Keywords: state of emergency · the principle of proportionality · the balance of law and interest · loose review · applicable limits 

 

 

Since the beginning of the 21st century, human society has entered a high-risk period and various crises have occurred as the social economy transforms, science and technology develop rapidly, and human activities have greater impacts on societies and the Biosphere. These emergencies cause people anxiety, pain and suffering, and they compel many countries and regions to enter a state of emergency. Compared with a normal state, a state of emergency is an abnormal state that has the following characteristics: suddenness, rapid change, and the actual or potential destructiveness. Such states of emergency pose a severe challenge to the national governance systems and governance capacities of countries. To deal with the challenge, usually, some conventional systems need to be changed, such as the suspension of some law enforcement actions and some civil rights.¹ The characteristics of a state of emergency also lead to various disputes on how to deal with the emergency. The disputes are mainly about the relationships between powers and rights and involve either the boundaries for the exercising of emergency powers or the extent to which civil rights should be restricted. 

 

It is generally believed that the principle of proportionality that originated in the field of German public law has had great effects on the balance between the state guarantee of human rights and the curbs on power and the balance between powers and rights. Therefore, many scholars have proposed to apply the principle of proportionality to the state of emergency and employ it as an effective standard to review and judge whether the exercising of some emergency powers or the introduction of some restrictions on some civil rights are reasonable or not to achieve the balance between the interests protected by public and private laws.² The application of the principle of proportionality seems “unacclimatized” and is likely to go to extremes due to the exceptionality and complexity of the state of emergency, however, viewed from the perspective of application. If the application of the principle is not cautious, most public powers and acts resulting from the state of emergency will be regarded as illegal. 

 

Is the principle of proportionality that originated in a normal state applicable to a state of emergency? Should the application standard of the principle be differentiated to ensure the strictness and scientific property of the application of the principle of proportionality if the principle of proportionality is applicable? How should the application links be precisely controlled? Should the application scope be controlled to some extent? What is the difference between the application of the principle in a state of emergency and that in a normal state? All these will be discussed in this paper. 

 

 

The principle of proportionality originated in German police law in the 19th century. Its intention is often described as “the restriction on the restriction of rights.”³ The principle mainly applies to legal relations between unequal entities such as the relations between a state organ and a private entity. The state powers that restrict civil rights should be successively reviewed according to adequacy, necessity, and proportionality — the three sub-principles to prevent civil rights from being excessively infringed upon by state power and to ensure that the basic balance between the interests protected by public and private laws is maintained. Thus, the principle of proportionality is also called a “king clause” and “crown rule” of administrative law, and its core value function consists of providing a guarantee for human rights through restrictions on the exercising of power.⁴ In the context of the Western countries, ‘the principle of proportionality can only be a legal method or tool to ‘restrict abuse of public powers’.”⁵ In recent years, a constitutional bank concept has developed for the principle of proportionality in China and Western countries. A growing number of scholars propose that the principle of proportionality be a basic constitutional principle in order to give play to its value.⁶ The jurisprudential implication of the proportionality principle has determined the logical premises in which it is applied. This constitutes the basic criteria used to judge whether the proportionality principle applies to something in a state of emergency: The first criterion is whether the state organ is equivalent to the private entity or not in a state of emergency; the second criterion is whether it still abides by the rule of law in a state of emergency, whether it is carried out orderly according to the rule of law and whether it follows the spirit of rule of law such as human rights guarantee and power restriction.⁷

 

 

In modern countries, powers are usually carried out according to a fixed model, and the exercising of power should strictly abide by constitutional rules such as respect and modesty between powers and rights, division, checks and balances on different powers and strict procedures to ensure the overall stability of public order and the maintain of a balance among the interests of different parties. In a state of emergency — an abnormal state in which something with great destructiveness suddenly happens and causes rapid changes, the normal exercising of power based on models and rules designed for, depending on and serving a normal state of affairs shows many drawbacks such as slow response, low efficiency, insufficient powers, and poor coordination. If the exercise of powers is unable to meet the requirements of crisis management it may endanger state power and social stability. Therefore, facing a state of emergency, each country generally attempts to “reform and upgrade the models and rules” in place for the conventional exercising of power in multiple aspects to improve the government’s timeliness and ability to effectively deal with a crisis.

 

Looked at from the perspective of the relationship between powers and rights, one of the reform and upgrade purposes is to expand the scope for the exercise of powers. In a normal constitutional state, the exercise of powers is restrained to some extent, and legal boundaries are strictly abided by and private rights are properly respected when powers are exercised, which can be justified in any constitutional culture. In a state of emergency, due to a great pressing threat to public interests, state organs have to adopt strong measures and restrict some civil rights to resolve the crisis and restore the country or region to a normal state as soon as possible. Based on fear of crises and longing for a normal state, the public may allow or even expect their government to exercise some extraordinary powers. Thus, the scope of the exercise of powers greatly expands to some individual rights fields related to personal liberty. At the same time, powers are usually concentrated in one branch, which is observed from the angle of the relation between different powers. In a normal state, to prevent abuse of powers, legislative power, executive power and judicial power are generally exercised according to a system of separation of powers and a system of checks and balances although each of the three powers is not entirely distinct from the other. In a state of emergency, in light of the severity of the state of some affairs or a dangerous situation the aggregation effects between different powers are enlarged and the effects of checks and balances are greatly weakened. Powers are concentrated in the executive branch; the executive branch stands out from the government and it plays a key role in the crisis. Meanwhile, the legislative branch and the judicial branch are confined to their functions, their powers are limited according to the systems and mechanisms,⁸ and they become less important. To improve the efficiency and capability to deal with a crisis, sometimes the government establishes a special emergency response or command organization to exercise all the crisis response rights. Besides the above-mentioned two changes, the procedures for the exercising of power change greatly in a state of emergency. In a normal state, to standardize the exercise of powers, usually, a set of closely connected procedures with orderly functions is established and the space for the free use of powers is not large. For example, in China before an important administrative decision is made, it must undergo five procedures: public participation, expert argumentation, risk evaluation, legality review, and collective discussion.⁹ In a state of emergency, the conventional procedures for the exercise of powers corresponding to urgency and severity of a crisis are simplified and state organs are endowed with much discretionary power so that they can timely make decisions and select measures to deal with the crisis and control or delay spread of the crisis. The Administrative Penalty Law of the People’s Republic of China that has recently been modified reflects this. The newly added Article 49 explicitly states: “After some emergency such as a serious infectious disease epidemic occurs, to control, alleviate and eliminate the harm to society caused by any emergency, the administrative organs shall rapidly inflict severe punishment for behaviour violating the measures to deal with the emergency.” 

