Zhao Hong (赵宏) is a Law Professor at the China University of Political Science and Law in Beijing. She obtained BA, MA and PhD degrees in Law at Chinese universities and pursued further studies at Tubingen University in Germany. The China University of Political Science and Law is a research university, and Zhao Hong’s particular areas of research include Chinese Administrative Law and German Public and Administrative Law. She has published two books on legal subjects, as well as many articles in Chinese legal journals.

The article I am about to summarise was published on the Aisixiang website on 14th June 2020 under the Chinese title “Restrictions on Individual Rights and their Limitations”/“疫情防控下个人权利限缩与边界”. I will add my own comments in English and Chinese below the summary, but I would say at the outset that Zhao Hong is a passionate advocate of the development of the rule of law in China.

This summary is very lengthy, partly because I have included my own translations of various Chinese legal provisions to which Professor Zhao refers in her article. It would be difficult to understand some aspects of the article without some knowledge of the actual contents of these provisions.

Summary

Zhao Hong’s article in essence describes how the rights of individuals in China (in particular individual freedom to move about, property rights and the right to conduct businesses) have been circumscribed under Chinese law in the course of combatting the Covid-19 pandemic. The writer outlines the Chinese laws under which individual rights have been limited. She then discusses in detail how limits on individual rights should themselves be limited, for example, based on the principle of proportionality. She stresses that this is necessary to prevent the complete hollowing out of individual rights. She expresses the view that some Chinese authorities have gone too far, breaching the relevant legal principles in the limits they have placed on individual rights. She nonetheless acknowledges the difficulties authorities in China have faced in balancing individual rights against the overwhelming need to protect the public from the ravages of Covid-19.

The article begins with a reference to the first cases of the virus emerging in Wuhan in early December 2019 and notes that the Wuhan Health Commission said on 31 December 2019 there was no ‘person to person’ transmission of the disease. By the time China’s National Health Commission classified the virus as a ‘Class 1 contagious disease’ under China’s Contagious Disease Control Law on 21 January 2020 and adopted the appropriate prevention and control measures, almost two months had elapsed and the virus had spread throughout the whole county. The author says this put enormous pressure on the prevention and control efforts.

She goes on to say that the huge pressure they were under led many Chinese local authorities to adopt ‘hard’ control measures, including offering rewards to people who reported on people from Wuhan who returned to their home towns in other parts of the country. Some authorities prohibited people from Wuhan and Hubei Province from entering their areas and ordered them to return home, failing which they would be sent to quarantine centres at their own expense. Many small towns and villages also cut off road access and adopted other ‘extreme measures’. People in many areas of the country became fearful of Hubei residents, so that hotels refused to accommodate people from Hubei and local communities locked people from Hubei in their homes and forbade them from leaving. When the Mayor of Wuhan announced after the lockdown was implemented that up to five million people had left Wuhan because of the Chinese New Year and the virus combined, this led to a great deal of online abuse directed against people from the city.

The writer points out that the above measures affected individual rights to a large extent, but says she does not intend in her article to make moralistic judgments about irrational actions on the part of individuals. She says there is no way laws alone can make individuals facing a major disaster adopt an empathetic attitude to other people.

In the case of measures taken by public bodies, however, it is necessary to consider the following legal issues: (i) when an emergency situation involving an epidemic disease arises, there is certainly a need to limit individual rights in the interest of controlling the disease, but such limits must themselves be limited. The existence of boundaries on limitations of individual rights helps public bodies to select ’appropriate’ means to deal with an emergency situation, and also prevents individual rights being completed expunged in such situations.

Professor Zhao then sets out the relevant Chinese legal provisions, pointing out that restrictions on citizens’ rights require a specific basis in law, unless there is a ‘substantive reason’ why this is not necessary.

The author first refers to Article 51 of the Chinese Constitution, which states: “When citizens of the Chinese People’s Republic exercise their freedoms and rights, they must not harm the interests of the country, society or collective organisations, or the legal freedoms and rights of other citizens.” The writer states that this provision, while setting out in summary form the principle that citizens’ basic rights are subject to limitation, also empowers national bodies [‘guojia jiguan’/国家机关] to limit citizens’ freedoms in order to protect the interests of the nation, society, collective organisations and other citizens.

Apart from Article 51 of the Chinese Constitution quoted above, the following specific Laws and Regulations contain provisions relevant to epidemic diseases:

‘Epidemic Disease Prevention and Cure Law’

This Law was adopted in 1989 and revised three times, most recently in August 2004.

