|Pix Credit here ("Shanghai's vice mayor admitted to shortcomings in the city's handling of
its COVID-19 outbreak as a record 23,600 new cases were reported on
Saturday (Apr 9)")|
Tong Zhiwei, one of the most distinguished Marxist Leninist Scholars of constitutional law in China, has spent the greater part of his academic career in the service of his nation. As a loyal member of the Chinese political community, and a strong adherent of its political-economic model, his has been the task of ensuring that officials remember that their primary responsibility is to the nation under the leadership of the Communist Party of China, and that this responsibility requires a strict adherence to both the CPC Basic Line and to the cage of regulation tat the CPC itself has developed for the guidance of its cadres at every level of the Party and state apparatus. Party officials, especially when they serve in the state apparatus, understand that they represent the political authority of the nation with the Party at the center and that they ought to face discipline, or correct errors through criticism and self-criticism (accountability) working styles, to prevent, mitigate and remedy failure to comprehensively adhere to their obligations.
The Communist Party of China shall lead the people in developing socialist democracy. It shall preserve the organic unity of Party leadership, the running of the country by the people, and law-based governance, follow the Chinese socialist path of political development, expand socialist democracy, develop a socialist rule of law system with Chinese characteristics, and build a socialist rule of law country, thereby consolidating the people’s democratic dictatorship and developing a socialist political civilization. (Constitution of the Chinese Communist arty; General Program)
The core of leadership necessarily depends on the fidelity of its cadres in inferior positions throughout the nation in carrying out--in the spirit of democratic centralism, the political guidance of the core in accordance with the regulations and law that themselves reflect the current implementation of the Party's Basic Line in the administration of the nation. Part cadres have the duty to root out left and right error ("The Party must ensure that reform and opening up are carried out in unity with the Four Cardinal Principles, put its basic line into effect in all fields of endeavor, and combat all mistaken tendencies of the “Left” and Right, maintaining vigilance against Rightist tendencies, but primarily defending against “Leftist” tendencies" Ibid). While the power of the Party is supreme, under the guidance of its leadership core, Party cadres must, as Xi Jinping famously reminded the people, "Power should be restricted by the cage of regulations." (Here). In his Report to the 19th Party Congress Xi Jinping emphasized a central element of his New Era theory was: "the overall goal of comprehensively advancing law-based governance is to establish a system of socialist rule of law with Chinese characteristics and build a country of socialist rule of law" (at p. 16). It is a duty of cadres to ensure that lower level cadres functioning in administrative roles adhere strictly, then, to the law tat serves as the expression of the Party's guidance and leadership to further Party unity and to contribute to the stability and prosperity of the nation. The issue, of course, is appropriate method. The Mass Line suggests that the masses may direct their opinions to the Party for its consideration and guidance; cadres have an obligation under principles of democratic centralism and the rules of Party organization to follow internal guidelines where questions of cadre abuse of discretion or error might be asserted; and the central authorities have a duty to ensure that they are well informed and to reward its cadres who help in that task.