 

It can be seen from the above that the scope, entities and procedures for the exercise of powers in a state of emergency are quite different from those in a normal state and some of the scope, entities, and procedures change. It is a natural demand for maintaining the national interests or the public interests and it has intrinsic legitimacy and rationality. It is also noted that, however, this special institutional arrangement leads to severe inequivalence between the position of state organs and that of private entities and there is the potential for civil rights to be overly infringed by state powers to increase in a state of emergency while it strengthens the government’s ability to deal with the crisis and improves the timeliness of the government’s response to the crisis. This has been proved in practice in the above-mentioned state of emergency. 

 

 

As has been described above, the exercise of powers in an abnormal state, i.e., in a state of emergency, is different from that in a normal state in many aspects. Does it mean that in a state of emergency it is no longer under the rule of law and it is an exception to the law? Or, viewed from another angle, should state organs abide by the spirit of the modern rule of law and act as the guarantee for human rights and have their powers to reduce civil rights restricted when they reduce civil rights based on some emergent situation in a state of emergency? 

 

On the theoretical level, there is a famous legal maxim from the Middle Ages that states: “Necessity knows no law.” Activities in a state of emergency may not be governed and restrained by law to ensure that the public interests are strongly protected. This belief has had a far-reaching influence and the influence is strong in China too. Viewing from the development of human civilization and the practical experiences of societies, however, the belief “Necessity knows no law” is not acceptable because it destroys the basis for public interests in the long term although it guarantees public interests in the short term.¹⁰ Since human society became modern society, formal standards have become the main forms and the basic characteristic of the rule of law, to safeguard order and human rights have become the main objectives of the rule of law. The core ideas of the rule of law are inclusive, and even wars are included in the scope of the law and the law of war has become an important part of the law system in many countries.¹¹ This means that it has become intolerable in modern society to let a state of emergency — the activity of severe inequivalence between the position of state organs and that of private entities — separate itself from the rule of law and be an exception to the rule of law. The correct way to do it is that you should more seriously treasure the value and functions of the rule of law and become more alert to powers and individuals when you face more severe challenges and more difficult situations.¹² When a state of emergency is implemented under the rule of law, the win-win results can be achieved between the rule of law and the emergency powers: If control of the emergency powers is ensured by the law, it will prevent the emergency powers from being abused and the civil rights will not be overly restricted while full play can be given to the characteristics of the emergency powers and the emergency powers guarantee public interests and effectively serve the country under the rule of law. Exceptionality and the rule of law, which constitute the state of emergency, seem to repel each other, but actually, they are two requirements that are not mutually exclusive. 

 

On the practical level, most Western countries have established their legal systems relative to the state of emergency and the governments are required to exercise their powers according to the relevant laws while they are endowed with emergency powers.¹³ China’s state of emergency legislation developed while the rule of law developed in China. It was explicitly stipulated in the Outline of Imperial Constitution issued in 1908 that the emperor had the power to enforce martial law and restrict the liberty of his subjects in a state of emergency by issuing an imperial edict. This was the first time a clause on a state of emergency appeared in China. In 1912, the Republic of China was founded and it promulgated martial law. After New China was founded, the state of emergency legislation was not carried out for a long time due to the influence of the domestic political environment. The real state of emergency legislation formally started after the reform and opening-up policy was adopted in China. In 1982, the national emergency power system (limited to war and civil strife) was formally stipulated in the Constitution. Based on this, China established a law system relative to the state of emergency by adopting the Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases, Martial Law of the People’s Republic of China, Law of the People’s Republic of China on Protecting Against and Mitigating Earthquake Disasters, etc.. In 2003, greatly affected by some emergencies such as the SARS crisis, China promulgated the Emergency Response Law of the People’s Republic of China. Though the state of emergency was not used in the name of the law, the law is the “basic law” in a state of the emergency.¹⁴ In 2020, as the COVID-19 pandemic broke out and was dealt with in China, China’s state of emergency legislation faced a development opportunity and it constantly improved the legal system relative to the state of emergency.¹⁵ The content of the law relative to the state of emergency requires that the emergency powers should be exercised orderly according to the rule of law and the spirit of the rule of law such as guaranteeing human rights and restricting the abuse of power while it endows the state organs with extensive and potent emergency powers. For example, Article 12 of Law of the People’s Republic of China on Prevention and Treatment of Infectious Diseases states: “Each organization and person within the territory of the People’s Republic of China must accept the prevention and control measures of the relevant disease prevention and control institutions and medical organizations relative to infectious diseases such as investigation, tests, sample collection, quarantine and treatment and truthfully provide relevant information. The disease prevention and control institutions and medical organizations shall not disclose any information and materials related to personal privacy…” Some words of the article such as “shall not disclose” and “personal privacy” highlight the rule of law aspect of the emergency powers while some words of the article such as “must accept” and “truthfully provide” reflect the exceptionality aspect of the emergency powers. 

