overview of the legal measures against covid-19 in taiwan
TRANSCRIPT
1
Overview of the legal measures against
COVID-19 in Taiwan
Anton Ming-Zhi Gao
Associate Professor, Institute of Law for Science and Technology, National Tsing-Hua
University, Taiwan
(Acknowledgement: This article was completed with the funding support of the Ministry of
Science and Technology, project number: 109-2410-H-007 -038 -MY2 -)
I. Introduction
Since early 2020, the world was severely affected by the COVID-19
pandemic. However, Taiwan was perhaps not as severely affected. By 18 January 2021,
Taiwan had only 868 confirmed cases with seven deaths.1 Also, Taiwan has a record
of 253 days without any local confirmed case.2 Consequently, Taiwan performs very
well in several covid-19 safety rankings, it is ranked 16th in DKG’s COVID-19
Regional Safety Assessment 3 and 2nd in Bloomberg’s The COVID Resilience
Ranking.4
According to the government website ‘Crucial Policies for Combating COVID-19
in Taiwan’, Taiwan’s success was attributed to eight factors, 56 the successful national
health insurance system,7 and the seven key policy measures listed as follows.8 Border control
Stockpiling masks and supplies
Community transmission prevention
Infection control policies for medical facilities and relevant institutions
1 https://sites.google.com/cdc.gov.tw/2019-ncov/taiwan; Taiwan confirms 4 local, 2 imported
infections, tally at 868, available at: https://chinapost.nownews.com/20210119-2038782 2 CORONAVIRUS, Taiwan reports first domestic case of COVID-19 in 253 days, available at:
https://focustaiwan.tw/society/202012220006 3 http://analytics.dkv.global/covid-regions/taiwan.pdf?fbclid=IwAR1me0TY3BEtafsOz1If38t8J-
5aesVAicxsPSPrUEOKVaYsW5UxRayarL0 4 The COVID Resilience Ranking, https://www.bloomberg.com/graphics/covid-resilience-ranking/ 5 https://covid19.mohw.gov.tw/en/mp-206.html 6 SARS experience, Central Epidemic Command Center, Information Transparency, Good resource
allocation, Timely border control, Smart community transmission prevention, Advanced medical
technology, Good etiquette of citizens. 7 https://covid19.mohw.gov.tw/en/np-4777-206.html 8 https://covid19.mohw.gov.tw/en/np-4769-206.html
2
Inspection and testing
International cooperation
Information protection
However, the purpose of this article is not to reiterate the success story and policies
of Taiwan, but rather to review the legal responses against COVID-19 in the last year.
This article conducts a detailed search on the legal development in the MOJ’s database
(THE R.O.C LAWS & REGULATIONS DATABASE, MINISTRY OF JUSTICE.)9
and MOHW’s database (LAWS & REGULATIONS DATABASE, Ministry of Health
and Welfare)10 and to compile and classify the related law and regulations on tackling
COVID-19 issues. As different ministries may have various legal responses to COVID-
19, this article mainly covers the national one and the MOHW one. Certain aspects will
not be included in this article, for instance, this author has contributed to IBA on
Taiwan’s legal response in the environmental law area11 so that will be excluded.
