Making law on the state of emergency in vietnam from the perspecitive of constitutional rights limitation ii

Making law on the state of emergency in vietnam from the perspecitive of constitutional rights limitation II Making law on the state of emergency in vietnam from the perspecitive of constitutional rights limitation II

THE STATE OF EMERGENCY IN CHINESE LAW: TOWARDS A COMPREHENSIVE ACT?

Zhu Lijiang' Abstract: This paper aims to making a survey of the state of emergency in Chinese law, including the decision-

making processes of entering and lifting the state of emergency, the substantial criteria for entering and lifting the

state of emergency, the emergency measures, the legal remedies, and the legal consequences for violation of emergency

measures, In addition to addressing these legal matters, this paper will search the sources of the Chinese law on the state

of emergency and present the discussion on whether it is necessary to have a special and comprehensive act on the state

of emergency in China [SOURCES

Before 2004, there was no mention of “the state of emergency” in the 1982 Chinese Constitution The only relevant provisions were the procedural provisions on the decision-making for imposing martial law (#/™).2 However, in 1996 the NPC Standing Committee adopted a Martial Law Act.3 This Act was enacted in accordance with the Constitution, and contains provisions on the execution of martial law, the measures for executing martial law, and the functions and duties of martial-law- enforcing officers Most importantly, Article 2 of this Act stipulates that “The State may decide to apply martial law when states of emergency (emphasis added) such

* Professor, Vice Dean, School of International Law, China University of Political Science and Law

LL.B (Peking Law School); LL.M (International Human Rights Law, RWI, Lund University,

Sweden); Ph.D (Peking Law School) Email: zhu.lijiang@163.com, This survey is presented to the “Law on the State of Emergency” Online Conference jointly organized by School of Law,

Vietnam National University, Hanoi and Asian Law Center, Melbourne Law School on 16-17

June 2020

* Pursuant to Article 67 (20) of the 1982 Constitution, the NPC Standing Committee decided on the imposition of martial law nationwide or in particular provinces, autonomous regions or cities directly under central government jurisdiction Pursuant to Article 80, the President

then declared a decree of martial law on basis of the decision of the NPC Standing Committee Farthermore, pursuant to Article 89 (16), the State Council decided on the imposition of martial

law in a part of provinces, autonomous regions or cities directly under central government jurisdiction

* The full title of this law is Zhonghua Renmin Goneheguo Jieyan Fa ( (1B A REA PA), it was adopted by the NPC Standing Committee in 1996.

68 LAW ON THE STATE OF EMERGENCY - PHÁP LUẬT VỀ TÌNH TRẠNG KHẨN CẤP

as unrest, rebellion or serious riot occurs which seriously endangers unification and security of the State or public security and under which public order cannot be maintained and the safety of people’s lives and property cannot be ensured unless extraordinary measures are taken.” Article 12 stipulates that “As soon as the state of emergency (emphasis added) as cited in Article 2 of this Act, for which martial law is enforced, is eliminated, the martial law shall be lifted.” This is the first time that the Chinese law explicitly provides the term of “the state of emergency”

In 2003, the SARS broke out in China and various restrictive measures on the freedoms and rights of the citizens were taken by the Chinese government in order to control the spread of the SARS virus This incident resulted in a constitutional amendment being tabled at the NPC Standing Committee in 2004 As the then Vice

Chairman of the NPC Standing Committee, Mr Wang Zhaoguo (EJ), addressed

to the NPC in his explanation of the constitutional amendment draft on 8 March 2004, he noted that the Chinese Constitution has provisions on “martial law’, but does not have provisions on “the state of emergency”, therefore China decided to replace “martial law” with “the state of emergency” in the Constitution He explained that, it was necessary because of the lessons and experiences of fighting against SARS in 2003 and that this is the universal practice worldwide.’ Thus, the 2004 Amendment to the Constitution replaced the term of “martial law” with the term of “the state of emergency” in all relevant provisions of the Constitution This is the first time that the Chinese Constitution has provisions on “the state of emergency” However, the 2004 Amendment to the Constitution simply replaced the term of “martial law’ with the term of “the state of emergency” in the relevant provisions, no any further provisions on the state of emergency were incorporated into the Constitution

