“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.

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Has an NPC Spokesperson Declared Shanghai’s “Hard Isolation” Unlawful?

By @tango2010 on Weibo. Original post since censored. Archived copy courtesy of @NiaoCollective on Twitter.

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?

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Explainer: How Seats in China’s National People’s Congress Are Allocated

Delegates voting by a show of hands at the inaugural session of the First NPC in 1954.

China’s National People’s Congress (NPC) is the largest legislature in the world. Since 1986, its size has been capped by the Election Law for the National People’s Congress and Local People’s Congresses at All Levels (Election Law) [全国人民代表大会和地方各级人民代表大会选举法] at 3,000. The delegates are indirectly elected every five years to represent thirty-five electoral units: the thirty-one provincial administrative regions in mainland China, the Chinese military, as well as Hong Kong, Macao, and Taiwan.

Under the Election Law, NPC delegates must be “broadly representative” [广泛的代表性]. To that end, the Law requires in general terms that various demographic groups, including women and ethnic minorities, have “appropriate” representation in the NPC. Since the Reform Era (1978–), each NPC has, at its last session, adopted a “decision on the quotas and elections” of delegates to the next NPC—referred to below as a “Master Allocation Plan” or “Master Plan”—that puts the Election Law’s general requirements in more concrete terms. (The Master Plan for the 14th NPC was recently adopted on March 11.) The Plans have either allocated a specific number of seats to a certain demographic group or set forth guidelines on a group’s representation in the next NPC.

Below, we first explain how seats in the NPC have been allocated among the various electoral units and demographic groups to achieve a demographically diverse membership, before briefly taking a look at the non-demographic criteria for selecting NPC delegates.

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The Chinese Legislature’s Hidden Agenda

On February 9, I published in The Diplomat an article titled The Chinese Legislature’s Hidden Agenda. It begins this way:

For about a decade, China’s national legislature, the National People’s Congress (NPC), made real improvements to its transparency. In 2008, it started soliciting public comments once on almost every major bill. Since 2013, it has been asking for comments multiple times for the same bill. In 2015, it codified “legislative openness” as a guiding principle for lawmaking. Most recently, in the summer of 2019, the NPC established a spokesperson’s office to offer greater and more regular disclosure of its legislative activities, including brief summaries of public input on draft legislation.

In the past two years, however, the legislature has appeared increasingly tempted to embrace the secrecy afforded by the Great Hall of the People. It has been withholding legislative drafts at a greater frequency—five in 2020–2021 alone versus five total during 2015–2019. It has also started to hide certain bills on its legislative agenda from the public until shortly before or, worse, until after their adoption. This practice not only departs from the legislature’s transparency norm, but is also at odds with the party-state’s legal reform agenda and recent official rhetoric on China’s political system. Yet the NPC Standing Committee (NPCSC) is now poised to write this practice into law, in effect guaranteeing its continued use, and once again highlighting the party-state’s competing desires for legal predictability and flexibility.

In this post, I will share the data underlying this article and discuss more arcana of the NPCSC’s agenda-disclosure practice. I thus highly recommend that you read the above article first before continuing.

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NPCSC Legislative Affairs Commission Releases New Responses to Legal Inquiries

The NPC Standing Committee’s Legislative Affairs Commission (Commission) is a professional support body that is indispensable to the lawmaking process. We have previously written a profile of the Commission. Among its many functions is the relatively obscure authority to respond to “legal inquiries concerning specific questions” [有关具体问题的法律询问] (Legislation Law [立法法] art. 64). Few of the Commission’s responses to such inquiries have been made public. It has issued thousands of them,[1] but had made public only about 200 by 2007. It had altogether stopped the release since then—until September 2020. Late that month, the Commission quietly posted a new batch of responses to legal inquiries online after a thirteen-year hiatus. Below, we first offer a more in-depth look at the Commission’s legal inquiry responses, before turning to the newly released responses themselves.

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