Taiwan: Legal Response to Covid-19 - Taiwan (disputed) tw C-F Lin - Oxford Constitutional ...
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Taiwan: Legal Response to Covid-19
Taiwan (disputed) [tw]
C-F Lin
Content type: Encyclopedia entries
Article last updated: July 2021
General editors: Prof. Jeff King; Prof. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof.
Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan
Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal
© The several contributors 2021. Some rights reserved. This is an open access publication, available
online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0
International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/
4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights
Department, Oxford University Press.
From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June
2022Preferred Citation: C-F Lin, ‘Taiwan: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e18.013.18 Except where the text indicates the contrary, the law is as it stood on: 22 April 2021 I. Constitutional Framework 1. Taiwan1 is a democratic republic with a codified constitution.2 The President serves as the head of the State and represents Taiwan in foreign relations.3 Following the fourth amendment of the Constitution in 1997, Taiwan has been considered a semi-presidential state—the President is directly elected by the people, while the Premier of the Executive Yuan (Prime Minister) is appointed by the President without the consent of the legislature.4 2. Taiwan is a unitary state. Sun Yat-sen, the founding father of Taiwan, modified the concept of the separation of powers and divided the government into five powers: The Presidential or Executive Yuan, the Legislative Yuan, the Judicial Yuan, the Examination Yuan, and the Control Yuan. The Judicial Yuan has the power to exercise constitutional judicial review on the laws enacted by the Legislative Yuan. 5 The Legislative Yuan has the power to review the budget plan proposed by the Executive Yuan.6 The President, as the executive power, has the power to nominate the Grand Justices of the Judicial Yuan.7 As for the Examination Yuan, it is in charge of the employment of civil service personnel, which is the authority of the executive power in a traditional separation of powers model,8 while the Control Yuan is in charge of impeachment, censure, and auditing of all the other government departments, traditionally the duty of the legislative branch.9 Suggestions have been made to abolish the Examination Yuan and the Control Yuan.10 3. The Communicable Disease Control Act 2019 (CDC Act) serves as the framework for government actions regarding matters of communicable disease control as well as during public health emergencies.11 The Ministry of Health and Welfare, the central competent authority designated by the CDC Act, is empowered to formulate policies and plans for the prevention and control of communicable diseases, as well as supervise, command, guide, and assess local competent authorities in the execution of related matters. The local competent authorities should develop and implement plans according to the communicable disease control policies and plans formulated by the Ministry of Health and Welfare and locality-specific disease control practices, reporting to the central government agency for reference.12 4. In consideration of the severity of domestic and international epidemic conditions, the Ministry of Health and Welfare may establish a Central Epidemic Command Centre (CECC) and assign one person to be the commanding officer who will supervise and coordinate governmental and non-governmental organizations.13 The establishment of a CECC requires the approval of the Executive Yuan. 5. The Ministry of Health and Welfare, particularly the Centre for Disease Control (CDC) (a subordinate agency to the Ministry), has the exclusive power to determine and declare public health emergencies.14 On 20 January 2020, in response to the growing severity of the Covid-19 epidemic around East Asia, the CDC established the CECC according to the Article 17.1 of the CDC Act,15 with the Minister of Health and Welfare as the chief commander and high-ranking officials from other ministries as core members.16 Such constitutional arrangements, as detailed in this Part, have not changed in response to the pandemic. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
II. Applicable Legal Framework A. Constitutional and international law 6. The President may, by resolution of the Executive Yuan Council, issue emergency decrees and take all necessary measures to avert imminent danger to the security of the State or people, or to cope with any serious financial or economic crisis. Such decrees shall, within 10 days of issuance, be presented to the Legislative Yuan for ratification. Should the Legislative Yuan refuse to ratify, said emergency decrees shall forthwith cease to be valid.17 During the Covid-19 pandemic, the government has not issued an emergency decree. Although the opposing party and some scholars have proposed that the president should issue an emergency decree, the President has declined to do so based on the sufficiency of the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (‘Covid-19 Special Act’) in dealing with the pandemic. This decision may also have been partially informed by the past bitter experience of the rule of martial law in Taiwan.18 7. According to the Judicial Interpretation No. 543, emergency decrees are proclamations made by the President to deal with imminent dangers or major crises, which are directly authorized by the Constitution and have the effect of temporarily replacing or altering the law.19 Thus, emergency decrees rank as law in legal hierarchy. If the emergency decree has restricted freedom or rights of the people, it could also be scrutinized by the Grand Justices of the Judicial Yuan.20 Furthermore, if there exist disputes over the formality of announcing the emergency decree, people or government institutions could petition the Judicial Yuan for an interpretation.21 8. Due to its political status, Taiwan is a party to a limited number of international treaties and organizations, such as the World Trade Organization (WTO) which Taiwan has been a Member of since 2002. Like most WTO Members, Taiwan also restricted the export of face masks at the outbreak of the pandemic, derogating from the national treatment provision in the General Agreement on Tariff and Trade (GATT).22 9. Exclusion from the international community has prevented Taiwan from benefiting through information-sharing and collective efforts underpinned by the World Health Organization (WHO) multilateral framework.23 In terms of domestic regulation, Taiwan has adopted standards higher than those of other WHO members. In regard to testing and case definition, Taiwan still follows WHO standards and updates disease information and virus sequences on International Health Regulations platforms.24 B. Statutory provisions 10. Statutory measures in response to a pandemic are set out in the CDC Act, first enacted in 1944 by the Nationalist Government in Nanjing. With several revisions, the CDC Act continues to serve as the primary legal basis for public health measures in Taiwan.25 11. Notably, the CDC Act was carefully re-evaluated and amended after the SARS outbreak.26 For instance, in Judicial Interpretation No. 690, the Constitutional Court upheld the constitutionality of the ‘necessary measures’ of the CDC Act.27 According to the interpretation, the compulsory quarantine imposed during the SARS epidemic did not violate the principle of legal clarity, the principle of proportionality, or due process of law. Nevertheless, the Constitutional Court warned that the CDC Act must set a time limit for quarantine, as well as provide adequate compensation for the people who were quarantined.28 As a whole, Taiwan’s responses to this pandemic have been based on its From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
