1.  The Chinese Constitution (1982), initially adopted in 1982, and revised in 1988, 1993, 1999, 2004, and 2018, is declared a ‘fundamental law’ with a ‘supreme legal effect’,⁸ and stipulates fundamental rights and freedoms. It is however commonly perceived in China as a set of general rules and serves the state as a fundamental charter of organisation,⁹ containing only the ‘very fundamental and necessary’ provisions that can be decided at the time. In other words, there are no detailed rules on checks and balances and the general rules are meant to be changed whenever the need for changes is perceived by the CPC. Indeed, like constitutions in all other socialist (or the then socialist) countries, it is also a soft law that is frequently revised by the National People’s Congress upon ‘suggestions’ from the CPC. As such, the constitution in China has been in a constant state of flux, reflecting changes in the CPC leadership and in its policies about the kind of future society it envisaged. It is not surprising, therefore, that in a history of around 70 years the People’s Republic of China (PRC) has had four different constitutions, the fourth (current) one being amended five times already since its adoption in 1982. Nevertheless, seen as the ‘mother of all laws’,¹⁰ the Chinese Constitution does set parameters for social and legal development, lay down basic principles for power structures and authorities, and set out boundaries for the exercise of state powers (including emergency powers) by the various state authorities.

2.  While the Party/State authorities emphatically reject the doctrine of the separation of powers and insist the supremacy of the CPC leadership in all spheres of the State, Chinese jurisprudence does make a distinction between different state powers—the legislative, judicial, and executive. While judicial independence, as it is understood in the West, is not recognised in China, adjudication and prosecutorial independence is recognised by the Constitution. Further, through the 2018 revision of the Constitution,¹¹ a fourth branch of state power, the power of supervision, was added. The Chinese constitution thus establishes, on paper, a four-pillar structure of state powers: (1) legislative, ie people’s congresses at the various levels and their standing committees; (2) the executive, ie the State Council and local governments; (3) the judicial, ie courts and procuratorates; and (4) supervisory, ie the State Supervision Commission and its local counterparts, each of which is in fact a joint establishment with the CPC Disciplinary Inspection Commissions. Theoretically, the legislative is to exercise law-making powers, the judiciary the adjudication and prosecution powers, the executive the administrative powers, and the supervisory the anti-corruption powers. However, these lines are not clear cut. For instance, practically all branches of the government have law-making powers in practice, and both the legislature and the judiciary exercise certain supervisory powers over the government, but none of the state authorities have any supervision power over the CPC authorities.

3.  The people’s congresses are established at each of the township, county, prefectural, provincial, and national levels. The National People’s Congress (NPC) at the national level is defined as the ‘supreme organ of state power’.¹² It consists of about 3,000 deputies,¹³ elected for a term of five years by the people’s congresses at provincial level in accordance with the Electoral Law of the NPC and Local People’s Congresses,¹⁴ and by the People’s Liberation Army according to the Measures on the Election by the People’s Liberation Army of Deputies to the NPC and to Local People’s Congresses.¹⁵ Under the Electoral Law (1979) direct elections are only held at the township and county levels; deputies to higher-level congresses are elected by the congress at the level immediately below.¹⁶ The NPC—and its counterparts at all sub-national levels—is only convened once a year for about two weeks and, as such, is hardly capable of exercising the constitutionally defined powers. In practice, it is its Standing Committee (SCNPC), which is mostly convened bi-monthly, that actually does so. The SCNPC, currently comprising 175 members elected by the NPC, establishes subcommittees, including the Legislative Affairs Committee (Fazhi Gonngzuo Weiyuanhui), as its functional departments.

4.  The State Council, composed of the Premier, Vice-Premiers and State Councillors, Ministers, the Auditor-General, and the Secretary-General, is defined as the executive body of the highest organ of state power and the highest organ of state administration.¹⁷ It also has very extensive law-making power. The 1982 Constitution introduced a system of the premier being responsible for the whole State Council, and a minister being accountable for ministries and commissions of the Council.¹⁸ Under this system the premier and ministers have the power of decision-making, while also being held responsible for their decisions.

5.  The judiciary, commonly understood to include courts and procuratorates, exercises adjudication and prosecution work independently. On the one hand, the Supreme People’s Court and Supreme People’s Procuratorate have some extended rule-making powers but, on the other hand, the judiciary as a whole is not an independent authority in the sense of separation of powers. Put simply, the Chinese judiciary does not enjoy the privilege and protection of judicial independence as understood in the West. It is under the strict control of the CPC.

6.  Importantly, China is also a One-Party state in which the CPC has a vague status in the Constitution but asserts absolute control over all state affairs. One of the major post-Mao reforms had been, until very recently, to separate the Party from the State. However, China under Xi Jinping has reversed the previous reform efforts, with an increasingly tight integration of the Party and the State.¹⁹ One of the consequences of this integration—as revealed in the fight against Covid-19—is the practical gap in law, as Chinese law, mostly enacted before Xi came to power, has no legal provisions for Party decision-making in state affairs. Another consequence is that the supposedly merit-based bureaucratic system was largely paralysed and the initial responses to the outbreak were seriously delayed by the inaction of the CPC leadership at both national and local levels.²⁰

7.  The integration of Party and State, though raising questions of legality and causing hesitancy in decision-making in the initial responses to the Covid-19 crisis, does ensure the joint command and coordination among different authorities, with a single-minded determination to control the epidemic, almost at all costs. As such, there has been hardly any room for disputes or conflict among different authorities, thereby preempting the initial inaction and passivity among local authorities and bureaucracies that might attend a system with more checks and balances.

8.  China is the most populous as well as one of the largest countries in the world. Yet, it is a unitary state with all central authorities established in Beijing. Below the central government are state and government authorities established at the provincial, prefectural, county, and township levels, each of which, to a varied extent and depending on its financial resources, mirrors those established in Beijing.

9.  Central-local relationships have been a struggle in China for centuries and modern China in the last 100 years or so is no different.²¹ Suffice to say, financial and tax powers in China today are shared between central and local governments, and laws and regulations are made by both central and some 353 local authorities that have been granted formal law-making power under the 2015 revised Law on Law-making.²² The large number of local law-making authorities was a result of the 2015 revision made to the Law on Law-making that expanded the grant of such power to many more local authorities. Such an expansion also led to concrete development and establishment, after many years of academic debate and discussion, of a mechanism for consistency (constitutional) review. In relation to public health and health (and other natural disaster) emergencies, a relatively comprehensive legal framework is established at the national level, with uniform standards and mechanisms for local implementation.

10.  Theoretically, the national health authority, its local counterparts, and their subordinates are primarily responsible for all health-related issues including health emergencies and epidemics/pandemics, with local authorities being subject to guidance from their superior authorities while also under the leadership of local governments. The national health authority was initially named the Ministry of Health. In 2013, the Ministry was first restructured and merged with other authorities to form the State Commission on Health and Family Planning, and the latter Commission was further restructured and then became the National Health Commission (NHC) in 2018.²³ These reforms were also carried out at local levels in exactly the same way.

11.  In the present fight against Covid-19, most decisions were, however, either made or approved by the CPC authorities with ambiguous legal status within the Chinese legal system, in line with the integration of the CPC and the State, and carried out by many organizations including the police and residential/township committees. The national health authorities were largely reduced to being technical authorities, issuing guidelines and information, instead of binding legal measures to fight against the Covid-19 crisis. Further, the widespread use of punitive measures by local authorities during the first wave of Covid-19 has led to a change in legislation—the expansion of local powers to impose administrative penalties—in the form of revision of Article 12 of the Law of the PRC on Administrative Penalties in January 2021.²⁴

12.  In the Chinese legal system, legal instruments (‘laws’) include: the Constitution, basic laws, and other laws enacted by the NPC and its SCNPC (primary legislation); administrative regulations issued by the State Council; administrative rules issued by ministries and commissions under the State Council; local rules issued by local legislature and local governments; and judicial interpretations issued by the Supreme People’s Court and Supreme People’s Procuratorate. The CPC has its own system of rule-making and rules, but their rules are only applicable, theoretically, to Party members and Party institutions.

13.  In light of the strict (often described as draconian) lockdown measures imposed in many cities, or parts of a city in late 2020, in China, it has been puzzling to many that an emergency, either for a specified area or for a province or even nationwide—as indeed most cities in China were partially locked down—was never declared. ²⁵ The fact that an emergency was never declared, in contrast to many other countries where such an emergency was promptly declared to allow the application of restrictive and emergency measures, is particularly strange in light of the 2004 constitutional revisions.²⁶ The original 1982 Constitution provided the SCNPC with the power to declare a martial law (jieyan) to be implemented throughout the country or in a province. The State Council was also granted the power to do the same in parts of any province.²⁷ During the 2004 revision of the Constitution, it was decided to replace the power to impose martial law with a power to declare a state of emergency (jinji zhuangkuang), and revisions to Articles 67(20) (Powers of the SCNPC),²⁸ 80 (Powers of the President), and 89(16) (Powers of the State Council) were made. To implement this constitutional change, a law on emergency was proposed but to this day not enacted. This means that there has been a lack of detailed procedures for declaring an emergency, but at the same time it is clear that an emergency can be declared by either the SCNPC or the State Council, depending on the scope of application of the declaration. This choice not to do so is not only puzzling but, importantly, casts a shadow over the legitimacy and legality of many lockdown measures imposed in China.

14.  Restrictions were quickly imposed nationwide. Indeed, by 30 January 2020, 31 provinces and autonomous regions had invoked Level I (the highest level) Response to Public Health Emergency in accordance with the National Contingency Plan.²⁹ The invocation was made in the absence of a declaration of a state of emergency, and in the absence of such a declaration, the Constitution and all laws and regulations protecting basic rights are, theoretically, to continue their normal operation. In reality, as will be discussed in Part IV below, hard lockdown was imposed in January 2020, initially in Wuhan but soon for the whole province of Hubei and many other cities in China. In the ‘second wave’ in November/December 2020 to January 2021, hard lockdowns were imposed in districts of cities or residential blocks. These hard lockdown measures effectively shut down all services and movement, including public transport, except the very essential services such as hospital and delivery services. Although not explicitly ordered to do so nor formally announced, legislatures—ie standing committees of local people’s congresses—were shut down and access to courts was made physically impossible. The only explicit provision in terms of suspension of the legislature was a decision made by the SCNPC on 24 February 2020 to postpone the convening of the Third Plenary Session of NPC, which was originally scheduled to start from 5 March 2020.³⁰ A shortened Third Plenary Session of NPC was finally convened between 22–28 May 2020.

15.  As explained above, in the absence of a declaration of a state of emergency, international conventions to which China is a party would continue to operate. At least, there was no formally notified decision by China to derogate from any international conventions or treaty obligations.

16.  According to the China Covid-19 White Paper,³¹ China apparently has maintained close and regular contact with the World Health Organization (WHO), at least since the end of 2019 and early 2020. However, none of the publicly issued legal and executive notices and orders referred to any standards developed by the WHO. This is not unusual. China rarely directly implements any international treaties or standards; China either incorporates international obligations into domestic law or, sometimes, applies international treaties in court proceedings.

17.  As alluded to above, at least in the initial responses to the ‘first wave’ of the mass outbreak in January 2020, the relevant national legal framework was largely ignored, and little in actual practice—mostly local in nature—conformed with Chinese national law. Thus, for instance, a public health emergency could be declared by either the SCNPC or the State Council, but none did so in the fight against Covid-19. Further, control measures were mostly issued by joint authorities of the Party and the government, leaving little room for supervision or approval by the legislature. This is so (as will be explained in Part II.C below) because the CPC is not subject to supervision by any state authorities. At the same time, however, some specific powers were granted by local legislatures to local governments to issue lockdown measures, including penalty measures,³² when in fact the whole battle was largely directed by local joint Party-Government command centres which have little status in law. It should however be pointed out that, upon achieving control of the first wave of the epidemic, increasing emphasis has been placed on compliance and improvement of law.