In 2007, the NPC Standing Committee adopted the Emergency Response Law? Pursuant to Article 3, the emergency incidents in this Act refers to a natural disaster, accidental disaster, public health incident or social safety incidents, which takes place by accident, have caused or might cause serious social harm and need the adoption of emergency response measures More importantly, Article 69 of this Law stipulates that “Where an especially serious emergency incident occurs, which

! Wang Zhaoguo, Explanation on the Draft Amendment to the Constitution of the People’s

Republic of China ( (4F <2 A RRM BFR IER (AR) > HAA), 8 March 2004, http://

www.npc.gov.cn/wxzl/gongbao/2004-04/19/content_5334619.htm 2 The full title of this law is Zhonghua Renmin Goneheguo Tufa Shijian Yingdui Fa ( (PBA RH

MBL BEM WI), it was adopted by the NPC Standing Committee in 2007 Some resources translate the Chinese characters of “AAS (-” (Tufa Shijian) into “emergency incidents” However, in my opinion, they may be better translated into “breaking incidents”, so that they may be distinguished from “emergency incidents” whose Chinese characters are “S2 Sƒ†” (inji Shijian).

PHAN TIENG ANH (PAPERS IN ENGLISH} 69 poses a serious threat to the life or property safety of the people, national security, public safety, environmental safety or social order, and its serious social damage cannot be eliminated or effectively controlled or mitigated by taking the emergency response operation measures as provided for in this Law and other relevant laws and administrative regulations and rules, and therefore it is necessary to enter a state of emergency (emphasis added), the Standing Committee of the National People’s Congress or the State Council shall decide in accordance with the powers and procedures as provided for by the Constitution and other relevant laws.” The matter of the state of emergency was also explicitly mentioned in the 2008 Patent Law.!

Because China does not have a special and comprehensive law on the state of emergency, there have been voices advocating that China should enact a law on the state of emergency among the Chinese society On 12 March 2009, according to a report of the Secretariat of the Second Session of the 11" NPC, Mr Wang Dongzhou

(E% IN), a deputy from the delegation of Sichuan province, together with other 31

deputies, made a proposal to enact an emergency law (Bill No 112) to the Second Session of the 11" NPC, so that a legal system on the state of emergency can be formed On 3 December 2009, the Law Committee (#2, 2) released a report on the result of examination of the bills referred to by the Presidium of the Second Session of the 11" NPC According to the report, the Law Committee considered

that the Legislative Affairs Commission (iKi#] (E22 51 2) will carefully research the

opinions of the deputies, and will carry out the relevant work when the conditions are mature Thus, the proposal to enact a law on the state of emergency was rejected for the moment

Afterwards, provisions on the state of emergency were continuously incorporated into the Jaws and other normative legal documents, including the 2012 Public ' The full title of this law is Zhonghua Renmin Goneheguo Zhuanli Fa ( (PEA REARS

i), it was adopted by the NPC Standing Committee in 1984, and was later amended in 1992,

2000 and 2008 ? This bodyis one of the 10 special committees directly affiliated to the NPC In 2018, with the amendment

of the Constitution, the title of this body was changed to the “Constitution and Law Committee” (#235 EBB RS) Its mandate is to comprehensively examine all legislative bills submitted to the NPC

and its Standing Committee http:/Avww.npc.gov.cr/englishnpc/c2849/column.shtml This body is one of the two working commissions directly affiliated to the NPC Standing Committee Since the NPC Constitution and Law Committee does not have its own office, this body acts as its office Its mandate includes drafting laws, offering advisory opinions to the

questions from the provincial congresses and ministries, replying to the proposals from the NPC and CPPCC deputies, and conducting legal researches http:/Avww.npe.gov.cn/englishnpe/c2852 /201903/929762af2Ace48c886e9đ4175502a878b.shtml

70 LAW ON THE STATE OF EMERGENCY - PHÁP LUAT VETINH TRANG KHAN CAP

Security Administration Punishments Law; the 2015 National Security Law; the 2015 Counterterrorism Law, the 2018 Interpretation on Application of the Administrative Litigation Law; the 2020 Opinions on Punishing Criminal and Illegal Activities that

Hinder the Prevention and Control of Novel Coronavirus Pneumonia‘

Besides, the NPC Standing Committee adopted the 2013 Law on Prevention and

Treatment of Infectious Diseases.’ Although this Law does not explicitly contain any provision on the state of emergency, it does provide for various emergency measures in order to cut off the route of transmission of infectious diseases.”

