Desperate times call for desperate measures, and now is the time to urge President Tsai Ing-wen (蔡英文) to issue emergency decrees to combat the COVID-19 situation.
With the coronavirus, which originated in China, reaching pandemic status, Taiwan has thus far implemented effective strategies to handle it, taking for example the ban on the export of masks.
The successful “Taiwanese model,” as New Zealand Prime Minister Jacinda Ardern has described it, is now being studied by other nations.
Owing to the immediate passage of the Special Act on COVID-19 Prevention, Relief and Recovery (嚴重特殊傳染性肺炎防治及紓困振興特別條例), government agencies have a clear legal mandate to respond swiftly to the virus.
Yet, this act has raised ethical and legal concerns, particularly with Article 7, which gives the head of the Central Epidemic Command Center (CECC) the power to “implement any necessary response measure for the purpose of disease prevention and control.”
Since the act was promulgated, the CECC has repeatedly cited this act as a legal basis for actions such as restricting the travel of medical staff last month.
On Monday last week, the CECC announced that students and teachers at high-school level and below are barred from traveling abroad until the end of this semester, in light of recent imported COVID-19 cases. The travel restrictions again invoked the provisions of Article 7.
Serious concerns have been raised by New Power Party Legislator Chiu Hsien-chi (邱顯智), the National Students’ Rights Seminar and National Federation of Teachers’ Unions president Chang Hsu-cheng (張旭政).
“The article stipulating ‘contingency disposal or measures’ fails to meet the standards of legal certainty,” Chiu said. “That is, the public is not able to understand what they include. What actions can the government take against the ordinary citizens based on the article?”
What is more concerning is that the right of freedom of residence and of change of residence — protected by the Constitution — could also be breached.
The best approach in dealing with the current legal dispute is for Tsai to directly issue emergency decrees.
Pursuant to Paragraph 3, Article 2 of the Additional Articles of the Constitution, “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 latter part asks for ratification from the Legislative Yuan within 10 days of issuance, which could effectively prevent government abuse of power.
Issuing emergency decrees in times of crisis has precedence. Former president Lee Teng-hui (李登輝) did so in response to the 921 Earthquake on Sept. 21, 1999. Lee took decisive action to swiftly adopt emergency measures for affected areas.
On the contrary, former president Ma Ying-jeou (馬英九) was criticized for not issuing decrees to aid relief efforts in the aftermath of Typhoon Morakot.
Now, with the strong support of the public, the Tsai administration is exhausting efforts to contain the coronavirus.
When asked about urging the president to issue emergency orders, Minister of Health and Welfare Chen Shih-chung (陳時中), who heads the CECC, said that “the domestic pandemic situation has not reached the point where the public health system cannot handle the situation, and therefore, there is no need for such a recommendation now.”
Most would agree that limiting a minority to prevent the majority from being harmed is acceptable and reasonable, but the legality and legitimacy of any measure taken requires close scrutiny.
Chiu urged the Executive Yuan to set regulations in an attempt to deal with the ambiguity of the application and interpretation of Article 7, but issuing emergency decrees is a more appropriate solution.
It gives the president the legal authority to set more specific rules on a stronger legal basis. As the nation faces a rapidly changing and unstable coronavirus situation, more flexibility and legal certainty are needed for adaptation.
These orders might settle legal disputes in a more legitimate way, while at the same time striking a better balance between effective epidemic prevention and citizens’ rights.
Huang Yu-zhe is a political science undergraduate at Soochow University and has been accepted to National Chengchi University’s Graduate Institute of Law and Interdisciplinary Studies.
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