18.  The Chinese legal framework on public health emergencies, as a special part of a general legal framework on emergencies, was partially established in 1989, when the Law on Prevention and Treatment of Infectious Diseases 1989 was enacted by the SCNPC,³³ and incrementally improved, strengthened, and expanded after the SARS epidemic of 2002/2003, the H1N1 flu epidemic in 2009, and the H7N9 avian flu epidemic in 2013, and formally revised and reissued in 2004 and 2013.³⁴ The other main statute is the Law on Emergency Responses 2007,³⁵ which regulates responses to natural disasters and accidents, including public health emergencies. These are the two pieces of national primary legislation constituting the legal framework for the regulation of public health emergencies. Compliance with them is addressed in the Part IV.B below.

19.  At the national level, the principal health emergencies framework laws and rules, in addition to the Law on Prevention and Treatment of Infectious Diseases 1989 and the Law on Emergency Responses 2007 discussed above, also include the following subordinate legislation:

1. (a)  Regulations issued by the State Council:

   1. (i)  Regulation on Responses to Public Health Emergencies 2003;³⁶

2. (b)  Measures issued by the Ministry of Health (now the National Health Commission):

   1. (ii)  Implementing Measures for the Law on the Prevention and Treatment of Infectious Diseases;³⁷

   2. (iii)  Administrative Measures on Information Reporting and Monitoring of Infectious Diseases and Public Health Emergencies;³⁸ and

   3. (iv)  Plan for Information Disclosure on Epidemics of Infectious Diseases and Public Health Emergencies.³⁹

20.  Also at the national level, there is the Regulation on Open Government Information,⁴⁰ which imposes an obligation, among others, on governments to issue information that might affect public health. Further, there are laws on the prevention and control of infectious diseases among animals, laws on quarantine at national borders, and other specialist laws. Finally, as in many other areas of Chinese law, the above national legal framework is implemented by local rules, and national laws are further elaborated by general judicial interpretations issued by the Supreme People’s Court and Supreme People’s Procuratorate. The whole legal system on public health and emergency is currently undergoing a process of review and revision, but there have been no new laws issued to specifically address the Covid-19 health emergency.⁴¹

21.  The fundamental objective of the national legal framework composed of the main statutory and executive legislation is to establish a unified national system that addresses both the prevention and control of infectious diseases, and responses to emergencies. For operational purposes, four unified national systems on prevention and control of infectious diseases and responses to emergencies have been prescribed by law:

1. (1)  there is to be a national system of contingency plans, consisting of plans prepared by government departments at different levels, and enterprises and institutions that might potentially cause emergencies.⁴² These plans are to be made in accordance with the character and potential social harm of the emergencies, and must spell out in detail the command system and its responsibilities, the prevention and warning of emergencies, response procedures, measures for securing the responses, and measures for post-emergency rehabilitation and reconstruction.⁴³ At the national level, the State Council itself must have an Overall Contingency Plan as well as specialised contingency plans; and its ministries and commissions must establish departmental contingency plans.⁴⁴ Similar plans are then established at the local levels.⁴⁵

2. (2)  a unified national system on emergency incident information is to be built, consisting of such subsystems as are established by governments and their specialised agencies at different levels. All of these subsystems are to be connected with each other to form a unified national system for information sharing and cooperation, as well as for reporting.⁴⁶ Under this system, a reporting obligation, both by governments and individuals, horizontally and vertically, is made compulsory.⁴⁷

3. (3)  a national emergency monitoring system is to be established, which includes a data bank, a monitoring network, and specialists in charge of monitoring potential emergencies caused by natural disasters, accidents, and public health incidents.⁴⁸ For the purpose of public health, local centres for disease control and prevention (CDCs) at all levels are the primary units responsible for the monitoring of infectious diseases.

4. (4)  a national warning system is established.⁴⁹ Under this system, early warnings at different levels may be declared, which then would trigger the application of various legal measures as well as information disclosure. For natural disasters, accidents, and public health incidents, such a warning is divided into four levels (1–4), displayed in red, orange, yellow, and blue colours respectively, with Level 1 (Red) being the highest such warning.⁵⁰

22.  As to infectious diseases, the unified national system classifies them into three classes (A, B, and C) according to the severity of the disease and places them under different management systems. The emergency laws and regulations, sometimes overlapping or conflicting with diseases control laws, establish a system on information disclosure, contingency plans, emergency responses, distribution of responsibilities among the various authorities, including specialist authorities such as local CDCs, and post emergency reconstruction.

23.  As already mentioned above, this comprehensive and unified national legal regime was largely ignored during early responses when the strictest lockdown measures were issued. However, two sets of actions taken during the early responses relied on this legal regime. First, on 20 January 2020, the State Council made a declaration that the Class B disease of Covid-19 was to be subject to prevention and control measures designed for Class A diseases. Secondly, within a week of the lockdown of Wuhan, starting on 23 January 2020, most of the Provinces had invoked their highest level of contingency plans in accordance with the emergency response laws and regulations. However, such invocation of the contingency plans was effected without a formal declaration of epidemic areas or state of emergency, leaving the question of the legality of the lockdown measures in doubt as many of the restrictive measures may only be applicable in time of emergency.⁵¹

24.  Most of the practical control and restrictive measures were issued by local Command Centres, which are composed of leadership of the CPC and the local governments at the corresponding levels. At the central level, there was the Central Leading Group for the Prevention and Control of Novel Coronavirus Pneumonia Epidemic (zhongyang yingdui xinxing guanzhuang bingdu ganran feiyan yiqing gongzuo lingdao xiaozu) (‘Central Leading Group’), headed by Premier Li Keqiang, to provide unified leadership and coordinated responses. However, this Central Leading Group is not the Command Unit under the State Council as required by Article 8 the Law on Emergency Responses; rather, it is a group established by, and responsible to, the Standing Committee of the Politburo of the CPC.⁵² Here, Chinese law was openly ignored. There is also the State Council Joint Mechanism for the Prevention and Control of Novel Coronavirus Pneumonia Epidemic (‘State Council Joint Mechanism’), headed by the National Health Commission (NHC) to coordinate responses by the various ministries under the State Council, which largely serves as a coordinating authority as well as providing technical guidance to local governments.

25.  The NHC issued two sets of Guidelines which were revised frequently: Guidelines for Treatment of the Novel Coronavirus Pneumonia, and Guidelines for the Prevention and Control of Novel Coronavirus Pneumonia.⁵³ The State Council Joint Mechanism also issued policy guidelines and general measures for local adaption and adoption, especially for Covid-19-normal practices.

26.  As alluded to above, joint Party-Government Command Centres were established at all levels, and most lockdown orders and measures were issued by these Command Centres. The legal authority of such orders is, to say the least, ambiguous, and this potential illegality is compounded by the fact that such orders cannot be challenged in a court of law because of the involvement of the CPC.⁵⁴ Another source of rules was issued by the State Council Joint Mechanism. Legally speaking, their orders can be treated as administrative rules and, as such, are subject to supervision by the SCNPC and, theoretically, might be challenged in court. On the other hand, however, most orders and notices were issued as ad hoc and specific measures without any sunset clause, but they would be and indeed were constantly superseded by later orders which normally contain new measures. They were not general rules to generate further measures, although they were mostly implemented to various extents according to local conditions.

27.  As mentioned above, two sets of Guidelines were issued, revised, and updated by the NHC, aimed at offering guidelines for medical institutions and authorities in charge of prevention and control of the epidemic. Both were mostly of a technical nature—this, of course, contrasts strongly with orders issued by the local Party/State command centres—being flexible for adoption and adaptation to local conditions. There have been no reports of conflict between guidelines and command centre orders, and what residents had to abide by for all practical purposes were the orders and measures issued by the local Command Centres, and the guidelines issued by the NHC aimed at providing guidance to local health authorities rather than residents.

28.  Under the Chinese Constitution and the Law on Law-making, China upholds a unified legal system under which all administrative regulations, local rules, and judicial interpretations are to be filed with and reviewed by the SCNPC. Local legislatures are similarly responsible for such reviews within their own ‘jurisdictions’. However, actual mechanisms for performing such an oversight functions were only established in the last few years at the central level. The principal work on such oversight is carried out by and delegated to the Legislative Affairs Committee of the SCNPC. The SCNPC, through its Legislative Affairs Committee, has however taken the tasks increasingly seriously, with 2020 seeing the largest number of local rules having been reviewed.⁵⁵

29.  Regulation/rule-making powers of governments at different levels are granted by the Constitution and the Law on Law-Making. As such, the legislature cannot terminate such government powers; it only has the power to supervise the exercise of these powers by governments. However, the Chinese Constitution is soft law and, theoretically, the NPC can amend the Constitution to change the rule-making powers and the Law on Law-making can be revised by the SCNPC.

30.  Since government rule-making powers are granted by the Constitution and the Law on Law-making without any reference to periodical review, these powers are continuing. Legislative oversight concerns only the exercise of the power. As legislative affairs committees are established by Standing Committees of legislatures at all levels and these legislative affairs committees are functional departments of the legislatures, it can be said that oversight is conducted on a regular and continuing basis, with certain areas for targeted supervision.⁵⁶ However, legislatures at central and local levels rarely debate these matters. The most common practice is for the Standing Committee to receive an annual report by the legislative affairs committee for information and approval. While the legislature does have the power to pass resolutions supporting or opposing the exercise of government rule-making powers, this does not seem to happen as the uniform leadership of the CPC would dictate that any such conflict would have to be resolved by ‘coordination.’ In fact, under the Measures Governing Filing-for-Record and Review of Regulations, Rules and Judicial Interpretation (2019), review conclusions are delivered to the original issuing authorities for action (revision, repeal, etc).⁵⁷ A decision would only be made by the SCNPC if the issuing authorities take no action and ‘coordination’ fails to prompt actions by the issuing authorities. So far, there has been no such decision made by the SCNPC.

31.  Governments have no power to extend their own rule-making powers without authorization by legislature at the same level, and any matters that fall within the domain of law-making must only be dealt with by the legislature. As mentioned in Part II.B above, many local legislatures—ie standing committees of local people’s congresses—passed resolutions to grant further powers to governments to deal with the Covid-19 emergency in 2020. To clarify the constitutionality of such practices, the Legislative Affairs Committee of the SCNPC issued an opinion, confirming that such a practice, as long as the government rules are not in conflict with laws, complies with the ‘spirit of the Law on Law-making’.⁵⁸

32.  The usual annual convening of local people’s congresses is in January and, by the time of the widespread lockdown in late January 2020, local people’s congresses had all completed their annual meetings. In fact, the initial delay in response to Covid-19 in Wuhan was caused by the convening of the local people’s congresses and political consultative conferences. The annual meeting of the National People’s Congress is in March each year and, as explained in Part II above, the annual meeting was postponed, with a shortened session convened from 22 to 28 May 2020. Although Standing Committees of legislatures were supposed to continue their work as usual, lockdown measures effectively rendered it impossible for usual meetings and, in response, online meetings were soon introduced at the various levels.

33.  Chinese legislatures, that is, the NPC, its Standing Committee, and their local counterparts, do not conduct ‘debate’. They conduct ‘discussion and deliberation’ at plenary sessions or group meetings. There have been very few reports about particular difficulties in meetings of standing committees. In the case of the SCNPC, it managed to convene, sometimes partially online, its usual bi-monthly meetings with a heavy legislative agenda. According to the Report of SCNPC delivered to the Fourth Session of the 13^th NPC on 8 March 2021, the attendance of its meetings was maintained at 97% throughout the year.