experience with the SARS outbreak, through well-established legal and institutional foundations and a cohort of experienced technocrats.29 12. After 20 legislators proposed the Covid-19 Special Act on 19 February 2020, it only took 6 days before it was passed and promulgated.30 It is worth noting that the ruling party, the Democratic Progressive Party, had won a major victory in the general election of the President and the Legislators on 11 January 2020. The result may have granted the President and Executive branch an advantage in passing the bill in the Legislative Yuan. 13. On 25 February 2020, Taiwan’s legislature passed the Covid-19 Special Act with a total of 19 Articles, authorizing an initial special budget of NT$60 billion (US$2 billion). As the pandemic worsened around the world, the Act was amended, expanding the special budget by NT$150 billion.31 The implementation period extends from 15 January 2020 to 30 June 2021, while the penalty clauses were implemented on the day of promulgation. The Act may be extended with the approval of the Legislative Yuan upon expiry.32 14. Article 7 of the Covid-19 Special Act states that ‘[t]he Commander of the Central Epidemic Command Center may, for disease prevention and control requirements, implement necessary response actions or measures.’33 This grants a generalized authorization of the CDC’s exclusive power. However, the Act is set to expire on 30 June 2021. 15. Article 7 of the Covid-19 Special Act has raised concern from the some opposing parties to the current administration and human rights organizations like the Taiwan Association for Human Rights.34 The executive order given by the Ministry of Education that forbade students from going abroad (except graduate/undergraduate students and professors), based on Article 7, was especially concerning.35 The order limited the freedom of change of residence protected by the Constitution36 without adequate legal authorization, and has raised dispute about proportionality. Furthermore, Article 8 of the of the Covid-19 Special Act states that ‘[w]here an individual subject to isolation or quarantine during the disease prevention period violates isolation or quarantine orders or intends to violate such orders, the Commander of the CECC may instruct personnel to record videos or photographs of the individual’s violation, publish their personal data, or conduct other necessary disease prevention measures or actions.’37 This Article has been condemned by scholars for violating the principle of proportionality. 16. Based on Article 9 of the Covid-19 Special Act, which indicated that appropriate compensation should be granted for those industries, people, and medical staff severely affected by Covid-19, Regulations Governing Disease Prevention Compensation During Severe Pneumonia with Novel Pathogens Isolation and Quarantine Periods38 and Regulations Governing the Operational Procedures and Compensation for Expropriation of Manufacturing Equipment and Raw Materials of Disease Prevention Supplies for Severe Pneumonia with Novel Pathogens39 were promulgated on 10 March 2020. According to the compensation regulations, any quarantined/isolated individuals or caregivers, that are determined by the competent health authorities to have complied with quarantine or isolation regulations, are to be compensated NT$1,000 per person per day.40 17. The Covid-19 Special Act went through an amendment on 21 April 2020. Article 11 was amended to add NT$150 billion to the special budget due to the exacerbation of the pandemic around the globe.41 Article 9-1 was amended to waive taxes for subsidies and compensation provided to individuals or entities.42 From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
C. Executive rule-making powers 18. Article 7 of the Covid-19 Special Act grants the Ministry of Health and Welfare the power to ‘implement necessary response actions or measures’43 in response to urgent need.44 19. With such authority, the Ministry of Health and Welfare has issued executive orders such as banning medical staff from going abroad,45 and temporarily closing nightclubs and ballrooms.46 20. To ensure that government measures do not undermine people’s rights, the CDC established a legal group to examine the legitimacy of orders and policies from the CECC.47 21. The Central Regulation Standard Act states that the name of a statute or ordinance is determined by its hierarchy in terms of legal status. A statute passed by the Legislative Yuan and promulgated by the President may be named an act, penal act, special act, or comprehensive act.48 An ordinance publicized by a government agency may be named an organic rule, norm rule, enforcement rule, directive rule, guidance rule, standard rule, or canon rule according to its nature.49 An ordinance issued by a government agency by its ex officio or delegated by statute must be announced or publicized according to its nature and submitted to the Legislative Yuan immediately.50 22. The various kinds of executive acts issued by administrative authorities are defined and regulated in the Administrative Procedure Act. Briefly speaking, the acts are categorized based on whether they have legal effect, the people or agency they impact, and whether the act is for specific events. 23. Administrative dispositions refer to a unilateral administrative act with direct external effects, rendered by an administrative authority in making a decision or taking other actions within its public authority, in respect of a specific matter in the area of public law.51 These are the most common forms of executive acts. 24. Where the persons subject to a decision or actions referred to in an administrative disposition are definable in light of their general characteristics, such a decision or action constitute a general disposition, to which the provisions herein set forth with respect to administrative dispositions shall apply.52 25. Legal orders are established by an administrative authority as enabled by law in respect of general matters and applicable to a multiple number of non-specified persons. A legal order shall specify the authority conferred by law based on which it is established and shall not transgress the scope of such authority or divert from the legislative purposes of the enabling law.53 26. Administrative rules refer to generalized and abstract provisions issued by a superior authority to its lower units or by a superior officer to their subordinate officers, by virtue of its or the superior officer’s powers, for the purpose of regulating the internal order and operation of the authority, with no direct external effects as legal norm.54 27. Administrative guidance denotes the act of an administrative authority within the scope of its duties or the functions under its control to urge specific persons to perform particular acts or omission of acts, by way of the provision of aid, assistance, advice, recommendations, or other manners without mandatory force in law, for the purpose of achieving specific administrative objectives. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