 

To sum up, the state of emergency is a special state of the rule of law, not an exception to the rule of law. It is applied in only another law system. The law system for the state of emergency and the law system for the normal state of affairs constitute the dual law system structure for modern countries under the rule of law.¹⁶ Compared with the laws for the normal state of affairs, only the scope, entities, and procedures of the laws for the state of emergency are changed, the spirit of the rule of law such as guaranteeing human right and restricting the abuse of power is still kept in the laws for the state of emergency, and necessity of the application of the principle of proportionality as the restriction on rights restriction in a state of emergency is revealed. Relevant entities can review and judge the boundary of the exercise of emergency powers or the rationality of civil right reduction extent by applying the principle of proportionality, preventing “using a steam-hammer to crack nuts” and then ensuring the basic balance between interests protected by public and private laws in a state of emergency. The people who believe that the principle of proportionality is not applicable to a state of emergency see only the exceptionality of the state of emergency and ignore the rule of law characteristics of the state of emergency. In effect, some clauses of China’s laws relative to the state of emergency have shown the idea of the principle of proportionality and provided some basis for standardization of the application of the principle of proportionality. For example, Article 11 of the Emergency Response Law as the “basic law” for a state of emergency states: “The emergency response measures adopted by relevant people’s governments and their departments should be suitable for the quality, extent, and scope of the social harm caused by the corresponding emergency. There are many measures to be selected and the measure that can be taken to protect the rights and interests of citizens, legal people, and other organizations to the maximum extent should be selected.” In fact, “to protect the rights and interests to the maximum extent” is intentionally similar to the “minimum infringement” of the principle of proportionality and they are the same view seen from different perspectives. The ultimate purposes of their application are the same — to protect the legitimate rights and interests of citizens as the weaker party. 

 

 

Based on the theoretical analyses of the property and operation mechanism of a state of emergency, the application of the principle of proportionality in a state of emergency has legitimacy. However, a state of emergency is an abnormal state after all. It is different from the normal state of affairs in many aspects. The principle of proportionality originated in the normal state of affairs and it is mainly used to restrict the exercise of powers in that state. In this instance, to enhance the rationality degree of the application of the principle of proportionality in a state of emergency and scientifically and effectively give play to its valuable functions, the applicable standards and links of the principle of proportionality should be accurately mastered according to the characteristics of the state of emergency.

 

 

In recent years, the principle of proportionality has gradually developed into a legal doctrine favoured by academic circles, the application of the principle has become popular in some regions and some fields and the application has tended to spread worldwide.¹⁷ Why has the principle of proportionality been widely spread and extended in different legal systems and different law departments of the world is mainly the applicable “third-order theory”, i.e., the three sub-principles — adequacy, necessity, and proportionality — are applied layer upon layer and all the links are closely connected, which provides a set of operable routinized steps for application of the principle of proportionality. The adequacy sub-principle means that the regulation means selected by a state organ must facilitate improvement or implementation of the regulation purpose sought by the state organ. The necessity sub-principle means that the state organ should select the means that will infringe civil rights to the minimum extent from a group of means meeting the adequacy requirements. The proportionality sub-principle means that after the means has met the requirements of the above-mentioned two sub-principles, the purpose sought by the means must be proportional to the consequences caused by it, they should not be imbalanced. That is to say, we should neither make a fuss nor treat a major issue lightly.¹⁸

 

Viewing the above-mentioned intention of the principle of proportionality, although the regulation structure of the principle of proportionality is certain, the principle of proportionality is somewhat too broad and contains the drawbacks of abstraction. As for how to judge purposiveness of a means — to what extent a means should facilitate implementation of the purpose, “minimum infringement” of a means — and to what degree the consequence caused by a means can be called minimum, and the “proportionality of the interests protected by law” caused by a means, do the consequences of the means meet the intended purpose sought by the means is can be called balanced, etc., users usually do not have any clear judgment standards and it is difficult to find definite answers. The subjectivity of the proportionality analyses causes uncertainty of the application of the principle of proportionality, that is, the application of standards to differing extents and varied requirements lead to different application results, and meanwhile the differentiation application of the principle of proportionality improves the rationality degree of itself, i.e., space and possibility are provided for construction of different application standards according to different fields and situations. Because modern society is very complex, the different public interests protected by state organs vary in importance and the types of personal rights infringed upon by state organs are diversified. Although the application of the principle of proportionality has many advantages if only one standard is applied to different fields and situations in the application of the principle, the principle of proportionality will be too simple and rigid and its application will lead to undesired application results.¹⁹

 

In fact, such is the case. To improve the degree of rationality in the application of the proportionality principle, some countries and regions have started to establish some categorized standard systems for the application of the proportionality principle to represent different review intensities. For example, in the birthplace of the principle of proportionality, the German Federal Court has developed three application standards with different intensities for different types of government behaviour, i.e., “significance review”, “supportable review” and “intensive content review”;²⁰ Japan has established three standards for review of the principle of proportionality according to contents and forms of the rights, purposes of regulations and some other elements, and the three standards are “rationality standard”, “strict rationality standard” and “strict standard”;²¹ some scholars from the Chinese island of Taiwan have learned and absorbed the rationality elements of U.S. multiple review standards and developed a new concept — the “hierarchical principle of proportionality.²² Professor Liu Quan believes that the establishment of a categorized proportionality principle application standard system is the inevitable requirement for overcoming the abstractness drawback of the proportionality principle and improving the judicial rationality, including the review at three different levels — “loose review”, “moderate review” and “strict review”, after he considered the intension of the proportionality principle and China’s judicial practice. The loose review is of the lowest intensity. When this application standard is adopted, the user usually judges the proportionality proper, that is, the user judges the proportionality proper as long as it is improper. To be more specific, as for adequacy, there is a rational association between the means and the purpose, and the means can be adopted unless obviously, it does not facilitate the purpose. As for necessity, the requirements are met unless some means obviously cause less harm or no harm. As for proportionality, the requirements are met unless the consequence caused by the means is obviously out of proportion to the purpose sought by the means. The intensity of strict review is higher than that of moderate review. When the two standards are applied, users should show evidence to prove that the proportionality is proper, instead of judging the proportionality properly beforehand. As for the proportion of the means to the implementation degree of the purpose, the proportion of the means to the degree of infringement on personal interests, and the proportion of the consequence to the purpose, the requirements of strict review are higher than those of moderate review.²³

 