34.  While virtual meetings, or through a mixed format of online and physical participation, were conducted, there has been no report of any delay to the legislative agenda nor any abnormal constraint on discussions and deliberation. There are no ‘opposition parties’ and hence there is no such complaint on constraints.

35.  For years the Chinese judicial system has invested a huge amount of financial resources in establishing and developing its internal IT and associated online systems, including the use of big data. Not surprisingly, as soon as lockdown measures were imposed, the Supreme People’s Court issued its policy guidelines (Notice of the Supreme People’s Court on Strengthening and Regularising On-Line Trial Work during the Novel Coronavirus Pneumonia Epidemic Prevention and Control Period) to lower courts to immediately strengthen its utilization of online facilities for civil and criminal trials, though it also emphasised that online trials shall not be compulsory and litigation shall be suspended if either party opposes the use of an online trial.⁵⁹

36.  The Supreme People’s Court Notice applies to both civil and criminal proceedings, though it seems that the emphasis was on civil ones. Such an emphasis makes sense. During the lockdown period it was much harder to gather and verify evidence for criminal proceedings and, hence, the utility of online trials for criminal cases is limited.

37.  There were reports of difficulties caused to some litigants and reluctance among some litigants to use online trials.⁶⁰ There is, however, no clear evidence to support the systemic existence of a digital divide, as the use of online trials is not compulsory. Further, there are reports that local courts have made efforts to provide technical support, guidance, and other measures to assist parties in the use of the technologies.⁶¹ Having said this, it is necessary to acknowledge the hugely different levels of technological development and resources available to courts in the developed eastern part of China and those in western China, and between courts in cities and court tribunals in rural China.

38.  Obviously, litigants see the traditional, face-to-face proceedings as a risk to health, not the online trial. Also importantly, Chinese courts were never shut down completely, though the general lockdown measures did temporarily restrict access to them. Indeed, according to Chinese media reports, the quick move to online proceedings, which include case filing, mediation, evidence exchange, court hearings, sentencing/judgement, and document delivery, significantly facilitated access to justice.⁶²

39.  While on-line proceedings were encouraged and the courts were required to facilitate the use of them, Article 3 of the Notice of the Supreme People’s Court on Strengthening and Regularising On-Line Trial Work during the Novel Coronavirus Pneumonia Epidemic Prevention and Control Period specifically stipulates that all conduct must comply with existing laws and judicial interpretations.

40.  As discussed in Part II.A above, no declarations of states emergency, states of exception, or public health emergencies were officially made by Chinese authorities. Even if such declarations were made, Chinese courts do not have a review power over generally applicable rules and orders, with the exception of a few kinds of documents; they can only review government actions concerning a particular person or a particular group of persons. Media outside China has reported several cases of Wuhan citizens wanting to sue their government, but they and their lawyers have all been silenced by the governments.⁶³ Indeed, the 2021 Work Report of the Supreme People’s Court stated that the Court made some efforts to neutralise ‘vexatious and malicious litigation’ in and outside China,⁶⁴ but it provides no details. In short, there has been no report of cases involving review by court of government actions or government rules or orders in relation to the handling of Covid-19.

41.  China does not conduct referendums, and direct elections are only conducted at the county and township levels every five years. The election year is 2021 and direct local elections have been conducted throughout the year with the exact election time decided locally in accordance local pandemic situation.

42.  As explained in Part II.B above, the national legal framework on public health and emergency responses does establish, for operational purposes, four unified national systems on prevention and control of infectious diseases and responses to emergencies. Under these uniform systems, the authorities in charge of prevention and control of diseases (CDCs) are required to collect, analyse, and report information on infectious diseases and to forecast the outbreak and epidemic trend of infectious diseases. The same authorities are also charged with the task of conducting laboratory testing as well as making diagnoses and etiological appraisals.⁶⁵ In other words, the CDCs in China at different levels are to provide scientific advice. However, the CDCs in China are government organizations subject to the leadership of health authorities, that is, Health Commissions of governments at different levels. They report to governments, which in turn decide what to report to the public. Though not strictly a matter of scientific advice, it should be pointed out that, under law, CDCs, medical institutions, and blood supply organizations are all required to report an epidemic situation or outbreak of infectious disease to a relevant authority.⁶⁶ In fact, every unit or individual is under a legal obligation to report to the nearest authority on prevention and control of infectious diseases or a medical institution if an infectious disease patient or suspected case is found.⁶⁷ All such reports must be made promptly or within time limits specified by regulations.

43.  There is no law requiring the publication of the advice of CDC, nor any legal provision compelling the government to follow any scientific advice. Information on the outbreak and prevalence of an epidemic is to be issued to the general public by the NHC under the State Council or provincial Health Commissions authorised by the NHC.⁶⁸ There is no law requiring the scientific advisers to be independent and there are no published materials relating to either the minutes of meetings or the process of appointment, on which it can be determined whether scientific advisers are genuinely independent of government.

44.  The Chinese media is always tightly controlled, and it has been particularly so in relation to the ongoing prevention and control of Covid-19. Specifically, not only does the government control what the media might be allowed to report on Covid-19, but the criminal law and other laws on ‘social order and administration’ have been applied and continue to be applied to punish persons who report on Covid-19 information without government authorization.⁶⁹ The Work Report of the Supreme People’s Court, as mentioned in Part III.C above, stated that the Court concluded 5,474 criminal cases (involving 6,443 persons) related to Covid-19 prevention and control, including spreading false information and rumours about Covid-19.⁷⁰ However, no details were provided by the Court.

45.  As mentioned in Part II.B above, there is the Regulation on Open Government Information, which imposes an obligation on, among others, governments to issue information that might affect public health.⁷¹ Since no declaration on emergency was ever issued, it can be assumed that this law continues to operate, but there has been no report of any application for information under the Regulation.

46.  China does not have an ombudsperson system, nor does it recognise the theory and practice of separation of powers. As explained in Part III.A above, legislatures do have some supervisory powers over the executives. As also explained Part III.C above, Chinese courts can review specific actions of governments that impact on particular persons or particular groups of persons; but courts have no power to review general rules issued by the executives—with some very limited exceptions in relation to certain types of documents issued by governments. There has been no special public office appointed to monitor the public responses to Covid-19.

47.  As mentioned in Part III.A above, a special review of provincial rules on responses to Covid-19 was conducted in 2020 by the Legislative Affairs Committee. Upon completion of the Review, the Committee issued an advisory notice, affirming the power of the local legislatures to grant local governments powers to issue measures to combat Covid-19.

48.  Another form of supervision is conducted by way of making submissions (suggestions and opinions) by deputies to people’s congresses at different levels. These submissions are then forwarded to relevant government departments for feedback or action. According to the NHC, it alone was asked to deal with some 467 submissions on topics relating to Covid-19.⁷² However, these submissions are not made public, though sometimes very brief overview reports are published. In the report, it was stated that some of the suggestions were taken up by the NHC.⁷³

49.  As of March 2021, China has had an initial mass outbreak of Covid-19 in Hubei Province, centred around Wuhan City, and then isolated cases in various cities in China, with small-scale outbreaks in Northern China in November 2020 through to February 2021. The initial responses to the outbreak in Wuhan, and Hubei more generally, include, probably, some of the strictest measures ever undertaken by any country in response to an epidemic.⁷⁴ Although outbreaks in Northern China in late 2020 and early 2021 were ‘minor’ in comparison with the initial outbreak, many of the toughest measures (eg closing-off residential blocks or whole districts of a city) were adopted by some cities that saw small outbreaks. Further, as in the initial responses, these ‘second wave’ responses were once again local and ad hoc in nature, mostly issued as notices or orders by local command centres. As in the initial responses, these centres are joint authorities of the CPC and local government.

50.  While responses are local and ad hoc in nature, it should also be pointed out that the CPC did establish a Central Leading Group (see Part II.B above), chaired by the Premier Li Keqiang in his capacity as a member of the Standing Committee of the Politburo of the CPC. Where the epidemic situation is serious, representatives of the Central Leading Group were sent to the specific localities, such as Wuhan. Further, as also mentioned in Part II. B above, the State Council established a Joint Mechanism, headed by the NHC, as a coordinate authority which also provides technical guidance to local governments. Finally, the NHC also sent expert groups to localities where the epidemic situation was serious. Through these mechanisms, important local responses gained their approval from the central authority of the CPC.

51.  In the ‘second wave’ starting from November 2020, differences in approaches to the control of the epidemic between localities were much sharper. Thus, in Shanghai for instance, restrictions were imposed in small-scale targeted areas and the protection of privacy was taken into consideration in contact tracing practice, whereas in many cities in Northern China, restrictions were strict and often personal information was published in the contact tracing process. Further, some much more flexible measures issued by the central authority, such as the State Council Joint Mechanism, were implemented alongside much stricter measures at the local levels, leading to the so-called phenomenon of stricter measures at lower levels without any scientific support. Also at the local level, the phrase ‘war time’ was often used without any legal basis.⁷⁵ These problems were initially discussed on social media, but have, since mid-January 2021, attracted the attention of the government media and government authorities.⁷⁶ Although the practice of imposing stricter measures by local authorities was criticised by the State Council in February 2021 as ‘lazy policies and a waste of resources’,⁷⁷ any government measures to rectify the problems in actual practice are yet to be seen.

52.  The following focuses (but not exclusively) on the measures in response to the outbreak in Wuhan, Hubei in the ‘first wave’ of the Covid-19 epidemic in China. These measures set out the benchmarks that were followed, to a varied extent and scale, by cities where small scale outbreaks occurred, mostly from November 2020 to February 2021.

53.  On 23 January 2020, the Wuhan Command Centre on the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic (‘Wuhan Command Centre’) issued its Public Notice No 1,⁷⁸ which shut down all public transport including outbound trains and flights, effectively cutting off Wuhan from the rest of China. In two days, 23 and 24 January 2020, seven notices were issued by the Wuhan Command Centre.⁷⁹ This is what is commonly referred to as the lockdown of the entire city of Wuhan, and restriction measures then began to be introduced through Public Notices/Orders issued by the various local Command Centres, initially in Wuhan but soon followed by many other cities in Hubei Province and nationwide.

54.  The initial public notices were unclear whether restrictions on mobility of residents had been imposed, but it was clear that shopping and visiting hospitals was permitted. At the same time, some residential/neighbourhood committees—referred to as the ‘communities’ (‘shequ’) in public notices and orders—began to impose their own restrictions on movement by imposing strict access to and exit from their residential blocks. On 10 February 2020—in fact, 11 February as the notice was issued after midnight—Public Notice 12 was issued by the Wuhan Command Centre.⁸⁰ This Notice imposed an immediate but undefined closing-off of all residential blocks in Wuhan and ordered those who were diagnosed with, or who were suspected of having been infected by, Covid-19 to stay inside their apartments. Two days later, the Wuhan Command Centre issued another notice,⁸¹ elaborating the meaning of ‘close-off management’ (fengbi shi guanli). According to the Notice, only one entry/exit point, which must be staffed with inspection personnel at all hours, was allowed for each residential block and the actual implementation of such measures were to be undertaken by district governments.⁸² In actual practice, this effectively locked up some 11 million residents in their own apartments. This order did not specify a period of application. It was not until 20 March 2020 that strict restrictions were partially relaxed for residential blocks or local communities where there had been no infection cases.⁸³

55.  The so-called ‘close-off management’ was in fact imposed in many cities in China, well beyond Hubei Province but with varied restrictions. Some had a whole city or a district of a city closed off, others imposed strict restrictions targeting specific residential blocks. Some lasted for a few days, others—like in some parts of Wuhan—lasted for more than two months (more precisely 76 days, between 23 January–8 April 2020). Even in the case of a total closing-off of residential blocks, some allowed one or two residents per apartment to go out for shopping every other day, others simply did not allow anyone to leave their apartments at all and daily necessities were then delivered by government organised volunteers.⁸⁴

56.  Wuhan Public Notice No 1 shut down all public transport including all outbound trains and flights, but it did not mention taxi nor private vehicles, nor anything about movement of residents within the city at all.⁸⁵ As a result, limited movement of residents was still possible. In fact, Public Notice No 8, issued on 24 January 2020, advised that the government had acquired 6,000 taxis that would be distributed to residential/neighbourhood committees for free use by residents.⁸⁶ However, on 25 January 2020, Public Notice No 9 prohibited the use of vehicles in the city, with the exception granted to supply vehicles, free taxis acquired by government and assigned to local communities, and government vehicles.⁸⁷ In other words, by this point, both international and internal travel were banned in the city of Wuhan and, in fact, for the Hubei Province as a whole.