28. In this pandemic, most of the health measures are enacted through executive acts from the CECC under the generalized authorization of Article 7 of the Covid-19 Special Act. 29. Anyone whose rights or interests were unlawfully or improperly injured by a central or local government agency’s administrative action, including ‘administrative disposition’ or ‘general disposition’, is entitled to file an administrative appeal,55 and subsequently an administrative litigation. As for ‘administrative guidance’, since they have no actual mandatory legal effects, where the person to whom administrative guidance is offered explicitly refuses to accept guidance, the administrative authority shall promptly cease to give guidance and shall refrain from taking any action against such persons.56 30. People or agencies cannot file an administrative appeal or litigation directly for ‘legal orders’ and ‘administrative rules’ because such actions are not made for specific people or certain events. In Taiwan, only the Constitutional Court has the appropriate judicial review power. However, if a court strongly believes that the validity of an applicable statutory law on which the court’s decision of a pending case depends is in contravention of the Constitution, it may lodge a petition with the Constitutional Court for a judgment declaring the applicable law unconstitutional.57 Furthermore, according to Judicial Interpretation No. 137, with regard to the administrative orders of statutory interpretation handed down by the government agencies in accordance with their respective authorities, the court may not refuse to apply them if they are applicable to the case. However, a judge shall, based on their fair and honest belief in the accurate interpretation of the law, give a lawful and legitimate legal opinion on a controversy which requires an accurate judicial interpretation.58 31. General dispositions (or executive direction-giving powers) have been heavily relied upon to implement public health measures, such as those temporarily prohibiting certain medical staff, students, and faculty except university and graduate students from going abroad. D. Guidance 32. Since the outbreak of the pandemic, the Ministry of Health and Welfare has announced several guidelines. From their context, the guidelines are not legally binding but advisory. The Guidelines for large-scale public gatherings in the wake of the Covid-19 outbreak, 59 which references the WHO’s guidelines and experts’ suggestions, recommends that gatherings at high risk should be postponed or cancelled. The Guidelines for Prevention of SARS-CoV-2 Infection recommend that people wear masks and wash hands frequently.60 The Guidelines for Enterprise Planning of Business Continuity in Response to the Coronavirus Disease 2019 suggest corporations evaluate the risk of infections in order to protect their staff while maintaining business operations.61 33. The Taiwanese government has established both formal and informal channels to communicate with the public. National press conferences were held at least once a day and messages were sent through communication smartphone apps to the public if they subscribed. The CECC conferred information about new imported and indigenous cases, new and revised control policies, global prevalence and other related matters to the Taiwanese public. Additionally, the government has made an effort to combat disinformation through open communication that actively updates the public via social media with correct information, and has thus successfully controlled the spread of disinformation. The timely and consistent communication has also built trust among the public.62 From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
III. Institutions and Oversight A. The role of legislatures in supervising the executive 34. According to the Constitution, the Executive Yuan has the duty to present to the Legislative Yuan a statement of its administrative policies and a report on its administration. While the Legislative Yuan is in session, members of the Legislative Yuan can question Ministers and Chairmen of Commissions of the Executive Yuan.63 Since the sessions of the Legislative Yuan were not interrupted by the pandemic, legislators could keep tracking and questioning the orders made by the CECC. Also, if the Legislative Yuan does not concur on any important policy of the Executive Yuan, it may, by resolution, request that the Executive Yuan alter the policy.64 35. Furthermore, based on Articles 61 and 62 of the Legislative Yuan Power Exercise Act,65 executive decrees issued by any central government agency must be submitted to the Legislative Yuan to be either taken note of or be referred to a committee for examination. Should the Legislative Yuan determine that a decree contravenes, alters, or violates any law, or that a decree has regulated certain matters that should have been stipulated by law, it may, upon the resolution of the Yuan Sitting, inform the initiating government agency and ask them to revise or revoke the decree within two months. Should said governmental agency fail to do so, the decree is voided forthwith.66 36. Above all, the Legislative Yuan has the power to decide by resolution upon statutory or budgetary bills.67 Such a power is often used by the legislature to contain the executive branch. For instance, the Legislative Yuan slashed the amount of special budget on the prevention and relief of the Covid-19 pandemic by NT$53 million in October 2020, which, according to the Executive Yuan’s proposal, was set to be NT$210 billion.68 37. The Legislative Yuan may decide to terminate a law that grants a central government agency the right to issue corresponding executive decrees. However, such resolutions should follow a certain procedure, so the regulation-making powers of government cannot be terminated at any time. 38. In addition to terminating a law, if the Legislative Yuan, according to the Constitution, does not concur on any important policy of the Executive Yuan, it may, by resolution, request that the Executive Yuan alter such a policy. With respect to such resolution, the