In sum, in the current Chinese law, there has not been a uniform law on the state of emergency yet, but the matter of the state of emergency has been incorporated into the Constitution, various parliamentary laws and judicial interpretations

li KEY MATTERS ON THE STATE OF EMERGENCY IN CHINESE LAW

i, Decision-making Process for Entering into and Lifting the State of Emergency In accordance with the current Constitution, the NPC Standing Committee decides on the declaration of the country as a whole or particular provinces, autonomous regions or municipalities directly under the Central Government to be under a state of emergency.® The Chinese President, in pursuance of the decision 1 The full title of this law is Zhonghua Renmin Goneheguo Zhi/an Guanli Chufa Fa ( (PIBAR MEARE BAT), it was adopted by the NPC Standing Committee in 2005, and was later amended by the NPC Standing Committee in 2012

2 The full title of this law is Zhonghua Renmin Gongheguo Guojia Anquan Fa ( (PEAR MEHRASIR) ), it was adopted by the NPC Standing Committee in 1993, and was later repealed due to the adoption of the Counterespionage Law (Zhonghua Renmin Gongheguo Fan Jiandie Fa, (P12 RAB RIG) by the NPC Standing Committee in 2014 In 2015,

the NPC Standing Committee adopted a new National Security Law

3 The full title of this law is Zhonghua Renmin Gongheguo Fan Kongbuzhuyi Fa ( (PARK AB RE NIK), it was adopted by the NPC Standing Committee in 2015

4 The full title of this judicial interpretation is Guanyu Shiyong Zhonghua Renmin Gongheguo Xingzheng Susong Fa de Jieshi ( (FIBA <)4b A RAM B TBR > MAR), it was

adopted by the Trial Committee of the Supreme People’s Court in 2017, and came into force on

6 February 2018 5 The full title of this notice is Guanyu Yifa Chengzhi Fanghai Xinxing Guanzhuang Bingdu Ganran

Feiyan Yiqing Fangkong Weifa Fanzui de Yijian( (X FRAR ASKS SRA RiP EEAICIEN SL), it was jointly issued by the Supreme People’s Court, the Supreme People’s

Procuratorate, the Ministry of Public Security, and the Ministry of Justice

6 The full title of this law is Zhonghua Renmin Gongheguo Chuanranbing Fangzhi Fa ( (lí,

RAI E SSR FAI), it was adopted by the NPC Standing Committee in 1989, and was later amended in 2004 and 2013

7 Articles 42-49, ibid 8 Article 67 (21) of the Constitution.

PHAN TIENG ANH (PAPERS IN ENGLISH) 71

of the NPC Standing Committee, declares a state of emergency.' In case that it is necessary to impose martial law in the country asa whole or in an individual province, autonomous region or municipality directly under the Central Government, the matter shall be submitted by the State Council to the NPC Standing Committee for decision; the President shall, in accordance with the decision made by the NPC Standing Committee, proclaim the order of martial law?

