“State of Emergency” and Enforcement of China’s “Zero-Covid” Policy

Photo by Jida Li on Unsplash

China’s stringent “dynamic zero-Covid” policy, despite its great human and economic costs, is here to stay. The policy relies on mass testing, movement controls via “health codes,” strict lockdowns, and quarantine mandates to stamp out outbreaks. Noncompliance with those restrictions is fairly common, and the police’s preferred enforcement tool has been Article 50 of the Public Security Administrative Punishments Law (PSAPL) [治安管理处罚法]. This provision authorizes a warning, a fine of up to 500 RMB, or 5–10 days in administrative detention for those who flout official anti-Covid “decisions or orders,” depending on the severity of their violations.

To the police, Article 50 is more useful than criminal-law alternatives. The “crime of obstructing the prevention and control of infectious diseases” [妨害传染病防治罪], for instance, requires the defendant to actually spread Covid-19 or create a “serious risk” of its transmission.[1] This charge therefore cannot be brought against someone who, say, refuses mass testing but otherwise has no Covid-19 symptoms or close contact with someone who has tested positive. In addition, as the police may enforce Article 50 alone, they are relieved of the procedural and evidentiary burden that comes with criminal prosecutions.

There is, however, one precondition for invoking Article 50: the government “decisions or orders” violated must be issued in a “state of emergency” [紧急状态]. Law professor Tong Zhiwei [童之伟], among many other scholars, has argued in a since-censored open letter that the phrase in Article 50 refers to a constitutional state of emergency, which may be declared only by the NPC Standing Committee (NPCSC) or the State Council.[2] Because neither has done so, the argument goes, the police could not lawfully use Article 50 to penalize noncompliance with Covid restrictions.

Below, we first delve into the debate over the scope of “state of emergency” in Article 50, before examining how Article 50 has been used in practice and why the issue persists.

Tracing Legislative Intent

The controversy surrounding Article 50 boils down to whether the phrase “state of emergency” refers to a constitutional state of emergency declared by competent national authorities or instead has a broader, non-technical meaning. Because no constitutional state of emergency has ever been declared, the police may lawfully invoke Article 50 only if the latter interpretation holds. (This assumes, of course, that local Covid-19 outbreaks amount to colloquial or de facto states of emergency.)

Because neither the PSAPL’s text nor its legislative records shed any light on the legislative intent behind Article 50, those on both sides of the debate turn to extrinsic sources for support.

There is strong evidence that Article 50 intended to reference the constitutional state-of-emergency provisions. Following the 2003 SARS crisis, the Chinese Constitution was amended in March 2004 to authorize the NPCSC and the State Council to declare states of emergency. This amendment superseded prior “martial law” provisions, with the goal of providing the state with explicit legal basis to act in a wider variety of emergencies. Article 50 (as part of the PSAPL) was introduced just a few months later, in October 2004, and enacted in its current form in August 2005. Based on this sequence of events, the later-enacted Article 50 was likely meant to incorporate a novel constitutional term adopted just over a year earlier. In a 2005 commentary on the PSAPL, the NPCSC Legislative Affairs Commission, arguably the most authoritative expounder of legislative intent, more clearly made that connection. It explained that the Article 50 offense was created “to preserve social order, safeguard public security, and protect citizens’ lives and property in states of emergency,” immediately after introducing the 2004 state-of-emergency amendments.[3]

Some emergency law scholars nonetheless argue that “state of emergency” in Article 50 should be interpreted broadly. They point to a contemporaneous bill, a draft State of Emergency Law (SEL) [紧急状态法] designed to implement the new constitutional state-of-emergency provisions.[4] The SEL and the PSAPL were placed on the NPCSC’s legislative agenda at the same time, and were both drafted by the State Council. The SEL as initially envisioned was never adopted, however; after rounds of revisions, it was renamed and enacted in 2007 as the Emergency Response Law (ERL) [突发事件应对法], a key statute governing China’s Covid response. The scholars claim that “states of emergency” as defined in the SEL have been refashioned as the various levels of emergency responses under the ERL. And because Article 50 was originally written as an enforcement mechanism for the SEL, its reference to “state of emergency” should be understood to encompass the emergencies that trigger the ERL as well. An authoritative account of this complex legislative history suggests that the ERL did retain most of the SEL’s provisions, but it is not possible to independently verify the scholars’ claim when no draft of the SEL is publicly available.