Executive Yuan may, with the approval of the President of the Republic, put a request to the Legislative Yuan for reconsideration. If, after reconsideration, two-thirds of the Members of the Legislative Yuan present at the meeting uphold the original resolution, the President of the Executive Yuan shall either abide by the same or resign from office.69 39. There is no periodical renewal of the regulation-making powers of the government. However, upon the resignation of the Premier of the Executive Yuan or the inauguration of a new president, the cabinet will resign. In the second scenario, such a move is a constitutional convention rather than a mandatory rule,70 so the Premier may be kept in office by the President. For instance, when the President was inaugurated in 2020, the Premier resigned in form and was then immediately reappointed by the President.71 In both cases, the Premier has the right to reshuffle the cabinet by recommending a new line-up to the President, who will then decide whether to appoint the candidates.72 The legislature basically plays no role in the appointment of the Premier and other cabinet officials. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
40. Each year the Legislative Yuan holds two sessions of its own accord from February to the end of May, and from September to the end of December. Whenever necessary, the sessions may be prolonged as decreed by the law.73 At the request of the President or upon the request of not less than one-fourth of its Members, the Legislative Yuan may hold an extraordinary session.74 During the sessions, officials of the administrative branch are obliged to be present at the Legislative Yuan and be questioned.75 41. With the signatures of more than one-third of the total number of Legislative Yuan members, the Legislative Yuan may propose a no-confidence vote against the President of the Executive Yuan. Seventy-two hours after the no-confidence motion is made, an open- ballot vote shall be taken within 48 hours. Should more than one-half of the total number of Legislative Yuan members approve the motion, the President of the Executive Yuan shall tender their resignation within 10 days, and at the same time may request that the President dissolve the Legislative Yuan. Should the no-confidence motion fail, the Legislative Yuan may not initiate another no-confidence motion against the same President of the Executive Yuan within one year.76 42. The President may, within 10 days following passage by the Legislative Yuan of a no- confidence vote against the President of the Executive Yuan, declare the dissolution of the Legislative Yuan after consulting with the Legislative Yuan’s President. However, the President shall not dissolve the Legislative Yuan while martial law or an emergency decree is in effect. Following the dissolution of the Legislative Yuan, an election for legislators shall be held within 60 days. The new Legislative Yuan shall convene of its own accord within 10 days after the results of said election have been confirmed, and the term of said Legislative Yuan shall be reckoned from that date.77 43. The Executive Yuan may not extend its own powers without further action by the Legislative Yuan. Every move of a government agency should be authorized by the law, as enacted by the Legislative Yuan. If the executive branch acts in the absence of the law, such a move would be deemed invalid by all levels of the courts and the Judicial Yuan (Constitutional Court).78 B. The functioning of the legislature where its ordinary business is disrupted 44. During the pandemic, the Legislative Yuan, like other government agencies, also took some measures to prevent the spread of Covid-19. For instance, when government officials attended meetings in the Legislative Yuan, they were asked to bring less staff with them to reduce the number of people in the same room. There were similar precautionary measures such as limiting the number of legislators’ staff who could enter the legislative conference, or designating specific spaces for journalists to interview officials and legislators.79 45. The Secretary-general of the Legislative Yuan stated in March 2020 that the Legislative Yuan would use video conferencing for its sessions if there are two legislators or more confirmed with Covid-19.80 The Legislative Yuan also made preparations for possible virtual meetings as backup plans.81 Luckily, these backup plans have not been put into use, and both the legislature and committees of the Legislative Yuan have still operated normally during the pandemic. In contrast, some county councils decided to postpone their gatherings in March, hoping to reduce the consumption of epidemic prevention supplies and the risk of cluster infection.82 From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
46. The Democratic Progressive Party, the ruling party, won a landslide victory in the general election of the President and the Legislators early in 2020,83 just before the outbreak of the pandemic. The results might have granted the President and her team enough public support and legitimacy to develop and adopt deploy-in-advance health measures.84 Nonetheless, in recognition of the broad and unlimited delegation of authority granted by Article 7 of the Covid-19 Special Act, some members of the Legislative Yuan proposed an amendment designed to strengthen democratic oversight.85 Furthermore, due to the outstanding performance in combating the pandemic, the Commander of the CECC earned exceptionally strong popularity,86 which has provided solid support for most (if not all) of the Commander’s measures. Such a development has to some extent been criticized by some politicians87 and the media,88 for creating an atmosphere that might have discouraged legislators from seriously scrutinizing or criticizing the CECC’s decisions. C. Role of and access to courts 47. When the government upgraded the Covid-19 task force to Authorization Level 1 on 27 February 2020, the Judicial Yuan enacted contingency measures to prevent the spread of Covid-19 and maintain normal operations during the outbreak. Such measures, which also applied to courts, include the reporting of infected staff, regular sanitizing of offices and facilities, and setting up alternative offices and backing up data in case of the need for staff to work separately.89 In addition, the general public and media’s access to court hearings was (slightly) affected as well. Due to the requirement of social distancing (physical distancing), only a limited number of audience members and news reporters were allowed to attend hearings in person; for those who did not get passes, there would be another room playing a live stream of the trial for them (available to a certain number of people as well).90 48. On 5 March 2020, the Judicial Yuan published contingency measures for the examination of defendants in compulsory execution cases91 on the basis of the Regulations Governing Court’s Handling of Remote Interrogation in Criminal Cases.92 When a judge is informed that a defendant may be a potential Covid-19 patient, the judge may carry out remote interrogation after consulting with the prosecutor, defendant, and the defendant’s attorney, or set up quarantine facilities if there is a need for the defendant to attend court in person, etc. 49. Several courts simulated online proceedings, though there were few cases conducted this way in practice. One example that can be found online is the interrogation of the possible mastermind of a syndicate; the suspect claimed that he had a fever after contact with someone travelling from abroad. In response, the prosecution and the court interrogated the suspect online. The suspect’s attorney interviewed the suspect online as well.93 In general, people are still allowed to enter court, unless they do not wear masks, and trials are carried out as usual, with everyone including judges, lawyers, and defendants wearing masks during the whole process, so there is no clear evidence showing that access to justice has been constrained by the outbreak and response measures. 