Sham Legality: Analyzing Taiwanese Experiences in Responding to COVID-19 in 2020

Abstract

Modern governments strive to enhance their emergency management capacity and establish multiple policy tools that can help reduce damage caused by natural and human hazards. Among these institutional mechanisms, the constitution in Taiwan entrusts presidents with the authority to act immediately in response to an emergency based on the principle of necessity. The objective of this paper is to gain insight into the following questions: (1) How does the Taiwanese government respond to a pandemic and to what extent does this situation affect the Taiwanese governmental emergency response powers? (2) Do the Taiwanese governmental interventions contradict democratic values and civil liberties? By analyzing the boundaries and limitations of the presidential emergency power, demonstrating practical examples of the different views of Taiwanese presidents regarding their use of the emergency power to address catastrophic disasters, and exploring preemptive actions in response to the COVID-19 pandemic, the authors argue two points: (1) Taiwan’s administrative response to COVID-19 reveals a tendency toward having authority vastly centralized at the legislative level through blank-check authorization, and this represents the presumptive allocation of power embodied in the Republic of China Constitution, which has gradually expanded. (2) The vague and unfettered legal authorization by the CDC and the COVID-19 Special Act may diminish the substantial rule of law in the long run. This article demonstrates, by applying the assessment from a variety of key principles of constitutionalism, Taiwan exhibited how it has integrated institutional memories and past lessons. However, there continues to be in Taiwan an overdependent reliance on statutory authorization with the inherent risk of a slippery slope in exploiting legal authorization, coupled with administrative blind spots, that can generate disproportionate public measures. This leverage, we argue, supersedes the president’s discretionary emergency power, enabling emergency legislation without proper oversight, prevailing over ordinary constitutional order, and possibly producing a corrosive effect on civil liberties and the rule of law in the long term.