57.  Nationally, initial efforts were made by the Chinese Ministry of Transport to facilitate the refund of tickets already bought, as the lockdown of cities had made most internal travel impossible or undesirable. This was especially so after most people had already arrived home for the Chinese lunar new year, starting from 25 January 2020. Then, the cancellation of trains began in response to the lockdowns in various cities in China.⁸⁸ Meanwhile, many local authorities had begun blocking exits of freeways/highways, making the use of freeway/highways practically impossible.

58.  As to international travel more generally, China initially opposed the imposition of international travel bans by other countries, a position that was also taken by the WHO. This is understandable as such bans mostly targeted China as the outbound country or destination at the time. Starting from this position, China then took an approach that gradually increased its restrictions. First, it re-activated its Border Health Declaration practice on 25 January 2020.⁸⁹ Then, the General Administration of Civil Aviation began to impose controls on the total volume of international flights, demanding that there would only be a reduction and no increase of international flights.⁹⁰ Still later, on 28 March 2020, China finally banned the entry of all foreigners, including transition passengers, with the exceptions of diplomats or passengers on grounds of emergency or humanitarian reasons.⁹¹ On the same day, the General Administration of Civil Aviation also announced that only one route was allowed for each country and there must be only one flight for each route per week.⁹² This restriction continued until 8 June 2020 when some minor adjustments were made. Thereafter, restrictions became more targeted and strict quarantine and Covid-19 test requirements were imposed. As in other countries, at the time of writing (March 2021), international travel is far from being restored to the pre-Covid-19 status, but limited travel—mainly for returning residents—with strict control measures is now permitted.

59.  The latest policy on international travel was announced by the Minister of Foreign Affairs on 7 March 2021. Under the new policy, which became effective on 15 March 2021, (1) foreign nationals and their family members can now apply for a visa to China with the documents that were required before Covid-19; (2) the scope for emergency and humanitarian visas will be expanded; and (3) an APEC (Asia-Pacific Economic Cooperation) business travel card holder may apply for an M visa by presenting their valid APEC card and an invitation letter from China.⁹³ However, this policy—referred to as ‘visa facilitation’—would only apply to applicants who have been inoculated with Covid-19 vaccines produced in China, and the Notice on Airline Boarding Requirements for Certificates of Negative Nucleic Acid and Anti-Body Blood Tests Results issued in late 2020 continues to apply.⁹⁴ Since Chinese vaccines are only approved for use in very limited countries, the real effect of this policy is negligible as far as international travel to China is concerned.

60.  The responses to the initial outbreak in Wuhan, and Hubei Province more generally, can be described as swinging from one extreme to the other, with strict measures becoming the norm ever since the imposition of lockdown in Hubei.

61.  As already mentioned in the Introduction, the first cases were detected in Wuhan in November/December 2019. However, no action was taken by governments. Instead, large scale events went ahead, including the annual meetings of local people’s congresses, local political consultative conferences, and lunar new year events. Many critiques have suggested that the cover-up of inaction by governments, mostly for political reasons such as the convening of the local people’s congress and the political consultative conference, constituted the most serious error in the early response to Covid-19 in China.⁹⁵

62.  When the Wuhan and Hubei governments responded, the principal measures implemented were the city-wide lockdowns. As such, no public or private gatherings were possible nor any public events. When isolated cases began to emerge in late 2020 and early 2021 in Northern China, many local governments responded with similar lockdown measures, which effectively made public and private gatherings and events impossible.

63.  Central government directives are, however, much more flexible, less strict, and general in nature. For instance, the Notice on Epidemic Prevention and Control during New Year and Lunar New Year Period suggested the reduction of gatherings and one-metre distancing between persons, as well as proposing a limit of 10 persons for private gatherings.⁹⁶ As to public events, events with large participation, such as marathons, profit-seeking entertainment performances, exhibitions, and religious ceremonies, should be subject to a strict approval process, and epidemic prevention and control measures had to be established for any events attended by more than 50 people. It further suggested that all public venues, such as cinemas, tourist spots, entertainment venues, etc, should be limited to 75% of their capacity. Typical of the measures issued by the Central government authority, the Notice basically delegates the responsibilities for prevention, control, approval (of events and activities) and management to local governments. As discussed in Part IV.A.1 above, local governments tended to impose much more restrictive measures than those being recommended in the early months of 2020.

64.  Chinese law clearly allows the closure of premises and facilities in times of epidemic or natural disasters.⁹⁷ Once again, the actual practice varied from place to place.

65.  As a general rule, when a city or a district thereof is locked down, these public premises and facilities were all closed. Thus, a Public Notice of Hubei Provincial Government,⁹⁸ for instance, ordered all non-essential public venues in the Province to close, even though these venues had already been closed down as part of the lockdown efforts. Public venues such as shopping malls, hotels, etc, were only reopened gradually with strict conditions from April 2020.⁹⁹ These conditions relate to air circulation/ventilation, mechanisms for prevention and control, control of crowd density, inspection of electronic health cards, use of face masks and social distancing, hygiene practices, etc.

66.  Often, cinemas, restaurants, and bars (including karaoke bars), sport facilities, etc, are singled out for stricter rules as they are often established in closed environments, such as within shopping malls, and they themselves are a closed environment. However, religious venues are not singled out in this way—they are treated as general public venues and are regulated as such.

67.  Physical and social distancing is regulated by guidelines issued by central government authorities and reasonably uniformly implemented at local levels. While other measures, especially lockdown measures, are often strictly enforced, Chinese authorities seem to be rather relaxed towards physical and social distancing rules.

68.  Initially, the guidelines required people to keep a ‘certain’ distance from each other if practically possible.¹⁰⁰ The ‘certain distance’ eventually became a standard ‘one-metre’ distance in most centrally and locally issued public notices.¹⁰¹

69.  China was one of the first countries to use face coverings, and most of the Chinese people believe in the efficacy of face coverings in the prevention and control of Covid-19.¹⁰² In practice, ‘face masks’ (kou zhao) is the standard term used, and most Chinese people use the disposable face masks and one rarely sees any other face covering than face masks. As a matter of government policy, face coverings were first recommended for people in public places with a relative high density.¹⁰³ More standard recommendations were issued by the State Council Joint Mechanism in early February 2020.¹⁰⁴ Eventually, the language in Chinese policy became ambiguous; many policies simply refer to the wearing of face masks without saying whether it is compulsory or only recommended.¹⁰⁵

70.  Compulsory or not under the national policies, most of the local directives or practice simply made such wearing compulsory during the outbreaks of Covid-19, and as a practice, many Chinese people have continued to wear face masks.

71.  As in many other countries, the use of PPE for medical and health professionals was severely impacted by the shortage of such equipment during the initial outbreak of the epidemic.¹⁰⁶ This was so despite the fact that the supply of appropriate PPE for medical and health professionals is mandated by law,¹⁰⁷ and local governments are required to stockpile such equipment for emergency use.¹⁰⁸

72.  Chinese law clearly allows isolation and quarantine as measures for the control of Class A infectious diseases,¹⁰⁹ and, as mentioned Part II.C above, Covid-19 was declared a Class A infectious disease. While Chinese law only uses one term ‘Geli Zhiliao’ (isolated for treatment), the Law on Prevention and Treatment of Infectious Diseases clearly treats ill or infected persons differently from persons suspected of being infected or virus carriers,¹¹⁰ in line with the definitions of ‘isolation’ and ‘quarantine’ in the International Health Regulations 2005.¹¹¹ Such measures are to be implemented by governments at the county level, but such measures must also be reported to a government at a higher level for approval.¹¹² While the measures are to be implemented by medical institutions, local police are required to assist if there is any failure in compliance by patients or persons suspected of being infected.¹¹³

73.  Initially, the outbreak clearly caught Wuhan, and Hubei Province in general, medical institutions off-guard and the hospitals were unable and unprepared to respond adequately to the flood of patients and suspected infection cases (suspected persons).¹¹⁴ The total lockdown of the city, and the whole province, bought time for the authorities to build temporary ‘hospitals’ for both the ill and persons suspected of being infected for isolated treatment. Indeed, as soon as the lockdown order was issued on 23 January 2020, construction of the first such temporary ‘hospital’ began on 24 January 2020, and construction of the second temporary ‘hospital’ began two days later. Both of these temporary hospitals were commissioned for use in early February 2020.¹¹⁵

74.  On 31 January 2020, the NHC formally recommended to Hubei Province measures isolating patients at designated treatment facilities.¹¹⁶ Starting on 2 February 2020, Wuhan began to implement separate isolation for four types of people: (1) patients diagnosed with Covid-19, (2) persons suspected of being infected with Covid-19, (3) persons with a fever, and (4) close contacts of infected persons,¹¹⁷ and for all practical purposes, these people were all isolated for treatment or observation, and all patients with mild symptoms were placed into designated medical facilities for early medical intervention.¹¹⁸

75.  From mid-February 2020, China began to prepare for the resumption of production, work, and other economic activities after widespread nationwide lockdown. Thus, a set of guidelines on precise policies in accordance with risk classification were issued by the State Council Joint Mechanism.¹¹⁹ These guidelines were then further expanded by the same authority when it issued its Notice on the Prevention and Control of Novel Coronavirus Pneumonia Epidemic with Scientific Precision, which provides separate Plans for different industries and professions for ‘precise’ implementation.¹²⁰ Under the Guidelines and the Notice, Provincial governments are required to designate areas under their jurisdiction as ‘High Risk’, ‘Medium Risk’, and ‘Low Risk’. Residents are then classified accordingly, taking into consideration their living and travel history, history of close contact with patients or suspected persons, and their own health circumstances. ‘High Risk’ residents are then either quarantined or isolated for treatment; ‘Medium Risk’ residents are subject to home isolation; and only ‘Low Risk’ residents with a normal temperature are allowed to travel and work. The standard period for quarantine is set at 14 days.