Article 1 states that the purpose of the Law is to “prevent, control and eradicate the occurrence and spread of epidemic diseases”.

Article 12 goes on to state: “All organisations and individuals in the Chinese People’s Republic must accept prevention and control measures implemented by disease prevention and control bodies and hospital authorities in relation to infectious disease, including investigation, testing, the collection of samples and quarantine and treatment. All organisations and individuals must also truthfully provide information about their circumstances. Sickness prevention and control bodies and hospital authorities must not disclose private information or data relating to individuals”.

Articles 27, 39, 42, 43, 44 and 45 of this Law also contain provisions relevant to epidemic disease prevention and control:

Article 27 requires individuals and organisations to decontaminate water, materials and sites that are contaminated with infectious pathogens, as directed by disease prevention and control bodies. If the relevant individuals and organisations refuse to act, local health authorities and disease prevention and control bodies may undertake compulsory decontamination.

Article 39 requires medical authorities that become aware of Class 1 infectious diseases to promptly adopt the following measures:

• quarantine and treat people who are sick with the disease as well as people who carry the disease, the period of quarantine to be determined by doctors based on the results of medical tests;
• quarantine and treat people who are suspected of suffering from the disease during the period before they are definitively diagnosed;
• in relation to close contacts of individuals in medical institutions who are sick with the disease, carriers, or suspected of being sick, undertake medical examinations and adopt other necessary preventive measures.

Individuals who refuse quarantine and treatment, or who leave quarantine before the end of the quarantine and treatment period, may be forcibly quarantined and treated by medical authorities with the assistance of public security bodies.

Article 42 outlines the powers of local governments at county level and above when an infectious disease spreads. The relevant local governments should immediately organise their resources and implement their prevention and control contingency plans to prevent and cure the disease and stop it spreading. If necessary they may, with the agreement of the next higher level of government, adopt the following emergency measures and announce them publicly:

• restrict or suspend markets, cinema and theatre performances and other activities involving groups of people;
• stop work, stop businesses operating and suspend schooling;
• seal or impound public drinking water sources, food and related materials that have been contaminated by infectious disease pathogens;
• control or cull infected wild animals, domestic livestock and poultry;
• close locations in which infectious disease can spread.

Article 43 states that when a Class A or Class B infectious disease becomes prevalent, local governments at county level and above may, with the agreement of the next higher level of government, declare that part or all of their administrative area is an epidemic-stricken area. The State Council may determine and declare epidemic-stricken areas that cross provincial, autonomous regions and directly governed cities.

‘Responding to Emergency Events Law’

Article 49 states that when public health incidents (among other types of disasters) occur, the responsible government may adopt any of the following measures:

• Take steps to rescue and provide medical treatment for victims, evacuate and provide suitable accommodation for people who are imperilled and take such other steps as are necessary to provide assistance;
• Rapidly control sources of danger, clearly indicate areas of danger, seal off dangerous locations, designate alert areas, implement traffic control and other control measures;
• Immediately repair damaged transport, communication, water supply, waste water, gas, heat and other public facilities; provide places of refuge and the necessities of life to people who are endangered; provide medical treatment and relief for the injured, epidemic prevention and other safeguarding measures;
• Prohibit or limit the use of relevant facilities, seal off or limit the use of relevant locations, suspend activities involving gatherings of people or production processes that could create increased risks and adopt other safeguarding measures;
• Make use of the relevant government’s reserve funds and stored emergency materials, if necessary transferring from elsewhere emergency materials and equipment;
• Arrange for civilians to participate in emergency relief work and require individuals with specialised skills to provide their services;
• Guarantee the supply of foodstuffs, drinking water, fuel and other basic necessities of life;
• In accordance with the law strictly deal with hoarding and profiteering, jacking up prices, manufacturing and selling counterfeit goods and other market distorting activities, stabilise market prices and protect market order;
• In accordance with the law strictly deal with looting, interference with emergency relief work and other activities that disturb social order; protect public order;
• Take such steps as necessary to prevent secondary or derivative incidents.

Professor Zhao also refers to the ‘Responding to Public Health Emergencies Regulations’, but does not comment on specific provisions in those Regulations.