In a state of emergency as an abnormal state, national interests or public interests face severe and pressing threats. The social situation in a state of emergency changes very rapidly and it is difficult to accurately estimate and predict its development, compared with the social situation in a normal state. In this process, the subjective initiative of the frontline witnesses, law executors, state organs, and their staff is of vital importance. For this purpose, laws relative to a state of emergency usually endow state organs with emergency powers different from ordinary powers and workers of the state organs are given great discretionary powers so that they can make prompt decisions and adopt special measures when they face emergencies, achieve the best results and prevent situations from getting worse due to missing good opportunities. Therefore, the proportionality principle review of emergency powers should be restrained, the stance should be passive and conservative and loose application standards should be adopted to show respect for the subjective initiative and discretionary powers of the state organs and their staff and ensure that they can actively and effectively safeguard the national sovereignty and social public interests. When Japanese scholar Naoki Kobayashi talked about this problem, he pointed out that the applicable the proportionality principle in a state of emergency is different from that in a normal state. If the proportion accuracy of the proportionality principle is emphasized too much in a state of emergency, it will likely cause the government to give up its due duties because it worries about moving across the boundary and its worries may cause great disaster.²⁴ Take the principle of proportionality for example. In the practice of a state of emergency, the requirements are met if there are no obvious means that cause less harm or no harm, and the absolute “minimum harm” can never be sought. Once the absolute “minimum harm” filter is established, the selection space for the state organs will be greatly reduced.²⁵ In a state of emergency, the requirements for the state organs should never be too rigorous. In a key prevention and control period of a public health emergency such as a serious infectious disease emergency, if the state organs are required to repeatedly consider and weigh their selection of prevention and control means and judge whether those selected are the means that cause minimum civil right infringement or whether there are means that cause less social harm, it will greatly reduce the infectious disease prevention and control capability and efficiency of the state organs. If the reduced capability and efficiency cause the epidemic to quickly spread on a large scale, the cost will be very high or even inestimable. 

 

It should be pointed out that the state of emergency is an indefinite legal concept. In different countries, the definitions of its implication, condition, standard, etc. are different and their classification is also different. Some scholars have classified the state of emergency into three types according to its risk and degree of urgency: an ordinary state of emergency, a special state of emergency, and state of war.²⁶ The state of emergency mentioned in this paper is mainly the ordinary state of emergencies such as the state of emergency caused by natural disasters such as public health events including important infectious disease epidemics and destructive earthquakes. In a special state of emergency or in a war, the situation is different from that in an 

ordinary state of emergency, the applicable standards of the proportionality principle are looser or their application is restricted because the protection of “public interests” by the state becomes more important and more pressing.²⁷

 

 

After the applicable standards of the proportionality principle for a state of emergency are determined as a whole, the specific problems in related to the application of the sub-principles will be discussed. Looked at from the specific intention of the adequacy sub-principle, the necessity sub-principle, and the proportionality sub-principle, they are all about the purposes and consequences of the means, and the “purpose positioning”, the “consequence inspection” and the “proportionality of interests protected by law” between the purposes and the consequences respectively constitute their core contents. Unlike a normal state of affairs, a state of emergency as an abnormal state is in a dangerous and urgent situation. Due to the dangers, the urgency of selecting the means the “purpose positioning”, the “consequence inspection” and the “proportionality of interests protected by law” between the purposes and the consequences are all very particular and complex and different understanding of them will lead to different application results. 

 

First, “purpose positioning” in the adequacy review. As the first link of the proportionality principle, the adequacy sub-principle is mainly about the relationship between the “purposes” and the “means”. The applier of the means needs to question whether the means can achieve the “purposes”. When it is proved that the “means” can achieve the “purposes”, the requirements of the adequacy sub-principle are met. It can be seen from the above that the adequacy sub-principle is a “purpose”-oriented application rule and the “purpose positioning”, constituting its precedent element, has a very important position. In a normal state of affairs, the purposes sought by the means of the state organs are usually specific and not abstract, and they are clearly set out in legislation and therefore, the “purpose positioning” is simple in the application of the adequacy sub-principle. In a state of emergency, the situation is complex and changeable, usually, the purposes sought by the means of the state organs are all abstract and they are generally described as and generalized to “public interests” or even “national interests”. This is because a factor with seemingly little potential to harm public interest can very quickly develop into a factor that greatly destroys public interests or even threatens the stability of the state. It is required that the research and judgment ability and handling ability of the state organs must be very strong. The state organs prefer to consider a bad situation worse and more pressing so that they can nip any potentially harmful factor in the bud. “‘Emergency’ public health events determine that the development trends of the events do not give us much time to think about and deal with them.”²⁸ This determines that when the adequacy sub-principle review of the emergency power behaviours is conducted, the “purpose positioning” must be accurate, the stance must be high, the sight must be far-reaching and the thought must not be narrow-minded so as to show respect for the discretionary powers of the state organs and stimulate their subjective initiative, otherwise it is judged that the “means” is against the principle of proportionality. Take a serious infectious disease epidemic (a public health emergency) for example. The government usually decides to lock down the epicenter of an epidemic. The “purpose” of the decision is to protect much larger areas or the whole country and control the overall prevention and control situation. Oriented by the “purpose”, the decision to “lock down the central area of the epidemic” is completely in conformity with the principle of proportionality. However, some scholars regard the “purpose” of the decision as “the epidemic prevention and control of the central area of the epidemic” when they analyse and review the decision, they believe that the lockdown of the central area of the epidemic can only stop the “people-to-people” spread between the central area of the epidemic and the other areas and it does little to improve the epidemic at the central area of the epidemic and therefore, they conclude that the decision does not conform to the adequacy sub-principle.²9 Here, the mistake of making “purpose positioning” a precedent factor directly leads to a greatly different decision review result. 

