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                  Epidemic situation urges acceleration of legislation for key areas of public health

                  Author  :  WANG LIMING and WANG XU     Source  :    Chinese Social Sciences Today     2020-04-18

                  Firefighters disinfect the platform of Yichang East Railway Station in Yichang, Central China’s Hubei Province, on March 24. Photo: XINHUA

                  Law-based governance is vital for the modernization of China’s public health governance and urgent for compensating the institutional drawbacks revealed in fighting COVID-19. Only by coordinating rule of law and reform and accelerating legislation for key areas of public health governance can the country achieve lasting security in the public health sector. 

                  Two laws badly needed

                  It is essential to formulate long-term and guiding basic laws related to the national system as soon as possible. The prevention and control of the epidemic in China has highlighted the importance of long-term planning. In light of strategy, lawmakers should consider the Biosecurity Law, which will prevent technical pollution at its source, and the Law for the State of Emergency, which will avoid secondary damages to society caused by institutional failures.

                  Due to the complex interconnectedness of globalization, complicated technologies brought by the new industrial revolution and the inappropriate exploitation of the environment, human society faces a growing risk of being attacked by viruses from the biosphere. Efforts must be made to set norms via the Biosecurity Law based on technical sources to restrict bio-related market trade and consumption behaviors.

                  The Biosecurity Law should establish a legal framework covering all links, different fields and all levels, analyzing potential risks harbored in the interplay between biology and society. Meanwhile it should define rights, obligations and responsibilities for risk control purposes. The law can lay out basic principles, systems, procedures and responsibilities regarding safe contact and communication with and utilization and disposal of biological resources from the perspectives of the general population and special groups, such as related governmental bodies, scientific researchers and other organizations. Thus it will ensure reliable biosecurity and the prevention of source pollution.

                  The Law for the State of Emergency is a basic requirement needed to mobilize state institutions for emergencies as prescribed in the Constitution of China. The prevention and control of COVID-19 has underlined the necessity to further legislate, institutionalize and orchestrate the response to unexpected public emergencies, thereby managing crises in an orderly fashion and avoiding secondary damages to society. The current Emergency Response Law cannot stand in lieu of the Law for the State of Emergency for the following reasons.

                  First the legal statuses of the two laws are different. The Law for the State of Emergency would be a constitutional law or a state law aimed at adjusting relationships between state organs and between the state organs and citizens, while the Emergency Response Law is an administrative statute that only targets relationships between administrative subjects and between the administrative subjects and citizens.

                  Second they differ in legislative intent; the Law for the State of Emergency aims to strike a balance between public interests and civil rights in national emergencies. It is regulatory, but also has the objectives of rights protection and adequate relief. The Emergency Response Law, on the contrary, provides only a basic framework for prevention and emergency response to ensure effective and orderly emergency response.

                  The third difference lies in the object of regulation. A state of emergency is different from emergencies themselves. The 69th article of the Emergency Response Law, which differentiates between emergencies and the state of emergency according to the extent of harm and capacity of response, is not comprehensive. The state of emergency affects the whole order and many values of a nation or region. It involves not merely the capacity of response. From the angle of rule of law, it fundamentally touches upon the authority and procedures of response, requiring reasonable arrangements and resource allocation by coordinating all aspects of social order through the law. The state of emergency is not only about stringent control, but also contains many factors such as public services and state responsibilities.

                  Surely, the content of regulation is likewise different. Judging from its provisions, the Emergency Response Law consists mainly of substantive rules, focusing on mechanisms of regulation and specific regulatory measures. Apart from the rules, the Law for the State of Emergency should also deal with many necessary procedures. It should cover the entire process, from the moment when state organs as prescribed by the Constitution declare a state of emergency nationwide or regionally to when the authorized organs make an announcement lifting the state of emergency.

                  Legislative work should focus on conditions for declaring and lifting the state of emergency; standards for rating and classifying the state of emergency; procedures for declaring or lifting the state of emergency and changing the level of emergency; the subjects, limit of authority, content, form and procedures for carrying out important public activities in the state of emergency; conditions for suspending related civil rights or applicable legal provisions in the state of emergency; the basic content of public regulation and public services in the state of emergency; and state responsibilities including compensation, relief and social security for subjects who have suffered special sacrifices.

