‘Illicit’ local Covid controls fuelling backlash in China, says government legal adviser
- Peking University law professor Jiang Mingan criticises lower level authorities for taking action that generates public ‘resentment or even resistance’
- The central government has accelerated the easing of controls after rare protests across several major cities a couple of weeks ago
The comments by Jiang Mingan, a law professor at Peking University who advises the Standing Committee of the National People’s Congress, are a rare example of a government adviser accusing lower level governments of breaking the law when implementing zero-Covid policies.
“An important reason why some local preventive and control measures are resented or even resisted by the public is that they violate the provisions of laws and regulations on the conditions, subjects, authority and implementation procedures for taking corresponding Covid preventive and control measures,” Jiang wrote in an article published on WeChat December 2.
For the past three years, China has been using mass testing, lockdowns and closures of public areas to contain the virus despite the growing anger and frustration at the impact of prolonged controls.
Jiang also accused some local governments of trying to avoid criticism for injuries and deaths caused by excessive Covid controls by shifting the blame to the lowest levels of responsibility.
“Grass-roots prevention and control personnel are managed or selected by the relevant local government, and their illegal acts are not only the responsibility of themselves but also the local government that manages or selects and appoints the grass-roots units,” Jiang wrote.
In recent months it has become more common for the State Council, China’s cabinet, to name and shame local governments that have implemented excessive measures.
But analysts said that in legal terms, local authorities were responsible for containing Covid.
A mainland-based lawyer argued that local authorities had been caught between conflicting guidelines from Beijing and in a way were encouraged to take excessive measures.
“There are documents and internal guidance given to local authorities to implement daily Covid prevention measures, but these documents are not accessible to the public.
“The lack of consistent Covid guidelines actually leaves local authorities space to interpret and execute Covid prevention measures based on their own understanding. And this creates chaos among the public,” said the lawyer, who requested anonymity due to the sensitivity of the topic.
Changhao Wei, a fellow from the Paul Tsai China Centre at Yale Law School, said some measures had violated the law “for instance, when authorities blocked off the sole exits of residential buildings or compounds, leading to greater risks to public safety than may have been caused by Covid-19”.
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Wei also said the Emergency Response Law, which includes provisions for responding to epidemics, required Covid controls to “correspond to” the harm caused by the disease and protect citizens’ rights.
“But it is hard to imagine this requirement being faithfully followed by a local government or enforced by a court when Covid control was a political responsibility of the highest order,” he added.
Wei also noticed that police nationwide had adopted an expansive reading of “public order” laws to punish those who disobeyed government decisions or Covid control orders, but such punishments should only take place under a “state of emergency” declared by the NPC Standing Committee or the State Council, neither of which had done so.
“Chinese law gives the state broad legal authority to deal with public health emergencies like Covid-19. When there is a gap in authority, the state can act quickly to fill in the gap, like in 2020 when it amended the criminal code to cover Covid-19.
“While the law does also pay lip service to the protection of individual rights in emergencies, it neither imposes meaningful limits on what the state can do nor provides effective means for citizens to enforce their rights,” Wei said.
Legal challenges to China’s Covid controls have been rare but in one case in May this year, a citizen sued the Beijing government over its contact tracing programme and the notorious pop-up window that makes a person’s health status “unconfirmable”. He later withdrew the case after a local official intervened and his green health code was restored.
People who receive the pop-up window will be told that they are at risk of being in contact with Covid cases and need to quarantine at home or be banned from returning to the capital if they are away from home.
There are no clear guidelines on why and when the pop-up is activated.
But one outspoken critic of the anti-Covid policy, Lao Dongyan, a criminal law professor at Tsinghua University, had the Weibo account she used to highlight her objections wiped clean in September.
Earlier this year Lao had questioned a decision by Beijing’s transport regulators to integrate payments for fares with the personal data such as health codes and facial recognition information, saying it could be used to step up the monitoring of people and breach their privacy.