 

Second, “consequence inspection” in the necessity review. The necessity sub-principle is the second link of the application of the principle of proportionality and it is mainly about relations between the “means” and the “consequences”. The users must carefully consider the “means”, the “consequences” and their relations. After the “means” meet the requirements of the adequacy sub-principle, it is necessary to find which of the many means that can be used to achieve the “purposes” will infringe on personal rights the least and only the means that infringe on personal rights the least should be the required means. It can be seen that the necessity sub-principle begins to be used to introduce the “consequences” caused by the means into the inspection scope and the “consequence inspection” constitutes its core content. In a normal state of affairs, laws are used to establish a set of strict procedures, rules, and steps for behaviours of state organs, state organs just follow prescribed steps and procedures and when they select some means, they usually evaluate the consequences brought by the means and compare gains and losses. A state of emergency is an abnormal state. Its typical characteristics are that the time for action is very tight and the situation develops extremely rapidly. To prevent a bad situation from getting worse and expanding rapidly and to safeguard public interests or national interests, state organs are usually “in a hurry” to select the means, and frequently give the highest priority to the effects of the means that cause the “purposes” to be achieved and have no sufficient time to fully consider and examine the “consequences” caused by the means. It is understandable in such circumstances. “In an abnormal state, to safeguard public interests is extraordinarily emphasized or even becomes an overwhelming target.”³⁰ Therefore, when the necessity sub-principle review of emergency power behaviours is conducted, the “consequence inspection” must be comprehensive, practical, and thoughtful, and it should be neither partial nor biased, that is, the effects of the means that cause the “purposes” to be achieved and other factors must be considered and the relevant judgment can be made only after they are comprehensively compared, otherwise it is judged in the review of the stage that the “means” does not conform to the proportionality principle. For example, when a serious infectious disease epidemic or some other public health emergency occurs, the prevention and control measures at the central area of the epidemic may sometimes be so strict that “only one person of each family can go out to buy goods necessary to the family life or all the goods necessary to the family life are bought for the family”. These measures greatly restrict freedom of movement and bring much inconvenience to those they apply to. Therefore, some people criticize the relevant state organs for these measures. Viewed only from the angle of the “consequences” there are some means that cause less harm and these measures do not conform to the necessity sub-principle. However, if the epidemic prevention and control effects corresponding to these measures are taken into account, the measures are “cost-effective” means and completely conform to the necessity sub-principle. 

 

Third, “proportionality of the interests protected by law” in the proportionality review. The proportionality sub-principle is the last link of the proportionality principle. It is mainly about relations between the “purposes” and the “consequences”. The users must scientifically balance the “purposes” and the “consequences”. After the means meet the requirements of the adequacy sub-principle and the necessity sub-principle, it can be judged that the means conform to the proportionality sub-principle only the means do not violate the basic social moral value orientation. It can be seen that the “proportionality of the interests protected by law” between the public interests represented by the “purposes” and the personal interests involved by the “consequences” constitutes the essence of the proportionality sub-principle.³¹ In a normal state of affairs, public interests and personal interests are quite distinct from each other and it is easy to tell them apart. A state of emergency is an abnormal state. In this state, public interests and personal interests are intertwined together and they transform into each other rapidly. A patient with an infectious disease has interests as a patient, while also being a potential threat to public, which increases the difficulty of judging the “proportionality of the interests protected by law” in the application of the proportionality sub-principle application. Therefore, a scientific method is needed to weigh the two on the same balance. From the view of comparative law, to solve the problem, the method is determined by practice and can be considered as the “hierarchy of rights.”³² That is because the “purposes”, i.e., public interests, sought by state organs can be transformed into a kind of civil right. For example, police inflict security punishment upon burglary. Judging by appearance, it is done to maintain the social public order. However, it protects the right of numerous citizens to property. When a public health emergency such as a serious infectious disease epidemic occurs, highly-sensitive personal information such as citizens’ addresses shall not be disclosed according to the general personal information protection rule. However, if it is involved in other people’s rights to life and health, to decide whether to disclose personal information, not only the lost personal interests and the gained public interests should be balanced, but also the following factor as an important weight should be considered, i.e., the rights to life and health are the highest in the whole system of human rights.³³ For example, in Dalad Qi, the Inner Mongolia autonomous region, because the government published only the residential community of a confirmed patient, other residents often passed the doorway of the infected resident’s apartment. This was on the first floor and the infected resident put a lot of household garbage beside the door. Other residents were soon infected with the virus. Because the rights to life and health of the neighbours of the confirmed patient were much more severely threatened than those of other people, disclosing the detailed address of the confirmed patient with a limited scope to let relevant people be alert to the infection did not violate the proportionality sub-principle of the proportionality principle.³⁴

 

 

Though the principle of proportionality can be applied in a state of emergency to give play to its human right guarantee function and restriction of power function, it should be neither exaggerated nor abused. According to the original aim of the proportionality principle, the principle is mainly used to solve the rationality problem of the exercise of state powers. This can be confirmed from the specific main ideas of the three sub-principles. The three sub-principles mainly concern the discretionary powers of state organs in the selection of the “means” and their common objective is to restrict the discretion of state organs when public power entities restrict basic rights.³⁵ The adequacy sub-principle is mainly used to solve the problem of “how many means”, the necessity sub-principle is mainly used to solve the problem of “relations between the means” and the proportionality sub-principle is mainly used to solve the “the existence of means problem”, i.e., decide whether there are any means. In this regard, the application scope of the principle of proportionality is limited in a state of emergency. All the issues related to the exercise legality of emergency powers do not belong to the application scope of the principle of proportionality. 

 

 

This is mainly viewed from the angle of “powers”. The problem of the legitimacy of the purpose for which emergency powers are exercised also refers to whether the “motive” for restricting civil rights by exercising emergency powers is legitimate. In a modern society, civil rights are restricted both internally and externally. The internal restriction is that the exercise of civil rights should not infringe other people’s rights, and needless to say, it should not infringe public interests too. The external restriction refers to the restriction imposed upon civil rights by a community exercising public powers based on the requirements of public interests.³⁶ The internal restriction is the boundary naturally accompanies civil rights and comes from civil rights in a community state. Therefore, as long as citizens do not expand civil rights beyond the prescribed limits of the law and do not infringe other people’s rights or public interests, there are no problems and it is unnecessary for state power to intervene. External restriction is usually associated with the active intervention of the state. This intervention is neither innate nor natural, but a result formed due to the intervention of an “external force” (state power) in the protected scope of basic rights. Article 51 and Article 13 of the Constitution of the People’s Republic of China have respectively stipulated the internal restrictions and external restrictions on civil rights. Thus, the problem of the legitimacy of the purpose for which emergency powers are exercised has been further transformed into the problem of deciding whether the restriction of civil rights by emergency powers is based on public interests. 