76.  In July 2020, a further Notice was issued by the State Council Joint Mechanism.¹²¹ This Notice allows local governments to extend the quarantine period for overseas arrivals, and some cities then implemented a ‘14+7’ days policy for overseas arrivals.¹²²

77.  China took some early measures to ensure the supply of testing kits by authorising four companies to produce and supply new testing kits on 26 January 2020, which significantly expanded testing capacity.¹²³ Thus, for instance, in Hubei Province the daily testing capacity expanded from 300 samples in the early stages of the epidemic to more than 50,000 in mid-April.¹²⁴ This capacity building continued, with specific targets set nationwide.¹²⁵ By February 2021, China was able to demand that, if total testing—that is, everyone is tested—is required, for a city with a population of 5 million or less, such testing must be completed in two days, and for a city with a population over 5 million, such testing must be completed between 3–5 days.¹²⁶ This soon allowed the Chinese government to implement the so-called ‘four-should’ policy: those who should be tested are tested; those who should be isolated are isolated; those who should be hospitalised are hospitalised; and those who should be treated are treated.¹²⁷

78.  The phrase ‘those who should be tested’ was clarified in June 2020 to mean the following people: close contacts of infected persons, overseas arrivals, people visiting clinics with a fever, all newly hospitalised persons and their family carers, medical staff, quarantine and border inspection staff, staff of prisons and detention centres, and staff working in social welfare and age care institutions.¹²⁸ Where an epidemic situation was serious, the policy of ‘those who should be tested are tested’ simply means compulsory testing.¹²⁹ Thus, in Wuhan for instance, the test was city-wide for everyone.¹³⁰ However, compulsory testing seemed to have been implemented by many local governments whenever isolated cases were discovered. Although the central government policy seems to suggest that, for ‘those who should be tested’, testing would be free,¹³¹ local practice did not seem to follow the policy and, in most places, testing is not free. The test cost varies from city to city—with some cities providing free tests—with 30 yuan per test being the most common price.¹³² Because of this, social media suggests that many residents living in low-risk areas with isolated cases were resentful of testing requirements.

79.  As to treatment, Chinese law grants significant powers to medical institutions to undertake both isolation and any treatment deemed necessary for the prevention and control of Class A diseases, with police being required to assist the institutions should there be any failure to comply with medical instructions.¹³³

80.  As a matter of practice and in line with China’s hard-line approach to prevention and control of Covid-19, early medical intervention was mandated for people with mild symptoms, so as to reduce the risk that their condition might worsen. For this purpose, a series of national guidelines on the subject were issued after the lockdown of Hubei Province to stop the fast spread of the virus.¹³⁴ In actual practice, as explained Part IV.A.7 above, China simply placed all patients with mild symptoms into designated medical facilities for early medical intervention.

81.  In public health emergencies, health authorities at the county level or above are required by law to administer preventive measures including emergency vaccination to vulnerable groups of the population.¹³⁵ At the time of writing in March 2021, a vaccination program had started in China, with a total of five different vaccines (all Chinese made) having already been approved for emergency use by the Chinese government. So far vaccination is largely based on voluntary participation, perhaps partly due to the limited supply of the vaccine at the moment.

82.  More specifically, China has developed a two-step vaccination plan: vaccines will first be given to key groups on the basis of informed consent,¹³⁶ including, according to the State Council, ‘those engaged in handling imported cold-chain products and people working in exposed sectors. These include port inspection and quarantine, aviation, public transport, fresh (wet) market, medical treatment, and disease control … The vaccination program will also cover those who plan to work or study in countries and regions with medium or high risks of exposure to the virus … Next, with COVID-19 vaccines officially approved to enter the market or the yield of vaccines improving steadily, China will put more vaccines into use, inoculating the eligible population as widely as possible’.¹³⁷

83.  The Chinese government has now confirmed that it will offer free Covid-19 vaccinations to the whole population. For vaccination of key groups that started on 15 December 2020, Chinese media reports suggested that the ‘cost of COVID-19 vaccination, including both vaccines’ expenses and inoculation fees, will be covered by medical insurance fund and government finance, rather than individuals’.¹³⁸ Moreover, ‘[a]fter the vaccines are approved and available to the general public, they will be offered free to the Chinese people, who can receive inoculation on an informed consent basis.’¹³⁹

84.  China began to encourage the nationwide use of a health QR code system—or a paper-based health pass system where an electronic version is not yet available—from as early as February 2020, when the Notice on the Prevention and Control of Novel Coronavirus Pneumonia Epidemic with Scientific Precision was issued on 24 February 2020.¹⁴⁰ This QR Code, showing the health situation, travel history, vaccination status, and other personal information of the holder, is required for inter-city travel and for entering many public venues such as shopping centres and shops. Early studies suggest that the health QR code has helped control the spread of Covid-19 in China.¹⁴¹ Early adoption of the QR code system by local governments soon led to different versions of the code, containing different data and information, being used in different places.¹⁴² Major efforts began to emerge in the form of policy documents issued by the State Council authorities to ensure that a uniform version would be followed by all local governments that would also be accepted nationwide under the policy of ‘uniform policy, uniform standards, mutual recognition and one code for all travel purpose’.¹⁴³

85.  Although participation is not made compulsory for all residents—for instance, the elderly are specifically mentioned as a group of people who might need to retain the old paper-based system—the health QR code system is connected to many other systems such as hospitals and travel controls across the country.¹⁴⁴ As a result, it is effectively compulsory for everyone. As to Chinese citizens returning to China, participation is mandatory. They are required to enter their personal information, health status, recent travel history, and other information on a daily basis in advance via the specifically designed international version of the health QR code.¹⁴⁵

86.  The health QR code has raised concerns about privacy as it relies on ‘troves of data the authorities have collected from individuals—including their personal information, location, travel history, recent contacts and health status.’¹⁴⁶ Many worried that their personal information may be leaked, and their information security cannot be ensured,¹⁴⁷ and this is despite the requirement by national guidelines that explicitly requires local governments to standardise the use of personal information collected by the health QR code, strengthen data security management, and protect personal privacy.¹⁴⁸

87.  The elderly seem to be the only group being singled out for care in the fight against the Covid-19 epidemic. This is in line with Chinese tradition that treats the elderly with care and respect. Indeed, as early as 28 January 2020, a special Notice was issued to address special care required for the elderly,¹⁴⁹ which was followed by some local implementation measures.¹⁵⁰

88.  Although the elderly are singled out for care, there were only very limited measures that were applied specifically to the elderly. Specifically, emphasis was on close surveillance of the elderly, especially those living alone, information collection on their health, and the need for isolation and treatment should they fall sick. New admission to elderly care facilities was banned, and so was visitation to these facilities. The aforementioned State Council Notice also required local governments to introduce appropriate measures in accordance with their local epidemic circumstances.¹⁵¹

89.  As mentioned in Part II.B above, the Chinese legal framework on infectious disease control and public health emergency was comprehensively improved, strengthened, and expanded after the SARS epidemic of 2002/2003, the H1N1 flu epidemic in 2009, and the H7N9 avian flu epidemic in 2013. Under this legal system, responsibilities were assigned to different authorities and institutions in cases of emergency. As explained in Part II.C above, four unified national systems on prevention and control of infectious diseases and responses to emergencies are prescribed by law and have all been established. These include a unified national system of contingency plans, a unified national system on emergency incident information, a national emergency monitoring system, and a national warning system. Once an emergency has occurred, a range of measures might be taken by governments responsible for emergency responses, including designation of controlled areas, traffic control, and other control measures appropriate to the level of emergency.¹⁵² These measures are designed to contain and, ultimately, eliminate the emergency, to protect human life and property, and to maintain social order. Importantly, governments are required to publish, in a uniform, accurate, and prompt manner, information on the development and handling of the emergency.¹⁵³

90.  The above comprehensive system was established before Xi Jinping came to power. As discussed in Part I above, China under Xi is a Party-State country in which the CPC assumes direct control over all aspects of social life—a situation that is fundamentally different from what is formally envisioned by Chinese law. Not surprisingly, from decision-making to enforcement and compliance, the actual practice differs significantly from Chinese law.¹⁵⁴

91.  As already explained, decisions were made by a Central CPC Leading Group and local command centres, and the latter are joint Party-Government authorities. At the national level, the NHC is mostly left with a role to issue information, expert advice, and guidelines. At the local levels and during emergencies, such public health authorities were largely invisible other than providing basic information about the epidemic—the local command centres coordinate all responses.

92.  In the early stage of the outbreak in Wuhan, the capital city of Hubei Province, and under the highly centralised Party-State system, local governments (both Wuhan City and the Hubei Provincial governments) were clearly unable to act and/or unsure of what to do; they were not even able to issue epidemic information to the public.¹⁵⁵ However, once the city was locked down, local governments—especially district governments and residential/neighborhood/village committees—were mobilized to enforce the lockdown measures. This of course raised many questions of governance legitimacy and legality in the early days of the outbreak.¹⁵⁶

93.  There is no doubt that the Chinese police force is an extremely powerful organization with extensive powers, in normal times or in emergencies. It also has a clear mandate to enforce lockdown, isolation, and quarantine measures.¹⁵⁷ In actual practice, however, the Chinese police have turned out to be much less visible than otherwise anticipated. It seems that the police ‘did not act as the sole or the dominant role in the above-mentioned measures … The main tasks for the police officers have been settling conflicts when citizens refuse to obey various quarantine rules or accept medical treatments.’¹⁵⁸ As such, they ‘have limited involvement in enforcing mandatory quarantine. Their use of force is rigidly reserved as the last resort’.¹⁵⁹

94.  It is however wrong to assume that the police are in any way absent. They are, of course, still the principal force enforcing mandatory measures, including mask wearing and the cancellation of private gatherings. In this, they exercise general powers to impose administrative penalties as well as specific powers under relevant laws in times of emergency.¹⁶⁰

95.  The Chinese military was called up during the initial lockdown in Hubei Province. However, it was called upon to assist testing and medical treatment of patients, transportation of materials and supplies, and construction of temporary treatment or isolation centres/facilities. The military was also heavily involved in the development of test kits and vaccines.¹⁶¹ The military was not, however, involved in the maintenance of social order.

96.  While most public notices on restrictions did not mention sanctions on violation, Chinese laws have always imposed civil sanctions, such as fines, for violation of social order. For instance, Article 50 of the Law on Administrative Penalties for Social Order Administration imposed a fine of 500 yuan, in addition to detention of between 5–10 days, in cases of refusing to comply with government orders or decisions issued in times of emergency.¹⁶²

97.  Criminal sanctions are always available under the Chinese law and are often preferred to civil sanctions in the administration of social order, and criminal prosecution was undertaken by local procuratorates. However, the most prevailing practice is the use of administrative penalties, which include administrative detention. Indeed, law enforcement agencies (police, procuratorates, and courts) are encouraged to apply all available civil, administrative, and criminal sanctions for violation of laws, orders, and decisions issued to address the Covid-19 emergencies.¹⁶³

98.  China is a highly controlled authoritarian society and, by definition, it is expected that the rate of compliance would be very high. The real question is whether such compliance is voluntary or coerced. A survey conducted jointly by several research institutions from China and Hong Kong suggests that some 80% of residents complied with the various restrictions voluntarily.¹⁶⁴

99.  As to the wearing of face masks and other hygiene practices, there has been little doubt that the Chinese people have a very high rate of compliance, even when these practices are no longer compulsory.¹⁶⁵ A survey of 28,000 people in the age bracket of 16–74 years old in 15 countries shows that 83% of Chinese people had worn a face mask because of the Covid-19 pandemic.¹⁶⁶

100.  As explained in Part I above, despite the size of its population and territory, China is constitutionally defined as a unitary state, with governments established at five levels: central, provincial, prefectural, county, and township. While this political unity has been consistent throughout the post-Mao reform period, major reforms have been introduced, and continue to be introduced, to its tax and revenue system. In the last forty years or so, a system of exclusive taxes (for central and local governments respectively), tax sharing, and revenue transfer has been established. Put simply, the initial financial domination of the Central Government at the beginning of the reforms in 1978 has been transformed into a tax and revenue-sharing system in which the Central Government now collects just under half of the total tax revenue in China.¹⁶⁷

101.  The transfer of revenue powers downward and tax sharing has not only been a process of providing local governments with more money; every reform measure that led to a larger share of tax revenue by local governments was accompanied by the shift of social and economic responsibilities to them. Today, much of the responsibilities for social and employment protection are with local governments, while the Central Government retains the power on policy direction and macro and overall economic control. In practice, this means that the Central Government decides policy guidelines, but the local governments are the actual authorities that implement the policies with specific measures.