The writer points out that the above legal provisions empower public bodies to impose ‘appropriate limitations’ on the freedoms of individual citizens. She says the limitations imposed in the course of the virus control efforts in China mainly fall within the following categories:

• Limitations of personal freedoms, including freedom of movement and freedom to travel. For example, after Wuhan was locked down in January, the local airports and railway stations were closed and residents could not leave the city without special reasons; public transport, the subway, ferries and long distance bus services were suspended; city residents’ ability to move about was restricted; virus carriers and people suspected of being infected with the virus were quarantined; markets, theatres and other locations for group activities were closed; and individuals were subjected to health checks.
• Limitations of rights to use property and run businesses. People in Wuhan were prohibited from working and exercising their professions, so that businesses could not operate. Private housing and transport equipment were subject to requisition for public use; wild animals, livestock and poultry were subject to control or culling. All of these measures affected individuals’ property rights.
• Limitations of other rights. For example, performers’ artistic freedom was restricted by the closure of theatre, and the suspension of schools affected teachers’ professional freedoms and students’ rights to receive education.

Professor Zhao now moves to the heart of her article, which is to discuss the principles that ‘limit the limits’ on individuals’ basic freedoms. She says that while public bodies may limit individual freedoms for appropriate reasons, such limitations must nonetheless comply with particular principles, even in emergency circumstances. Otherwise the limitations on basic rights may develop into the complete hollowing out or elimination of those rights. She refers to Germany as an example. The Constitution of the Weimar Republic contained wide reaching guarantees of citizens’ basic rights, but these guarantees were of no effect when the Nazi regime took advantage of a state of emergency to abolish the rights. That experience was reflected in Germany’s Basic Law, adopted in 1948, that requires any limitations on basic rights also to be subject to limits. The writer then goes on to discuss the principles that govern whether limitations on basic rights are appropriate:

The principle of ‘legal reservation’ [法律保留/falu baoliu]

• The writer says that any limitations on basic rights must themselves be authorised by the law. The limitations applied in China in the course of combatting and controlling the virus are contained in the specific laws referred to above. However, as the virus spread throughout China many local governments went beyond the specific provisions set out in these laws. The writer describes this process as ‘upping the ante’ (加码/jiama). For example, a district in the city of Shiyan in Hubei Province proclaimed a state of ‘wartime control’ on 12th February 2020, prohibiting all local residents from entering or leaving the buildings in which they lived unless they were medical staff or engaged in work essential to people’s welfare. Residents were required to order food and other necessities through local residential committees that were also responsible for deliveries. The city of Xiaogan in Hubei Province on 16th February strictly prohibited local residents from leaving their homes; anyone breaching the rule was subject to detention for up to 10 days and being included in a list of people who have ‘broken faith’ (失信人员名单/shixin renyuan mingdan). The writer says these measures were mostly implemented through the issue of administrative orders. However, the writer states that measures requiring residents not to leave their homes, not to take walks or talk with their neighbours and not to drive their cars in or out of their neighbourhoods “largely exceeded the ambit of powers given by the laws referred to above, and were therefore legally inappropriate”. Professor Zhao says this raises a core problem: when an epidemic or similar sudden emergency occurs, does the existence of a state of emergency entirely dilute the ‘reservation of law’ principle and legitimise measures that fall outside the ambit of the powers given by the relevant laws? She also says that while strictly abiding with the law may delay effective control of an epidemic, it may in the end result in the epidemic control measures having no limits whatsoever, leading to a complete loss of order. Even in the circumstances of an epidemic emergency, one must not lightly abandon the reservation of law principle.

The ‘proportionality principle’ and the ‘prohibition of inappropriate linkage’

