行政诉讼法] has settled many of these issues. For instance, it has made judicial review available for requisitions of private property (art. 12, item 5), but has also expressly shielded all governmental rules from judicial review (art. 13, item 2). “Decisions or orders that are universally binding”[7] may be reviewed by courts, but only in cases that challenge concrete government action taken pursuant to those documents (id.).
The primary mechanism for ensuring consistency in the Chinese legal hierarchy is political (or legislative)—through the “recording and review” process. Twelve[8] of the twenty-three COVID Decisions thus require that local governments record any temporary emergency measure taken with the legislatures at the same level. Eight[9] of them also require the measures to be recorded with the governments at the next higher level. Government bodies receiving the recordings can then review them for “appropriateness” [适当] (Legislation Law art. 97, items 5–6; Local People’s Governments and People’s Congresses Organic Law art. 44, item 8; art. 95, item 3). The review processes are not necessarily triggered automatically, however. And it is unlikely that they would be very rigorous in any event, given the exigency of the epidemic.
Lastly, the COVID Decisions generally require local legislatures to conduct oversight of governmental responses to COVID-19, with eleven[10] expressly instructing the legislatures to hear government work reports on the implementation of the Decisions. Given the Decisions’ lack of provisions constraining the use of emergency powers, however, we would expect the work reports to focus more on whether the governments have effectively contained the epidemic, rather than on whether they have adequately safeguarded private rights in that process.
Conclusion
Several aspects of the COVID Decisions are troubling: they permit local governments to overstep their rulemaking authority, pay almost no heed to safeguards for individual liberties against coercive emergency measures, and fail to institute mechanisms for effective external oversight of government conduct. Yet these deficiencies are not unique to these Decisions, but are part of the chronic issues that have long plagued China’s legal system. They are also tempered by the interim nature of the Decisions and by officials’ attempts, however strained, to justify their legality under existing legal framework. At the end of the day, it is hard to say that the Decisions themselves have further entrenched authoritarianism in any significant way.
That conclusion may seem underwhelming, but what the COVID Decisions portend might be more worrisome. The NPCSC has not adopted a COVID decision of its own, but must be following local legislative developments closely. What has worked locally might serve as a model for future national legislation, which could give the government greater latitude in dealing with crises and attach criminal penalties to violations of emergency measures—something that local legislatures cannot do. In fact, such legislation is fast approaching. Last month, the NPCSC released a plan to update China’s public health legislation, with seventeen legislative projects scheduled for 2020 and 2021. It has added new provisions on emergency requisitions to the draft Civil Code [民法典], which the NPC will take up on Friday. It is also studying ways to toughen public health–related crimes in the next amendment to the Criminal Law [刑法]. The most significant legislative changes are therefore yet to come.
With contribution by Taige Hu.
[1] “Provincial legislatures” is used as a shorthand for the standing committees of the people’s congresses of the provinces, directly governed municipalities, and autonomous regions. Similarly, “provinces” is used in this post to include provinces, directly governed municipalities, and autonomous regions, and “legislatures” means the people’s congresses and their standing committees, regardless of whether they actually have legislative power.
[2] The five cities are Siping, Jilin; Nanjing and Changzhou, Jiangsu; Jiangmen, Guangdong; Hangzhou, Zhejiang; and Taiyuan, Shanxi. The sole province is Yunnan. Shanghai used to have a set of emergency requisition rules, but they expired on December 1, 2019.
[3] They are Hebei’s, Hubei’s, Guizhou’s, and Shaanxi’s. Hebei’s Decision, for instance, requires that emergency measures be taken “according to law” (art. 3, para. 1). Guizhou’s is more explicit: it specifies that those measures “must not contradict the Constitution, statutes, or regulations” (art. 3, para. 1).
[4] Only Shanghai’s and Henan’s Decisions expressly provide that “temporary administrative emergency management measures” may include governmental rules. For purposes of this post, however, we assumed that the other eighteen Decisions that authorize such measures meant to include governmental rules as well. In addition, our analysis below on the emergency rulemaking authority granted to provincial governments also applies to other types of emergency measures and to the emergency powers granted to sub-provincial governments.
[5] See LIU Songshan [刘松山], Division of Authority Between Local Regulations and Governmental Rules [地方性法规与政府规章的权限界分], China L. Rev. [中国法律评论], no. 4, 2015, at 74, 78.
[6] They are Jilin’s, Fujian’s, Henan’s, Sichuan’s, Hubei’s, Shandong’s, Tianjin’s, Liaoning’s, and Heilongjiang’s.
[7] The Supreme People’s Court has interpreted this term to mean all normative documents issued by administrative organs that do not target specified entities and may be repeatedly applied.
[8] They are Shanghai’s, Zhejiang’s, Jilin’s, Anhui’s, Fujian’s, Henan’s, Sichuan’s, Yunnan’s, Guizhou’s, Liaoning’s, Heilongjiang’s, and Shaanxi’s.
[9] They are Jilin’s, Anhui’s, Fujian’s, Henan’s, Yunnan’s, Guizhou’s, Liaoning’s, and Heilongjiang’s.
[10] They are Shanghai’s, Zhejiang’s, Hebei’s, Anhui’s, Fujian’s, Jiangxi’s, Henan’s, Yunnan’s, Ningxia’s, Guizhou’s, and Liaoning’s.
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Thank you so much! Nice job!