It is with this firmly in mind that one can better appreciate the recent reflections of Tong Zhiwei on the legality of certain actions undertaken by local authorities in their (what must assumed to be good faith) efforts to carry out the guidance of national authorities in their efforts to incitement strict containment policies for COVID infections. The essay, 童之伟对上海新冠防疫两措施的法律意见 [Tong Zhiwei, Legal Opinion on Two Measures of Shanghai's New COVID Epidemic Prevention and Control] originally appeared on his social media site in China. In it, Professor Tong makes the point, grounded in socialist legality, that the policy is well within the authority of the state as undertaken by its officials. However, the exercise of that authority must be undertaken in accordance with law. In several important respects, that appears not to have been the case with the methods chosen by local officials to implement national policy and Party Guidance. This appears to be a simple principle--but as is well known outside of China (in the United States and Europe for example), that in the heat of meeting the challenges of, officials sometimes fail to strictly adhere to law. Unfortunately, 截⾄北京时间2022年5⽉8⽇晚，童之伟的微博处于禁⾔状态 [As of the evening of May 8, 2022, Beijing time, Tong Zhiwei's Weibo is in a state of embargo]. This appears to be in line with local censoring policy (see here). Yet it is also worth noting that Professor Tong's essay is in line with Xi Jinping and the Standing Committee's continued commitment to the current national policy of meeting the COVID challenge:
At a meeting chaired by Xi on Thursday, the ruling Communist Party's supreme Politburo Standing Committee vowed to "unswervingly adhere to the general policy of 'dynamic zero-Covid,' and resolutely fight against any words and acts that distort, doubt or deny our country's epidemic prevention policies." This is the first time Xi, who according to state media made an "important speech" at the meeting, has made public remarks about China's battle against Covid since public furor erupted over the harsh lockdown in Shanghai. "Our prevention and control strategy is determined by the party's nature and mission, our policies can stand the test of history, our measures are scientific and effective," the seven-member committee said, according to government news agency Xinhua. "We have won the battle to defend Wuhan, and we will certainly be able to win the battle to defend Shanghai," it said. (Xi Jinping sends warning to anyone who questions China's zero-Covid policy)
Professor Tong's essay 童之伟对上海新冠防疫两措施的法律意见 [Tong Zhiwei, Legal Opinion on Two Measures of Shanghai's New COVID Epidemic Prevention and Control] follows below in the original Chinese as well as in a crude English translation.
本市某区某街道办事处、派出所人员与居民对话视频显示，有关官员强硬声称，同楼层密接人员一律送方舱隔离，不服从就使用强制手段实施强制。有关官员声称，这是全市统 部署，实施强制的依据是《治安管理处罚法》第50条中第1项的规定。实际上，这些官员的说法明显误解乃至故意曲解了法律。《治安管理处罚法》第50条规定的第 1项不可能成 为支持他们强制行为的法律依据。
《治安管理处罚法》第50 条相关规定的原文是：“有下列行为之一的，处警告或者二百 元以下罚款；情节严重的，处五日以上十日以下拘留，可以并处五百元以下罚款：1(一） 拒不执行人民政府在紧急状态情况下依法发布的决定、命令的" 为什么说以上规定不可能成为支持街道办事处、派出所人员强制行为的法律依据呢？对 于稍微有点社会主义法律意识的人来说，这道理其实非常简单：
1.“紧急状态"是一种法律状态，必须经有权机关依宪法宣布才出现或存在，绝对不是任何机构或官员可以随意认定和信口开河宣告的。我国《完法》第67条第21 款规定：全国人大常委会"决定全国或者个别省、自治区、直辖市进入紧急状态”。我国《宪法》第89条第 16 款规定，国务院"依照法律规定决定省、自治区、直辖市的范国内部分地区进入紧急状态'。除全国人大常委会、国务院外，我国没有任何组织和官员有权决定和宣布上海市或上海市部分地区进入紧急状态。
3.即使考虑到《传染病防治法》第39 条的规定，有关机构也无权使用强制手段强制送居民到方舱隔离。该条第 1款规定：“医疗机构发现甲类传染病时，应当及时采取下列措施：
我国 《完法》第39 条规定：“中华人民共和国公民的住宅不受侵犯。禁止非法搜查或者非法侵入公民的住宅。我国没有任何法律授权任何机构和个人让居民向公务人员交出住宅钥匙后离家，让后者进入居民住宅进行病毒消杀。
(作者为上海居民、广东财经大学特聘教授、华东政法大学教授；本文形成过程中，：东政法大学、复旦大学、上海交通大学、上海社科院、华南理工大学、武汉大学、湖北大学北京大学等教育学术机构的总共 20 余位教授表达了意见；复旦大学桑玉成教授提出了重要修改意见。）
Legal Opinion on Two Measures of Shanghai's New COVID Epidemic Prevention and Control
The disclosed videos and audios of the conversations between Shanghai officials and relevant residents show that the situation caused by the two measures taken to prevent COVID in Shanghai is very serious, and the reaction among the citizens is also very strong, which is likely to cause some kind of legal disaster. The opinions are as follows, for the reference of all parties.
