[Statement from the Taiwan Association for Human Rights (TAHR)] A Country Under the Rule of Law Encounters a Virus: Don’t Abuse Power, Epidemic Prevention and Democracy Can Coexist

[Statement from the Taiwan Association for Human Rights (TAHR)] A Country Under the Rule of Law Encounters a Virus: Don’t Abuse Power, Epidemic Prevention and Democracy Can Coexist

On March 16, many counties, city governments, and the Executive Yuan issued numerous travel bans, prohibiting teachers and students below high school from traveling abroad. On the same day, the Central Epidemic Command Center also decided that nationals who have “unnecessary” travels to third level alert countries, will not only not receive compensation after returning, but also the necessary fees during the quarantined time. Yesterday on the 17th, the epidemic command center said that it will announce the "names" of the confirmed case. These epidemic prevention measures have brought about many disputes over the rule of law and human rights.

While Taiwan’s anti-epidemic measures have been affirmed by the international community, in order to prevent hard-working front-line workers from facing the legal risks, TAHR will emphasize the principles of the rule of law, such as "principle of administering the rule of law," "legal reservation,” the principle of clarity of authorization and the principle of proportionality, should be adhered to in times of emergency. These principles are the basis for avoiding the arbitrary expansion of government power and the basis for epidemic prevention measures in democratic countries.

Travel bans for specific ethnic groups: Unclear legal basis and necessity

Since the epidemic, there have been two incidents of issuing travel bans, one for "medical personnel," and one from the county, city government, and the Executive Yuan to issue "prohibition of teachers and students below high school" from going abroad. Regardless of whether it is the prohibition of "medical personnel" or "teachers and students below high school" from going abroad, it is a means of massively restricting the freedom of movement of the people guaranteed by Article 10 of the Constitution. Such measures that highly restrict the fundamental rights of the people should have a clear timing and basis of their application. They should also explain the legal interests that the relevant measures are intended to protect.

However, whether it is the county or city government or the Executive Yuan, during the two announcements of travel bans, the most basic "rule of administration by law" and "principle of legal reservation" in a country under the rule of law have been neglected. Specifically, the main questions are: (1) What is the legal nature of these prohibited measures? are they administrative orders, general sanctions, administrative guidance or other administrative actions? (2) Does the formulation and implementation of such prohibitive measures meet the requirements of due process? (3) What is the basis of the law?

Up till now, the answers to these questions are still unclear. Especially in Taipei City, New Taipei City, Taoyuan City, Taichung City and other local governments that have issued bans, in the past few days, they have not seen any political leaders come forward to answer any of the above questions.

The "Special Regulations on the Prevention and Relief of Severe Special Infectious Pneumonia" (hereinafter referred to as the "Relief Regulations"), which was just enacted by law, has become the legal basis cited by the Executive Yuan at the current moment. Article 7 of the law authorizes the Epidemic Command Center to take "necessary" measures to prevent the epidemic, which has been the legal basis for the Executive Yuan to issue a travel ban. However, whether it was Article 7 of the "Law on Prevention and Control of Infectious Diseases" on which the previous ban was based on, or Article 7 of the "Relief Regulations" on which this ban was based, the Legislative Yuan lacked further "necessary" measures when granting administrative agency discretion of its definition and supervision. As long as the command level holds the blanket statement of epidemic prevention, all measures seem to be self-evident.

To this proclamation, we question whether there is a causal link between the unconditional travel ban for specific ethnic groups and the prevention of the spread of the epidemic? Do these actions pass the "principle of proportionality" test? Do people have corresponding relief procedures? Both questions raised must be reviewed again for its legality. Even the unclear provisions of Article 7 of the "Relief Regulations" give the Epidemic Command Center the authority to issue such a ban, which may be highly constitutional.

In addition, similar methods of travel restrictions, whether in the Criminal Procedure Law or the Administrative Enforcement Law, are clearer than the current regulations related to the epidemic. Currently, if the epidemic command center can act according to the travel warning level, the total number of people going abroad at the same time (especially for medical personnel), or the type of "exceptions permitted", should be more detailed and clear. This can also allow implementations of this policy in a more proportional manner.

Purposeful Publications of Names: Concern for Non-proportionality

The problem of unclear definition of "necessity" is also applying to the ban order about nationals who have the "unnecessary" travel to a third-level warning country and finally "confirmed" cases. According to the epidemic command center, if the people meet the above requirements in the future, their names will be announced. The command center declared that the legal basis for this decision was within Article 8 of the Relief Regulations.