II. Main laws governing combating COVID-19 in
Taiwan
1. Communicable Disease Control Act
The existing important legal regime
Before the COVID-19 pandemic, Taiwan was already struck by another very
serious pandemic of SARS in 2003.12 Taiwan has already established a legal regime of
the ‘Communicable Disease Control Act’13 to tackle the threat from these ‘Important
Diseases’ before the SARS crisis.14 The COVID-19 was designated as Category 5 of
9 https://law.moj.gov.tw/Eng/index.aspx1 10 https://mohwlaw.mohw.gov.tw/ 11 Taiwan, Covid-19 pandemic Covid-19 relief measures: Environment, Health and Safety Law
perspective, International Bar Association, available at:
https://www.ibanet.org/Document/Default.aspx?DocumentUid=FDE43D94-76D0-4965-989D-
652342573FCA 12
https://www.cdc.gov.tw/En/Category/ListContent/bg0g_VU_Ysrgkes_KRUDgQ?uaid=u1D6dRGtmP4
Q5YA1GmSKIw 13 Communicable Disease Control Act, available at:
https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050001 14 The following examples are the important diseases subject to the regime of this Act: Amebiasis
2017/6/12; Complicated Varicella 2017/4/12; Leptospirosis 2017/4/10; Hantavirus
Syndrome 2017/4/10; Ebola Virus Disease 2017/4/6;Rift Valley Fever 2017/4/6;Anthrax
2017/4/6;Marburg Hemorrhagic Fever 2017/4/6;Rubella(CRS) 2017/4/6;Middle East
Respiratory Syndrome Coronavirus (MERS-CoV) 2017/4/6;Lassa Fever 2017/4/6;Measles
2017/4/6;Herpesvirus B Infection 2017/4/6;Toxoplasmosis 2017/4/6;Botulism
3
important(cardinal) diseases on 15 January 202015 and subject to the measures to tackle
Category 5 diseases. For instance, Art. 44(1) of the Communicable Disease Control Act
provides that ‘patients with Category 4 and Category 5 communicable diseases shall be
managed in accordance with the control measures announced by the central competent
authority’. When competent authorities conduct isolation care of patients with
communicable diseases, they shall prepare isolation care notice, deliver the original to
the patient or the family, and the copy to the isolation care institution in three days from
the second day of mandatory isolation care.16 There is laboratory testing and reporting
for the relevant specimens of Category 1 and Category 5. Relevant specimens of
communicable diseases shall be sent to the central competent authority or its designated
local competent authorities, medical institutions, academic or research institutes that
are certified for laboratory testing capabilities; specimens of other communicable
diseases may be laboratory-tested by health or medical institutions, academic or
research institutes commissioned or recognized by the central competent authority.
Results of laboratory testing shall be reported to the local and central competent
authorities. 17 Individuals who are fully aware that they have been infected with
Category 5 diseases but fail to comply with the instructions by competent authorities
and further infect others, shall be sentenced to imprisonment for up to three years with
criminal detention, or a fine up to NT$ 500,000.18
Apart from these provisions that are directly related to Category 5 diseases, other
measures could be adopted by the related authorities under the Act as well. For instance,
the authority under Art. 37 is frequently used by local government to adopt the
following measures to tackle COVID-19. 19
regulate schooling, meeting, gathering or other group activities;
regulate people’s access to specific places and restrict the number of people
allowed;
regulate traffic in specific areas;
evacuate people from specific places or areas;
restrict or prohibit patients or suspected patients with communicable diseases
from traveling and using public transportation
For instance, the facemask mandate in the metro is based on this legal provision.
The violator of this provision will be fined NT$ 3,000 up to NT$ 15,000.20
2017/4/6;Tularemia 2017/4/6;Scrub Typhus (Tsutsugamushi Disease) 2017/4/6;Plague
2017/4/6;Smallpox 2017/4/6; see available at:
https://www.cdc.gov.tw/En/Category/NewsPage/bg0g_VU_Ysrgkes_KRUDgQ 15 https://www.cdc.gov.tw/Disease/SubIndex/N6XvFa1YP9CXYdB0kNSA9A 16 Art. 44(2) of the Communicable Disease Control Act. 17 Art. 46(1) of the Communicable Disease Control Act 18 Article 62 of the Communicable Disease Control Act 19 Art. 37 of the Communicable Disease Control Act 20 Article 70 of the Communicable Disease Control Act.