50. No emergency decree was issued during this pandemic. According to the Constitution, it is at the President’s discretion to decide whether there exists imminent danger affecting the security of the State or of the people, so as to announce an emergency decree or not. However, the President must follow the procedure of the Constitution, including authorization by resolution of the Executive Yuan, and the decree must be presented to the Legislative Yuan for ratification within 10 days. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
D. Elections 51. Despite the pandemic, all elections in Taiwan were carried out on schedule in 2020. After the CECC was set up in response to the pandemic on 20 January 2020, there have been more than 10 elections or by-elections and one recall so far, ranging from a town mayor to the mayor of Kaohsiung, a major city in Taiwan.94 52. With high-standard preventive measures, such as taking voters’ temperatures, demanding that voters use hand sanitizer at the entrances of polling stations, asking voters to wear masks, and to queue maintaining physical distancing, all voters’ election rights have been guaranteed; even voters running a fever were allowed to vote, although they were asked to leave their names, ID numbers, and phone numbers, wear gloves provided by the polling station, and cast their ballots in a specific space.95 Only people under home quarantine were not allowed to vote, based on Article 65 of the Civil Servants Election and Recall Act.96 The largest election among them was the mayoral by-election of Kaohsiung, in which over 900 thousand voters participated. The voter turnout rates for previous regular elections were around 70 per cent. Although the turnout rate was only 41.82 per cent,97 this is not unusual for a by-election. E. Scientific Advice 53. Article 9 of the Enforcement Regulations Governing the Central Epidemic Command Center stipulates that the processing of information and recommendations for the response of each organization shall be reported to the responsible superior and organizations concerned.98 Even though the CECC has no duty to follow their recommendations, the CECC’s expert consultation meeting has played a critical role in Taiwan’s effort to contain the coronavirus. Experts from the domains of infectious diseases, paediatrics, virology, etc, met more than 25 times between 5 January and early June 2020, especially after the emergence of emergency public health incidents.99 54. Another regulation, the Regulations Governing Operation of the Communicable Disease [sic], which was formulated in accordance with regulations of Article 14.4 of the CDC Act, says that the commanding officer in each communicable disease control medical network region may ‘invite experts and scholars in medical care, infection control and public health, and representatives of local competent authorities concerned to provide counselling opinions on matters concerning communicable disease control in the said region’.100 Likewise, experts’ opinions are not legally binding. 55. There are also some advisory committees under the CDC, and the one related to Covid-19 response measures is the Advisory Committee for Immunization Practices (ACIP), which convened its first meeting in 2020 on 6 July to discuss the development of Covid-19 vaccines,101 yet these advisory committees are more like task forces instead of statutory authorities, since there is no corresponding law for their establishment, and the publication of expert advice is not explicitly demanded by law, either. 56. In addition, the National Health Research Institutes under the supervision of the Ministry of Health and Welfare also held several expert meetings to discuss the development of test kits, vaccines, and medicines, the establishment of a vaccine information research database, etc, with representatives from the government, industry, and academia.102 From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
F. Freedom of the press and freedom of information 57. The reporting on Covid-19 has to some extent been constrained by Article 9 of the CDC Act, which states that ‘when announcements regarding communicable disease outbreaks or information related to disease control measures released through mass media during the existence of the CECC are erroneous, not in accord with the facts and may result in undesirable outcomes on or have certain influences over the overall disease control efforts, corrections must be made immediately upon notification for correction by the competent authorities.’103 58. In addition to the Communicable Disease Control Act, the Satellite Broadcasting Act has also played a role in regulating the press. Article 27 of the Satellite Broadcasting Act bans satellite broadcasting businesses from delivering content that ‘disrupt[s] public order or adversely affect[s] good social customs,’ and news that ‘violates the principle of fact verification and causes damage to public interest.’104 When it comes to the reporting on Covid-19, for instance, the National Communications Commission (NCC), the competent government agency for communications laws and regulations, fined the CTiTV NT$1.2 million in September 2020 for falsely claiming that Taiwan was only six days away from lockdown in March 2020, which ‘disrupted public order’, said the NCC. A news channel was also fined for publishing news concerning Covid-19 that ‘violated the principle of fact verification.’105 59. The freedom of information or speech was constrained as well. According to Article 14 of the Covid-19 Special Act, ‘individuals who disseminate rumours or false information regarding the epidemic conditions of severe pneumonia with novel pathogens, causing damage to the public or others, shall be sentenced to imprisonment for not more than three years or criminal detention, or in lieu thereof or in addition thereto, a fine of no more than NT$ 3 million’,106 while Article 63 of the CDC Act also stipulates that ‘persons who disseminate rumours or incorrect information concerning epidemic conditions of communicable