The writer points out that even if lawmakers make laws that delegate power to other bodies, such delegation is itself subject to limits. The first of the limits is the ‘proportionality principle’. This principle has three aspects. The first is that the limitations adopted must be appropriate to the ends sought to be achieved. The second is that the limitations and methods used must be necessary to achieve these ends, plus the methods used must be those available that cause the least harm. The third is that the methods used must be ‘balanced with’ the legal interests served and proportionate to them. The writer refers to Article 11 of the Emergency Events Response Law, which reflects these aspects of the proportionality principle. Article 11 states: “Measures adopted in response to emergency event by the relevant governments and public bodies must be appropriate in terms of the nature, extent and scope of the threat to society; if there is a choice of more than one response measure available, the measure chosen should be the one that protects the interests of citizens, legal persons and other organisations to the greatest extent”. As for the application of the proportionality principle to the measures actually adopted by Chinese authorities in their control of the epidemic, the writer says that the lockdown of cities and strict control on residents’ movements in circumstances where an infectious disease is rapidly spreading by no means breach the proportionality principle. However, the control measures should not impose an excessive burden that is difficult for individuals to bear. The writer says the appropriateness of restrictions is closely related to the actual circumstances. After Wuhan was locked down, other cities successively locked down as well, but the strictness of controls on residents’ movements varied from place to place. In the city of Huanggang (in Hubei Province) for example, each household was allowed to send out one family member every two days to buy essentials. The city of Wenzhou (in Zhejiang Province) limited households to sending out one family member every four days for this purpose. On 12th February, as noted above, a district in the city of Shiyan (in Hubei Province) imposed ‘war-time controls’, prohibiting residents from entering or leaving their homes at all unless they were medical personnel or their jobs were essential to people’s welfare. Residential committees were put in charge of arranging for the purchase and delivery of food and other essentials. The author says these different types of restriction may have reflected different levels of virus spread in different places, or differing levels of medical capacity. However, she says the appropriateness of the measures adopted must be specifically tested on ‘the scales of weighing different interests’.

Further in relation to the proportionality principle, the author says it is a question of balancing the seriousness of the damage to individual rights with the importance of protecting the public interest. It is first necessary to consider the relative importance of individual rights. The author says the most important rights are ‘human dignity’ and ‘personal freedom’. Freedom of speech is at the next level of importance, as it is the basis of an individual’s political rights. She says this is ‘clearly’ more important than an individual’s economic rights. It is next necessary to consider the extent of interference with individual rights. Are the rights completely taken away, or only limited in part? Do the limitations last for a long time or are they of short duration? These are all factors that must be considered in the balancing exercise. As for the importance of protecting the public interest, it is first necessary to consider the level of the public interest involved. In this regard the author refers to a decision of the German Federal Constitutional Court, in which the court said there are three levels of public interests: ‘general public interests’, ‘important public interests’ and ‘extremely important public interests’. The German Court said the third category can also be described as ‘absolute public interests’; they are ’public values’ that exist independently of any political judgment and take priority over the law making process, e.g., ‘citizens’ health’ and ‘personal security’. ‘Important public interests’ can also be described as ‘relative interests’; they are ‘public values’ based on the particular economic and social policy purposes of lawmakers, e.g., consumer protection and rights to claim legal redress. Public interests not falling into these categories are ‘general public interests’. In addition to the level of public interest involved, it is also necessary to consider the ‘urgency’ of the threat to those interests. In this respect the key factors are the level of seriousness of the threat and the probability of the threat materialising.

The writer says that in circumstances where an infectious disease is spreading, the protection of citizens’ health is an ‘extremely important public interest’ that is independent of the judgment of lawmakers and is also urgently in need of protection. In such circumstances, individual rights must give way to the public interest. As a result, subjecting local residents to lockdown measures, and requiring strict health tests to determine the state of their health, does not violate the proportionality principle.

The writer goes on to point out that the proportionality principle is not rigid, but needs to be applied with reference to individual cases. In the case of the Coronavirus epidemic, at a time when information about the extent of infectiousness of the virus and its transmission routes is not complete, and it is not possible to rule out the possibility of transmission through faeces or aerosols from the mouth, it is necessary to respect the judgments of public bodies in relation to the balance between the public interest and limitations on individual rights.

The writer then goes on to discuss another aspect of the ‘proportionality principle’. That is the principle that restrictions on the exercise of individual rights should have an ‘appropriate connection’ with the purposes served by the restrictions. By way of example, the writer says that some local governments in areas unaffected by the virus not only prohibited the entry to their areas of people from Hubei Province, but also people from other areas where the epidemic was relatively serious, such as Hunan, Anhui, Guangdong, Henan and Jiangxi Provinces. Some cities and local communities prohibited the entry of people from from all other areas. Professor Zhao says this type of indiscriminate prohibition, regardless of whether the people concerned had been diagnosed as having the virus or had no symptoms whatsoever, not only breaches the requirements that limitations should be both necessary and appropriate, but also breaches the requirement that there should be an ‘appropriate connection’ between the measures adopted and the purposes served. This means that the measures should be reliable and effective, and should have a substantive connection with the purposes served. The writer says that another type of measure that breached the ‘appropriate connection’ requirement was the extreme enforcement of lockdown measures in some areas. The city of Yiwu in Zhejiang Province not only limited individual households to sending out one person every four days to buy essential supplies, but also prohibited residents from walking about their areas or gathering in groups to talk. The towns of Shiyan and Xiaogan in Hubei Province later adopted even more restrictive measures that prohibited residents from leaving their homes at all. The writer says that while strict limitations on movement in and out of local areas would be acceptable to the public at a time when the transmissibility of the virus was not fully understood, prohibitions on walking about, talking in groups and leaving residential buildings would be difficult for the public to accept if they were imposed without serious thought.