102.  Consequently, social and employment protection measures vary significantly from place to place. Understandably, the extent of local government’s capacity to implement central policies depends largely on financial capacities of local governments. In other words, while there are uniform Central Government policies on social and employment protection, actual practices vary significantly.

103.  In comparison with many other countries, it is perhaps surprising, considering that China is a socialist country and one that always insists that economic and social rights are the most important human rights, to note that few measures were taken in China for social protection in response to the pandemic,¹⁶⁸ and there have been no ‘key package’ measures for social protection. This is even more surprising, considering that China had introduced (by international comparison) the most severe lockdown measures to various locations at different times which often lasted for considerable periods of time from January 2020 to the end of 2022. Further, when measures were taken, the general approach was that the Central Government issued ad hoc policies of a general nature which then were implemented by local governments. Thus, as far as social protection during the pandemic is concerned, national unity did not exist in China.

104.  The one clear theme in policy consideration was protection of the survival of enterprises and the stability of employment, in line with the belief that such protection is the very foundation for any social protection.¹⁶⁹ This partially explains the lack of direct social assistance to individuals and people’s livelihoods, the latter of which has in fact been emphasised as the foundation of socialism for many years.

105.  On the other hand, however, ad hoc measures were taken to strengthen the social security system or to facilitate the system in performing its social protection functions for Dibao, people on subsistence living. To understand the Chinese approach, it is necessary to outline, very briefly, the social security system in China.

106.  Prior to the 1990s, the Chinese social security system was basically non-existent. Urban residents were to be protected by the ‘iron rice bowl’ of employment, and rural residents were to rely on the support of family members. State enterprise reforms in the 1980s and 1990s, which basically ‘smashed’ the ‘iron rice bowl’ (a metaphorical sentence to signify that most jobs are no longer secure, and people are mostly employed on contracts), and the implementation of the one-child policy had then largely ended the old ‘system’ in rural areas. There then came the demand for a new social security and welfare system to be built from scratch. Actual efforts began to emerge when the 1994 Labour Law was issued,¹⁷⁰ which was further implemented by the 2007 Labour Contract Law.¹⁷¹ Ultimately, however, it was the 2010 Social Insurance Law that comprehensively established a new social insurance system,¹⁷² which includes the basic pension, medical care, insurance for work-related injury, unemployment benefit, and maternity leave insurance in China. In 2014, through the Interim Measures for Social Assistance issued by the State Council,¹⁷³ a social assistance system was established. This system provides several programs (minimum living allowance, disaster relief, medical assistance, housing assistance, educational assistance, legal assistance, employment assistance, and temporary assistance) to assist residents on subsistence living (Dibao). The 2014 Interim Measures also established a social welfare system for the elderly, children, and the disabled who experience extraordinary difficulties (Tekun). Together, they form the social security/protection system in China.¹⁷⁴

107.  The fundamental features of the above social security and assistance system could be summarised as following: (1) the principal scheme for social security is the social insurance which requires co-contribution by employers and employees; (2) social assistance is very limited, with its fundamental objective being to ensure the minimum subsistence living for residents; (3) while the schemes are national, they are implemented and managed by local governments and are linked to local household registration (hukou). As a result, the actual benefits for individuals are hugely different from place to place; (4) at the local level, they are also managed by different departments of government; (5) while efforts have been made to allow cross-regional transfer of benefits (when people move their residence), it has generally been difficult to do so because of the differences in benefits that are available in different places; (6) requirements for contribution (especially from employers) have been relaxed during financial crisis and difficulties (such as the global financial crisis in 2008) and the actual implementation has been less than strict.¹⁷⁵ In short, the Chinese social security/assistance system is principally a co-contributory program (social insurance) with limited exceptions made to residents on subsistence living (social assistance and social welfare). It is a national system that is hugely different in terms of benefits to residents in different places and national laws offer no more than guidelines for local implementation. Social policy responses during the pandemic need to be understood in light of these factors in the Chinese social security/assistance system. There was no major contribution from social partners. Since there is no substantial political opposition in China, there was no opposition to speak of regarding social policy formation.

108.  As previosuly discussed, China offers very limited social assistance, available only to people on subsistence living (Dibao and Tekun people). Further, the actual assistance available depends on local government’s financial capacity and local economic development. Not surprisingly, guidelines issued by the Central Government/Communist Party of China (CPC) authorities only require appropriate actions to ensure the livelihoods of people on subsistence living and, if necessary, to expand the scope of such assistance.¹⁷⁶

109.  To implement the aforementioned guidelines issued by Central Government/CPC authorities, cash transfer was indeed implemented by some local governments. Thus, for instance, in February 2020, the Hubei Government provided 500 yuan and 300 yuan as livelihood assistance respectively to urban and rural residents experiencing extraordinary difficulties during the lockdown period.¹⁷⁷ To address the problem that social assistance is only available to people with local household registration (Hukou), Wuhan (capital of Hubei Province) later also provided one-off temporary cash assistance to migrant workers if they lost their job and could not get support from their families and hence experienced temporary difficulties. ¹⁷⁸ Similarly, the Beijing government decided to expand the coverage of Dibao and increased the monthly payment by 35%.¹⁷⁹

110.  There is one exception to the rule of cash assistance, that is, cash rewards provided to frontline medical workers and other frontline workers involved in the prevention and control of the pandemic. This temporary cash assistance was provided at a rate of between 200 to 300 yuan per working day and, for those working in ICUs, each working day was counted as one and a half days for this cash reward purpose.¹⁸⁰ This cash assistance is provided outside the social security schemes in China.

111.  While many of the local government’s assistance measures were one-off measures—even though many government notices failed to provide a defined period of application—some government measures have been applicable for extended periods of time. For instance, measures issued by the Shanghai Government to implement the Notice of the Ministry of Civil Affairs and Ministry of Finance on Further Ensuring the Basic Livelihood of People in Difficulties were to apply from 1 March 2021 to 28 February 2026.¹⁸¹

112.  In-kind support, mostly in lieu of or as part of Dibao assistance, was also delivered in some cities. Thus, in the city of Ezhou, for instance, livelihood assistance was specifically allowed to be delivered in cash or material supplies such as food and vegetables.¹⁸² Still, in some places, only in-kind assistance was allowed and cash transfer was specifically prohibited.¹⁸³

113.  The authors have not identified any local assistance for child-care support, schemes for cash-for-work, or housing/utilities support. As to medical costs, there is, for most people covered by medical insurance, a co-payment requirement for medical bills. However, the percentage for personal payment varies. On average, urban employees will pay around 30% and rural residents about 40% of the total costs.¹⁸⁴ Because of this co-payment system, there was some initial confusion as to whether patients would be expected to pay the required co-payment for treatment of Covid-19.¹⁸⁵ However, the Central Government quickly issued two urgent notices, providing assurance to medical institutions and patients that the fiscal funds at different levels would assume the portion of medical treatment costs that would ordinarily be borne by patients and, thus, ensuring free treatment for Covid-19 patients.¹⁸⁶ There is, of course, a part of the population who do not have any medical insurance cover at all. These people, such as Chinese students studying overseas who returned to China just before the border closure, would have to pay the full costs if they were infected and required medical treatment in China.

114.  At least by June 2020 when the Notice of the Ministry of Civil Affairs and Ministry of Finance on Further Ensuring the Basic Livelihood of People in Difficulties was issued, the eligibility for Dibao and Tekun was expanded and the scope of them was expanded in most places in China, though the actual benefits were and still are defined locally. ¹⁸⁷ It is, however, unclear whether these new policies are for temporary application, as the Notice does not specify a period of application.

115.  Unemployment insurance was initially established in 1993 for state-owned enterprises through the Provisions on Insurance for Waiting for Employment for Workers in State-owned Enterprises.¹⁸⁸ In 1999, the State Council issued its Regulation on Unemployment Insurance.¹⁸⁹ The 1999 Regulations repealed the 1993 Provisions, but the Regulations only applied to urban enterprises. In 2010 the Social Insurance Law was adopted (and revised in 2018),¹⁹⁰ but the State Council Regulations continue to apply and an effort in 2017 to comprehensively revise the Regulation did not come to fruition. Thus, the unemployment scheme in China is currently regulated by out-of-date regulations and inconsistent law.

116.  On the whole, social (co-contributory) unemployment insurance is designed, as part of social insurance, to support subsistence living for the unemployed. However, as a co-contributory scheme, it was designed to support people, for a period between 12 to 24 months (depending on the length of participation in the Scheme), who have worked for a period of time and then lost their jobs. Further, the scheme does not, until now, cover many migrant workers who work outside the formal employment sectors. As a result, it has been estimated that, as of 2018, the unemployment insurance scheme only covered some 10% of the unemployed and only about 1% of participants had actually received benefits.¹⁹¹

117.  The severe lockdown measures implemented in many parts of China and the inability of migrant workers to return to cities for work immediately highlighted the problems in the Chinese unemployment scheme. Not surprisingly, in March 2020, the State Council decided to expand eligibility for unemployment benefits.¹⁹² This State Council policy was further implemented by the Ministry of Human Resources and Social Security, and Ministry of Finance in May 2020.¹⁹³ Applicable from March to December 2020, the revised policies granted a payment of a minimum amount of 80% of the unemployment insurance benefits for six months to those who had participated in the scheme but were yet to be eligible for benefits and those who did not find a job after the benefit period had expired. The payment varies from location to location. For migrant workers, who had participated in the unemployment scheme for less than 12 months, a one-off payment of three months living subsidies at the standard of urban Dibao of the relevant location was also granted. Further, from March to June 2020, the standard rate for price subsidy for those receiving unemployment benefits or unemployment assistance was to be doubled. ¹⁹⁴ As in other aspects of the social security system, the actual policies vary from place to place, but our research suggests that most cities complied with the minimum requirement established by the central policies.

118.  Paid sick leave in China is a complicated scheme that varies between industries, professions, and local regulations; national law and regulations only provide some minimum requirements. In practice, such an entitlement is likely to be regulated by employment contracts. To ensure that those suffering from, or suspected of suffering from, Covid-19 are not unfairly treated by enterprises, the Ministry of Human Resources and Social Security intervened rather early. On 24 January 2020, it issued the Notice on Properly Handling Several Labour Issues during the Prevention and Control of the Novel Coronavirus Pneumonia Period.¹⁹⁵ Under the Notice, full remuneration was required to be paid to employees who were infected or suspected of having been infected or of having close contacts with infected persons and hence of being unable to work because of the need for medical treatment or medical observation, or were otherwise subject to government quarantine or other measures. Further, the Notice provided that employment must not be terminated because of such sickness or the needs for quarantine. At the local level, salary payment for employees who had completed quarantine but continued to need medical treatment varied from place to place, depending on local regulation regarding payment for employees during medical treatment periods.¹⁹⁶

119.  There have been very few specific measures for pensioners/retirees because, perhaps, they were still receiving guaranteed income. Nevertheless, annual adjustment (increase) of pension benefits payments continued to be made during the pandemic. Thus, a maximum of a 5% increase was set by the Central Government for 2020 and each local government was to set its own annual increase below this maximum amount.¹⁹⁷ Additionally, local governments were encouraged to introduce measures for online application and online processing of annual assessment of eligibility.¹⁹⁸

120.  As already discussed, ‘universal’ free treatment for Covid-19 was provided through the government filling the gap in medical insurance. Such subsidy was critical as medical bills for critically ill patients can run into hundreds of thousands.¹⁹⁹ A health insurance related issue was the concern of the definition of work-related injuries. To avoid confusion, the Central Government issued a notice on 23 January 2020,²⁰⁰ clarifying that when medical and nursing staff and other related staff were infected with Covid-19 or died from it in the course of their work to prevent and control the pandemic, such cases would be recognised as work-related injuries and their legitimate entitlements and interests would be protected in accordance with social insurance law, whether or not they had been enrolled in social insurance scheme.

