Taiwan’s fight against COVID-19: Balancing pandemic control with democratic oversight and rule of law

16 September 2021

The COVID-19 pandemic has marked an inflexion point in world politics. The global crisis is changing patterns of liberal and illiberal governance and altering pre-pandemic standards for the role and limits of the state. Democracy and the rule of law have been tested as governments around the world have adopted extraordinary measures that bend or break fundamental legal principles and standards of democratic oversight to address the unprecedented threat.

Taiwan’s early victory over COVID-19 has been one of the world’s most impressive and surprising. Johns Hopkins University forecasted in January 2020 that the country would suffer from the second-highest cases in the world after China. Instead, Taiwan today ranks 148th in total cases and deaths internationally. The Taiwanese government’s swift and effective pandemic control has been cited as a model for democratic public health governance. At a democracy summit in June 2020, President Tsai Ing-Wen stated that the country’s pandemic success showed it could beat the virus without sacrificing democracy, asserting that Taiwan's approach demonstrates public health governance that still protects "our most important democratic principles".

However, Taiwan’s low case numbers and death rate do not exempt it from scrutiny. In fact, several pandemic control policies undermine legal and democratic oversight standards and infringe upon individual rights without reasonable justification from the government. Since the country’s first COVID-19 outbreak in May 2021, the government has collected and shared extensive personal data, publicly disclosed the names and information of COVID-19 cases and engaged in invasive digital surveillance. Not only do these measures lack adequate appeals processes and infringe upon individual freedoms, but they may also not qualify as “necessary” under the country’s COVID-19 prevention acts. Even as COVID-19 cases have rapidly declined in Taiwan in the last few weeks, the government’s pandemic control policies must be carefully scrutinised in accordance with principles of rule of law and democratic oversight to ensure these emergency measures do not survive once the pandemic is over.

Extreme pandemic control policies following the May 2021 outbreak

The COVID-19 alert level in Taiwan was raised in May 2021 following an outbreak due to imported cases from China Airlines pilots. The government introduced a nationwide Level 3 alert, requiring face masks to be worn at all times, banning indoor gatherings of five or more people and outdoor gatherings of ten or more, and stipulating the closure of most businesses and public venues. The steady increase in case counts and initial difficulties in tracing cases reinforced the introduction of more stringent restrictions. However, concerns were raised about the degree of legality and democratic oversight behind at least the more extreme policies.

Taiwanese society must rally its democratically elected representatives in the Legislative Yuan and Executive Yuan to take a hard look at the “necessary measures” currently in place and determine if one daily domestic case truly warrants such a wide margin of executive discretion and infringement on individual privacy.

Significant executive power has been vested in Taiwan’s central authorities during the pandemic, which some analysts have highlighted as a possible hindrance to democratic oversight. Gunter Schubert at the Northern England Policy Center for the Asia Pacific has criticised the centralisation of Taiwan’s pandemic response. He argues that by bestowing exclusive authority and responsibility to the Central Epidemic Command Centre (CECC), the government has monopolised policy-making and limited democratic deliberation. The Kuomintang (KMT)-affiliated National Policy Foundation also expressed frustration that the COVID-19 Special Act grants the CECC unchecked power to take “all measures necessary” to combat the pandemic, and lobbied for the Executive Yuan to be given more leadership over pandemic policy. Many pandemic policies have been enforced by CECC administrative orders rather than through democratic, legislative deliberation; if such practices continue, they will damage the viability of Taiwan’s thriving democracy in the long term.

One of the most controversial CECC orders (implemented in March 2020) has been a ban on teachers and students from travelling abroad. Citing concerns over being forced to suspend school operations if students contract the virus, teachers and students below the tertiary level were barred from travelling abroad for the remainder of the semester. Under the nation’s Immigration Act, the government typically only has the authority to ban nationals from exiting the state for reasons related to a criminal procedure or national security. The CECC’s ban far exceeded precedent and governmental authority; it may also violate Article 10 of the Constitution, which guarantees the “freedom of residence and of change of residence”. There must be a legal or legislative basis for such restrictions, especially when they exceed the government’s already-expanded emergency authority.