Core Rights that Cannot be Extinguished

The writer next discusses core rights that cannot be extinguished even in the course of controlling an epidemic disease:

• Care for life and medical care – Professor Zhao refers to Article 51 of the Emergency Events Response Law: “When an emergency event occurs that seriously affects the operation of the national economy, the State Council or a responsible body to which the State Council has delegated authority may adopt the necessary emergency guarantee and control measures, to guarantee the public’s basic life needs and to the greatest extent alleviate the effects of the emergency event.” Fulfilling their responsibility under this legislation, after Wuhan and other cities were identified as key epidemic areas, the National Development and Reform Commission and other state bodies adopted various measures to guarantee food, fuel and other basic life needs. As for the provision of medical care, Ms Zhao refers to Article 16 of the Infectious Disease Control Law: “The country and society must take care for, and help, people suffering from infectious disease, carriers of infectious disease and people who are suspected of being infected.” Article 52 of the same Law stipulates: “Medical authorities must provide medical treatment and on the spot assistance to people suffering from infectious disease or who are suspected of being infected. … Medical authorities that do not have the capacity to provide such treatment must transfer patients with their medical records to medical authorities that do have the capacity to do so.” Article 62 stipulates: “The country provides reduced cost or free of charge medical care and assistance to patients in financial hardship suffering from specified infectious diseases.” Article 43 of the Public Health Emergency Regulations requires local governments at county level and above to provide the funds necessary to ensure that people with illnesses or disabilities caused by emergency events receive timely and effective medical treatment. The author says that, unfortunately, during the initial period after the outbreak of the epidemic, many people suspected of suffering from the virus in Wuhan and other locked down cities were unable to be tested and diagnosed because medical treatment resources and emergency response measures were inadequate. For the same reasons some people diagnosed as suffering from the virus could not be admitted to hospital for treatment in a timely way. This in turn led some people to leave Wuhan and go to other areas, aggravating the spread of the virus. In response to these failings, the central government adopted a policy on February 16th requiring epidemic control headquarters offices and transport teams to move patients who could not be treated due to lack of resources to quarantine centres where they could receive treatment.
• Individual information rights – Professor Zhao says that the process of bringing the virus under control in China has raised a heated debate about the need to strengthen protection for individuals’ information rights. There are two aspects to these rights: (i) the right of individuals to receive public information without hindrance, i.e., in this case the right to obtain knowledge and understanding of the epidemic, which is mainly realised through the government’s system for releasing information, and (ii) the right of individuals to determine for themselves when and within what limits information about their personal lives can be publicly revealed. The second aspect is not limited to ‘privacy rights’, but in the information age includes all data that can directly or indirectly be used to identify individuals. The writer quotes Article 37 of the Epidemic Disease Control Law, which stipulates: “Government departments, epidemic disease prevention and control bodies, medical authorities, blood donation bodies and their employees, that have responsibility for reporting on epidemic diseases, must not conceal, falsely report or delay such reports”. Article 38 stipulates: “The country operates an epidemic disease information publication system. … The publication of information about epidemic diseases must be timely and correct”. Articles 44 and 45 of the Emergency Events Response Law stipulate that county and higher level local governments, after issuing early warnings, must “regularly publish emergency event forecast information and the results of analytic assessments that are relevant to the public…promptly in accordance with the relevant requirements publish warnings to people who are threatened by emergency events…promptly publish recommendations and advice about measures to avoid or alleviate the threat”. The writer says these legal provisions can be understood as implementing the government’s duty to make information public. She then goes on to discuss the relative importance of ‘timeliness’ and ‘correctness’ in terms of making information public, and says that the order in which the requirements are set out in the legislation indications that timeliness takes priority over correctness. If public authorities wait until they have absolutely correct information about an epidemic, this could seriously delay the release of information to the public. Individuals would then lose their ability to take prompt and effective action to protect themselves. In this context the author also points out that the government should not seek to control information flows among the public too strictly in order to avoid the spread of rumours and false information. If all information is treated as ‘rumours’ until it has been verified, that can lead to the release of information being monopolised and wholly controlled by the government. The author says: “This epidemic has already confirmed that such action [i.e., over control of information] may not only increase the burden on government, but may also seriously impede the prompt and accurate release of information relating to the epidemic and, in the end, result in the spread of the disease over a larger area”.
• As for the other aspect of information rights, i.e., the right of individuals to determine how information relating to themselves is used, the author stresses the importance of individuals having the right to control the use of their personal information in the ‘digital age’. She says this right Is not absolute, however, and can be limited when there are urgent public interests at stake, as in the case of an epidemic when the prompt and wide scale collection of personal information is a key aspect of controlling the spread of disease. The author quotes Article 12 of the Infectious Disease Control Law, which stipulates: “Sickness prevention and control bodies and medical authorities must not reveal private information and materials relating to individuals”. She says the wording of this section is too simple [简单/jiandan] and its protection is limited to private information, also it does not provide ‘precise indicators’ [明确的指针/mingque de zhizhen] enabling public bodies to impose ‘appropriate’ limitations on Individual data in the context of controlling an epidemic.
• The author then discusses various principles underlying the collection and use of private information, based on German sources and a written opinion delivered by judges in a Taiwan court. These principles are: (i) the collection and use of private information should be appropriate and necessary for the purpose for which it is collected/used, and the information should not be used at a later date for different purposes: (ii) the methods used to collect and use private information should be appropriate and linked to the purposes served; (iii) private information should be held securely after it is collected and should not be carelessly released.
