The Central Election Commission (CEC) has released a statement asking the public to comply with disease prevention guidelines tomorrow when voting in the nine-in-one elections.
According to the Central Epidemic Command Center (CECC), people who have tested positive for COVID-19 but who do not have severe symptoms must abide by its isolation policy — known as “5+n” — which requires home isolation for five days, followed by two days of self-disease prevention and taking rapid tests.
The CEC’s statement and the CECC’s guidelines prevent confirmed cases from voting.
This is a breach of people’s constitutional right to participate in public affairs. Based on the separation of powers, the Legislative Yuan should have a say on the matter.
However, the CEC contravened the principle of legal reservation when it bypassed the deliberation process in a democratic system, and strong-armed a decision that could keep 300,000 voters away from the ballot box.
Any form of voting restriction undermines citizens’ political rights and should therefore be scrutinized for constitutional validity. The policy could only be valid if it pursues government interests and undertakes the least intrusive means.
The majority of confirmed cases have non-severe symptoms, and the government has lifted border controls and other pandemic-related restrictions. It is therefore unfathomable that the government would still implement such a policy, especially considering that it does not benefit government interests.
If the government wishes to limit the effects of the pandemic, there are alternative options such as allowing confirmed cases to enter polling stations at different times from other voters. Preventing confirmed cases from leaving their residences is far from the “least intrusive and necessary means.”
If the CEC is deemed to have acted illegally in handling the elections, candidates have the right to sue it and invalidate the election.
It is expected that after a high-voltage election, candidates who lose by a small margin could argue that the commission acted unconstitutionally by banning voters from voting, claiming that it cost them their victory. Is the CEC willing to take such a risk?
It has been three years since the COVID-19 pandemic started, but the CEC has not been able to learn from other countries at the forefront of developing new practices, and has therefore lost an opportunity to establish alternative options such as postal voting systems.
Even if it is too late to develop new laws for this election, the CEC could have found a way to allow confirmed cases to go to polling stations at different times or to check in at separate, isolated sites.
They could be categorized as “electors” as stated in Article 19 of the Civil Servants Election and Recall Act (公職人員選舉罷免法): “The electors shall arrive at the polling stations within the specified time limit to vote, and may not enter the polling stations out of time. However, if an elector has arrived at the polling station within the specified time limit but has not voted yet, he/she still may vote.”
People could still be allowed to cast their votes while remaining separate from uninfected people.
The CEC should protect the voting rights of every citizen, including the rights of confirmed cases. Had it acted quicker, it could have set up response measures and policies to protect those rights.
Tu Yu-yin is an assistant professor at Tamkang University’s Department of Public Administration.
Translated by Rita Wang
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