Taiwan’s use of technology and data surveillance to curb the spread of the virus also raises questions of legality and democratic oversight. The government used data to conduct contact tracing and monitor mobility to surveil compliance with quarantine and other pandemic control measures. Governmental agencies collected, processed, and shared personal data and immigration records through database integration, surveillance cameras, vehicle license plate recognition, and phone tracking. Health records were also mined retroactively to identify, test, and treat individuals who reported illness in the weeks before the outbreak became public.

Human rights advocacy groups have urged the government to review whether these big-data-driven surveillance practices are truly necessary for effective pandemic control. The COVID-19 Special Act authorises the government to impose quarantine and isolation measures; however, collecting and sharing extensive personal data, publicly disclosing the names and information of COVID-19 cases, and engaging in surveillance may not qualify as “necessary measures” under the Act. Additionally, there is no notification or appeals process for those affected to challenge and seek dispute resolution. Scholars have also cautioned that these big-data measures, with their great potential to infringe upon individuals’ privacy, have not been carefully scrutinised according to the rule of law and constitutional principles.

Moreover, they argue that while the COVID-19 Special Act authorises the government to impose a quarantine on individuals entering Taiwan, the publication of the quarantined individuals’ names lacks a legal basis and disproportionately invades individuals’ privacy. Schubert at the Northern England Policy Centre contends that by constantly releasing personal information about COVID-19 victims, the government has created a divisive atmosphere in Taiwanese society that encourages citizens to morally supervise one another.

The CECC has stated that it requires personal data to be deleted after the fourteen-day quarantine period ends, announced it would erase the monitoring system after the pandemic has passed, and that will conduct audits to confirm no data has been inappropriately retained. However, in July 2021, a Taichung District Court judge found that the police had used data from the COVID-19 tracing system to track criminal suspects, contradicting the CECC’s promise that data would only be used in the context of disease prevention.

Challenging the government’s emergency measures

Taiwan’s COVID-19 cases have decreased rapidly, with 7-day case averages as low as ten in August. The nationwide alert was lowered to Level 2 on 27 July, with most restrictions now relaxed and everyday life returning to a relative normal. Given these changes, Taiwan should see a subsequent adjustment to the emergency pandemic control measures as well; yet, extensive surveillance and data collection are still common practice, even as daily COVID-19 numbers are as low as one domestic case nationally. The dawn of a new era for Taiwan’s pandemic situation should be seen as an opportunity to challenge, discuss, and ultimately extinguish the government’s most restrictive and invasive measures introduced at the height of the outbreak.

With Taiwan’s collective memory of authoritarian rule and martial law, which ended only in 1987, its society should lean on its heightened awareness of the costs of surveillance and similar authoritarian measures. Taiwan strives to maintain a high degree of democratic governance and rule of law, which in part explains why the government has been reluctant to resort to statism and issue a strict national lockdown as other countries have done. The government and society should apply this level of scepticism to the emergency measures in place now and publicly challenge their legitimacy.

After the SARS outbreak in 2003, Taiwan’s government used the nation’s perceived failure to remake its crisis communication framework, command structure, public health preparation measures, and use of digital technology. The Legislative Yuan overhauled the Communicable Disease Control Act (CDC Act) in 2004, creating a standardised procedure to coordinate central and local government efforts during a pandemic response and empowering the CECC to impose compulsory measures and fine lawbreakers. The Legislative Yuan should act again now — following the worst COVID-19 outbreak in Taiwan — to evaluate the CECC’s emergency orders and restrict its big data surveillance measures.

Taiwan’s pandemic control policies have undeniably been effective, limiting the country’s exposure to the virus for nearly all of 2020 and quickly quashing an outbreak in 2021 in as little as three months. However, emergencies should not be used as opportunities to expand the power and authority of government and limit the freedom of individuals. Taiwanese society must rally its democratically elected representatives in the Legislative Yuan and Executive Yuan to take a hard look at the “necessary measures” currently in place and determine if one daily domestic case truly warrants such a wide margin of executive discretion and infringement on individual privacy. The Executive Yuan and Legislative Yuan must exercise democratic governance and check the CECC’s power to ensure that emergency measures do not linger and become an integral part of Taiwan’s governing fabric, which would lead to irreversible harm to democracy, rule of law, and human rights.

DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.

Author biography

Grace Faerber is based in Taipei as a Junior Researcher at Taiwan NextGen Foundation. Image credit: Flickr/Makoto Lin / Office of the President.