• The author next discusses actual issues relating to the collection and use of private information that have arisen in the course of the pandemic in China. She says that many local governments have without limits released detailed personal information about people who have returned to their home areas from Wuhan, in some cases even offering rewards for such information. The author says that while it is appropriate to collect such information in the course of fighting an epidemic, the methods used in some cases have far exceeded the necessary limits and ”should be regarded as a serious violation of individuals’ information rights”. The author says that whether it is appropriate to publicly release information such as individuals’ home addresses and travel routes, their sex and age, requires “careful judgment”. She says that information should be released in an “objective” form that does enable other people quickly to manipulate the data and identify specific individuals. In particular it should not include identity card codes, photographs and names.
• Equality rights: The writer discusses two types of rights under this heading: (i) the right not to be discriminated against, and (ii) the right not to be defamed. She says that many areas of the country, through “fear of Hubei” adopted “relatively extreme” epidemic control measures. For example, many residential areas prohibited the entry of residents from Hubei Province, and many hotels also refused to accept Hubei residents as guests. The writer says these measures amounted to ‘undifferentiated discrimination’ against people from Hubei and seriously breached their equality rights.
• The writer goes on to distinguish between the public and the private spheres. Public bodies are absolutely prohibited by law from discriminating against individuals in such ways. Article 16 of the Infectious Diseases Control Law stipulates: “The country and society must care for and provide help and prompt treatment to people who are suffering from an infectious disease, who are carriers of the disease or who are suspected of being infected with it. No individual or organisation may discriminate against people in these categories.” The author points out that, given the law prohibits discrimination against people who are actually suffering from or carrying an infectious disease, then prohibiting individuals from Hubei and Wuhan whose health status was unclear from entering residential districts in other areas was an “oversimplified and crude” exercise of administrative authority which ignored individual rights and undermined the “rule of law”.
• As for the private sphere, the author points out that the legal treatment of hotels, restaurants and other private entities is different from that of public bodies. In principle private entities have the right under civil law and the law of contract to select or refuse entry to specific categories of customers. She also points out that the measures prohibiting people from Hubei Province from entering their own residential districts in other areas were in many cases taken by private property owners and not by public bodies. This raises the question of whether civil law freedoms take priority over equality rights in cases where private entities discriminate against individuals for the purpose of protecting themselves from risk. The author says that, as a matter of principle, basic rights apply as between the country and individuals. Private entities do not have direct obligations to individuals in relation to basic rights. This does not mean however that equality rights have no effect whatsoever as between private individuals and entities. At a time when many private entities have become indistinguishable from government bodies in terms of their social powers, it is no longer convincing to say that civil law autonomy and freedom of contract principles entirely exclude the concept of basic rights at the civil law level. The author says, however, that whereas basic rights apply directly as between individuals and the state, their application between private entities and individuals operates through indirect methods. The first method arises from the state’s ‘obligation to protect’. Not only is the state obliged not to discriminate against individuals, it also has a duty to protect individuals from discrimination by third parties. The writer says this can be a difficult thing to achieve in practice, as it involves reconciling the rights of different private entities. In the case of hotels, the hotel owner has a basic right to run his business as he wishes, while people seeking to stay in the hotel have basic rights to equal treatment and the preservation of their lives. The writer says it is necessary to apply the principle of ‘practical reconciliation’ （实践调和/shijian taiohe), based on the German law concept of ‘Grundsatz der Gueterabwaegung‘. This involves looking at individual cases and considering the different private rights that need protection and how they interact, and deciding which type of right more deserves protection in the particular circumstances. The state can in this way adjust and encourage the “harmonious coexistence” of different types of private rights under the constitutional system. The author says the rights of hotel owners to operate their businesses freely and limit their own risks, while important, should not receive absolute protection. At the same time the rights of putative hotel customers from Wuhan and Hubei Province cannot be sacrificed without serious consideration. To resolve this conflict of private rights, the state should “positively intervene” to ensure that people from Hubei Province who find themselves without accommodation in other parts of the country can secure accommodation and the basic necessities of life. This includes “adjusting”, “mediating”, “leading” and “encouraging” hotel owners to “give way to some extent”. If hotel owners accept guests from Hubei Province but incur losses because people from other areas choose to leave, the government could pay compensation for those losses. The writer commends provinces and cities that have designated particular hotels to receive Hubei residents, with the government bearing any additional costs resulting from this. She says that compared with tacitly accepting hotels refusing to accommodate guests from Hubei Province and Wuhan, such actions are clearly more in accordance with the “spirit of the rule of law”.
• The writer then briefly discusses the other indirect method by which basic rights can be applied as between private individuals and entities, i.e., through the interpretation and application of civil laws by the legal system in a way that is consistent with constitutional and basic rights principles. This involves for example ensuring that civil laws are interpreted in a way that is consistent with the concepts of ‘kind-hearted customs’ (善良风俗/shanliang fengsu) and ‘honest trust’ (诚实信用/chengshi xinyong). The writer suggests that based on these principles, the actions of certain private housing bodies that locked people from Hubei into their homes after they returned and prohibited them from leaving may have breached provisions of the Public Order Management Punishment Law (治安管理处罚法) and even the Criminal Law (刑法）.