If parts of provinces, autonomous regions, and municipalities directly under the Central Government need to be placed under a state of emergency, the State Council shall decide by law to do so.> When it is necessary to impose martial law in part(s) of a province, autonomous region or municipality directly under the Central Government, the matter shall be decided on by the State Council, and the Premier of the State Council shall proclaim the order of martial law#

The above decision-making process of entering a state of emergency is also repeated in the 2007 Emergency Response Law, the 2015 National Security Law, and the 2015 Counterterrorism Law The 2007 Emergency Response Law stipulates that in case that it is necessary to enter a state of emergency, the NPC Standing Committee shall decide in accordance with the powers and procedures as provided for by the Constitution and other relevant laws The 2015 National Security Law stipulates that in case that it is necessary to enter a state of emergency, the NPC Standing Committee or the State Council shall make a decision in accordance with the power and procedures prescribed in the Constitution and the relevant laws.‘ The decision-making process of entering a state of emergency in the Constitution is also repeated in the 2015 National Security Law The 2015 Counterterrorism Law repeats that where a state of emergency is required, the NPC Standing Committee or the State Council shall make a decision in accordance with the power and procedures prescribed in the Constitution and other relevant laws

While the Constitution is silent on the procedure of lifting the state of emergency, the 1996 Martial Law explicitly stipulates that the procedure for lifting the martial law is the same as the procedure for deciding to impose it?

ii Substantial Criteria for Entering into and Lifting the State of Emergency Article 80 of the Constitution

Article 3 of the 1996 Martial Law Article 89 (16) of the Constitution Article 3 of the 1996 Martial Law

Article 69 of the 2007 Breaking Incidents Response Law

Article 64 of the 2015 National Security Law

Article 35, 36, and 37 of the 2015 National Security Law

Article 57 (3) of the 2015 Counterterrorism Law Article 12 of the 1996 Martial Law

72 LAW ON THE STATE OF EMERGENCY - PHÁP LUẬT VỀ TÌNH TRẠNG KHAN CAP

While the current Constitution contains provisions on the state of emergency, they are concerning the decision-making process of entering the state of emergency No provision in the current Constitution has any indication of the substantial criteria of entering the state of emergency However, the foregoing parliamentary laws have provisions on the substantial criteria of imposing martial law, or others

Pursuant to Article 2 of the 1996 Martial Law, the substantial criteria for imposing martial law is when such state of emergency as unrest, rebellion or serious riot occurs which seriously endangers unification and security of the State or public security and under which public order cannot be maintained and the safety of people's lives and property cannot be ensured unless extraordinary measures are taken Thus, according to this article, in order to impose-martial law, the following substantial criteria must be cumulatively satisfied:

(1) there must be unrest, rebellion or serious riot (@08L 2ELEXY™ BAREL), indicating

that martial law can only be imposed on the serious social disturbance; (2) such an unrest, rebellion or serious riot must seriously endangers unification and security of the State or public security, indicating that there must be a danger of such a disturbance to the State unification, national security or public security, and that such a danger must be serious, and pursuant to Article 64 of the 2015 National Security Law, a state of emergency may be declared if an extremely serious event compromising national security occurs; (3) pubic order cannot be maintained and safety of people’s lives and property cannot be ensured unless extraordinary measures are taken, indicating that there must be a necessity to impose martial law

Furthermore, pursuant to Article 69 of the 2007 Emergency Response Law, the state of emergency may be declared if an especially serious emergency incident occurs, which posts a serious threat to the life or property safety of the people, national security, public safety, environmental safety or social order, and its serious social damage cannot be eliminated or effectively controlled or mitigated by taking the emergency response operation measures This article is very significant in terms of the substantial criteria required for entering the state of emergency because of two developments: (1) it.is not limited to social disturbances, but expanded to any especially serious energency incidents (Ri

x3 S®f†), and pursuant to Article 3 of the 2007 Emergency Response Law, an

emergency incident shall refer to a natural disaster (A 48% #), accidental disaster (# HOCH), public health incident (47k TE #44) or social safety incident GL 2 RAH {£), which takes place by accident, has caused or might cause serious social damage

and needs the adoption of emergency response measures, thus, the 2007 Emergency Response Law significantly expands the categories of situations which may be declared as the state of emergency; (2) a serious threat to environmental safety may also be declared as the state of emergency It needs to be further noted that pursuant

to Article 57 of the 2015 Counterterrorism Law, a terrorist incident (Hitt) may

trigger the declaration of the state of emergency

PHAN TIENG ANH (PAPERS IN ENGLISH) 73

Regarding lifting the martial law, the 1996 Martial Law stipulates that as soon as the state of emergency is eliminated, the martial law shall be lifted?