4
Related sub-regulations under the Act
There are further detailed administrative orders published or revised to respond to
the needs of COVID-19. For instance, to improve the Surveillance and Advance-Alert
System, the Regulations Governing the Implementation of the Epidemiological
Surveillance and Advance-Alert System for Communicable Diseases, which based on
the legal authorization of Art. 26 of the Communicable Disease Control Act, was
amended on 14 September 2020. 21 To improve testing, Regulations Governing
Laboratory Testing for Communicable Diseases and Management of Laboratory
Testing Institutions based on the legal authorization of Art. 46 of the Communicable
Disease Control Act, was amended on 13 May 2020.22
As there are a lot of citizens who could be fined under the Art. 37, 25, 58 or 48 of
the Communicable Disease Control Act, the central and local governments both
published further rules to harmonize the enforcement of administrative fines. They are
as follows:
Central
government
the standards for administrative fines for violation of Article
58 of the Communicable Disease Control Act(違反傳染病防
治法第五十八條第一項第二款、第三款及第三項規定所
為之檢疫措施案件裁罰基準 (109.12.07)23
the standards for administrative fines for violation of Article
48 of the Communicable Disease Control Act (違反傳染病
防治法第四十八條第一項規定所為之隔離措施、第五十
八條第一項第二款及第四款規定所為之檢疫措施案件裁
罰基準) (109.04.17)24
21 https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050006 22 https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050023 23 https://www.cdc.gov.tw/File/Get/ubfwWHWWsAz3coMDDyWg4w 24
https://www.cdc.gov.tw/File/Get/sqrAKrJg_Uq8Ki5B0HtO3g?path=6zeS3JISAuKR65GjV35VQgXqt7
E92ziFkF2YxeoTJKQ1cbFLme-
7df5BErsgsoiiERaDZ0tb98IcCPCCBPOAPw&name=4scnPfm6f7042wFaLP8_W17f68P6BlNcVmjBc
YK7DQyxG-dBSJARRUXhDgQvOjEymfBlVFTb7DU5Y3PnfnZ4jZUhuX0r-
g53kZxRQbf4gc6f9MolYYSGvRDnEDUKfQa6UQ4AJvj7PJeag3e54c2aSalPluJZQixh8P6LDKu3Ug
FzoBYZNEtltzTW0i5PT01d5feGPrjsxVQRWK2HcH3qcYjR2MlihCwnGEKHRwGyBgNg9py7_6D_
5
Tainan city the standards for administrative fines for violation of Article
25 of the Communicable Disease Control Act 臺南市政府衛
生局處理違反傳染病防治法第二十五條第二項規定案件
裁罰基準 (109.09.28)25
Taichung city the standards for administrative fines for violation of Article
37 of the Communicable Disease Control Act 臺中市政府衛
生局處理違反傳染病防治法第三十七條第一項第六款有
關嚴重特殊傳染性肺炎防疫措施事件統一裁罰基
準 (109.04.10)26
(source: compiled by this author)
2. Special COVID-19 Act
Overview of the Special COVID-19 Act
After the outbreak of the pandemic, to employ prevention, relief and revitalization
measures, a ‘Special Act for Prevention, Relief and Revitalization Measures for Severe
Pneumonia with Novel Pathogens (Special COVID-19 Act)’ was promulgated in
February and amended in April 2020. Of the 19 provisions in this special act, most of
the articles deal mainly with the relief and revitalization measures, except for Art. 5, 6,
7, 8.
Firstly, Art. 5 and 627supplement the expropriation or requisition/compensation
krYbFi8-w9Dt&download=sqrAKrJg_Uq8Ki5B0HtO3g 25 http://law01.tainan.gov.tw/glrsnewsout/LawContent.aspx?id=GL001366 26 http://lawsearch.taichung.gov.tw/glrsout/LawContent.aspx?id=GL003834 27 Article 5 of the Special COVID-19 Act:’ To produce disease prevention supplies specified in
Paragraph 1, Article 54 of the Communicable Disease Control Act, where necessary, government
authorities on all levels may, based on instructions of the Commander of the Central Epidemic
Command Center, expropriate or requisition required production equipment and raw materials and
provide appropriate compensation.
The operating procedures for expropriation or requisition, methods of compensation, and other related
matters in the preceding paragraph shall be established by the central competent health authority after
consulting related authorities.’
Article 6 of the Special COVID-19 Act: ‘The management, use, proceeds, and disposal of disease
prevention supplies, production equipment, and raw materials expropriated or requisitioned in
accordance with Paragraph 1, Article 54, of the Communicable Disease Control Act and Paragraph 1 of
6
scheme for the production equipment and raw materials needed, which were already
provided for in Art. 54 of the Communicable Disease Control Act. These two provisions
are exceedingly relevant for Taiwan’s establishment of the world first facemask legal
monopoly scheme during COVID-19. 28 Under this regime, the facemask
manufacturing companies were obliged to produce and supply facemasks to the
government. The government then used around 6000 pharmacy channels to distribute
the masks to the market. All citizens have to present a National Health Insurance card
and use the name based system to buy the facemask with the fixed price and amount
quota. For instance, in early February, individuals were allowed to buy two facemasks
with a total price of 10 NTD every week.29 Thus, the face mask rationing scheme was
considered by the MOHW a key policy in successfully combating COVID-19. The
government provided a steady supply of disease prevention supplies to reassure the
people. 30
Compared to Art. 5 and 6, Art. 7 and 8 have more added concerning preventive
measures. Art. 8 is related to the privacy and personal data protection of individuals in
isolation or quarantine during the disease prevention period. Recording videos of or
photographing the individual's violation, publishing their personal data, or conducting
other necessary disease prevention measures or actions are allowed under this provision.