Human Dignity as the fundamental limit on the limitation of basic rights

Professor Zhao says the ‘limits on limits’ of basic rights that she has outlined, including the ‘reservation of law’ principle, the proportionality principle and the requirement to protect core rights, all reflect a fundamental issue, i.e., that no limitations on basic rights should violate their ‘substantive content’（本质内容/benzhi neirong).

The writer says the concept of ‘substantive content protection’ was first specified in Article 19(2) of Germany’s Basic Law. Article 19(2) states: “In no case may the essence of a basic right be affected.” The writer says the core value of ‘the essence of basic rights’ is ‘human dignity’. She quotes the German Federal Constitutional Court decision in the Bodenreform case, which stated: “The inviolability of the essence of basic rights is intimately connected with the inviolability of human dignity; any restriction of basic rights must not violate the human dignity content of those rights.” This concept was further developed by the same Court in a case relating to life-long imprisonment, in which it put forward the ‘objectification formula’ (客体化公式/ketihua gongshi). Applying this formula, the Court stated: “If entities enjoying basic rights are treated as the objects (i.e., ‘means’) of state action, with the result that restrictions on those rights cause such entities to have no role in relation to them, then the essential content of those basic rights has been violated.” The writer further states that the concept that the essential content of basic constitutional rights lies in human dignity Is recognised in the Chinese Constitution. She says the harsh lessons of the Cultural Revolution expedited the ‘entire regulation of basic rights’ within the Chinese Constitution. Article 38 of the Constitution now states: “The human dignity of citizens of the Chinese People’s Republic must not be violated.” The writer says that human dignity is a unifying concept aimed at protecting all basic rights guaranteed by the current Constitution. Human dignity has in this way been given the status of the ‘highest constitutional value’. Applying this in the context of controlling an epidemic disease like Covid-19, while basic rights may be limited for this purpose, such limits must not be ‘completely removed and emptied of all content’.