 

Legality and rationality are two angles from which to judge whether the exercise of state power is legitimate. The former is mainly used to solve the problem of how to exercise state power effectively and the latter is mainly used to solve the problem of how to make the exercising of state power appropriate. There is a strict logical relationship between the judgment of legality and the judgment of rationality with regards time sequence. The former is the premise and basis of the latter, that is, the legal exercising of state power does not mean the exercising of state power is rational. If state power is illegally exercised, it is unnecessary to judge whether the exercise of state power is rational.³⁷ Looked at from the angle of the “restriction of emergency powers on civil rights”, the problem of public interest judgment is obviously a typical legality problem, especially in China, because “the substantial element ‘public interest’ is usually used as the legality premise to restrict civil rights in China.”³⁸ Only emergency powers restrict civil rights based on public interests. Therefore, it is necessary to further discuss whether the restriction is rational or not. If emergency powers restrict civil rights not based on public interests, the restriction is fundamentally invalid and it is meaningless to discuss the rationality of the restriction. It can be inferred from this that, in a state of emergency, judging whether the purpose for which emergency powers are exercised is legitimate is in essence to judge whether the exercise of the emergency powers is legal. The judgment does not belong to the application scope of the proportionality principle. On the contrary, it constitutes the premise and basis of the application of the proportionality principle. “The logical premise of the application of the proportionality principle is to admit that intervention of emergency powers in the personal rights of citizens is legitimate. If it is fundamentally denied that intervention of emergency powers in personal rights of citizens is legitimate, it is unnecessary to apply the three sub-principles of the proportionality principle to restrict state power within a certain scope layer by layer.”³⁹

 

Facing a public health emergency such as a serious infectious disease epidemic, the application scope of the proportionality principle is mainly in the review of the “epidemic prevention and control measures” — checking whether the prevention and control measures are rationally associated with the prevention and control purposes or whether the prevention and control measures do not help achieve the purposes, checking whether there are any prevention and control measures with fewer losses or no losses, checking whether the consequences caused by the prevention and control measures are out of all proportion to the sought purposes, etc. The review of “epidemic prevention and control purposes” belongs to the scope of the legality judgment. The proportionality principle does not apply to the legality judgment — judgment on whether the prevention and control purposes belong to public interests, a judgment on hether the public interests are legitimate, etc. In practice, when some scholars apply the proportionality principle to review epidemic prevention and control measures, they are accustomed to regarding legitimacy as the first link of the proportionality principle review and unnaturally associate the purpose legitimacy review results with the proportionality principle review results, which exaggerates the value functions of the proportionality principle and does not conform to the original aim. For example, when one scholar applied the proportionality principle to analyse the prevention and control measure of “checking, collecting and publishing personal information” in a pandemic prevention and control period, the scholar first carried out a legitimacy of purpose review. He believed that the purpose of checking, collecting and publishing personal information of relevant people” in a pandemic prevent and control period was to safeguard important public interests such as public security and public health, it was legitimate according to the provisions of Clause 4, Article 5, Information Security Technology — Personal Information Security Specification published in 2017 by the National Information Security Standardization Technical Committee, and therefore, the measures conformed to the basic requirements of the proportionality principle.⁴⁰

 

 

This is mainly viewed from the angle of “rights”. It is well known that in the civil rights system, some rights are special, some of the rights do not have external effects, there are no conflicts among them, and the typical rights are freedom of thought and freedom of religious belief (excluding freedom of religious behaviour and freedom of religious association); the other of the special rights are key reasons why people are people and constitute the “essential part of the basic rights”⁴¹ and the typical rights are personal dignity, right to life, entity status equality (Nobody should be treated as a slave) and intactness of body (prohibition of torture). These special civil rights are usually called irreducible civil rights in international law.⁴²

 

As for ordinary civil rights, emergency powers can be used to restrict them as long as the restriction is based on the requirements of public interests. What to be reviewed are the rationality problems such as the means and the extent by which emergency powers are exercised to restrict civil rights, and here there is necessity and space for the intervention of the proportionality principle. The typical characteristic of irreducible civil rights is “absoluteness”. These rights must be guaranteed and they should never be “legitimately restricted.”⁴³ A similar statement can be found from the provisions of Article 4 of the International Covenant on Civil and Political Rights. This means that restriction of emergency powers on irreducible civil rights is considered unconstitutional or illegal no matter how important and how pressing the pubic interests are, no matter how special the situation is and no matter how slight the restriction is. Unconstitutional or illegal restriction on rights is naturally irrational and it is unnecessary to apply the proportionality principle. Some Western scholars have also found that the proportionality principle was rarely applied in the judicial adjudication of special civil rights such as personal dignity, right to life, and freedom of thought when they investigated the judicial practice in Western countries such as Germany. If a judicial organ must protect these rights due to some value reason, it should give up the application of the proportionality principle and use a specific value principle, not irrationality, as the basis for its judgment.⁴⁴

 

The COVID-19 pandemic is the most severe global public health emergency since the end of World War II. As for governments all over the world, it is a “great human rights examination.” The right to life is a logical premise of dignified human existence and it mainly reflects human value and dignity.⁴⁵ It is the basis for all civil rights and the highest irreducible right. It must be respected and protected even in a state of war — the most severe state of emergency. It means that the right to life must be protected in a pandemic prevention and control period and protection of the right to life is the primary responsibility of all governments all over the world. To ignore or infringe citizens’ right to life is no longer a question of whether it is rational or whether it violates the proportionality principle, but a question of whether it fundamentally conforms to the constitutional spirit or the constitutional principle. In Western countries such as European countries and the United States, people always pursue individual freedom as they regard such freedom as the paramount right. This has led to these countries’ less efficient responses to the pandemic, which allowed the novel coronavirus to spread rapidly in a short time, resulting in deaths of over one million people. The principle of proportionality is obviously not applicable to solving problems like the COVID-19 pandemic. In China, although the government faces severe social and economic development pressure, it always abides by the idea of the supremacy of the right to life.⁴⁶ It has taken “receiving as many receivable patients as possible and treating as many treatable patients as possible” as one of the primary goals of its pandemic prevention and control. To enable every patient to be timely and effectively treated, the governments took many measures such as building shelter hospitals, providing free treatment, and mobilizing nationwide medical resources and material deployment, which greatly guaranteed citizens’ right to life and fully reflected and effectively highlighted the “human right guarantee” spirit and principle specified in the Constitution of the People’s Republic of China. 

