Taiwan has had notable success in containing Covid-19 after being one of the first countries affected (recording its first death on 16 February 2020). Today (3 July 2020), the number of confirmed cases stands at 448, with 7 deaths, an achievement of worldwide interest as a case study for effective epidemic response – perhaps all the more impressive given Taiwan’s exclusion from the WHO.
Taiwan achieved these remarkable statistics without undermining the rule of law or weakening the institutions of democratic accountability. Its swift containment measures – including airport temperature checks, border controls, coordinated production and supply of masks, and contact tracing and targeted self-isolation duties – have avoided the need for any general “lockdown”.
Legislation on epidemic control
Taiwan has pre-existing laws which provided its main framework of response. The Communicable Disease Control Act (CDCA) (傳染病防治法), last amended in 2019, empowers a government agency, the Central Epidemic Command Center (CECC)（中央流行疫情指揮中心）which is part of the Executive, to adopt regulations (administrative orders, 行政命令) governing social behaviour with the aim of preventing or slowing the spread of epidemic disease. Some lower-level regulations can be set and modified by municipal authorities.
An important piece of supplemental legislation – the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (嚴重特殊傳染性肺炎防治及紓困振興特別條例) was passed on 25 February 2020, and will expire automatically on 30 June 2021. It makes provision for bailouts to medical industries and affected businesses, and expropriation of key materials against compensation. It also empowers the CECC to adopt stricter regulations and impose harsher penalties for violation, including fines and imprisonment.
Regulations adopted to address the Covid-19 threat (following the precedent of SARS in 2003) include:
- Mandatory wearing of surgical-standard face masks in public transport and enclosed public spaces.
- Mandatory self-quarantine for new arrivals and anyone known to have been in close proximity to an infected person. The obligation to self-isolate is enforced through monitoring of individuals’ locations through their mobile phone signals. Individuals are obliged to report their mobile phone number upon entering the country, and to keep their phone with them, switched on and charged up to allow location monitoring. This system has been dubbed the “electric fence” (電子圍籬) and has been a key plank of Taiwan’s containment strategy.
- Linking the national health insurance database to the Customs & Immigration database to allow doctors to retrieve a patient’s travel history.
Under the CDCA, there is no legal time limit on CECC regulations: the CECC itself has the power to review and decide in the light of changing circumstances when to amend or withdraw its own administrative orders. Taiwan’s system thus places a high degree of trust in civil servant experts – “heavy reliance on technocratic decision-making”, to quote a recent and highly nuanced critique by local experts. The enhanced measures in the Special Act will lapse in June 2021 under that legislation’s sunset clause.
No constitutional challenge against the CDCA itself, or Covid-19 regulations under it, has been brought. However, some have argued that a CECC administrative order which prohibits school pupils and their teachers from any overseas travel restricts freedom of movement on a discriminatory basis, infringing the Constitution’s principle of equality of citizens. The Ministry of Health also restricted medical professionals from travelling, causing some controversy.
Accountability and checks on CECC power
Under its five-branched state structure, Taiwan’s Executive has broad powers but is accountable to Parliament, the courts and a separate branch of government, the “Control Yuan” (監察院), which exercises oversight to detect illegal or unethical conduct of government bodies and officials. The Parliament plays a role in scrutinizing the implementation of laws, so exercises some oversight over the CECC’s actions.
Challenges to the constitutionality of the CECC’s measures could yet be raised before a new human rights-focused body being established within the Control Yuan, pursuant to pre-Covid-19 initiatives. Under a law which came into force on 8 January 2020, the National Human Rights Committee (國家人權委員會) has the remit to scrutinize all existing laws for conformity with human rights standards, and would (like the Control Yuan generally) have jurisdiction to require changes to regulations or policies.
Rule of law
Taiwan’s governance remains sound, and among the most strongly protective of the rule of law and human rights in Asia. The government has not introduced any major restrictions on freedom of expression or controls on the media. The Special Act (which will lapse in 2021) enabled the authorities to requisition broadcast airtime for public health messaging, and also imposed new penalties for spreading false information that causes damage to the public or individual citizens. Overall, there is no sign of the Executive seeking to use the pandemic as a pretext for increasing its powers or weakening the rule of law.
Access to justice
Taiwan’s success in containing the outbreak of Covid-19 has enabled the country to avoid a lockdown or similar measures, so the work of the legal system continues largely unaffected. The courts system continues to function, but with temperature checks, mandatory mask-wearing and social distancing. Lawyers can consult privately with clients, and citizens (including criminal defendants and prisoners) have access to a lawyer as before.
The legal profession is therefore likely to come through the Covid-19 era basically unscathed. For those in the workforce affected by the downturn there is a system of hardship payments to compensate for lost income if a person can show that their income declined since last year, but as the legal system is up and running normally this has little relevance to the legal profession.
Taiwan has a diverse and cacophonous media environment and high uptake of social media. In recent years, “fake news” has been a growing problem, with Covid-19 furnishing some lurid instances. According to a California-based think-tank, March 2020 saw a coordinated disinformation campaign launched from mainland China to spread false stories about Covid-19 infection and death rates in Taiwan. While many “fake news” attacks are traceable to state actors, this particular example, according to Digital Intelligence Lab, was a “notable instance of a citizen-led, grassroots foreign disinformation attack”, with “large numbers of users jumping the Great Firewall to promote coordinated messaging, frequently targeting Taiwan and Hong Kong with … messages, which often align with the official CCP party line.”
Since two years ago, a dedicated non-profit organization called the Taiwan Fact Check Center has been checking and issuing refutations of fake news posts. So far it has proved possible to counter the worst effects of “fake news” without interfering with freedom of expression. While a number of Asian countries (e.g. Thailand) have expanded the state powers to restrict on-line speech, Taiwan has taken a more liberal path relying on independent fact-checking and the self-correcting mechanisms of a free speech environment.
Simon Milnes, barrister at Twenty Essex Chambers, member of the Bar Council's International Committee
 Ching-Fu Lin, Chien-Huei Wu and Chuan-Feng Wu, “Reimagining the Administrative State in Times ofGlobal Health Crisis: An Anatomy of Taiwan’s Regulatory Actions in Response to the COVID-19 Pandemic”, European Journal of Risk Regulation, 11 (2020), pp. 256–272 at 257-258.
 E.g., Chen Tsung-chun, 因應疫情而禁止高中以下師生出國，是否違憲？憲法觀點下的顧慮有哪些？ Available at plainlaw.me/2020/05/18/covid-19-2/ last accessed 6 June 2020.
 E.g. Craig Silverman, Chinese Trolls Are Spreading Coronavirus Disinformation In Taiwan (5 March 2020), available at: https://www.buzzfeednews.com/article/craigsilverman/chinese-trolls-coronavirus-disinformation-taiwan