A Brief Reflection of the Gaps with Public Health Emergency Laws in China
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This blog was written by Jingyi Xu, SJD Candidate at Georgetown University Law Center
The widespread of COVID-19 has invoked a heated discussion of public health emergency laws in China, where the coronavirus is originally from. Recently, central government of China has made a huge decision to revise the current public health emergency laws while enacting new ones. In this blog, I would like to make a reflection of the gaps with current Chinese public health emergency laws.
Table: Current laws in China related to Public Health Emergency
Recently, Chinese President Xi Jinping has emphasized several times that it is important to strengthen the concept of the rule of law in public health in all aspects of legislation, enforcement, and compliance. The reality of current legal documents in China, however, cannot satisfy the severe public health emergencies like COVID-19.
First, there is a lack of constitution-related laws in China, such as the State of Emergency Act. Article 67 of Chinese Constitution stipulates that the Standing Committee of the National People’s Congress exercises the following functions and powers “to decide on entering the state of emergency throughout the country or in particular provinces, autonomous regions, or municipalities directly under the Central Government.” Article 89 further regulates that in accordance with the provisions of law, the State Council has the authority to “decide on entering the state of emergency in parts of provinces, autonomous regions, and municipalities directly under the Central Government.” The actual implementation of these Constitution provisions requires a new effective “State of Emergency Act”, which clearly defines the concrete procedures for determining and entering the state of emergency, as well as to what extent basic human rights and freedoms of individual citizens will be deprived of during the time of emergency. Moreover, such Act ought to define which state agencies should assume main responsibility when entering state of emergency, etc. Second, for existing laws that can be applied to public health emergencies, many key provisions are too principled and abstract while not detailed and rigorous. There are even inconsistencies between some legal provisions. The central government of China has decided to carefully review and amend the inconsistencies between “Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases (2013 Amendment)” and “Emergency Response Law of the People’s Republic of China.” At the same time, for the afore-mentioned two important legal documents, it is necessary to add the corresponding administrative procedures to effectively enhance the enforceability of the laws. Furthermore, as coronavirus was first spotted at Wuhan Huanan wholesale seafood market, we cannot emphasize the significance of revising “Law of the People’s Republic of China on the Protection of Wildlife” too much. Hence, incorporating the core value of public health inspection and quarantine into it could provide a legal basis for the source control of infectious disease. Third, current laws and regulations in China pay few attentions to biosafety issues. Recently, the Chinese Ministry of Science and Technology released a new directive titled “Instructions on Strengthening Biosecurity Management in Microbiology Labs that Handle Advanced Viruses like the Novel Coronavirus”, which calls for strengthening the management of laboratories to ensure biological safety. Nevertheless, this is only an emergency and expedient measure that cannot solve the problem in the long term. Therefore, China should enact a “National Biosafety Law” as soon as possible, in order to accelerate the establishment of a national biosafety regulation and institutional guarantee system.