Besides, Art. 7 provides a very ‘general’ legal basis for almost all combating COVID-
19 measures: The Commander of the Central Epidemic Command Center may, for
disease prevention and control requirements, implement necessary response actions or
measures. This provision was also criticized by legal scholars and human rights group 31 for the lack of legal clarity. Despite being seldom mentioned by the government as
the legal basis for COVID-19 measures, it plays the role of an ‘implicit’ legal basis for
many measures that did not have a legal basis.
Related sub-regulations under this Act
Since the main focus of this Act is to deal with the relief and revitalization aspects
of the pandemic, the sub-laws were also related to this.
A national-wide scheme of ‘Triple volume coupon’ was launched by the
Regulation of Issuing of Triple Volume Coupon at the COVID-19 Time, based on the
the preceding article shall not be restricted by Article 11, Article 28, and Article 60 of the National
Property Act or local public property management regulations.’ 28 Anton Ming-Zhi Gao et al., Lessons from the facemask monopoly system in Taiwan to tackle the
COVID-19 challenge, Management and Medical Sciences Interdisciplinary Conference, Dates: October
30 - November 1, 2020. 29 https://www.cdc.gov.tw/En/Bulletin/Detail/ZlJrIunqRjM49LIBn8p6eA?typeid=158
https://www.cdc.gov.tw/En/Bulletin/Detail/ZlJrIunqRjM49LIBn8p6eA?typeid=158 30 https://covid19.mohw.gov.tw/en/cp-4785-53788-206.html 31 Taiwan Association for Human Rights, https://www.tahr.org.tw/news/2622
7
legal authorization of Art. 9(3) of the Special COVID-19 Act.32 A citizen has to pay
1000 NTD to buy the coupon with the value of 3000. It is anticipated that such a scheme
is helpful to encourage economic recovery.
Based on the same legal basis of Art. 9(3) of the Special COVID-19 Act, different
ministries also promulgated subsidy ordinances to assist the industries or affected
persons as follows:
Subsidy ordinance to assist broadcasting businesses helping broadcast COVID-19
related information (National Communication council)(6 November 2020)33
Subsidy ordinances to assist affected national parks (Ministry of Interior
Affairs )(12 March 2020)34
Subsidy ordinances to assist the affected business (Ministry of Culture) (4 May
2020)35
Subsidy ordinances to assist the affected business (Ministry of Transportation) (31
December 2020)36
Subsidy ordinances to assist the affected business (Agricultural Council) (27 April
2020)37
Subsidy ordinances to assist the affected business (Hakka Affairs Council) (12
March 2020)38
Subsidy ordinances to assist the affected businesses of indigenous people (12
March 12, 2020)39
Subsidy ordinances to assist affected the business of Public Welfare Lottery
Distributors (Ministry of Finance) (14 May 2020).40
32 https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=J0140019
33 國家通訊傳播委員會對廣播電視事業協助播送嚴重特殊傳染性肺炎防疫訊息所受影響補貼辦
法 (民國 109 年 11 月 06 日 ):
https://ncclaw.ncc.gov.tw/FLAW/FLAWDAT01.aspx?id=FL095345&keyword=
34 內政部對受嚴重特殊傳染性肺炎影響發生營運困難國家公園事業紓困辦法 (民國 109 年 03
月 12 日 ): https://glrs.moi.gov.tw/LawContentSource.aspx?id=GL001251
35 文化部對受嚴重特殊傳染性肺炎影響發生營運困難產業事業紓困振興辦法 (民國 109 年 05
月 04 日 ); https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=H0170156
36 交通部對受嚴重特殊傳染性肺炎影響發生營運困難產業事業紓困振興辦法 (民國 109 年 12
月 31 日 ); https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=K0020068
37 行政院農業委員會對受嚴重特殊傳染性肺炎影響發生營運困難產業事業紓困振興辦法 (民國
109 年 04 月 27 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=M0020036
38 客家委員會對受嚴重特殊傳染性肺炎影響發生營運困難產業振興辦法 (民國 109 年 03 月
12 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=D0140025
39 原住民族委員會對受嚴重特殊傳染性肺炎影響原住民族產業事業振興辦法 (民國 109 年 03
月 12 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=D0130044
40 財政部對受嚴重特殊傳染性肺炎影響發生營運困難公益彩券經銷商紓困辦法 (民國 109 年
8
Subsidy ordinances to assist affected the business of tobacco and alcohol (Ministry
of Finance) (10 July 2020)41
Subsidy ordinances to assist affected business (Ministry of Education) (7 May
