Shanghai’s lockdown to eradicate a local Covid-19 outbreak continues. Over the past weekend, Shanghai residents in multiple districts discovered that green metal fences were erected outside their residential compounds or buildings. In a widely circulated notice by the Pudong New Area government, that move was termed “hard isolation” [硬隔离]. Exasperated by the latest development, many residents dug up a set of Q&A-style statements issued by the Legislative Affairs Commission (LAC) of the NPC Standing Committee in March 2020 and relied on them to argue that Shanghai’s “hard isolation” measures were unlawful. But do the LAC statements in fact support the residents’ argument?
Not obviously. In our view, Shanghai’s “hard isolation,” though draconian, appears authorized by China’s Law on the Prevention and Control of Infectious Diseases [传染病防治法] and differs in key aspects from the epidemic-control measures addressed by the LAC in 2020 (even though they were also called “hard isolation”). Here is why.
To start, here is what the LAC stated in relevant part (our emphasis):
Question #1: To prevent spread of the [Covid-19] epidemic, some localities have taken “hard isolation” prevention and control measures, such as “urging [non-local persons] to return [to their places of origin] without exception” [一律劝返] and “locking up house doors” [锁死家门], sparking controversy. Is there any legal basis for those measures? What should we pay attention to when taking measures to prevent and control the epidemic according to law?
Answer (by Zang Tiewei, spokesperson for the NPCSC Legislative Affairs Commission and director of its Research Office): Since the outbreak started, the State Council has classified Covid-19 as a Class B infectious disease and managed it as a Class A infectious disease. In accordance with the provisions of the Law on the Prevention and Control of Infectious Diseases, local governments at or above the county level may take quarantine measures against persons in places where cases of Class A infectious diseases have occurred or in specific areas within such places [quoting from article 41]; in the event of an outbreak or epidemic of an infectious disease, local governments at or above the county level may close off places likely to cause the infectious disease to spread [quoting from article 42]. It should be noted that these measures may be taken only when cases have already occurred or there is a real risk of transmission, as their main purpose is to cut off the infectious disease’s channels of transmission and to safeguard people’s safety and health. In taking measures to prevent and control the epidemic, localities shall act based on epidemic’s local progression and give targeted guidance; “one-size-fits-all” [一刀切] “hard isolation” measures, such as urging non-local persons to return without exception or locking up the houses of residents in quarantine, should not be taken. These measures go beyond what is necessary and the limit, affect the lawful rights and interests of citizens and the normal operation of the economy and society, and are neither lawful nor reasonable.
. . . The key to preventing and controlling the epidemic according to law is that the actions to prevent and control the epidemic must be taken by competent entities, the means chosen must be legal, and the measures adopted must be moderate. In this regard, China’s relevant laws and regulations have specific provisions. “The [decisionmaking] entities must be competent” [主体适格] means that the relevant prevention and control measures must be decided and implemented only by legally prescribed entities such as people’s governments exercising unified leadership in accordance with law; people’s governments at lower levels and the relevant departments shall obey the unified leadership, command, and coordination of efforts to respond to emergencies by the people’s governments at higher levels. “The means must be lawful” [手段合法] means that we must strike a balance between epidemic prevention and control and the normal operation of the economy and society as well as the protection of citizens’ lawful rights and interests; simple and crude measures such as “locking up houses” and “urging [non-locals] to return without exception” must not be used to carry out “hard isolation” of the epidemic. “The measures must be moderate” [措施适度] means that [quoting from article 11 of the Emergency Response Law (突发事件应对法)] the measures taken to prevent and control the epidemic must correspond to the nature, extent, and scope of the social harm that the epidemic may cause; where multiple measures are available, measures conducive to maximally protecting the rights and interests of citizens, legal persons, and other organizations shall be selected, and [such measures] shall not exceed the necessary limits. . . .
. . . No work unit or individual may, without the approval of the local people’s government at or above the county level, seal off villages or residential compounds with rigid isolation measures such as sealing doors, or implement the rigid control of home quarantine through rough means such as locking doors or blocking passageways . . . .