Conclusion

The writer says that the Coronavirus epidemic has been a serious test of China’s national power and the ‘circumstances of the people’ (民情/minqing). On the one hand the state has taken positive action and adopted effective measures in dealing with the epidemic; on the other hand a considerable number of public bodies in seeking to control the epidemic have failed to respect individuals’ rights and dignity. The writer says that even when taking action to control an emergency like an epidemic, it is necessary to strictly adhere to the normal limits of the rule of law, something that has been clearly seen in the way previous emergency situations have been dealt with. The writer says that, ‘fortunately’, in the means being taken to control the current pandemic, the need to adhere strictly to the rule of law has ‘started to be repeatedly emphasised’. She quotes Xi Jinping who said when addressing a meeting of the Party’s Central Overall Rule by Law Committee on 5th February: “The more the work of controlling the epidemic enters its most difficult phase, the more this work must be planned and implemented in accordance with the rule of law, to ensure that the work of controlling the epidemic can be successfully carried out.”

The writer says that the spread of an epidemic disease can cause people to panic, leading individuals and even public authorities to behave in extreme and unreasonable ways. An important function of the rule of law is that it gives individuals a ’feeling of certainty’, so that they do not fall into a state of total disorder. In emergency situations including epidemics, the only thing that can maintain order is to strictly adhere to the ‘bottom line’ of the rule of law. That in turn means that any limitations on basic rights to control the epidemic must not violate the human dignity at the core of those rights. The writer concludes by saying that a country can only survive and develop in the long term if it always treats the protection of human dignity as the highest criterion governing its actions.

My Comments on Professor Zhao’s Article

As I commented above, it is clear from this article that Professor Zhao is a passionate advocate of the development of the rule of law in China. She strongly believes that measures taken by the central and local governments and their various agencies must comply with the overriding principles of the Chinese Constitution and the relevant laws. These overriding principles apply no less during an emergency situation like the Covid-19 pandemic than they do in normal times. She does not hesitate to point out cases in which she believes local governments and authorities in China failed to meet their legal obligations.

When I first read this article, I was surprised by the number and scope of Chinese laws and regulations dealing with emergencies like pandemics. Many of these laws date from before the 2003/04 SARS epidemic, though some were revised after that, presumably in the light of experience gained at that time. These laws and regulations authorise the various measures taken by the Chinese in the early months of the pandemic, that we all read about in news reports at the time. I have not made a study of similar laws in the UK; it would be interesting to know what legal provisions we had in place when the pandemic struck here.

Professor Zhao devotes much of her article to discussing the principles underlying such concepts as the ‘reservation of law’ principle, the ‘proportionality principle’ and the key importance of human dignity as the ‘bottom line’ for protecting basic rights. She cites provisions in the Chinese Constitution and laws based on these concepts, but she also refers frequently to principles developed in German law. She refers to very few Chinese sources, which suggests to me that she is at the forefront of developing Chinese law in this area.

我的评论

如前所述，从赵教授的这篇文章可以明显看出，她是中国法治发展的热情拥护者。 她坚信，中央和地方政府及其各个机构采取的疫情防控措施都必须符合中国宪法和相关法律的压倒性的原则。 在正常情况下适用这些原则也在Covid-19大流行紧急情况下同样地适用。 作者毫不犹豫地指出在这场疫情中有中国地方政府和当局没有履行其法律义务的个案。

当我第一次阅读这篇文章时，我对处理如疫情等紧急情况的中国法律法规的数量和范围感到惊讶。 其中许多法律可追溯到2003/04年SARS流行之前，但有些法律是在此之后进行了修订，大概是根据当时的经验进行的。 这些法律法规制定了中国政府在新冠肺炎疫情初期采取的各种措施。我们当时都在新闻中看了关于这么措施的报道。 我尚未研究英国的类似法律， 疫情蔓延到了英国时，我对我国有哪些相关法律规定感到好奇。

赵教授在这篇文章中的大部分篇幅涉及诸如“法律保留”原则，“比例原则”和人类尊严原则。她把人类尊严看作是保护基本权利的“底线”的关键概念。 她援引基于这些原则和概念制定在中国宪法和其它法律中的条款，但她也经常提及由德国法理学展开的法理概念。 她提到关于这些概念的中国判例和论述很少，这表明她在这个法理学领域中处于最前沿。

Link to original article: http://www.aisixiang.com/data/121699.html

Michael Ingle – michaelingle01@gmail.com

Categories: Uncategorized

Tags: 疫情防控下个人的权利限缩与边界, 赵宏, 应急状态, 比例原则, 法鲁保留, 人性尊严