Emergency powers and law in China

Abstract

The analysis of emergency powers in China highlights the pervasive existence of the subjective judgment regarding a state of emergency and the discretionary decision of adopting a broad range of legal and extra-legal emergency measures with or without a declaration of a state of emergency. Although one may assume that such a scenario emerges in the absence of normative emergency powers legal system, the thesis argues that the arbitrary and discretionary defining and exercising of emergency authority in the contemporary Chinese society stem from the law. Contemporary liberal theories are premised on a binary dichotomy of the norm and the exception. They share the assumption that the law is capable of subsuming the sovereign power within it and imposing meaningful limitations on it in times of emergency. The research of emergencies and law in the Chinese context questions the force of law in emergencies, pointing out that liberal theories are thus unable to describe and understand emergencies and law in the Chinese context. By decentering the norm/exception dichotomy and moving beyond abstract terms enshrined by current theories, the thesis adopts a historical- empirical approach to explore the nature of emergencies, and the link between emergencies, law, and the sovereign power. Drawing on Agamben’s thesis on the state of exception, the thesis explores how emergencies have increasingly become the centrality of politics and that the legalization of emergency power ex post facto has lead to the legal exceptionalism. The defining and exercising of emergency powers by the Chinese authorities have been shaped by a deeply ingrained authoritarian tradition to maintain secrecy in times of emergency, in conjunction with the pragmatic and political purposes of maintaining temporary order, securing stability and supplementing the performance-based legitimacy. These underlying rationales contribute to the adoption of coercive and flexible measures, with an expansion of the scale and scope of emergency powers. Meanwhile, a fragmented central-local relation, an inefficient bureaucracy, and an oligarchic central power structure hampered the building of institutional capacity and efficient emergency response mechanism in dealing with exigencies. Such a pattern of the defining and exercising of emergency powers dates back to the Counter-Revolutionary Campaign immediately after the establishment of the PRC, experiences a revival in the Tiananmen incident, normalizes through the legal reform in the reform era and consolidates as part of the normal politico-legal order in major crises such as the SARS and the War on Terror. Examinations of the origin, revival, reform and development of emergency powers illustrate that the legal exceptionalism has become entrenched in the politico-legal system. Through the process of legalizing exceptional emergency powers ex post facto and by exploring the flexibilities inside the mechanism, the Party-State has become more precise and confident in deploying an arsenal of legal and extra-legal weapons in handling real and imagined emergency situations. Facing with real or imagined threats to social order, state security, and the sovereign control changed against a different socio-political context, the sovereign authority has adjusted itself and become arguably more experienced in exploring the gray edges in the legal system and in consolidating its sovereign authority by resorting to exceptional emergency powers. The sovereignty realigns itself to formulate new models of coercion and to stretch the legal exceptionalism into every aspect of the socio-political life when necessary. While the pressure for the defining and exercising of emergency powers is such that meaningful constraints must be imposed on the authorities, the thesis questions that formal legal constraints can make us safe. The state can use the law, in quite a technically revolutionary way, to subvert the force of law as a restraint.