2020)42
Subsidy ordinances to assist the affected business (Ministry of Economic Affairs)
(31 August 2020)43
Subsidy ordinances to assist affected medical institutions and business (ministry
of health and welfare) (20 April 2020)44
Subsidy ordinances to assist affected labourers (Ministry of Labor) (20 April
2020)45
Additionally, there are three subsidy ordinances based on not the Art. 9 of the
Special COVID-19 Act:
Regulations Governing Disease Prevention Compensation During Severe
Pneumonia with Novel Pathogens Isolation and Quarantine
Periods:46 Legal basis: Article 3(4) of the Special COVID-19 Act
Regulations Governing Tax Preferences for Quarantine Leave of Severe
Pneumonia with Novel Pathogens:47 Legal basis: Article 4(3) of the Special
COVID-19 Act
Regulations Governing the Operational Procedures and Compensation for
Expropriation of Manufacturing Equipment and Raw Materials of Disease
Prevention Supplies for Severe Pneumonia with Novel Pathogens:48 Legal
basis: Article 5(2) of the Special COVID-19 Act
05 月 14 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=G0320035
41 財政部對受嚴重特殊傳染性肺炎影響營運艱困之專營菸酒批發及零售業紓困辦法 (民國 109
年 07 月 10 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=G0320036
42 教育部對受嚴重特殊傳染性肺炎影響發生營運困難產業事業紓困振興辦法 (民國 109 年 05
月 07 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=H0010068
43 經濟部對受嚴重特殊傳染性肺炎影響發生營運困難產業事業紓困振興辦法 (民國 109 年 08
月 31 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=J0140018
44 衛生福利部對受嚴重特殊傳染性肺炎影響醫療（事）機構事業產業補償紓困辦法 (民國 109
年 04 月 20 日 ): https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=L0050043
45 勞動部對受嚴重特殊傳染性肺炎影響勞工紓困辦法 (民國 109 年 04 月 20 日 ):
https://law.moj.gov.tw/LawClass/LawAll.aspx?pcode=N0020022 46 https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050040 47 https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=L0050042 48 https://law.moj.gov.tw/ENG/LawClass/LawSearchCNKey.aspx?BTNType=CON&pcode=L0050041
9
3.Other laws
Apart from these legal regimes, certain laws were used to combat COVID-19 as
well. For instance, Article 251 of the Criminal Law which was never used before is now
used frequently against those who sell facemasks higher than the government-approved
price as per the government-run facemask rationing scheme. 49 Facemask was
designated as ‘essential necessities’ by the cabinet. Yet, this is criticized by the Human
Rights group for misuse and may cause concerns of ‘empty criminal law’. 50
3.Guideline or Directions
Under Taiwan’s ordinary constitutional and administrative legal system, if a
measure would affect the rights and obligations of the citizens, (apart from the
substantive requirement of proportionate principle) the facial requirement of a legal
basis or administrative order with clear legal designation/basis is necessary.51 that’s
also the reason why this author introduces the legal basis for the above-mentioned
regulations.
However, due to the urgency of the COVID-19, such rigid conformance to the
‘ordinary’ constitutional and administrative legal system may impede the efficiency of
tackling Covid-19. Thus, several un-authorized or lacking legal basis ‘guideline or
direction’ that may affect the rights and obligation of citizens are being promulgated by
different Ministries. For instance, in order to provide a fast response guide for the
49 Article 251 of Criminal Code of the Republic of China:’ A person who stocks up on any of the
following items and then refrains from selling to the market, without justification and with the intention
of raising the transaction price, shall be sentenced to imprisonment for no more than three years, short-
term imprisonment; in lieu thereof, or in additional thereto, a fine of no more than three hundred
thousand New Taiwan Dollars may be imposed:
1.Basic provisions, agricultural products, or other food-and-drink consumer essentials.
2.Plant seeds, fertilizer, raw materials or other products required for agriculture or industry.