diseases, resulting in damages to the public or others, shall be fined up to NT$3,000,000.’107 Another law, the Social Order Maintenance Act, also punishes people who ‘spread rumours in a way that is sufficient to undermine public order and peace.’108 Some individuals were thus fined or even arrested for spreading rumours regarding Covid-19 and the shortage of household necessities.109 For instance, a man who posted an article on a Facebook fan page accusing someone of being infected with Covid-19 in February 2020 was caught by the police and might be fined.110 60. There has been no significant disruption to the access to information due to anti- Covid-19 measures. In fact, Taiwan is known for its large degree of transparency during the pandemic.111 In addition to daily press briefings by the Minister of Health and Welfare and by the CECC, the Vice President of Taiwan at that time—who is also a prominent epidemiologist—broadcast regular public service announcements from the Office of the President, and these were made available via the internet.112 G. Ombuds and oversight bodies 61. There is no specific ombudsperson in Taiwan. The Legislative Yuan, which has the power to pass statutory or budgetary bills proposed by the Executive Yuan, including agencies under the Executive Yuan, plays a key role in overseeing government actions. Another government agency that has similar functions is the Control Yuan, which, according to the Constitution, may propose corrective measures or institute an impeachment against a civil servant when that person is guilty of neglect of duty or violation of law,113 and the impeachment case will be tried by the Disciplinary Court subordinate to the Ministry of Justice. In addition to individuals, the Control Yuan may set up a certain number of committees to investigate the activities of the Executive Yuan and its various Ministries and From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
Commissions to determine whether or not they are guilty of violation of law or neglect of duty, and, if so, may propose corrective measures and forward them to the authorities concerned, demanding further improvement.114 If the authority fails or refuses to do so, the Control Yuan may file an impeachment case against the relevant civil servant(s) in response.115 During the pandemic, some Members of the Control Yuan visited local governments to inspect their responses to Covid-19.116 To date, no corrective measures concerning anti-coronavirus measures have been proposed against civil servants or government agencies. 62. In practice, since members of the Control Yuan, including its President and Vice President, were nominated by the President and approved by the Legislative Yuan, the line- up of this agency is de facto from the pro-administration camp, so it can only play a limited role in overseeing the government’s actions. As a result, there have been calls to abolish the Control Yuan and return the power of investigation to the Legislative Yuan.117 63. It is worth mentioning that civil society has also played a role in challenging the government’s moves. As some commentators have noted, ‘civil society organizations and the mass media have the capacity to supervise and monitor the legitimacy and legality of a government’s policies and measures, questioning them when deficiencies are found,’ which ‘enhance[s] the positive feedback loop between social concerns and the timing of the government’s responses, and urges the government to maintain its transparency, responsiveness, and accountability.’118 For instance, the Taiwan Association for Human Rights has been arguing that government actions cause possible harm to democracy, referring especially to the measures that help the authorities concerned track the whereabouts of a confirmed case and monitor people who are under quarantine.119 64. Out of fear that Covid-19 regulatory measures may undermine human rights or cause legal disputes, a ‘legal division’ headed by the Deputy Minister of Justice was set up under the CECC on 21 April 2020 to provide legal advice almost three months after the CECC was established in January 2020.120 The division is composed of officials from the Department of Prosecutorial Affairs and Investigation Bureau of the Ministry of Justice, as well as the Criminal Investigation Bureau under the National Police Agency, Ministry of the Interior. IV. Public Health Measures, Enforcement and Compliance Taiwan has taken a proactive and precautionary approach towards the pandemic from the very beginning.121 In chronological order, there are three phases overall according to the severity of the pandemic. During the first phase (December 2019–April 2020), the CDC implemented additional inspection for inbound flights from Wuhan, China as of 31 December 2019.122 Following the establishment of the CECC on 20 January 2020 and the promulgation of the Covid-19 Special Act on 25 February 2020, all control measures in response to the pandemic have been well coordinated by the CECC. For instance, the CECC launched a rationing system for face mask purchases in February 2020 to control panic buying, and imposed stricter border control and quarantine measures in March 2020. During the second phase (May 2020–November 2020), when the pandemic was easing in Taiwan in May 2020, the CECC loosened control measures and encouraged people to resume their normal lives and to maintain basic control requirements, such as physical distancing and personal hygiene.123 During the third phase (after December 2020), in response to the escalating pandemic situation globally, the Fall-Winter Covid-19 Prevention Program was put into force from 1 December 2020. 124 The Program aims to enhance From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
border quarantine control and strengthen community prevention as well as medical response measures. A. Public health measures 1. Individual mobility restrictions on citizens (stay-at-home, curfews, etc) 65. No ‘lockdown’ (individual mobility restriction measures) has been announced in Taiwan during the pandemic, since no community spread has emerged. However, it has been discussed, and several cities and counties have planned measures to cope with a potential imposition of a ‘lockdown’ situation. For instance, New Taipei City hosted a tabletop exercise to simulate government responses in the event of a widespread community outbreak on 20 April 2020. They simulated ‘lockdown’ measures like travel restrictions and identity checks, widespread school and business closures, and policies to ensure adequate food supplies at wholesale markets to prevent shortages on store shelves.125 66. Nevertheless, during the SARS pandemic in 2003, a hospital was sealed off with more than 1000 people inside due to a suspected infection, after seven hospital staff developed possible SARS symptoms. The order was given by the newly established SARS Emergency Response Task Force of the Taipei City government. Medical staff and patients were required to return to the hospital to undergo collective quarantine for two weeks. The abrupt