Taiwan has demonstrated to the world its strength and success in combating the spread of COVID-19 despite decades of exclusion from the World Health Organization (WHO) and ongoing bullying from the People’s Republic of China (China). Given its geographical proximity and close economic exchanges with China, Taiwan was estimated to be heavily hit by the spread of COVID-19 originated from Wuhan, China. Reversing the trend, Taiwan has maintained a considerably low number of confirmed cases, and detected most cases of possible community spread, while Europe, the United States and the rest of the world are struggling with an ongoing global pandemic.
Constitutional and legal grounds paved from the SARS
however, has not come without cost. Taiwan has had hard lessons learned from past
tragic experiences in the loss of medical personnel and individual lives,
particularly from the global outbreak of SARS (Severe Acute Respiratory
Syndrome) in 2003. Having no opportunity to be informed by the WHO, Taiwan’s
government then was criticized as responding belatedly or ineffectively to protect
public health and undertaking overtly sweeping measures in restricting personal
freedoms. Complaints and cases eventually reached to Taiwan’s
In JY Interpretation No 690 decided in
2011, the Constitutional Court upheld the constitutionality of all necessary
measures, or administrative dispositions, broadly delegated by the Communicable
Disease Control Act (CDC Act) as well as by the Provisional
Act for Prevention and Relief of SARS that was enacted in 2003 and then repealed
in 2004. According to the Court, those compulsory physical examinations,
short-term detentions or quarantines, or other similar dispositions did not violate
the principle of legal clarity, the principle of proportionality, or due
process of law guaranteed in Art. 8 and
Art. 23 of the Constitution (known as the Republic of China Constitution).
Mindful of excessive
nature in those compulsory measures, the Constitutional Court warned the
government that notwithstanding the necessity in preventing and combating serious
communicable diseases, the CDC Act must set a time limit for compulsory
quarantine and provide further detailed regulations, and that more importantly,
prompt remedies and an adequate
compensation regime were advised to be established for quarantined persons.
constitutional ruling, the CDC Act underwent a major revision, and has since been
amended quite a few times, most recently in 2019. Yet, criticism continues because
the CDC Act still gives health authorities broad powers to impose restrictive
measures and adds only one provision to delegate the compensation regime to be
established by subsidiary regulations. Art. 59, §
3 CDC Act reads that
“regulations governing methods of quarantine, procedures, control measures, management and other matters to be complied with for § 1 and § 1 of the preceding Art.; regulations governing target groups, amount, methods of payment, duration and other matters to be complied with for fees to be collected shall be decided by the central competent authority.”
The COVID-19 Special Act for relief and compensatory
As discussed above, Taiwan’s
present battle against COVID-19 has been grounded on the CDC Act and its
subsidiary regulations with upheld constitutionality. It is with this
constitutional and legal authority that Taiwan’s government has been able to
undertake swift –and restrictive– measures in combating the spread of COVID-19.
As early as 30 December
2019, Taiwan Centers for Disease Control
(CDC) under the authorization of Art. 58, § 1, Clause 4 of the CDC Act undertook
inspections on those
traveling from Wuhan, China. On 15 January 2020, the CDC officially added the
novel coronavirus, COVID-19, into the
Category V Communicable Disease in accordance with Art. 3 of the CDC Act.
On 20 January 2020, the
Central Epidemics Command Center (CECC or Central Command) was established
to coordinate a wide-array of combating measures under the authorization of Art.
17 of the CDC Act. All of these were undertaken well before the first meeting
of the WHO’s Emergency Committee and its declaration of the new coronavirus as a
26 January 2020, people from Hubei province
of China were banned from entering into Taiwan, and from
6 February, all people from China were banned. These bans were issued
under the broad authorization of Art. 58, §
1, Clause 6 CDC Act. Also based on the same Art. 58, §
1, Clause 4 CDC Act, 14-day quarantines are imposed on those entering into
Taiwan from the countries listed on the Travel Notice. Being the epicenter,
China was the first on the list, followed by South Korea, Singapore, Iran and Italy.
As the global pandemic of COVID-19 has drastically worsened, beginning
19 March 2020, all foreigners are banned from entering into Taiwan,
and Taiwan nationals are imposed with 14-day quarantines when traveling back.
The restrictive nature
of these travel bans and mandatory quarantines became serious public concerns.
On 1 February 2020, a new legislature in which the present government continues
to occupy the majority was commenced. The new legislators took swift actions to
respond to public concerns by providing generous reliefs and compensations. On
25 February 2020, the
Special Act for Prevention, Relief and Revitalization Measures for Severe
Pneumonia with Novel Pathogens (Special Act or COVID-19 Special Act) was promulgated.
Most notable was Art. 11 of this Special Act, under which a budget totaling 60
billion new Taiwan dollars (NTD) was authorized for government expenditure on relief,
compensation and economic stimulus. In Art. 11, the Special Act specifies the
period in which it remains effective: from 15 January 2020 to 30 June 2021. Further
extension must be granted by legislative resolution.
Based on Art.
9 Special Act, the
Regulations Governing Compensation for Periods of Isolation and Quarantine for COVID-19
were promulgated on 10 March 2020. Those who are imposed with isolation or
quarantines or must take care of those isolated or quarantined with stipulated
eligibility can receive a daily compensation of 1000 NTD for 14 days.
