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]

 

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)

It is clear that, within the Chinese political-economic model, the CPC, exercising its sovereign authority of leadership and guidance, may choose to respond to the COVID pandemic with a zero-tolerance policy.  It is also clear that this leadership and guidance  is expressed by the core of CPC leadership in the course of a process that is, in turn, guided by the principles of democratic centralism and the mass line.  Once established, as the Standing Committee reminded the nation, the policy must be implemented by CPC cadres without question and respected by the nation until it is modified, or the objective is obtained. That policy does not exist in a vacuum but is indivisibly embedded in the cage of regulation that itself is the product of CPC leadership decisions and guidance for the administrative apparatus of state.  These regulations serve as guidance for the nation and cadres are responsible for ensuring that they conform both their Party work and their service to the nation in conformity with the direction of the leadership core. Professor Tong criticizes  the failures of the local officials to implement the Standing Committee's policy correctly, rather than serving as a criticism of the core policy itself. He suggests only that cadres must do their duty and work diligently to both implement the COVID related policies of the leadership core and to achieve those objectives in ways that vindicate the longer term project of Socialist Law as an important element of New Era Theory. Indeed, the essay appears to further the guidance of the Standing Committee to Party cadres: "The Standing Committee also demanded cadres have a "profound, complete and comprehensive understanding" of the policies set by the party's central leadership. "We should resolutely overcome the problems of inadequate awareness, inadequate preparation and insufficient work, and resolutely overcome contempt, indifference and self-righteousness in our thinking," it said." (Ibid.). The points are simple: state authority may be exercised in defense of the people; but the exercise of such authority must be undertaken as provided by law. Emergencies may produce special circumstances but even then the law provides the basis for its declaration and the rules for conduct of officials to meet the challenges of emergencies. And especially in a context such as pandemic, with clear direction from the central authorities, the failure of local officials to conform to law produces the potential for factionalism and disunity that might threaten  the stability and prosperity of the nation and the authority of core of leadership in its efforts to direct pandemic responses along with relevant national institutions.  The questions left open require renewed consideration of the application of democratic centralism and mass line principles to conditions of pandemic that can connect Professor Tong's concerns with the rules based examination of the conduct of local officials that enhance and deepen the operation of CPC leadership and guidance in the New Era. 

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.

 

 对上海新冠防疫两措施的法律意见
童之伟

已披露的上海官方人员与相关居民的对话视频、音频显示，上海新冠病毒防疫采取的两项 措施引起的事态非常严重，在市民中反应也很强烈，很可能造成某种法制灾难，特发表法律意见如下，以为各方处事的参考。

⼀、对居⺠使⽤强制⼿段强制送⽅舱隔离的任何做法都是⾮法的，应⽴即停⽌、

 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。

2.现实情况是，上海市或上海市任何地区都没有依法进入紧急状态，因而国务院和上海市各级地方人民政府不可能依法发布在紧急状态情况 下才能发布的決定、命令，也确实没有发布在紧急状态情况下才能发表的相应决定、命令。

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：
（一）对病人、病原携带者，子以隔离治疗，隔离期限根据医学检查结果确定;（二）对似病人，确诊前在指定场所单独隔离治疗;（三）对医疗机构内的病人、病原携带者、疑似病人的密切接触者，在指定场所进行医学观察和采取其他必要的预防措施。
"该条第2款规定：
"拒绝隔离治疗或者隔离期末满擅自脱离隔离治疗的，可以由公安机关协助医疗机构采取强制隔离治疗措施。〝第2款中的强制措施是指强制隔离治疗措施，显然只是针对前款第（一）项和第（二）项中所提到的病人、病原携带者和疑似病人，而不包括第（三）项的密切接触
者，更不会包括其他居民。

结论：
1.依据完法，在目前，上海市任何组织、官员决定和宣称上海市或上海市某地现在处于紧急状态，那一定是没有法律根据的、虚假的，一切组织和个人对谎称"紧急状态"之说法的非法性都应予以揭露、抵制;

2.上海市任何组织或官员声称根据人民政府发布的在紧急状态情況下才能发布的决定、命令，有权使用强制手段强制送市民到方舱隔离的说法或做法，都是非法、无效的;

3.上海市任何组织或官员用强制手段强行把除病人、病原携带者、疑似病人以外的任何居民送方舱隔离的做法都构成对相关公民人身权利的非法侵犯，应该承担相应法律责任；

4.上海市各级各类公共机关都有责任有义务立即在自己的权限范围内制止使用强制手段强行把除病人、病原携带者、疑似病人以外的任何居民送方舱隔离的做法，保障市民合法的人身权利与自由；

5. 人身权利与自由受到威胁的任何市民有权要求执行强制命令的工作人员出示人民政府盖章发布的决定、命令的纸面文本或国家机关网站文本，

6.已经受到人身权利被侵犯的任何市民在事后有权依法向人民法院提起诉讼，以得到法律保护和补救。

（二）、上海市任何机构无权强行要求市民交出住宅钥匙并进入市民住宅“消杀”录音音频显示，本市虹口区有关官员强制要求飞虹路居民交出住宅钥匙、离家，并声称要入户进行病毒消杀，态度非常强硬。这种做法在上海恐怕已经不是个别情况。相关法律的规定：

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。

结论：

1.上海有关官员强制要求居民交出住宅钥匙，由他们派人入户“消杀”（的区域已经开始实施这种做法） 这是非法侵入公民住宅的行为;

2.上海市各级各类公共机关都有责任有义务立即在自己的权限范围内制止强制要求居民交出住宅钥匙，由公共机构派员入户"消杀"的做法；

3.《传染病防治法》关于"消毒"的规定不会、也确实没有授权任何组织和个人强行获取居民住宅钥匙、进入居民家中"消毒”

三、上海市委市府若认为出现了紧急状态，可提请全国人大常委会或国务院根据宪法采取相应措施病毒毒性不强，危害不大，应防止防疫过度，防止严重得不偿失。

上海市委市府若认为出现了紧急状态，可提请上海市人大常委会召开紧急会议，并通过人大常委会提请全国人大常委会或国务院按宪法规定宣布上海市或其中某些区域处于紧急状态，然后制定系统的工作方案。

新冠防疫要与保障市民权利、自由兼顾；各级国家机关和官员应严格依完法法律办事，不可为办事方便违反法治原则、破坏法制。
新中国以来，上海从来就是以开明、法治、繁荣著称于全国乃至世界，倡导多年的上海"十六字精神"即“海纳百川、追求卓越、开明睿智、大气谦和"已经成为广大市民的骄傲。当前，我国防疫形势依然严峻，上海的情况不容乐观，在这种情况下，上海如何在科学防疫、民主防疫方面向全国做出表率，是上海各级领导和市民的责任和使命。

专此提出如上法律意见，谨请各位深思！

(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
Tong Zhiwei

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.

in conclusion:

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.

in conclusion:

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.)