decision left the people in Hoping hospital in chaos and panic while the number of infections was still growing. It was not until the former health minister, Yeh Chin-chuan, entered the hospital and remained there, that proper measures were taken and order was restored. Over the course of a week, the staff and hospital workers were gradually moved out to other quarantine locations.126 2. Restrictions on international and internal travel 67. At the international level, under the broad authorization of Article 58 of the CDC Act,127 beginning on 26 January 2020, Chinese visitors from Hubei Province were denied entry.128 Eleven days later on 6 February 2020, all Chinese visitors, including those from Hong Kong and Macau, were prohibited from entering Taiwan.129 As the pandemic worsened, on 19 March 2020, all foreign travellers were banned from entering Taiwan, and Taiwanese citizens travelling back to Taiwan were to be quarantined for 14 days.130 On 24 March 2020, all foreign travellers were banned from transit or transfer in Taiwan.131 68. On 25 November 2020, the CECC announced that the Fall-Winter Covid-19 Prevention Program would be implemented starting 1 December 2020. Travelers were required to present a certificate of a negative Covid-19 RT-PCR test result issued within three days prior to boarding their flight to Taiwan. Exceptions were made for emergency situations, travellers arriving from a country where self-paid Covid-19 tests are not available, and people travelling for programs managed by relevant ministries and agencies and approved by the CECC. The aforementioned measure is only applicable to Taiwan nationals, foreign nationals with an Alien Resident Certificate (ARC), and Hong Kong and Macao residents with an ARC; it is not applicable to transit passengers in Taiwan.132 69. On the other hand, a temporary prohibition for Taiwanese people from going abroad, including medical staff, students, and faculty except university and graduate students, was announced by the CECC and Ministry of Education. The Ministry of Education and Ministry of Health Welfare announced the orders as ‘general dispositions’,133 which would allow the affected individuals to seek legal remedy. Judging by the context, the people affected, though unspecified, are definable in light of their general characteristics. The government also made public announcements of these orders through government websites134 and news media as required by due process.135 The prohibition for students and teachers lasted until From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
the spring 2020 semester was over and the prohibition for medical staff lasted until 30 June 2020, according to the announcement by the CECC. 70. The executive orders temporarily prohibiting students, faculty, and medical staff from going abroad raised concern over what constitutes ‘necessary response actions or measures’ provided by Article 7 of the Covid-19 Special Act.136 The orders compromised the freedom of change of residence protected by Article 10 of the Constitution.137 According to the judicial interpretation made by the Constitutional Court, the right of people to enter or leave the country may be restricted in order to protect the security of the country and the order of society only if the restriction is stipulated by law and pursuant to the principle of proportionality elaborated in Article 23 of the Constitution.138 However, whether the aforementioned executive orders have passed the proportionality test remains in question. 3. Limitations on public and private gatherings and events 71. Guidelines for large-scale public gatherings in the wake of the Covid-19 outbreak were announced by the CECC on 4 March 2020, modified to lift most of the limits on 29 November 2020, limiting gatherings and events.139 The guidelines apply to assemblies such as meetings, speeches, or other mass activities held in public spaces or publicly accessible places as defined by Article 2 of the Assembly and Parade Act,140 as well as planned or spontaneous events attended by more than 1,000 people, following WHO guidelines about gatherings. The main points of the guidance include cancelling nonessential gatherings, especially those for entertainment, and maintaining a distance of at least one metre outdoors and 1.5 metres indoors. 72. There are no enforcement rules or penalties stated in the guidance. However, under the grand authorization—that confers on the CECC the power to ‘implement necessary response actions or measures’ with little explicit limits—of the Covid-19 Special Act,141 violation of response actions or measures instructed by the Commander of the CECC in accordance with Article 16 could be subject to a fine of no less than NT$50,000 and no more than NT$1 million by the central competent authority of the respective industry or the municipality or county (city) government.142 73. The CECC has also announced crowd control at famous tourist attractions, night markets, and temples, etc starting 10 April 2020, due to the increase in reported suspected cases after the Qingming (Tomb Sweeping) Festival. For night markets, markets, and shopping districts, vendors should propose and conduct crowd-control plans including setting up only one entrance and maintaining the social distance (physical distance) between people and vendors. For the national parks, if the parking space has reached half full capacity, text messages will be sent to tourists encouraging them to change their destination. For temples, the local governments should establish crowd control and set up certain routes for people to visit.143 4. Closure of premises and facilities (eg schools, shops, services, parks, churches, sport facilities) 74. On 9 April 2020, all nightclubs and dance halls were closed mandatorily by executive order from the CECC,144 after news broke that a hostess at a well-known KTV bar continued working while experiencing symptoms.145 A total of 437 nightclubs and dance halls were shut down. But as the confirmed cases no longer increased in June 2020, the CECC announced that local governments could lift the shutdown with restraints gradually but should continue to supervise.146 From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