Unexceptional  States of “Emergency”

Available evidence of legislative intent favors limiting “state of emergency” in Article 50 to its constitutional sense. But even accepting the provision is ambiguous—after all the phrase is not defined in the PSAPL—general principles of statutory interpretation should still constrain its application. Under one such principle, recognized by the Supreme People’s Court’s decision in a 2015 tax dispute, later issued as a “model case,” “when a statutory provision is amenable to multiple interpretations, the one that favors [the private party subject to the administrative process] should be considered for application first.” Thus, under this principle, Article 50 should apply only in a constitutional state of emergency.

But authorities have not followed that principle in responding to Covid-19. In a joint guidance issued in February 2020, national criminal justice organs (including the Court) endorsed using Article 50 to punish conduct that obstructs epidemic-control efforts when no criminal law is violated. Later, in summer 2022, the Supreme People’s Procuratorate and the Ministry of Public Security released two model cases to guide the application of Article 50. In the first case, the Shanghai police, during the height of the city’s 2022 Covid outbreak, fined and detained a resident who had repeatedly violated testing requirements and isolation orders. The other case involved a Zhejiang resident who checked into a hotel in Wuxi, Jiangsu by using a health code registered to a friend’s phone number to hide his or her own travel history. Both that resident and the hotel manager were given a warning under Article 50.

In fact, the police have invoked Article 50 in a range of situations since long before the Covid-19 pandemic began. According to a recent study of almost 1,900 police decisions citing Article 50 from 2013 to early 2020,[5] circumstances that have been considered “states of emergency” include the 2018 African swine flu outbreak, heavy air pollution days, typhoon warnings, and officially designated no-fire zones or periods under wildfire control regulations.[6] Once in a while, a court would reject the most far-fetched assertion of emergency by the police. For example, a Shanxi court concluded in a 2020 case that a local government notice on “strengthening the management and protection of the Yellow River waterway” was not a decision or order issued in a state of emergency. Thus, it held that the police could not punish someone who dismantled government-installed guardrails to access the riverbank under Article 50.

Far more common, however, has been judicial endorsement of the police’s expansive reading of Article 50. A Sichuan basic-level court offered a rare, direct defense of that practice in a 2019 case. There, a local government, citing elevated wildfire risk, issued an order prohibiting fire use in the wild during a certain period. In violation of the order, the plaintiff burned mulberry branches on the edge of a forest and was detained for 10 days under Article 50. She then challenged the police decision in court. Clearly sympathetic to the fire ban, however, the court explained that Article 50 was enacted to ensure that government decisions and orders are “effectively implemented.” It continued (our emphasis):

[The decisions and orders covered by Article 50] can be made not just in response to national-level [i.e., constitutional] “states of emergency.” In performing their administrative functions to manage social affairs, the various levels of government also have the power to issue decisions, orders, and other normative documents with respect to public health crises, ecological and environmental disasters, accidents, economic crises, social and public security incidents, and other such emergencies that occur in their respective jurisdictions, . . . , so as to quickly respond to the emergencies. Therefore, the provisions of [PSAPL Article 50] should be understood broadly and should not be read to apply only to national-level “states of emergency” . . . .

The plaintiff thus lost. On appeal, the appellate court adopted the quoted passage verbatim, again siding with the police. Indeed, the study finds it a “common practice” for the police and courts to apply Article 50 not only in de facto states of emergency, but also in unexceptional situations that simply entail heightened but predictable risks.[7]

Legislative Acquiescence?

