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Will China Learn From Its Biggest COVID-19 Mistake?

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Will China Learn From Its Biggest COVID-19 Mistake?

Amid the Shanghai lockdown, government efforts to silence and prosecute critics have received more public attention – and sparked increasing outrage.

Will China Learn From Its Biggest COVID-19 Mistake?

Health workers wearing protective gear chat with security guards behind a barricaded fence of a locked down communities on Wednesday, April 27, 2022, in Beijing, China.

Credit: AP Photo/Andy Wong

The Omicron outbreak in Shanghai has become the most daunting challenge to the Chinese government and its zero-COVID policy since the Wuhan outbreak in early 2020. The total number of COVID-19 positive cases in Shanghai has reached nearly 600,000. In mid-April, at the height of COVID-19 spread in Shanghai, daily cases surpassed 27,000. As a result, Shanghai recorded more than 500 deaths since the start of this Omicron wave in March, making this outbreak the deadliest in China since the Wuhan outbreak.

The Shanghai outbreak has received the greatest attention from the central government. Sun Chunlan, the top coordinator of China’s zero-COVID policy, was stationed in Shanghai for over a month. More than 30,000 medical experts and 5,000 military medics were dispatched to Shanghai to support the zero-COVID campaign. During a Politburo meeting on May 5, Xi Jinping declared that China can, and must, win “the war of defending Shanghai.” Xi further announced that China must double down on the zero-COVID policy unconditionally and “struggle against” anyone who questions or criticizes it.

However, the Shanghai outbreak has sparked popular discontent among Chinese citizens. People have criticized the Shanghai government’s poor management of the epidemic. A video named “Voice of April,” which highlights the deaths of patients caused by hospitals refusing medical treatment, the draconian lockdown measures, and the breakdown of the food delivery system, became hugely popular on social media overnight. The government’s efforts to censor this video further exacerbated the popular discontent. Many people became suddenly politicized and shifted their criticism to focus on the government’s effort to “suppress the truth” and “shut people’s mouths.”

In addition, the government’s lack of credibility became another popular target. The Shanghai government arrested two men who “spread the rumor” that “Shanghai will be locked down for seven days” on March 23 – just five days before the official lockdown indeed began on March 28. On March 26, two days before the official lockdown, a Shanghai official declared during the municipal government press briefing that “Shanghai will not lock down” because of its pivotal economic role. For many people, the prolonged lockdown became a slap in the Shanghai government’s face.

A lawyer with more than 100,000 followers on Weibo asked, “How are those two men who were charged with spreading rumors doing?” Another Weibo user questioned, “After more than 30 days of lockdown, I wonder whether ‘Shanghai lockdown’ is still a rumor.” Another poster went even further and asked whether government officials should be arrested for spreading rumors.

As a result, the Shanghai outbreak became a tremendous government public relations disaster. The Shanghai outbreak draws comparison to the Lin Biao Incident: Even though the event did not cause short-term political upheaval, it became a moment of political mass awakening and created widespread cynicism that might undermine the regime in the long run.

Remembering Dr. Li Wenliang

In more recent memory, the Shanghai outbreak draws a close parallel to the Wuhan outbreak and the case of Dr. Li Wenliang. Li was an eye doctor at the Central Hospital of Wuhan, one of the most prestigious hospitals in the city. On December 30, 2019, Li saw an internal medical report on a new “SARS-like” lung disease and posted it on his medical school classmates’ WeChat group. Four days later, the local public security bureau summoned and detained him. The police forced him to sign a document in which he admitted to “spreading rumors” and promised to “stop the illegal activity.” Later, the Chinese government’s mouthpiece media labeled Li and seven others “rumor spreaders.”

At the same time, the Wuhan government admitted the existence of a new lung disease but denied the possibility of human-to-human transmission. As the state media reassured the public, people continued shopping, traveling, and celebrating as the Chinese New Year approached. The massive movement and concentration of unaware and unprotected populations caused the new coronavirus, later dubbed COVID-19, to spread like wildfire until the government took emergency actions to locked down Wuhan on January 23.