According to Article 8 Item 2 of the "Relief Regulations", the command center can indeed publish the "personal data" of COVID-positive individuals. Taking into account the legislative reasons for the "Relief Regulations", this legislation restricting people's privacy rights allows for a situation where the epidemic command center may decide to announce people’s travel routes of to effectively prevent and prevent the spread of the epidemic. However, even if it is to announce other types of personal information (such as names), it should be done in a way that ensure that the information published can avoid the spread of the epidemic, and in the meantime, be with the least harmful way.

Unfortunately, whether it is Article 8 of the Relief Regulations or the command center, there is no clear explanation of what is meant by "necessary" information disclosed. Even the meaning of "unnecessary" travel is still unclear. People travel abroad for many purposes and not all for leisure. Presently, most countries are already in the third-level warning country. How do individuals know whether their travel to the third-level warning country will be classified by the epidemic command center as "unnecessary"? If returning home, if the individual is confirmed with COVID, will the release of one’s name become a target of public criticism?

The Epidemic Command Center stated that the purpose of publishing names is to punish those who "knowingly committed crimes," as well as for epidemic investigation. However, we believe that apart from the need to further clarify the relationship between epidemic investigation, name announcement, and prevention of the spread of the epidemic, the consequences may only lead to discrimination against patients by the public. Such actions can affect the protection of basic rights of the people, and even lead to further spread of the epidemic. By deliberately concealing their symptoms in fear of becoming publicized, individuals will cause a further breach in epidemic prevention. This should neither be the effects of the legislation nor the result that the command center and the majority of the people would like to see.

The Disappearance of the Ministry of Justice: Who will solve the legal disputes over epidemic prevention measures?

In addition to the aforementioned measures, the epidemic command center has made many decisions during this period. We believe that all of them without legality, unclear necessity, or excessive law enforcement have violated human rights.

For example, the decision to impose additional fees this time, under the circumstances where the meaning of "unnecessary" travel is unclear, deprives property rights guaranteed by Article 15 of the Constitution; during the past period, we also believe that electronic monitoring measures create problems of data flow and unclear legality. Even a few days ago, the pharmacist who kneeled to the woman in full view caused the command center and the Taipei Prefectural Prosecutor’s Office to both say that they will be strictly investigated. We must ask, can the essential elements of legal liability be adjusted at will in accordance with political pressure? If prosecutors arbitrarily prosecute, wouldn’t they just transfer all the responsibility as upholding justice to the court?

As a matter of fact, the Ministry of Justice (MOJ) cannot escape the blame if various problematic epidemic prevention measures are to be pursued. During this period, the MOJ should be in charge of comprehensive research and discussion of laws and regulations. Additionally, MOJ should provide legal advice to relevant ministries and committees of the Executive Yuan. Otherwise, by excluding the legislation from a legal perspective, the MOJ only repeatedly stress that it will strictly enforce the law. By not adhering to legal opinions of democratic and rule of law countries, the MOJ is one of the biggest reasons for the legal controversy over many epidemic prevention measures caused from the epidemic command center.

Improving the Rule of Law is the Right Track for Democratic Countries to Fight the Epidemic in the Long Run

The TAHR is a human rights organization that has long been concerned about the rule of law and human rights protection in Taiwan's democratic society. We believe that the prevention and control of infectious diseases certainly requires emergency response capabilities. However, since it is a democratic country, when the government chooses epidemic prevention measures, it must uphold human dignity and human rights, abide by the basic principles of a country ruled of law, and provide appropriate relief channels instead of increasingly restricting rights.

The TAHR has repeatedly been reminded in the past that epidemic prevention measures require mutual trust and cooperation between the people and the government. In democratic countries, rights restrictions with unclear legal basis and reasons can easily lead to the distrust of the government. If this causes a breach in epidemic prevention, I am afraid that those who act tyrannically will solve it afterwards.

It will be a long-term war to fight this epidemic. Therefore, we suggest that in addition to the public health, economics, and information professions, the epidemic command center should also integrate the legal professions within the government's inter-ministerial committees as soon as possible. This is to re-check whether the epidemic prevention measures have insufficient legal authorization or even illegality. If so, they must clarify its legal nature and timing while remedying of current and future epidemic prevention measures.

In addition, the formulation of epidemic prevention measures should also be within a limited period; discussed in advance to consult with affected stakeholders; avoid "top-down" intuitive judgments or rely on one-sided information decision-making. Such measures are to prevent questioning and hasty decisions that may erode public credibility.

We should have the confidence that  we are a great human rights abiding country and continue to fight the epidemic firmly on the basis of the rule of law and democracy.

(News Contributor: Ho MingSyuan, Wang Xi)

Further readings:

The epidemic has caused panic: Who protects democracy from electronic surveillance?

Pandemic preventative policies should also take into account laws and human rights

[Policy Statement] The government is duty-bound to protect human rights

Shi Yi-Shiang: Don't let the panic of the pandemic transfer on to "communication-lost migrants"