By Wang Chenguang
The Essential Role of Law in Containing the New Coronavirus
The stark truth in the COVID-19 emergency is the lack of effective drugs, therapies, and a vaccine at the moment and in the near future. Therefore the most effective way of containing the new coronavirus is still the traditional response of cutting off the channels of its human-to-human transmission. Realizing this fact, China has used, from the beginning, measures of social distancing, wearing face masks in public, quarantine and staying home to meet the unprecedented challenges of COVID-19. All of these measures are means to adapt normal human behaviors to an emergency situation. To do so, law — the most effective set of norms used to regulate people’s behavior — is logically utilized to stop the spread of the virus. This idea is clearly expressed by the Chinese government’s policy of legal, scientific and orderly containment of the disease.
The Current Chinese Legal Ground for Emergency Measures
Relevant to health crisis, China has enacted several laws such as the Law on Infectious Disease Prevention and Control, the Emergency Response Law, the Frontier Health and Quarantine Law and the Regulation on Response to Public Health Emergency, plus a number of administrative regulations and rules. These legal documents form a rather complete although imperfect legal framework for infectious diseases.
To support and facilitate enforcement of these laws during the COVID-19, additional rules have been issued, such as the Standing Committee of the Congress’ decision to ban illegal wildlife trade and consumption of wild animal meat, and judicial opinions on the application of criminal law in cases involving obstruction of disease control and on further enforcement of frontier quarantine work, in addition to a number of local decrees and orders.
Solving the Dilemma of Public Health Law by Legal Vehicles
A common feature in emergency times around the world is that more powers are employed by the government and individual rights are curtailed. This inevitable dilemma poses two blunt questions, i.e. the trade-off between public goods and private rights and the choice among coercive or voluntary measures.
To solve this dilemma, China adheres to the basic principle of putting people’s life and health first provided by the Basic Law of Health Service and Health Promotion during the emergency, even at the costs of current economic development and certain personal rights. Comparing public health and personal rights of entertainment or economic benefits, the overwhelming majority of people are willing to accept the temporary restriction of their rights in order to contain the COVID-19 pandemic. Without such social consensus, these restrictive measures will not be effectively enforced.
No doubt, restrictions of personal rights are always painful. Therefore, they should be legal, proportionate and temporary. And not all measures should be coercive. During the current emergency, three modes of enforcement are adopted: (1) strict enforcement by police for criminal actions such as blocking emergency supplies, (2) inspection work by security guards such as checking temperature and residence/work ID, (3) voluntary implementation of governmental recommendations such as internet shopping, personal hygiene, and healthy lifestyle.
Frequent Adjustment of Enforcement of Measures
Proportionality is the key in issuing and enforcing emergency measures. In the initial stage of COVID-19, some excessive measures were employed by a few local authorities, such as shutting down roads and humiliating confirmed or suspected patients. The solution in China was to quickly identify the problems via the media and the government and to issue enforcement guidance, which are used as a regulatory tool.
Legal restrictions cannot function effectively without other auxiliary arrangements such as the supply of daily necessities to people staying at home and provisions for work athome and online learning arrangements. With the assistance of grassroots community organizations and workplaces, restrictive measures have been better implemented.
Finally, these restrictions are of a temporary nature and will fade out eventually. In this process, they should be adjusted frequently according to the situation. Even though some measures such as the e-health pass may stay, legal devices for protecting privacy should be imposed during and after the emergency.
Wang Chenguang is a professor of law at Tsinghua University and a member of the National Expert Committee of COVID-19.