1. Any practice of using coercive means to force residents to be sent to the shelter for quarantine is illegal, and should be stopped immediately,
The video of the dialogue between the personnel of a sub-district office and police station in a certain district of the city and the residents shows that the relevant officials insisted that all people in close contact on the same floor would be sent to the cabin for isolation, and that if they did not obey, they would use coercive means to enforce it. Relevant officials claimed that this was a unified deployment of the whole city, and the enforcement was based on the provisions of Article 50, item 1 of the Public Security Administration Punishment Law. In fact, these officials' statements clearly misunderstood and even deliberately misinterpreted the law. Item 1 of Article 50 of the Public Security Administration Punishment Law cannot be the legal basis to support their coercive behavior.
The original text of Article 50 of the Public Security Administration Punishment Law reads: “Anyone who commits any of the following acts shall be given a warning or a fine of not more than 200 yuan; if the circumstances are serious, he shall be detained for not less than five days but not more than 10 days, and may concurrently be sentenced to five hundred yuan. A fine of less than RMB 1 (1) refuses to implement the decisions and orders issued by the people's government in accordance with the law in an emergency." Why do you say that the above provisions cannot be the legal basis to support the coercive behavior of the sub-district office and police station personnel? For people with a little bit of socialist legal consciousness, the truth is actually very simple:
1. A "state of emergency" is a legal state that must be declared by the competent authority in accordance with the constitution to appear or exist. It is definitely not something that any agency or official can arbitrarily identify and declare. Article 67, paragraph 21, of my country's "Complete Law" stipulates that the Standing Committee of the National People's Congress "decides that the whole country or individual provinces, autonomous regions and municipalities shall enter a state of emergency". Article 89, Paragraph 16 of my country's Constitution stipulates that the State Council "decides that some areas within the province, autonomous region, and municipality directly under the Central Government will enter a state of emergency in accordance with the law." Except for the Standing Committee of the National People's Congress and the State Council, no organization or official in my country has the right to Decide and declare a state of emergency in Shanghai or parts of Shanghai.
2. The reality is that neither Shanghai nor any part of Shanghai has entered a state of emergency according to law, so it is impossible for the State Council and the local people's governments at all levels in Shanghai to issue decisions and orders that can only be issued under a state of emergency. Corresponding decisions and orders that can only be issued in an emergency.
3. Even taking into account the provisions of Article 39 of the Law on the Prevention and Control of Infectious Diseases, relevant agencies have no right to use coercive means to compel residents to be quarantined in shelters. Paragraph 1 of the article stipulates: "When a medical institution discovers a Class A infectious disease, it shall take the following measures in a timely manner:
(1) For patients and pathogen carriers, they are treated in isolation, and the isolation period is determined according to the results of medical examination; (2) For similar patients, they should be isolated and treated in designated places before diagnosis; (3) For patients and pathogens in medical institutions Carriers and close contacts of suspected patients should undergo medical observation in designated places and take other necessary preventive measures.
"Paragraph 2 of this article states:"For those who refuse isolation treatment or leave isolation treatment without authorization at the end of the isolation period, the public security organs may assist medical institutions to take compulsory isolation treatment measures. "The compulsory measures in paragraph 2 refer to compulsory isolation and treatment measures, which are obviously only for the purpose of the preceding paragraph (1). ) and the patients, pathogen carriers and suspected patients mentioned in item (2), excluding close contacts in item (3), not to mention other residents.