 

 

In the above-mentioned research, a state of emergency is often observed statically. In effect, a state of emergency is an abnormal state after all. Compared with a normal state, it is temporary and its severity and urgency will gradually weaken as time goes on. Accordingly, the measures and means adopted by state organs should be properly adjusted to achieve a dynamic balance between interests protected by private and public laws. This is an important aspect of checking whether the measures or means adopted by state organs conform to the principle of proportionality. We should be alert to and eliminate the excessive restriction of some local governments on civil rights in the name of “a state of emergency”. Some local governments may carry out strict measures or means to the end even when the state of emergency is over. Some local governments may even turn the governance in a state of emergency into the governance in a normal state and, in a normal state, apply the measures to be used in a state of emergency. All the above-mentioned excessive restrictions on civil rights must be prevented and eliminated.

 

(Translated by LIU Zhao)

 

* MEI Yang ( 梅扬 ), Lecturer of Wuhan University School of Law, Doctor of Laws. 

 

1. Meng Tao, “Emergency Powers Act and Its Theoretical Evolution”, Chinese Journal of Law 1 (2012): 108. 

 

2. Zhao Hong, “Personal Right Reduction and Boundary in COVID-19 Pandemic Prevention and Control Situation”, Journal of Comparative Law 2 (2020); Wang Qicai, “Principles of Rule of Law and Jurisprudential Thinking to Deal with Public Health Emergencies”, Law and Social Development 3 (2020); Zhao Peng, “Power and Law in Epidemic Prevention and Control — Application and Review Angle of Law on Prevention and Control of Infectious Diseases”, Jurisprudence 3 (2020). 

 

3. Liu Quan, “Reconstruction of Purpose Legitimacy and Proportionality Principle”, China Legal Science 4 (2014); Zhao Hong, “Restriction on Restriction: Internal Mechanism of German Basic Right Models”, The Jurist 2 (2011). 

 

4. Mei Yang, “Application Scope and Limitation of the Principle of Proportionality”, Chinese Journal of Law 2 (2020): 59.

 

5. Cai Hongwei, “Proportionality Principle to Restrict Abuse of Public Powers”, Law and Social Development 6 (2019): 128. 

 

6. Alec Stone Sweet, “Proportionality Balancing and Global Constitutionalism”, 47 Colum. J. Transnat L. 72 (2008): 164; Men Zhongjing, “Constitutional Position and Standard Basis of the Principle of Proportionality — Take the Tolerance Idea of the Constitutional Sense as the Viewing Angle of Analysis”, Legal Forum 5 (2014); Fan Jinxue, “On the Proportionality Principle of Constitution”, Journal of Comparative Law 5 (2018). 

 

7. Mei Yang, “Application of the Proportionality Principle in Supply Administration”, Law and Economy 4 (2020): 77-78. 

 

8. The legislative branch usually responds slowly and the judicial branch usually abides by the principle of no trial without complaint. 

 

9. Jiang Guohua and Mei Yang, Research on Procedural Law for Important Administrative Decision Making (2018 Edition) (Beijing: China University of Political Science and Law Press, 2018), 21. 

 

10. Han Dayuan, “Rebuild Social Justice in the Post-Pandemic Era”, China Law Review 5 (2020).

 

11. In Canada, the first emergency powers act — the War Measures Act — was enacted in 1914 and it was applied until 1988. Now there are four different types of national emergencies: public welfare emergencies, public order emergencies, international emergencies and war emergencies. In the United States, the Federal Constitution is the law of rulers and people and it is equally applicable in wartime and in peacetime. In addition, many conventions on wars have been enacted in the world such as the Geneva Convention relative to the Treatment of Prisoners of War and the Geneva Convention relative to the Protection of Civilian Persons in Time of War. 

 

12. Xie Hui, “On State Governance in a State of Emergency”, Science of Law 5 (2020).

 

13. After the bourgeois revolution broke out, laws relative to the state of emergency represented by the Riot Act appeared in Britain and laws relative to the “state of siege” or the “state of emergency” appeared in France and Germany. In 1920, Emergency Powers Act 1920, the first law relative to emergency powers formally named “Emergency Powers Act” in the world, was adopted in 1920 by the British Parliament. Since then, the words “state of emergency” and “emergency powers” have been widely used all over the world. Meng Tao, “Emergency Powers Act and Its Theoretical Evolution”, Chinese Journal of Law 1 (2012): 109. 

 

14. Yu An, Problems Related to Implementation of the Emergency Response Law of the People’s Republic of China, Theoretical Horizon 4 (2009): 44.

 

15. China’s Emergency Response Law, Law on Prevention and Treatment of Infectious Diseases, Wildlife Protection Law and some other laws are being modified. China’s Bio-Safety Act was deliberated and adopted on October 17, 2020 by the 22th Session of the Standing Committee of the 13th National People’s Congress. 

 

16. Compared with the laws for the normal state, the laws for the state of emergency are not be employed immediately after they take effective and their use is restricted by strict conditions, i.e., they are ready for possible future use in the normal state. Their basic functions are preventive and the functions will be enabled and used only when some emergency such as a war, a riot or a serious infectious disease epidemic occurs. Xie Hui, “On State Governance in a State of Emergency”, Science of Law 5 (2020): 45. 