3.Essential necessities, other than those described in the preceding two paragraphs, as announced by
the Executive Yuan.’ 50 https://www.legis-pedia.com/article/crime-penalty/734 51 See also, Art. 5 of the Central Regulation Standard Act:’ The following objects shall be stipulated by
a statute:
1. It is required to stipulate by a statute as the Constitution or a statue expressly stipulated.
2. Stipulation concerns the rights or obligations of the people.
3. Stipulation concerns the organization of a government agency at national level.
4. Other objects with substantial importance shall be stipulated by a statute.’
Art. 150 of the Administrative Procedure Act:’ The term ‘legal order’ used in this Act means an abstract
prescription with external legal effects, 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.’
10
medical institutes, MOHW published more than forty such guidelines and directions to
regulate the medical institute on this website.
(https://www.cdc.gov.tw/Category/MPage/I92jtldmxZO_oolFPzP9HQ ) the original
purpose of these guidelines/directions was to regulate the operation of
hospitals/institutes during COVID-19, but unfortunately, certain measures may have
‘indirect’ effects on the fundamental rights of the citizens. For instance, the testing right
for asymptomatic patients was restrained. According to the ‘Guideline on Self-pay
application for COVID-19 testing’ (before the winter program in November),52 citizen
could not qualified for self-testing if they don’t show symptoms (like fever).53 This is
perhaps the most rigid testing rule in Taiwan’s history. Some have started using the term
‘testing privilege’ recently in relation to this. Clearly, the original purpose was to save
medical resources and avoid stressing the testing system at the beginning of the
pandemic, but it also affected the citizens’ right to know their health status.
Moreover, the CDC also published certain guidelines/directions directly affecting
the fundamental rights of citizens. For instance, under the ‘COVID-19 Guideline:
Public Gathering’, mandatory measures would affect the citizens’ right to assembly,
such as taking body temperature and asking people with high body temperature not to
participate in certain events.54
Finally, government news announcements that abuse a citizen’s rights are taken
seriously in Taiwan. For instance, the controversial going abroad ban of senior/junior
high and elementary school teachers and students was implemented from 17 March,
2020 by a new announcement the Ministry of Education.55 During the pandemic, the
Ministry of Education prescribed and promoted the use of the Zoom app, but the
government abruptly claimed that there are security issues with it and prohibited its use
on 7 April, 2020.56 In both the news announcements, a legal basis was lacking.
Art. 7 of Special Covid-19 Act as explicit or implicit
legal basis?
As noted above, due to the abstract nature of Art. 7 of the Special Covid-19 Act, it
52 Guideline on Self-pay application for COVID-19 testing (開放部分民眾自費檢驗 COVID-19（武
漢肺炎）申請規定 (109.06.04))
53 E.g, □ To enter other countries for the compassionate reasons listed above. □ job requirements
□ Short-term business travelers □ to study abroad
Application Form for Out-of-Pocket Polymerase Chain Reaction (PCR) Test_1090814.odt, available at: https://www.cdc.gov.tw/File/Get/h78rGiw8nDBMzX-_3lCtxQ 54 https://www.cdc.gov.tw/File/Get/jp6pAJa7lDRIB6AbRO_-cg 55 https://www.edu.tw/News_Content.aspx?n=9E7AC85F1954DDA8&sms=169B8E91BB755 56 https://www.edu.tw/News_Content.aspx?n=9E7AC85F1954DDA8&s=868B3A6EDF9BA52D
11
could become the legal basis for all measures affecting rights and obligations during
COVID-19. Additionally, also due to its abstract nature, referring to this has attracted
outcries of human rights groups and law societies. In this regard, this legal basis was
not cited very often. Nonetheless, at the time of the outbreak of COVID-19 in January
and February, there was a very controversial ban on medical personnel traveling abroad.
This regulation explicitly cites Art. 7 as its legal basis.57 The violator would be fined
5000 NTD to 1 million NTD under Art. 16 of Special Covid-19 Act.58 Yet, as there is
compensation to the affected medical staff, perhaps such measures could be justified
under the rule of law consideration. 59
Despite that, Art. 7 could contribute to the implicit legal basis for many measures
that do not have a clear legal basis. For instance, the recent launch of privacy-intrusive
Skynet to catch the home quarantined citizens in the year-end music concert may use
an improper legal basis. Despite the government’s use of the Communicable Disease
Control Act,60 perhaps a more appropriate legal basis is Art. 7 of the Special COVID-
19 Act by this author.
4. Final Remarks
Taiwan is enjoying its eminence due to minimal confirmed cases compared to the
rest of the world. Perhaps it is because of the effectiveness of the government measures,
or simply luck. Yet, considering the legal framework, the government’s approach is
very problematic.