                  Necessary amendments to special laws

                  Special and framework laws on the prevention and treatment of infectious diseases and emergency response should be amended as soon as possible to be more systematic, consistent, practical and scientific. The prevention and control of COVID-19 suggests that the emergency response system featuring centralized leadership, classified management, delegation of responsibility, and territorial priority should be further improved and clarified. The relationships between the central authority and local governments, between different levels of local governments, and between the government and social forces should be further straightened out.

                  Particularly after reforms to Party and state institutions in 2018, China has established a relatively unified, centralized and effective emergency management system, as central and local emergency management departments have been set up. However, in accordance with the Emergency Response Law, public health emergencies and social and public safety incidents are currently taken charge of by specific departments. The law should make explicit how to coordinate the departments and emergency management departments and how to ensure that the nationally unified management standards have been effectively integrated into different fields.

                  In the meantime, it is important to further define rights and responsibilities and the scope of different crisis management departments, such as the legal status and power of central and local emergency command centers above the county level, as well as their relationships with governments of the same level.

                  Moreover, related laws should be more consistent. Contradictions should be removed and latent loopholes should be closed. Efforts should be made to tease out the Law on the Prevention and Treatment of Infectious Diseases, the Emergency Response Law and the future Law for the State of Emergency to avoid conflicts when they overlap and intersect.

                  Furthermore, institutions that have performed poorly in practice should be improved based on experience and lessons learnt from the prevention and control of the COVID-19 outbreak. For example, information management systems should be perfected to clarify the limit of authority and responsibility of different subjects of information acquisition, to detail procedural stipulations on the collection, analysis, submission, notification and release of information, and to distinguish the right to issue early warnings from the right to inform the public of the epidemic situation. When it comes to the right to issue early warnings, a decentralized response mechanism should be established. Informing the public of the epidemic situation necessitates appropriate centralization and coordination. Legal amendments should also regulate the limit of authority, responsibility and procedures of intermediate administrative organizations, such as communities, property managers, security companies, and enterprises and public institutions, to prevent inconsistent standards, local cutthroat competition, and the disorder of public power across society during a public emergency response.

                  In addition, provisions on safeguarding civil rights and exercising public power should be polished. Also, a system for the temporary emergency relief and protection of civil rights in response to public emergencies should be instituted to give play to the positive role of judiciary authorities in settling disputes and safeguarding human rights.

                  Support of other laws crucial

                  Legal amendments should be accelerated to strengthen the supporting role of laws related to the prevention and treatment of infectious diseases and public health emergencies. Priority can be given to revising the Law on the Protection of Wildlife. Although the Standing Committee of the National People’s Congress (NPC) issued the legally binding Decision to Thoroughly Ban Illegal Wildlife Trade and Eliminate the Bad Habits of Eating Wild Animals to Ensure the People’s Life, Health and Safety on Feb. 24, 2020, its aim is limited to effectively coping with emergencies in the coronavirus outbreak. It is a legislative document of the Standing Committee of the NPC. Despite the release of the Decision, the Law on the Protection of Wildlife should still be comprehensively amended to confirm the content of the Decision through legislation.

                  Furthermore, institutional innovation is needed for pertinent legal fields. The Civil Code, which is under compilation, should modify relevant rules based on a summary of experience from the prevention and control of COVID-19. For example, in the section on contracts, the applicable scenarios, relations and legal effects regarding change of circumstances and force majeure should be further clarified. And how to safeguard rights over the property of others regarding the section on property rights, such as the right to take residence in the state of emergency or in case of emergency, should be considered.

                  Additionally, other new laws could pay attention to adjustments of legal relations in the state of public emergency. For instance, whether or not dishonest behavior such as intentionally concealing one’s travel history and contact with confirmed cases in epidemics should be penalized could be put on the agenda regarding the legislation of social credit.

                   

                  Wang Liming is executive vice president of Renmin University of China (RUC), where he is also a professor of law. Wang Xu is a professor of law at RUC.

                   

                  (Edited and translated by CHEN MIRONG)

                  Editor: Yu Hui

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