Pursuant to Article 4 of the ICCPR, “public emergency” can only be declared by the State parties on the situation which “threatens the life of the nation” According to the relévant state practice, public emergency threatening the life of the nation can be an international armed conflict, civil war or other serious, violent internal unrest, serious natural environmental catastrophes such as earthquakes, floods, cyclones or nuclear accidents, as well as extremely serious economic difficulties? By contrast, the relevant Chinese laws on the declaration of the state of emergency do not mention the expression of “threatens the life of the nation”, but generally the scenarios which may be declared as the state of emergency in Chinese laws are more extensive

? Article 12 of the 1996 Martial Law * Manfred Nowak, U.N Covenant on Civil and Political Rights: CCPR Commentary, 2" revised

edition, N P Engel, Publishers, 2005, pp 89-92

3 Article 65 of the 2015 National Security Law 4 Article 66 of the 2015 National Security Law 5 Article 11 of the 2007 Breaking Incidents Response Law.

74 LAW ON THE STATE OF EMERGENCY - PHÁP LUẬT VỀTÌNH TRẠNG KHẨN CẤP

By contrast, the 1996 Martial Law provides very detailed measures that could be taken by the State after the imposition of martial law Chapter I of this Law provides the fundamental principles of taking special measures of martial law These include: (1) The State may lay down special rules and regulations regarding the citizens’ exercising of their rights and freedom.! (2) measures necessary for bringing public order to normal as soon as possible and ensuring safety of people's lives and property and supply of their daily necessities.” (3) The State adopts effective measures to protect the lawful rights and interests from encroachment of the organizations and individuals that observe the order of martial law and the rules and regulations for executing the order of martial Jaw.> Martial law tasks shall be performed by the People’s Police and the People’s Armed police (4) When necessary, the State Council may make a suggestion to the Central Military Commission that it decide to dispatch troops of the People’s Liberation Army to help perform the martial law tasks, Chapter Ill of this law provides the detailed measures of martial law

During the period of martial law, the martial-law-executing organ may decide to take the following measures: (1) to ban or restrict assembly, procession, demonstration, street speeches, and other mass activities; (2) to ban strikes of workers, shop assistants and students; (3) to impose a press embargo; (4) to enforce control

over communications, postal services and telecommunications; (5) to enforce control

over entry into and exit from the country; and (6) to ban any activities contrary to martial law It may decide on measures to impose traffic control in the area under martial law, restricting entry and exit of the area under traffic control and checking the papers, vehicles and other things of people entering or leaving such an area;* to impose a curfew in the area under martial law,’ to control weapons and ammunition, knives under control, inflammable or explosive goods, and hazardous chemicals, radioactives, deadly poisons, etc;’ to temporarily requisition houses, places, facilities,

means of transport, engineering machinery, etc of State organs, enterprises,

institutions, public organizations and individual citizens,’ to take special measures to control the production, transport, supply and pricing of such necessities."

Article 4 of the 1996 Martial Law Article 5 of the 1996 Martial Law

Article 7 of the 1996 Martial Law

Article 8 of the 1996 Martial Law

Article 13 of the 1996 Martial Law

Article 14 of the 1996 Martial Law Article 15 of the 1996 Martial Law Article 16 of the 1996 Martial Law, Article 17 of the 1996 Martial Law Article 19 of the 1996 Martial Law