 

17. Dai Xin and Zhang Yongjian, “Principle of Proportionality or Cost-Benefit Analysis? — Critical Reconstruction of Law Methods”, Peking University Law Journal 6 (2018): 1 and 519.

 

18. Mei Yang, “Application of the Proportionality Principle in Supply Administration”, Law and Economy 4 (2020): 82-83. 

 

19. Huang Zhaoyuan, “Judicial Review Standard of Constitutional Right Restriction: Comparison and Analyses of American Categorized Multiple Standard Models”, 33 National Taiwan University Law Review 3 (2004).

 

20. Yang Dengjie, “Fair Exercise of Judicial Power as Constitutional Principle of Proportionality — Comparison between It and American Multiple Review Standards”, Peking University Law Journal 2 (2015): 373. 

 

21. Nobuyoshi Ashibe, Constitution, supplement by Kazuyuki Takahashi, trans. Lin Laifan, Ling Weici and Long Xuanli, 6th Edition (Beijing: Tsinghua University Press, 2018), 79. 

 

22. Tang Dezong, “Preliminary Research on Establishment of Constitutional Review Standard System — Consideration on Hierarchical Principle of Proportionality,” in Theory and Practice of Constitution Interpretation, vol. 6, compiled by Liao Fute et al. (Taipei: Academia Sinica, 2009).

 

23. Liu Quan, “Establishment and Adequacy of Proportionality Principle Review Standards”, Modern Law Science 1 (2021): 150-151. 

 

24. Naoki Kobayashi, National Emergency Powers — Law and Politics in an Abnormal State (Japanese Edition) (Tokyo: Gakuyo Publishing House, 1979), 17. 

 

25. Xu Zongli, “Principle of Proportionality and Regulatory Review of Constitutionality”, Fighting Judicial Personality compiled by the Editorial Board of the Papers on Congratulating Professor Lin Shantian on Retirement, (Taipei: Angle Publishing Co., Ltd., 2004), 225. 

 

26. Chang Xuan and Yang Chengliang, “Concepts and Discrimination of ‘State of Emergency’ and ‘War State’”, Contemporary Law Review 2 (2005). 

 

27. Mei Yang, “Application Scope and Limitation of the Principle of Proportionality”, Chinese Journal of Law 2 (2020): 69. 

 

28. Jiang Guohua, Jurisprudential Analyses of Public Health Emergency Pre-warning, Law Review 2 (2020): 113. 

 

29. Chen Wei, “Analysis on the Legality of Wuhan City Lockdown Measures” .

 

30. Mei Yang, “Application Scope and Limitation of the Principle of Proportionality”, Chinese Journal of Law 2 (2020): 69.

 

31. Jiang Hongzhen, On the Principle of Proportionality — Judicial Evaluation of Governmental Regulation Tool Selection (Beijing: Law Press China, 2010), 315. 

 

32. Professor Alexy, a famous German philosopher, has given detailed explanation on this method: To achieve some law-making purpose M, state organs adopted the means S and caused the civil right Q1 to suffer loss. At this moment, it was difficult to balance gains and losses and judge by directly comparing M and Q1, because they were not in the same dimension. On the contrary, it was feasible to first transform M into the civil right Q2 and then compare Q1 and Q2. Robert Alexy, “On the Structure of Legal Principles”, 13 Ratio Juris 3 (2000): 298.

 

33. Aharon Barak, Proportionality: Constitutional Rights and Limitations, trans. Doron Kalir (Cambridge: Cambridge University Press, 2012), 531.

 

34. Lin Hongchao and Zhao Yixuan, “Personal Information Use and Legal Regulations when an Emergency Is Dealt with — Let Us Begin with the Response to the COVID-19 Pandemic”, Journal of South China Normal University (Social Science Edition) 3 (2020): 131-132. 

 

35. Li Haiping, “Conditions and Approaches of the Proportionality Principle Application in Civil Law — Take Civil Trial Practice as the Center”, Law and Social Development 5 (2018): 167. 

 

36. Nobuyoshi Ashibe, Constitution, supplement by Kazuyuki Takahashi, trans. by Lin Laifan, Ling Weici and Long Xuanli, 6th Edition (Beijing: Tsinghua University Press, 2018), 75-76. 

 

37. Mei Yang, “Application Scope and Limitation of the Principle of Proportionality”, Chinese Journal of Law 2 (2020): 62. 

 

38. Zhao Hong, “Restriction on Restriction: Internal Mechanism of German Basic Right Restriction Models”, Jurists Review 2 (2011): 154. 

 

39. Xu Yuzhen, Jurisprudential Research of the Proportionality Principle: Law Dimension of Private Interests Controlling Government Powers (Beijing: China Social Sciences Press, 2009), 146. 

 

40. Jiang Haiyang, “On Personal Information Protection in an Epidemic Situation — Take the Proportionality Principle as the Viewing Angle”, Journal of China University of Political Science and Law 4 (2020). 

 

41. Zhao Hong, “Reduction, Restriction and Boundary of Personal Rights in Epidemic Prevention and Control”, Journal of Comparative Law 2 (2020): 23. 

 

42. According to the provisions of Article 4 of International Covenant on Civil and Political Rights, these rights mainly include the right to life, human treatment (It means that nobody shall impose torture or cruel, inhuman or insulting treatment or punishment on anybody), no use of slaves or forced work, right to legal personality (It means that personality of every person should be admitted before the law no matter where the person is), thought, conscience and freedom of religion. 

 

43. Chen Jinghui, “Generalization of the Proportionality and Nature of Basic Rights”, China Law Science 5 (2017): 295. 

 

44. Katharine G. Young, “Proportionality, Reasonableness, and Economic and Social Rights”, in Proportionality: New Frontiers, New Challenges (Cambridge: Cambridge University Press, 2017), 256.

 

45. Han Dayuan, “Conflicts and Balance between the Right to Life and Other Rights”, Human Rights 3 (2020): 12. 

 

46. The Government Work Report delivered on May 22, 2020 by Premier Li Keqiang frankly admitted the negative economic growth and definitely pointed out: “Life is paramount. It is both the cost that we must bear and the cost that is worth paying.”