(As an aside, it appears that reposts of the above statement in the last few days are being systematically censored on WeChat and news websites. The NPC has also deleted the statement from its website, which is why we had to link to an archived version earlier. But the statement is still widely available elsewhere online.)
The spokesperson’s answer does start with the seemingly broad conclusion that all “hard isolation” measures were “neither lawful nor reasonable.” By “hard isolation,” however, he was referring to two drastic epidemic-control measures that were employed in some places after the initial outbreak of Covid-19 in China, including barricading people inside their homes by installing metal chains on their doors or welding the doors shut. According to a February 2020 report, most residents subjected to this type of hard isolation did not test positive, and the measures were taken mostly by neighborhood committees or property management companies, without governmental authorization.
Indeed, the spokesperson concluded his answer by suggesting that “rigid isolation measures” such as sealing off doors or blocking passageways would be permissible if approved by at least a county-level government. This statement is consistent with article 41 of the Law on the Prevention and Control of Infectious Diseases, which provides in part: “For persons in places with cases of Class A infectious diseases or in special areas within such places, the local people’s government at or above the county level may implement isolation measures . . . .”
Thus, to lawfully implement “isolation measures” (including Shanghai’s hard isolation) under article 41, three conditions must be satisfied:
- the infectious disease at issue must be a Class A infectious disease;
- there must be confirmed cases of the disease in the places isolated; and
- the measures must be taken by at least a county-level government.
Consider, for instance, the hard isolation notice issued by the Pudong government. The notice—at least as written—seems to comply with all three requirements:
- Covid-19, though only a Class B infectious disease, has been treated as a Class A disease since January 2020, per a State Council decision issued under article 4 of the Law on the Prevention and Control of Infectious Diseases. The first condition was met.
- The notice subjected only “sealed areas” [封控区] to hard isolation. Under Shanghai’s rules, sealed areas consist only of residential compounds or buildings that have had positive cases within a week, thus satisfying the second condition.
- The notice was issued by the Office of the Pudong New Area Leading Group for Covid-19 Prevention and Control Efforts and affixed with the seal of the general office of the Pudong government (a county-level government). The notice also suggested that hard isolation was in fact ordered by Shanghai’s municipal government (“根据市疫情防控的有关要求”). It thus appears that the third condition was satisfied as well.
The fact that Shanghai’s hard isolation likely complies with article 41 itself raises some questions. First, whether the statute should be amended to limit the scope of permissible “isolation measures.” Currently, it neither defines the term nor meaningfully controls the government’s use of any such measure. And second, whether the State Council is still justified in treating Covid-19 as a Class A infectious disease—the reason why article 41 was invoked in the first place—and whether the statute should be amended to require the State Council to periodically and publicly revisit that designation.
To be clear, we are not concluding that Shanghai’s hard isolation is perfectly legal; we are saying only that the LAC’s 2020 statements alone are not sufficient to attack its legality.
There is a stronger argument, as many have pointed out, that hard isolation constitutes a textbook violation of the Fire Control Law [消防法], which prohibits any entity or individual from “blocking or sealing off escape routes, emergency exits, or fire lanes.” Based on photos taken by Shanghai residents, many fences did exactly that—blocking the sole entrances of residential compounds or buildings. According to some Shanghai government employees interviewed by Caixin, they had no emergency plans for dealing with fires in places under hard isolation.
Shanghai’s hard isolation may also run afoul of the Emergency Response Law’s proportionality requirement. As the LAC spokesperson alluded to, when there are multiple emergency response measures available, that Law requires use of the measure that “maximally” protects private rights and interests—for instance, one that is not a fire hazard.
Finally, we would like to note that China is in the process of updating its public health laws. The State Council solicited public comments on a draft revision to the Law on the Prevention and Control of Infectious Diseases in 2020, and the NPCSC is revising the Emergency Response Law. Authorities, moreover, are also drafting a special law on responding to public health emergencies. We will pay close attention to these bills as they move through the legislative process, and we encourage those interested to submit comments when the opportunity arises.