Firstly, this is an unbalanced legal framework. The ability of the rule of law in
providing subsidy or implementing recovery measures is much better than securing
people’s rights and obligations. Under Taiwan’s legal regime (similar to continental
Europe), the requirements for forming a law are higher when it affects people’s rights.
For instance, beginning the use of information technology to spy on the home
quarantined individuals without permission from the courts since early 2020 would be
unconstitutional. At least, a clearer legal basis or authorization should be necessary.
Secondly, such a legal framework tells a different story from the low confirmed
cases situation. A typical country that adheres to the rule of law would follow normal
legal protocols, except only in emergency situations. Under Taiwan’s constitutional law,
57 https://covid19.mohw.gov.tw/ch/cp-4847-52362-205.html 58 Article 16 of the Special Covid-19 Act:’In the event of one of the following conditions, the central
competent authority of the respective industry or the municipality or county (city) government shall
impose a fine of no less than NT$50,000 and no more than NT$1 million:
…
3. Violation of response actions or measures instructed by the Commander of the Central Epidemic
Command Center in accordance with Article 7.’ 59 https://www.mohw.gov.tw/cp-4635-51720-1.html 60 https://www.cna.com.tw/news/firstnews/202101020091.aspx
12
Emergency Order does exist.61 Yet, in the face of the COVID-19 pandemic, this
provision was not utilized. For a country with more than 2/3 of days in a year (253/365)
without locally confirmed cases, it seemed like a perfect environment to develop a legal
regime, gradually and thoughtfully. Yet, the large numbers of guidelines/directions that
continuously violated human rights, such as Skynet, shows the unsophistication of the
legal framework in tackling the challenges of COVID-19.The legal response from the
government seemed to imply the ‘emergency’ situation of the pandemics in Taiwan
instead.
Thirdly, the government’s measures are unproportionate and unscientific. For
instance, even if the individuals of the confirmed cases test negative, additional
regulations are enforced by the government, such as ban on visiting wine houses/bars.62
Moreover, when there are months without any locally confirmed cases, the additional
directive such as facemasks in eight public spaces, was enforced.63 Scientifically,
regulation should correspond with the seriousness of the pandemic. Yet, in Taiwan, it is
on the contrary.
In the interim of writing this article, Taiwan’s COVID-19 urgency and alarm
reached an unprecedented high with more than 15 local confirmed cases for consecutive
days of over a week; simultaneously, the quarantine of 5000 people has been announced. 64 Taiwan’s unique approach to tackle COVD-19 is under tremendous threat. For a long
time, Taiwan relied on limited tests (with a very high cost of 7000 NTD) and 14 days
quarantine plus a facemask mandate to achieve the low numbers. Yet, whether such low
numbers reflect the real situation of the infection has been questioned by many experts.
Therefore, if the government of Taiwan were to abide by the rule of law and human
rights, perhaps certain fundamental rights such as the right to know your own health
status, the capacity of testing would be improved. Yet, due to the claims that mass
testing would waste medical resources and create too much of a burden on the medical
personnel,65 Taiwan is facing an unprecedented challenge. It’s a pity that the rule of
law does not play the precautionary role to avoid such situations from happening.
Without real data to know the delicate situation, it is also difficult for the law to
intervene. Thus, it is not surprising that the rule of law demonstrates an unbalanced,
61 Article 2(3) of Additional Articles of the Constitution of the Republic of China:’ The president may,
by resolution of the Executive Yuan Council, issue emergency decrees and take all necessary measures
to avert imminent danger affecting the security of the State or of the people or to cope with any serious
financial or economic crisis, the restrictions in Article 43 of the Constitution notwithstanding.
However, such decrees shall, within ten days of issuance, be presented to the Legislative Yuan for
ratification. Should the Legislative Yuan withhold ratification, the said emergency decrees shall
forthwith cease to be valid.’ 62 https://udn.com/news/story/120940/4510805 63 https://covid19.mohw.gov.tw/ch/cp-4822-55157-205.html 64 https://www.taiwannews.com.tw/en/news/4110967 65 https://www.cna.com.tw/news/firstnews/202004280178.aspx
13
unproportionate, and unscientific emergency!