Some scholars justify the expansive application of Article 50 based on a theory of legislative acquiescence.[8] Because the NPCSC amended the PSAPL in 2012 without changing Article 50, they reason, it thereby silently approved law enforcement and courts’ interpretation. This argument assumes that the NPCSC was aware of how Article 50 had been applied, but that was not obviously the case. According to public records, by 2012, the NPCSC had heard no report on PSAPL enforcement, and NPC delegates had submitted a total of six bills proposing amendments to the PSAPL, none of which concerned Article 50. More to the point, the 2012 PSAPL amendments served only to harmonize the statute with a later-enacted law, and the Law Committee expressly declined to include any unrelated amendment in the package.

Likely due to the surge in police use of Article 50 to enforce Covid restrictions, as well as the ensuing scholarly criticisms and heightened public attention, NPC delegates started to flag the disconnect between Article 50’s wording and its application. Since 2020, they have submitted sixteen bills to amend the PSAPL, with some aiming to change Article 50 specifically. At least one bill from 2020, for instance, proposed amendments to penalize “refusal to obey decisions and orders lawfully issued by a people’s government in emergency response situations,” referring to official actions taken under the ERL framework.

And that should be an uncontroversial fix when the NPCSC is formally requested to do so. In fact, a bill to overhaul the PSAPL is on the current NPCSC’s five-year legislative plan, special legislative plan on public health legislation, and annual legislative plans since 2020. But the NPCSC has yet to act because of the peculiarities of the Chinese legislative process. The State Council is responsible for drafting the PSAPL revision, so while the NPCSC may privately pressure it to speed up the process, the State Council ultimately determines when a draft is ready for submission. And because the NPCSC follows the unwritten rule of not passing targeted statutory fixes when a revamp is in the works, it would not act unilaterally, either. It would take at least a year or two for the revision process to complete.

Some see the police’s use of Article 50 to enforce the zero-Covid policy as a necessary evil. Without it, most violations of the policy would go unpunished, as China’s infectious disease law and the ERL do not penalize violations of epidemic-control measures by individuals.

Thus, for the foreseeable future, local governments will keep handing out administrative punishments under a broadly construed Article 50, as Covid-19 flareups continue to emerge across China. Despite national law enforcement organs’ blessing, that practice, especially in the eyes of the public, still stands on shaky legal ground. So as Professor Tong recently admonished, in responding to one crisis, China may be creating another: “a disaster for the rule of law.”

[1] See Criminal Law art. 330, para. 1, item 5.

[2] The NPCSC may declare a state of emergency for the entire country or for one or more provincial-level regions (P.R.C. Const. art. 67, item 21), whereas the State Council may make such a declaration only for part of a provincial-level region (id. art. 89, item 16).

[3] Off. for Crim. L., NPCSC Legis. Affs. Comm’n [全国人大常委会法制工作委员会刑法室], Annotations of and Practical Guide to the P.R.C Public Security Administrative Punishments Law [中华人民共和国治安管理处罚法释义及实用指南] 143–44 (2005) (emphasis added), quoted in Xie Mingrui [谢明睿], On “State of Emergency” in the Public Security Administrative Punishments Law [论《治安管理处罚法》中的“紧急状态”], J. Dalian Mar. Univ. (Soc. Sci. Ed.) [大连海事大学学报(社会科学版)], no. 1, 2021, at 31, 35.

[4] Lin Hongchao [林鸿潮] & Kong Liangcheng [孔梁成], On Reconstructing China’s Emergency Legal System: From the Angle of Revisiting the Emergency Response Law [论我国紧急状态法制的重构——从反思《突发事件应对法》切入], J. Shanghai Univ. (Soc. Sci.) [上海大学学报(社会科学版)], no. 5, 2020, at 130, 134.

[5] Xie, supra note 3, at 33 tbl.1.

[6] Id. at 33 & tbl.2.

[7] Id. at 34.

[8] Id. at 35.

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