On the same legal basis,
Regulations Governing the Operational Procedures and Compensation for
Requisition of Manufacturing Equipment and Raw Materials of Disease Control
Resources for COVID-19 was issued on 10 March 2020. This was made in
response to the shortage of medical supplies such as face masks as a result of
panic buying and storage in late January. On 31 January, the government first
issued a ban on all exports of medical masks according to Art. 11 of the
Foreign Trade Act and its delegated Regulations
Governing Export of Commodities. Then the government ordered to requisition
all medical masks produced in domestic factories on the basis of Art. 54
of the CDC Act and its Regulations
Governing the Requisition of Materials Property for the Control of Communicable
To ensure sufficient
supplies, a few key mask manufacturers were ordered by the government to
collaborate with each other for massive production. Since February 6, a real-name
distribution system of masks has been in place. Masks are sold at a very low price
on the basis of universal healthcare system at authorized pharmacies, local
health centers and convenient stores. The introduction of
e-governance into the system by the Digital Minister was the key to
ensuring fairness and efficiency in the distribution of masks and other medical
supplies. Owing to this system, while most countries are facing serious shortage
of masks and other medicinal equipment, Taiwan’s relevant supplies have risen at
a steady pace. Based
on the COVID-19 Special Act and authorized regulations, all of the
requisitioned factories, services and even personnel will be provided for
As early as 2 February
2020, fearing school and university campuses might fall prey to virus hotspots,
the Ministry of Education ordered all schools and universities to postpone the
starting date of spring semester for two weeks in order to get ready for
necessary sanitation. While school children were pleased to have two more weeks
of winter break, their working parents were facing difficulties in balancing
family with works. The Ministry of Labor quickly decided to grant a
special unpaid leave of fourteen days for workers if they needed to take
care of their children. The government also decided to provide tax
deduction incentives if businesses are willing give workers paid leaves.
In Taiwan, because the
pandemic of COVID-19 has been substantially under control, businesses and
events are not compulsorily closed or banned. Yet, given the situation, many
businesses have been willing to take measures or close events voluntarily. Undoubtedly,
a number of industries including tourism, restaurants and transportations have
been hit hard. Art.
9 of the COVID-19 Special Act provides a broad mandate for the government
to stipulate subsidies, compensations, revitalization funds for industries in
dire need. These budgets are part of the 60 billion NTD packages that must be
placed under parliamentary review.
Emergency decree necessary or not?
As the global pandemic
of COVID-19 has drastically worsened in early March due to its rapid spread
into Europe, North America and other parts of Asia, Taiwan has been facing the
second –and even more serious– wave of challenges. With broadly delegated
powers in the CDC Act and the COVID-19 Special Act, the Central Command has
issued more and more restrictive measures. Unnecessary travel restrictions have
been issued for medical personnel, civil servants, school teachers and
students. As stated above, beginning
19 March 2020, all inbound foreign visitors are banned.
restrictive measures have caused public concerns, and doubts were cast on
whether those broad delegations of the CDC Act and the COVID-19 Special Act are
met with the principle of legal clarity and proportionality notwithstanding the
previous constitutional decision, JY Interpretation No 690. Calls were
made by some opposition party leaders for presidential issuance of emergence
decree. Thus far, President Tsai Ing-Wen, who just won a landslide election in
January and will continue on her second term on 20 May, has resisted such calls,
stating that “any
contingencies can be addressed by existing legislation”.
position appears to be quite in line with an earlier decision made by Taiwan’s
Constitutional Court. In JY Interpretation No 543 decided in
2002, the Constitutional Court made it clear that even in time of crisis,
supplementary regulations delegated by emergency decrees were still required
with some extents of legal clarity for their objectives, and “the issuance of emergency decrees, though
not restricted by the principle of legal reservation stipulated in Art. 23 of
the Constitution, should observe the principle of proportionality.” To
this extent, the actual, functional difference between an emergency decree and
an ordinary law with broad authorization is ex
post or ex ante legislative
consent. According to Art. 43
of the Constitution, an emergency decree must be submitted –within ten days
of issuance– to the legislature for ratification.
Calls for emergency decrees to replace the CDC Act or the COVID-19 Special Act, or mere criticism against broad delegations in these acts, are misdirected. Facing the rapid global spread of new coronavirus and its resulting death tolls, scientists and public health experts are running against time only to begin to know about the virus and try their best to save lives and prevent the virus from further spread. What they can rely on are their previous and ongoing experiences, and as a result, proper actions they take are not always foreseeable or squarely fallen into strict legal construction. To mitigate tensions between resolving public health crisis and ensuring individual freedoms and rule of law, what are necessary are not always well specified laws, but a legal framework under which democratic processes can function to respond promptly and ensure accountability. Thus far, Taiwan’s relative success in fighting against the new coronavirus has demonstrated its capacity in swiftly dealing with a public health crisis within a transparent, democratic and legal framework. Though the framework is not without flaw, it continues to work with a vibrant civil society to negotiate possible best solutions in time of public health urgency.
*The Author of this post would like to express her gratitude to Mr. Yu-Wei Chen and Ms. Yi-Ting Wu, both LLM students at National Chiao Tung University School of Law, for their superb research assistance on this blog post.