121.  Although social security is a co-contributory system, most measures to reduce such contribution burdens were made for employers (rather than employees). This approach is clearly taken in line with the overall policy on stabilising employment during the pandemic, as discussed in Part V.B below.

122.  A whole range of tax relief measures were issued in an ad hoc manner by the Central Government, but these measures were essentially designed for employers/enterprises, with its ultimate objective of protecting and stabilising employment. Two rather insignificant measures concerned individual tax. ²⁰¹ First, medicines, medical supplies, protective equipment, and other benefit-in-kind provided by employers to their employees for the prevention of Covid-19 would be exempt from tax levy. Secondly, temporary subsidy and bonus received by medical staff and others involved in the prevention and control of the pandemic would also be exempt from individual tax levy.

123.  The largest number of policy measures issued by both the central and local governments concerned employment protection. As previously explained, this was based on a strong belief that the very foundation for social assistance and economic development lies in the protection and stability of employment.

124.  While the State Council did issue a rather comprehensive set of opinions on supporting and stabilising employment,²⁰² China never actually issued any ‘key-package’ of measures. Partly to implement the State Council Opinions and partly in response to specific circumstances in specific sectors of industry and commerce, individual measures were issued in an ad hoc manner by different government departments at the central level. As in other areas of supporting measures, policy measures of the Central Government were implemented by local governments at different times and, hence, a further layer of complication was created.²⁰³

125.  Often, micro, small, and medium-sized enterprises (MSMEs; Zhongxiaowei Qiye) were singled out for support, as they were the most vulnerable economic entities during the Covid-19 pandemic.

126.  Chinese government support came in the form of fiscal subsidies and direct financial support, reduction of tax and fees, relief of financial and bureaucratic burden, and targeted support for specific sectors of industry and commerce. The tone for fiscal and financial support was set by a Notice jointly issued by five financial authorities almost as soon as national lockdown measures were imposed in January 2020.²⁰⁴ This Notice outlined 25 measures of fiscal and financial support, including loan support and priority and preferential financial services, guarantee of cash supply, reduction or waiver of fees for certain financial transactions, and prohibition of termination of loans to some MSMEs, as efforts to address the impact of the Covid-19 on enterprises and individuals. While certain measures would affect individuals, all measures were essentially aimed at helping enterprises, especially MSMEs and enterprises identified as most affected by the pandemic or those critical in the fight against Covid-19. Specific measures then emerged to implement the above general policies.

127.  Soon after the issuance of the 25-measure Notice, specific tax measures were issued jointly by the Ministry of Finance and the State Administration of Taxation.²⁰⁵ These tax measures include accelerated tax deduction for costs for equipment purchase, exemption of value-added tax (VAT) for income for transporting key materials for the prevention and control of Covid-19, the extension from five to eight years of the period for loss claim for industries (eg transport, restaurants, hotel and tourism) that were impacted severely by Covid-19, and exemption from VAT for income generated from transport and services that supply and deliver daily necessities to residents.

128.  For small businesses (that is, individual industrial and commercial households (sole traders), Geti Gongshanghu) in Hubei Province, the 3% VAT was waived, and for such small businesses outside Hubei, the VAT rate was reduced from 3% to 1%. Initially, these policies were to apply from 1 March to 31 May 2020, but were soon extended to 31 December 2020. ²⁰⁶ Most recently, on 17 March 2021, the application period of these policies was further extended to 31 December 2021, but the 1% VAT began to be applied to small businesses in Hubei Province from 1 April 2021.²⁰⁷

129.  Also, for small businesses (individual industrial and commercial households) and the so-called micro-profit businesses (Xiaoxing weili qiye), postponement of income tax payment was allowed for the period from 1 May to 31 December 2020.²⁰⁸

130.  Further tax measures were also introduced to specific sectors of industries or activities, such as tax measures for donations made by individuals and enterprises and the manufacturing of medical equipment, materials, and supplies for fighting against Covid-19.²⁰⁹

131.  Measures were also taken to reduce financial burdens on employers in relation to co-contribution to social security. Two Central Government notices established the framework for temporary relief from or reduction of co-contribution by employers:²¹⁰ (1) MSMEs enrolled in China’s Social Insurance Schemes were exempt from making employer contributions to retirement pension, unemployment, and work-related injury insurance schemes (February–December 2020); (2) large enterprises in Hubei Province were exempt from making employer contributions to the above three social insurance schemes, and large enterprises outside Hubei may reduce employer contributions to the three schemes by 50% (February–June 2020); and (3) enterprises with difficulties in production and operation due to the pandemic were allowed to apply to have their employer social insurance contributions postponed.

132.  In March 2021, two public notices were issued by the Ministry of Finance and State Administration of Taxation, extending the application of most of the aforementioned tax measures to 31 December 2021.²¹¹

133.  As in all other areas, many local governments issued their own fiscal and financial measures; some mirrored the measures of the Central Government, others provided more favourable concessions to enterprises to facilitate their resumption of work and operation, and still others extended the preferential financial measures for longer application periods.

134.  Finally, it should be pointed out that all support to business entities was provided through government policies. Chinese tax laws contain only overall principles and general provisions, leaving maximum flexibility for government to implement through flexible policies. Legally speaking, these policies might be seen as ad hoc implementation of tax law and regulations; they themselves do not modify existing laws.

135.  As discussed in Part V.A.1 above, the Ministry of Human Resources and Social Security intervened rather early to prevent unfair dismissal and to secure benefits for employees as part of the Central Government efforts to stabilise employment.²¹² Thus, persons infected or otherwise subject to isolation must not be dismissed. Further, if employment contracts were to expire during the period, such contracts must be automatically extended until the end of medical treatment, quarantine, or other government-imposed emergency measures.

136.  However, this Notice does recognise that some enterprises might experience potential financial distress and other difficulties that might be caused by the outbreak of the pandemic. For these business entities, employers were encouraged to discuss with their employees salary adjustments, shift rotations, reduction of working hours, or to find other measures to stabilize their workforces. The ultimate objective of this was to ensure that there would be no, or only the minimum, job losses.

137.  Labour arbitration is a standard feature in Chinese labour contracts. Requests for such an arbitration generally must be submitted within 12 months after a dispute arises. According to a pandemic-responsive notice, the calculation of this statutory period is to be suspended if the epidemic prevents the parties from submitting their arbitration request.²¹³ The Notice further provides that if the arbitration tribunal is unable to conduct its arbitration, the statutory arbitration period is to be ‘appropriately’ extended.

138.  ‘Self-employed’ people in China are likely (but not exclusively) to be working as ‘industrial and commercial households’. These ‘households’ are unincorporated business entities with their business names and each employs a small number of people. They are, however, treated under Chinese law as ‘individuals’, at least as far as tax law is concerned. In policies issued in relation to the fight against Covid-19, these businesses were clearly treated as ‘employers’ of small business, and they were offered various preferential tax and financial advantages (as described in Part V.A.1 above). Since Chinese policies focus on efforts to stabilise employment and to assist employers, such a treatment is then an advantage for the industrial and commercial households and in turn for the ‘self-employed’, treated as ‘employers’ and thus enjoying the same benefits offered to employers.

139.  China apparently, but not explicitly, took an approach to balance the need for basic social protection with the need for economic development. Specifically, subsistence living is to be guaranteed while employers are to be assisted to maintain and stabilise employment. Not surprisingly, as discussed in Part V.A.2 above, migrant workers and other Dibao and Tekun people were provided with social assistance while employers were encouraged to negotiate with their employees for flexible work arrangements should their operation be adversely affected by the pandemic.

140.  At the local level, some local policies provided some specific assistance to special groups for flexible arrangements. Thus, in Beijing, for instance, local government allowed one working parent per family to take paid childcare leave and granted childcare allowance to them, while also encouraging these parents to undertake work via phone or internet or other flexible arrangements.²¹⁴ Other policies encouraged employers to protect pregnant and lactating women’s labour rights by properly arranging workplace, shift rotations, holidays, and working hours.²¹⁵

141.  Article 36 of the Labour Law stipulates the maximum working hours: eight hours per day and 44 hours per week. The Labour Law allows enterprises with special production characteristics or in time of natural disasters and other events, upon approval by the labour administration department or in consultation with the unions, to extend working hours. In short, the aim of the Law is to protect workers by limiting the maximum working hours per day and per week. There is, however, no provision preventing ‘short-time’ working arrangements. In fact, Article 4 of the Labour Contract Law specifically allows the modification of working hours through consultation with the unions or workers representatives. In short, ‘short-time’ arrangements can be made without the need for any statutory alteration and, indeed, such arrangements were encouraged by government as a response to the impact of the pandemic on enterprises.

142.  As discussed in Part II.A above, on 20 January 2020, the State Council made a declaration that the Class B disease of Covid-19 was to be subject to prevention and control measures designed for Class A diseases under the Law on Prevention and Treatment of Infectious Diseases 1989. This declaration (only reversed on 26 December 2022, effective on 8 January 2023), effectively a change made to the Law, was to allow government to issue lockdown measures and to manage the pandemic, rather than allowing business to address employment issues.

143.  On the other hand, this declaration effectively creates a right under Article 3 of the Labour Law which grants employees a right to seek corresponding labour safety and health protection. This general right under the Labour Law is further implemented by the Labour Contract Law (Article 32) and the and the 2002 Law on Work Safety (Article 51) which allow employees to refuse to comply with the directions that are contrary to rules and regulations or arbitrary orders for hazardous operations. Moreover, workers have the right to criticise, report, or lodge complaints against the employer in respect of the working conditions that endanger their life or health. There is no change to these protections during the pandemic.

144.  Under Chinese law, unemployed workers must accept vocational training within the period of receiving unemployment insurance benefits.²¹⁶ The cost of the training is to be subsidised by local governments, which shall establish their own criteria and subsidy scale for the training.²¹⁷

145.  One of the major measures of the Central Government to stabilise employment during the pandemic period was to ask local authorities to expand and extend vocational training. However, different from the requirement under the law, training was to be offered to all those affected by the pandemic—not just the unemployed workers—including migrant workers and university graduates. All training, offline and online, was to be subsidised by governments.²¹⁸

146.  Additionally, the government began to strengthen its involvement in training programs. For instance, the National Reform and Development Commission, the Ministry of Human Resources and Social Security, the Ministry of Industry and Information Technology, and the All-China Federation of Trade Unions joined forces to release several suites of online resources for vocational skills training free of charge.²¹⁹ Similarly, the Ministry of Human Resources and Social Security launched a ‘100 Days Online Skills Training Action Program’ in March 2020, which aimed to provide free training courses through 50 online platforms and cater for five million workers. ²²⁰ According to the International Labour Organisation, up to 26 May 2020 there were 1,675 non-governmental online platforms at the provincial level, and 1,839 non-governmental online platforms at the prefecture level. As of 15 May 2020, over 9.3 million workers had registered online for training courses, of which 7.9 million had participated.²²¹

147.  China is a tightly controlled society and, as such, most officially-defined non-governmental organisations (NGOSs) are in fact semi-governmental—that is, they are in fact organised and controlled by government but presented to the world as NGOs. These include the All-China Federation of Trade Unions (ACFTU), the China Enterprise Confederation (CEC)/China Association of Entrepreneurs, and the All-China Federation of Industry and Commerce. Many of these organisations, at the central and local levels, were joint authorities in the issuing of many measures for resuming production and stabilising employment relations.