1. According to the law, at present, any organization or official in Shanghai decides and declares that Shanghai or a certain place in Shanghai is in a state of emergency, which must be unfounded and false. The illegality of the statement of "state" should be exposed and resisted;
2. The statement or practice of any organization or official in Shanghai claiming that according to the decision and order issued by the people's government can only be issued in an emergency, it has the right to use coercive means to force citizens to be quarantined in the shelter, which is illegal and invalid;
3. Any organization or official in Shanghai that uses coercive means to forcibly send any residents other than patients, pathogen carriers, and suspected patients to the shelter for isolation constitutes an illegal violation of the personal rights of relevant citizens, and should bear corresponding legal responsibilities;
4. Various public authorities at all levels in Shanghai have the responsibility and obligation to immediately stop the use of coercive means to forcibly send any residents other than patients, pathogen carriers, and suspected patients to the shelter for isolation within the scope of their own authority, so as to protect citizens legal personal rights and liberties;
5. Any citizen whose personal rights and freedoms are threatened shall have the right to ask the staff who execute the compulsory order to produce the paper text of the decision issued by the people's government, the order or the text of the state agency website,
6. Any citizen whose personal rights have been violated has the right to file a lawsuit in the people's court in order to obtain legal protection and remedy.
(2) No agency in Shanghai has the right to forcibly require citizens to hand over their residential keys and enter the residences of citizens to "disinfect" the audio recordings show that relevant officials in Hongkou District of this city force residents of Feihong Road to hand over their residential keys, leave their homes, and Claiming to enter the house to kill the virus, the attitude is very tough. This practice is probably not an isolated case in Shanghai. Relevant laws and regulations:
Article 39 of my country's "End Law" stipulates: "The residences of citizens of the People's Republic of China are inviolable. It is prohibited to illegally search or trespass the residences of citizens. There is no law in our country that authorizes any institution or individual to allow residents to hand over their residence keys to public officials. Leave the house and let the latter enter the residential house for virus disinfection.
1. Relevant officials in Shanghai force residents to hand over their keys to their houses, and they send people into their homes to "disinfect" (this practice has already been implemented in some areas), which is an act of illegally trespassing on citizens' houses;
2. Various public authorities at all levels in Shanghai have the responsibility and obligation to immediately stop the practice of forcing residents to hand over their house keys within their own scope of authority, and sending personnel from public institutions to "disinfect" their homes;
3. The provisions on "disinfection" of the Law on the Prevention and Treatment of Infectious Diseases do not, and indeed do not authorize any organization or individual to forcibly obtain the keys of residents' houses and enter the homes of residents for "disinfection"
3. If the Shanghai Municipal Party Committee and Municipal Government believe that there is a state of emergency, they may request the Standing Committee of the National People's Congress or the State Council to take corresponding measures in accordance with the Constitution.
If the Shanghai Municipal Party Committee and Municipal Government believe that a state of emergency has occurred, it may request the Standing Committee of the Shanghai Municipal People's Congress to hold an emergency meeting, and through the Standing Committee of the National People's Congress to request the Standing Committee of the National People's Congress or the State Council to declare a state of emergency in Shanghai or certain areas in accordance with the Constitution, and then. Develop a work plan for the system.
The prevention of the new crown epidemic must be balanced with the protection of citizens' rights and freedoms; state organs and officials at all levels should strictly follow the law and law, and must not violate the principle of the rule of law or undermine the legal system for the convenience of doing things.
Since the founding of the People's Republic of China, Shanghai has always been known to the whole country and even the world for its enlightenment, rule of law and prosperity. The "Sixteen Characters Spirit" of Shanghai, which has been advocated for many years, has become the pride of the general public. At present, my country's epidemic prevention situation is still severe, and the situation in Shanghai is not optimistic. Under such circumstances, how Shanghai sets an example to the whole country in terms of scientific epidemic prevention and democratic epidemic prevention is the responsibility and mission of leaders and citizens at all levels in Shanghai.
The above legal opinions are hereby put forward, and I would like to ask you to think deeply!
(The author is a Shanghai resident, a distinguished professor of Guangdong University of Finance and Economics, and a professor of East China University of Political Science and Law; in the process of forming this article: East University of Political Science and Law, Fudan University, Shanghai Jiaotong University, Shanghai Academy of Social Sciences, South China University of Technology, Wuhan University, Hubei University, Peking University A total of more than 20 professors from other educational and academic institutions expressed their opinions; Professor Sang Yucheng of Fudan University proposed important revisions.)