PHAN TIENG ANH (PAPERS IN ENGLISH) 75

The 1996 Martial Law further provides for very extensive powers of the martial- law-enforcing officers They shall have the right to check the papers, vehicles and other things of people in the streets or other public places in the area under martial law;' to detain people who violate the regulations on curfew until the end of the curfew in early morning, and to search the person of the detainees and check the things they carry; ? to detain immediately persons who are committing an offense that endangers State security or disrupts public order or who are strongly suspected of such an offense, persons who obstruct or resist performance of martial law tasks by martial-law-enforcing officers, persons who defy traffic control or regulations on curfew, and persons who engage in other activities against the order of martial law; to search the person of the detainees and to search the houses of criminal suspects and the places where criminal offenders, criminal suspects or weapons, ammunition and other dangerous articles are suspected of being concealed;* to stop or disperse, and forcibly take the organizers and the persons who refuse to obey away from the scene or detain them immediately if they engage in unlawful assembly, procession, demonstration or other mass activities, legally occupy public places or incite destructive activities in public places, attack State organs or other important units and places, disrupt traffic order or deliberately create traffic jams, or plunder or destroy the property of State organs, public organizations, enterprises, institutions or individual citizens.5 Furthermore, the procedures and time limit for detention and arrest may be free from the restrictions of the relevant provisions of the Criminal Procedure Law, except that an arrest shall be subject to approval or decision of a People’s Procuratorate.®

Guns or other weapons may be used when they cannot stop it simply with police implements if the safety of the lives of citizens or martial-law-enforcing officers are endangered by violence, persons subject to detention or arrest or offenders under escort resort to violence in resistance, commit physical assault or try to escape, persons use violence to seize weapons and ammunition, important objects under guard are assaulted by violence or are in imminent danger of being assaulted by violence, or if, in the course of fighting a fire, rushing to deal with an emergency, rescuing people or performing other major urgent tasks, they are obstructed by extreme violence.’

The 2007 Emergency Response Law also provides for various emergency measures in response to emergency incidents Like the 1996 Martial Law, the 2007

Article 22 of the 1996 Martial Law Article 23 of the 1996 Martial Law Article 24 of the 1996 Martial Law Article 25 of the 1996 Martial Law Article 26 of the 1996 Martial Law Article 27 of the 1996 Martial Law Article 28 of the 1996 Martial Law

76 LAW ON THE STATE OF EMERGENCY - PHAP LUAT VETINH TRANG KHAN CAP

Emergency Response Law also permits the government to requisition the property of entities and individuals in response to a breaking incident.! When an emergency incident occurs, the competent authorities shall immediately organize the relevant departments, deploy the emergency response rescue teams and social forces, and take measures for emergency response operations;? They shall control promptly the danger sources, mark the danger areas, blockade the danger places, demarcate the cordoned areas, implement traffic controls and take other control measures; prohibit or restrict the use of relevant equipment and facilities, shut down or restrict the use of relevant places, terminate the activities with a high density of people or production or business operation activities likely to cause the expansion of damage, and take other protective measures, impose stricter punishments against forestalling, bidding up prices, making and selling fake products and other violations of the market order, to stabilize the market prices and maintain the market order; blockade the relevant places and roads, examine the identity certificates of persons on the spot, and restrict the activities in the relevant public places.*

Moreover, the 2008 Patent Law stipulates that where a national emergency occurs, the patent administrative department of the State Council may grant a compulsory license to exploit patents for an invention or utility model Furthermore, in the 1992 China-US Memorandum of Understanding on the Protection of Intellectual Property, it was stated that in case of the state of emergency or other extremely emergent situations, the governments may enforce compulsory licenses of patents.‘

tv Judicial Remedy In China, administrative litigation permits the natural and legal persons to challenge the legality of the special administrative act of the administrative organs before the people’s court When it was introduced in 1989, it was expected to be an effective legal means to protect the natural and legal persons from being abused of the powers of administrative bodies Nowadays, itis governed by the 2017 Administrative Litigation Law.’ Pursuant to the 2017 Administrative Litigation Law, any citizen, legal person or other organization has the right to institute litigation to the people’s court if he or she considers that the administrative acts of the administrative organs and their 1 Article 12 and Article 52 of the 2007 Breaking Incidents Response Law

2 Article 48 of the 2007 Breaking Incidents Response Law

3 Article 49 of the 2007 Breaking Incidents Response Law Article 50 of the 2007 Breaking Incidents Response Law

Article 49 of the 2008 Patent Law Article 1 (1) (4) of the 1992 China-US MOU The full title of this act is Zhonghua Renmin Goneheguo Xingzheng Susong Fa ( (PEAR

SANE TBUR UMA), it was adopted by the NPC Standing Committee in 1989, and was later amended in 2014 and 2017