75. In February 2020, the winter vacation for students was scheduled to end on 10 February 2020. As the outbreak worsened, the opening of all high schools, middle schools, and elementary schools was postponed by two weeks until 25 February 2020 to reduce the chance of cluster infections while making more time for schools to prepare precautionary measures.147 As for universities, they were allowed to decide whether to postpone opening themselves; however, after several universities announced different dates, the Ministry of Education called a special meeting of representatives and they reached a consensus on universities opening on 25 February 2020.148 5. Physical distancing 76. The physical distancing in Taiwan is instructed by a series of guidelines which have no legal effects. The guidelines include Covid-19: Guidelines for Social Distancing149 and Strategies for Preventing Covid-19 Spread in Communities.150 The main recommendations of these guidelines are to keep a physical distance of 1.5 metres indoors and 1 meter outdoors between individuals, and face masks should be worn in crowded and unventilated places. 77. There are no enforcement rules or penalties stated in the guidance, but under the grand authorization of the Covid-19 Special Act, violation of response actions or measures instructed by the Commander of the CECC in accordance with Article 7 could be subject to a fine of no less than NT$ 50,000 and no more than NT$1 million by the central competent authority of the respective industry or the municipality or county (city) government.151 78. The CECC announced in their daily conference on 31 March 2020 that the physical distancing measures would be enforced in three steps. The first step is the formulation of guidance. The second is coaching people to follow the orders in order to make the guidance a daily custom for the public. If there are still people who do not follow the guidance, the third step is that they will be fined by the CECC or the municipality or county (city) government under Article 16 of the Covid-19 Special Act.152 So far there have been no cases reported of fines due to not maintaining physical distance. 6. Use of face coverings and personal protective equipment (PPE) 79. On 5 August 2020, the CECC urged people to wear masks in eight types of public venues, including healthcare facilities, public transportation, markets, learning spaces, sports and exhibition venues, religious places, entertainment venues, and large-scale events.153 Although this measure is not mandatory, most local governments, including the six major cities such as Taipei City and New Taipei City, have enacted regulations, based on Articles 37.1.6 and 70.1.3 of the CDC Act,154 to fine people who refuse to wear masks in certain venues. In late August, the city mayor of Tainan received his city's first mask violation ticket after removing his face covering during an elementary school indoor ceremony to take pictures.155 According to the mayor, the incident showed Tainan’s determination to fight the virus.156 80. As the global number of confirmed cases rose sharply in late 2020, the CECC on 18 November 2020 announced the Fall-Winter Covid-19 Prevention Program that began on 1 December 2020, aiming to prevent the spread of Covid-19 through three aspects, namely ‘border quarantine’, ‘community prevention’, and ‘medical response’.157 In terms of community prevention, the CECC ordered people to wear masks in the following eight types of public venues: healthcare facilities, public transportation, places of consumption, learning places, sports and exhibition venues, entertainment venues, religious and worship places, and office and business venues. ‘Members of the public who do not wear a face mask as required and refuse to wear a mask after being advised to do so will be fined not less than NT$3,000 and no more than NT$15,000 according to Subparagraph 6, Paragraph From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
1, Article 37 of the Communicable Disease Control Act by the local government’ said the announcement.158 The expiration date of the Program, however, is not indicated. 81. The CECC warned people that, according to Article 16 of the Covid-19 Special Act, violation of response actions or measures instructed by the Commander of the CECC in accordance with Article 7 could result in a fine by the central competent authority of the respective industry, municipality, or county (city) government.159 7. Isolation of infected individuals and quarantine of individuals suspected of infection 82. Quarantine measures are governed by the CDC Act. According to Article 48 of the CDC Act, for those who have been in contact with patients affected by communicable diseases or who are suspected of being infected, competent authorities may detain them or order them to move to a designated place for required measures.160 83. According to Article 58 of the CDC Act, the competent authority may impose home- based quarantine, concentration-camp quarantine, isolation care, or other necessary measures on persons entering from areas affected by a communicable disease, contacts or suspected contacts of patients infected with a communicable disease, and patients infected or suspected of being infected with a communicable disease.161 Based on these articles, the CECC announced Precautions for People under Quarantine or Isolation.162 The announcement indicated what rules people should follow during their quarantine. It also states that people who violate the instruction in this announcement could be fined according to Article 15 of the Covid-19 Special Act. Though unspecified, the targeted subjects are definable in light of their general characteristics in the precaution announcement, which makes quarantine measures constitute ‘legal orders’ in the Administrative Act.163 The duration of such precautions are not specified in the announcement. 84. As early as 26 January 2020, the CECC began imposing home quarantine on certain types of people, beginning with those returning to Taiwan from Hubei, China,164 based on Article 58 of the CDC Act,165 but it was not until 6 February 2020 that the CECC officially published a document imposing a 14-day home quarantine upon entry into Taiwan on everyone who has been to China.166 From 19 March onward, all Taiwanese returning to Taiwan have been required to observe a 14-day home quarantine, while all foreign nationals were barred from entering the country until late June (with conditions).167 So far, no matter what nationality, everyone entering Taiwan must undergo a 14-day home quarantine period; people who violate the rule may be fined up to NT$1 million, according to Article 15 of the Covid-19 Special Act.168 85. As the first few cases were confirmed in Taiwan at the end of January 2020, people who had been in contact with confirmed cases have had to undergo 14-day home isolation based on Article 48 of the CDC Act.169 The major difference between home isolation and quarantine measures, except for the articles of law concerned and risk of suspected infection, is that the health status of individuals under home isolation will be checked twice a day by the health authority, while that of those in quarantine is checked once a day by local borough chiefs, who record the information obtained.170 86. To make sure that people remain under home isolation and home quarantine, the government deployed a ‘Digital Fencing Tracking System’ on 18 March 2020. Combined with the ‘Entry Quarantine System’, the system utilizes mobile phone tracking to monitor people’s whereabouts, and, through mobile phones’ tracking of people under home quarantine, if a quarantined individual unlawfully leaves the quarantine area, the system will send an ‘alert message’ to the individual, civil affairs departments, health departments, From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 25 June 2022
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