See the pre-print copy of the Country Report for Taiwan shortly forthcoming in the Oxford Compendium of National Legal Responses to Covid-19
Located merely 130 km from China, Taiwan was expected to be heavily hit by Covid-19 in early 2020. Indeed, in addition to geographical proximity, Taiwan is also closely tied to China due to cross-strait economic and social activities, which may have contributed to virus transmission across the border. However, Taiwan has taken extremely proactive and precautionary responses to Covid-19, premised upon a complex weighing and balancing of technical, social, economic and political factors as well as the island country’s traumatic experiences during the 2003 severe acute respiratory syndrome (SARS) outbreak. The government of Taiwan has taken various regulatory measures in response to the pandemic, including optimization of key medical supplies, border control and travel bans, and big data-powered mechanisms for tracking and tracing high-risk individuals. To date, Taiwan is considered one of the very few states least impacted by the global Covid-19 pandemic.
At the same time, however, Taiwan’s proactive and precautionary measures might pose a threat to this young democracy. On the one hand, a public health emergency calls for strong and swift measures in a fashion that may not allow sufficient time for parliamentary deliberation or traditional administrative procedures. The urgency to take effective and efficient measures oftentimes justifies a wide margin of executive discretion. On the other hand, measures adopted in times of emergency tend to linger and become normalized. Emergencies frequently serve to expand the power of executive agencies and sideline legislative or even judicial gatekeepers or lead to irreversible harm to fundamental human rights.
The legal framework for Taiwan to take regulatory actions in response to Covid-19 is set by the Communicable Disease Control Act 2019 (CDC Act), which was enacted in 1944 and subsequently amended 15 times. After the SARS outbreak, the CDC Act was carefully re-evaluated and amended. In February 2020, the legislature enacted the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (Covid-19 Special Act). However, the Covid-19 Special Act triggered a few controversial questions about the bending and even breaking of fundamental human rights and core legal principles, and was further amended in April 2020 to provide a more rounded delegation and supervision. Overall, global public health emergencies such as Covid-19 compel governments like Taiwan to grant executive agencies considerable power to adopt various regulatory measures to cope with imminent epidemics and public health threats, and such agencies enjoy a substantial margin of discretion under urgent circumstances. While these interventions have been largely effective and have garnered majority support from society in Taiwan, they might also risk breaking fundamental rule of law principles, causing irreversible harms to human rights, and bending the country’s constitutional order with lasting and systematic effects. All these merit continuous and careful scrutiny, and this country report serves as a useful starting point for such endeavor.