The disease also took Li’s life on February 7, 2020.

Li’s death created a massive online uprising. He became a hero, while the decision to detain him brought shame to the police and state media. The alleged “rumor spreader” became a heroic whistleblower who tried to pass the truth to the public, while the police, the media, and the government became the real “rumor spreaders.” On the one hand, people believed that the government and the police abused the “spreading rumor” charge to cover up the truth and suppress Li’s warning. On the other hand, people completely lost faith in the state media; the incident caused a complete meltdown of government credibility.

Some people declared that if Li was accused of spreading rumors, the media and the government should also be charged. A comment on NetEase News, one of China’s largest online news outlets, advised others to “listen to the opposite of the state media, and you will get closer to the truth.” Another comment said, “I believe everything the government declares false.”

Abusing “Pocket Crimes”

The close similarities between Li’s case and the Shanghai case illustrate that the Chinese government has not learned from its biggest mistake during COVID-19: the failure of law. The Chinese legal system is plagued by ambiguity and vagueness, which create loopholes for abuse. The government often actively exploits these loopholes and enforces the law to benefit itself. In China, the term “latent rules” (潜规则) captures this duality between the law on paper and in reality. The prevalence of these latent rules becomes a widespread social justice issue because the implementation of laws is often self-contradictory.

For example, law enforcement agencies often use “pocket crimes” (口袋罪), vaguely defined crimes that could be applied to various activities, to suppress human rights lawyers, social activists, and independent reporters. Some widely used pocket crimes include “spreading rumors,” “causing disturbances,” and “inciting subversion of state power.” These pocket crimes undermine the legitimacy of the Chinese legal system because the government can stretch the definition to fit its need. Law enforcement can apply the law selectively and punish those it finds troublesome. As the government repeatedly uses the law for political suppression, the law has lost any claim to justice and impartiality. Li Wenliang’s case came to epitomize the latent rules in the Chinese legal system and is a compelling example of how pocket crimes deplete the credibility of Chinese law.

One way to fix this legal failure would be to use the Supreme People’s Court (SPC)’s judicial interpretation power. Judicial interpretation is the main function of the SPC; it is a “secondary legislation that specifies how provisions in primary legislation should be applied to specific cases.” According to the “Provisions of the Supreme People’s Court on the Judicial Interpretation Work,” published in 2007, the role of judicial interpretation is to resolve “specific issues concerning the application in the trial work of the people’s courts.” It serves as a binding guideline to lower courts on “the specific application of a certain law in the trial work or the application of the law in the trial of the cases of a certain category or a certain kind of problems.”

In other words, the SPC uses judicial interpretation to define vague law languages and guide law applications. The SPC can thus eliminate pocket crimes through judicial interpretation by clarifying legal ambiguities and setting law enforcement boundaries. By abolishing these loopholes, the Chinese legal system can finally free itself from “latent rules” and restore its impartially.

The Chinese government has strong reasons to resist this legal reform, however. If the leadership continues to view the law as a tool of oppression rather than the rule of the country, then eliminating pocket crimes would only burden its efforts at social control. Special interest groups within the government, such as the law enforcement agencies, might also resist the change because it diminishes and limits their previously unchecked power. On the other hand, such a reform would increase government transparency and check the government’s predatory behaviors, which would restore its lost credibility and legitimacy.

Many scholars viewed the Wuhan COVID-19 outbreak and the death of Dr. Li Wenliang as the Chinese Communist Party’s “Chernobyl moment.” The party dodged the bullet by imposing a strict lockdown to halt the spread of disease effectively. Now, two years later, the Shanghai outbreak demonstrates that the government cannot dodge the bullet forever. As one old Chinese idiom states, “one can hide on the first day, but cannot hide for 15 days” (躲得过初一,躲不过十五).  Unless the Chinese government fixes the contradictions in its legal system, the phantom of such “Chernobyl moments” will always haunt the Chinese leadership.

The author would like to pay special tribute to the late Professor David O’Brien, a distinguished constitutional law professor at the University of Virginia and scholar on U.S.-China comparative law.