148.  As discussed in Part V.A above, from the very beginning of the pandemic, flexible working arrangements, including remote work from home, were encouraged by the Chinese governments at both central and local levels. However, it was not until rather recently that Chinese media began to report on the potential risks of such new arrangements, especially the impact on women and children, and argued for the need for legal measures to respond to these new arrangements. ²²² There are at the moment no specific legal measures addressing such issues.

149.  China is not considered a model for human rights (particularly political rights and civil liberties) protection by observers, and in times of emergency and other crises, control and repression surpassing what is considered by many observers as brutality towards targeted sections of Chinese society seems to be customary and is often justified on the ground that collective interests must prevail over individual liberties. Further, governments and CPC authorities assert that what the Party decides is right and must be enforced. The Covid-19 emergency (though such an emergency was never actually declared) in China highlighted this approach at different levels of government, at least in the first quarter of 2020 when the pandemic was at its most severe in China. Further, because the media in China is tightly controlled by the Government, modern social media remains the only space where descriptions of human rights violations in China can be heard. Such exposure of human rights violations is very quickly removed after its appearance on social media.²²³

150.  In light of the governmental control over the media and publications and the non-existence of opposition parties, the information in Part VI below concerns more of the absence of measures for human rights protection than an account of the actual violation of human rights in China.

151.  The Chinese Constitution contains a chapter (Chapter Two) entitled Fundamental Rights and Duties of Citizens, and this chapter ostensibly forms a mini-Bill of Rights. The provisions in the Chapter start with the principle of equality before the law, followed by the political right to vote and to stand for election, and freedom of speech, of the press, of assembly, of association, of procession and of demonstration, and of religious belief. They then turn to the protection of personal security and dignity as well as personal freedom of communication. They further provide for the right to work and rest, to social security after retirement, and to education. Equal rights for women are specifically protected and the protection of rights and interests of overseas and returned overseas Chinese citizens and non-citizens is emphasised. Although the list of rights and duties is not meant to be exhaustive, there is no such concept as ‘residue rights’. Chinese law does not provide, nor implies, that what is not prohibited is what is allowed. More importantly, all rights are legal rights and must be provided by law (in addition to the Constitution). Importantly under Article 51 of the Constitution, the exercise of freedoms and rights ‘may not infringe upon the interests of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens.’

152.  With this approach to civil liberties (and human rights in general) and in the absence of an effective mechanism for constitutional review, severe lockdown measures, which did not just restrict personal movement but effectively confined residents to their own apartments, were issued without demonstrable consideration for civil liberties or the welfare of individuals. In fact, governments and authorities at different levels were allowed to adopt compulsory measures ‘in accordance with the law’.²²⁴ In the case of Wuhan, these measures include quarantine requirement for all patients requiring medical treatment, testing for all residents, quarantine of all people with fever and their close contacts, and total close-off management of resident blocks and villages. Similar measures were adopted later by different local authorities whenever a significant number of local cases was discovered.

153.  The severe measures taken by the governments were, as discussed in Part IV above, supported by the Chinese judiciary through its enforcement of such measures with criminal sanctions against ‘illegal and criminal acts’ that obstruct the prevention and control of Covid-19.²²⁵ As also reported in Part III.F above, any unauthorised report of Covid-19-related news might lead to arrest on the ground of ‘making’ fake news or ‘online rumour’,²²⁶ an offence that is liable for imprisonment for up to three years.²²⁷

154.  As explained in Part IV.A.9 above, China was perhaps the first country to use a health QR code for contact tracing and travel permission purposes. It is however a mechanism that raised some significant concerns about privacy, and was considered to have the potential to be misused or abused as the mechanism contains a huge amount of personal information and data.

155.  As part of efforts to standardise the use of QR codes nationwide, in May 2020, three sets of standards were jointly issued by the State Administration for Market Regulation and the National Commission on Standardisation for the establishment and national use of the health QR code. ²²⁸ Among them is the ‘Personal Health Information Code – Data Format’ (GB/T 38962-2020)²²⁹ which specifies four sets of information to be collected for the health QR code:

• •  Personal data: name, gender, nationality, ID type and number, area of household registration, home address, contact phone number, basic health history, and other information;

• •  Personal health information: body temperature, current symptoms, information relating to living and staying in high-risk areas, contact with people from high-risk areas, time of health declaration, and other information;

• •  Travel history: local position for places where the person has recently lived and stayed for a certain period of time, including present location and travel information, and other information;

• •  Health certification information: assessment result of current health by health information management authorities, including health risk grade assessment, assessment time, and reasons for the assessment, medical test results, details of health testing institutions, testing time and source of data, and other information.

156.  Such ‘uniform standards’ are a set of open-ended demands for information and data with no restrictions on collecting or incorporating further information or data. In practice, the QR code in use is linked to information and data held by other systems (a practice now encouraged by a Central Government Notice issued in December 2020),²³⁰ including data held by the civil aviation, railroad, highway, electronic toll collection, local bus systems, telecommunication operators, and payment data held by banks and other financial institutions.²³¹ Others have reported the collection of information such as income, height, and blood types.²³² Most recently, as part of China’s effort to push for a vaccine passport system as a means to open borders,²³³ information about nucleic acid test, vaccination, and travelling history to high and medium risks areas are to be automatically incorporated into the QR code.²³⁴

157.  The Chinese government states that only organisations authorised by the National Health Commission may collect such data in accordance with the Cybersecurity Law,²³⁵ the Law on Prevention and Treatment of Infectious Diseases,²³⁶ and the Regulation on Responses to Public Health Emergencies.²³⁷ They must do so for the purposes of prevention and control of the epidemic, and any other persons must not do so unless permission is given by the persons whose information is being collected or harvested.²³⁸ However, critics argued the reality is that much of such collection was done by private organisations and state-owned enterprises without the consent or knowledge of the persons whose data were being collected.²³⁹

158.  At the more fundamental level, Chinese law is vague and ambiguous on the collection of personal information by electronic app providers. Article 41 of the Cybersecurity Law (issued 2016 and effective 1 June 2017)²⁴⁰ lays down the basic principles on the collection and use of personal information by network operators. These include principles of legality, propriety, and necessity. Article 41 further stipulates that these operators must publish their rules on collection and use of data, clearly stating the purposes, means, and scope for such collection and use. Most importantly, the consent of the persons whose data is being collected must be obtained, and these operators must not collect personal information that is irrelevant to the services they provide. Equally importantly, Article 42 of the Cybersecurity Law provides that the collected information must not be provided to any third party without the consent of the person concerned, unless such information has been processed so that no personal details could be identified nor the process reversed. However, Chinese law does not define what is ‘necessary/relevant information’ and how consent might be obtained.

159.  In issuing the national standards for the contents of the health QR code system, the need to balance the protection of privacy with the need to share such information is heavily emphasised. ²⁴¹ In mid-March 2021, four State Council authorities jointly issued the Provisions on the Scope of Personal Information Necessary for Common Types of Apps of Mobile Internet.²⁴² These Provisions for the first time clarify the meaning of the so-called ‘necessary information/data’ for 39 types of common apps. However, the health QR code is not covered by the Provisions, suggesting that the system will continue to be open-ended, and privacy will be of a secondary consideration.

160.  As reported in Parts V.A.1 and 2 above, certain flexibility in working arrangements for women was required and encouraged. Beyond these very basic requirements, the Central Government did not appear to consider potential gender issues during the pandemic. Some local governments, often in collaboration with local women’s federations, did make some special efforts to address gender issues. These local efforts include collection and reporting of relevant information, establishment of special help hotlines, demands for flexible working arrangement, and prohibition of job discrimination and all forms of domestic violence.²⁴³

161.  An examination by the United Nations Development Programme Resident Representative in China suggests that women’s rights were not well protected during the pandemic in China and women were disadvantaged in almost all aspects of gender equality and domestic violence.²⁴⁴

162.  While there have been many reports on problems relating to human rights protection in minority areas or for minorities, especially in Xinjiang, there has been no major evidence that ethnic minorities in China were treated differently from the rest of Chinese society in the fight against Covid-19. Indeed, when a relatively large scale Covid-19 outbreak occurred in Xinjiang in October 2020, Reuters reported that ‘[t]he scale and speed of the testing is in line with efforts to stamp out other recent clusters of infection in China, including one in Qingdao city this month’.²⁴⁵ In other words, the responses in Xinjiang were not materially different from other parts of China. Further, for ethnic minorities living in other (Han-dominated) locations, there was no evidence to suggest that they were treated differently, however, this does not mean that non-Covid-19 measures imposed on some minority groups do not have Covid-19-specific impact.²⁴⁶

163.  While it is commonly recognised that persons with disabilities face some particular challenges due to Covid-19 response measures, ²⁴⁷ China did not launch any specific package to deal with these problems. A widely reported case of the death of a 16-year-old with cerebral palsy in late January 2020,²⁴⁸ because his family members were isolated and hence left him with no support, seemed to be a wake-up call for both local and Central Governments on the need to strengthen the protection of people with disabilities.²⁴⁹ Limited measures then began to emerge thereafter.

164.  First, various governments called for special and active measures for the most disadvantaged people, including the elderly, people with disabilities, and other vulnerable groups, including periodical inspection of their situation during lockdown and looking after their special needs.²⁵⁰ More general measures were then worked out to strengthen the administration, treatment, and community care services for those with mental or cognitive disabilities, such as home visits.²⁵¹ As for others, free online courses and vocational training were made available to people with disabilities.²⁵² However, there has been little other special assistance made to people with disabilities beyond these programmes.

165.  As in other countries, it did not take long for China to realise that Covid-19 disproportionately affects the elderly. This is especially so in social welfare institutions for the elderly.²⁵³ Thus, since late January 2020, China has taken some strict policy measures to protect seniors, including measures to reduce the risk of transmission within care facilities for the elderly through strict isolation, but at the same time providing special care including meeting their medical and medicine needs in a timely fashion.

166.  There are hardly any specific policies issued by the Central Government for children during the pandemic, other than policies to continue education (via online learning) while on-campus teaching was suspended. Thus, it was largely up to local governments to ensure that the rights and welfare of children were properly protected. For instance, it was the local authorities that developed and used apps for the prompt reporting of suspected child abuse or abandonment.²⁵⁴

167.  One notable absence is the lack of consideration given to children’s needs in the emergency measures that closed all public facilities. As such, there was little doubt that children were under great stress during the pandemic.

168.  Pandemic-specific problems in the Chinese prison system were among the few errors to which the Chinese government has so far admitted.²⁵⁵ As a result, a series of measures to minimize the risks of Covid-19 inside prisons were taken, with an effort to prevent the virus from entering such facilities and to stop it from spreading once it was there.²⁵⁶ To protect prisoners and staff, the prison system was then provided with extra resources including extra funding, provision of protective equipment, testing supplies, and medical professionals, medical care, and mental health services.²⁵⁷

169.  There is no report of special measures to protect permanent residents and other foreigners in China.

170.  It is assumed that non-citizens would be treated equally without discrimination. However, there were reports on discrimination by local authorities against residents of African origin during the pandemic. Specifically, it was alleged that Guangzhou authorities ‘began a campaign to forcibly test Africans for [Covid-19], and ordered them to self-isolate or to quarantine in designated hotels. Landlords then evicted African residents, forcing many to sleep on the street, and hotels, shops, and restaurants refused African customers. Other foreign groups have generally not been subjected to similar treatment’.²⁵⁸

171.  There is no relevant information to be reported, as China does not recognise the term ‘indigenous peoples’.²⁵⁹

Zhiqiong June Wang (PhD) Associate Professor, School of Law, Western Sydney University Jianfu Chen (PhD) Honorary Professorial Fellow, School of Law, the University of Melbourne

Acknowledgement: The authors thank Dr Xiaomeng Qu for her research assistance and Professor Jeff King, Professor Octavio Ferraz, Professor Eva Pils and their team for editorial assistance.