A Liberal Darling or an Inadvertent Hand to Dictators? Open-Ended Lawmaking and Taiwan’s Legal Response to the Covid Pandemic

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–Ming-Sung Kuo, Associate Professor, University of Warwick, UK. Email: M-S.Kuo@warwick.ac.uk 

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Taiwan has recently received unusual international coverage for its stellar performance in the global fight against the Covid pandemic. It is noted that the Taiwan society and government drew hard lessons from their painful experience in the 2003 Sars outbreak. Learning from the experience with the help of the civil society is said to make Taiwan’s proactive response to the Covid pandemic a success story. With Xi Jinping’s China coming out of the pandemic shadow cast by the early outbreak in Wuhan, Taiwan is emerging as a newfound darling in the eager search for an alternative model to the Chinese dystopia among liberal-minded societies. Taiwan’s public health performance in this real global fight notwithstanding, the legal picture currently being drawn of Taiwan’s response to the Covid pandemic is still incomplete (here and here) and a cautionary note should be sounded about this success story.          

Success in Controlling the Pandemic? Don’t Mistake Stellar Public Health for Dark Law

There is no denying that Taiwan stands out from the rest of the world in terms of its record in the global fight against the Covid pandemic. Nor is there any effort on the part of the government to use the pandemic as an excuse to consolidate the dominance of the ruling party at the expense of democracy. It is also true that the public have generally consented to trade some privacy and other civil liberties (freedom of movement and assembly, etc) for safety and public health. Every move by the government has been made with impeccable transparency. For lawyers who are trained to see the world through the legal lenses, the law must have been integral to Taiwan’s fight against the novel coronavirus. In this way, Taiwan’s stellar public health performance in battling the virus is taken as evidence of the success of Taiwan’s legal response (see here and here). 

Yet, the relationship between law and public health is more complex than suggested above and the attribution of Taiwan’s success in controlling the epidemic to the law does not withstand scrutiny. Take the UK for example. In all the league tables, the UK’s performance is unfortunately dismal. In the meantime, however, the UK’s legislative model has been praised as the exemplar in a recent comparative study of legal responses. Is the UK’s exemplary legal response responsible for its dismal performance in controlling the pandemic? I don’t think so. The truth of the matter is that the law may or may not play a role in the emergency fight against the pandemic. The law is important and may help control the disease for sure. Yet, the efficacy in the administration of epidemic diseases, the role of the law in making such administration work, and the legality and other normative issues of the law should be teased out when analysing legal responses to the Covid pandemic. After clearing the way for legal analysis, I return to the spectacular case of Taiwan.

Law as Part of Taiwan’s ‘Think and Act Ahead’ Strategy

Against Taiwan’s stellar performance in the administrative control of the epidemic arises a very lawyerly question: On what legal basis is the government able to accomplish so much? Notably, no presidential emergency decree has been made. Rather, a special statute (known as the Covid-19 Special Act) was promulgated by the president on 25 February after clearing the legislative procedures on the same day but with retrospective effect from 15 January. Along with the existing Communicable Disease Control Act (CDC Act), the Covid-19 Special Act, which originally comprised nineteen provisions, was aimed to provide the additional power required to combat the Covid pandemic and to provide financial relief to those affected. On the second point, the emergency fund was originally capped at NT$ 600 million (approximately 20 million US dollars).

That the enactment of the Covid-19 Special Act was expedited has been flaunted as part of the Taiwan government thinking and acting ahead in its response to the Covid pandemic (here and here). There is nothing wrong with this strategy. Yet, acting ahead at speed and moving with haste may be just the two sides of a coin. Given the unprecedented pandemic in recent memory and the uncertainties surrounding the novel coronavirus, the limitation of the Covid-19 Special Act transpired before long. An amendment bill was introduced in the parliament on Friday, 10 April and cleared the procedures on Tuesday, 21 April. The amendment was gazetted on the same day when it cleared the parliamentary procedures.

Legal Troubles in Troublesome Legislation: Open-Ended Lawmaking

As noted above, the emergency fund (NT$ 600 million) as originally provided for under the Covid-19 Special Act (article 11) is undoubtedly inadequate in light of the massive economic impact. The amendment was meant to raise the ceiling up to NT$ 2,100 million (approximately 70 million US dollars) and to waive the statutory restrictions on the government debt and budget (article 11) with the addition of a new article 9-1 to exempt the financial aid received from the government from the income tax. I am not sure if there will soon be another amendment on the emergency relief as the impact of the unprecedented Covid pandemic is continuing to unfold. How the figures of the fund were determined is anyone’s guess. Even with the parliamentary consent as expressed in the statutory form, the oversight the parliament exercised over the administrative response to the epidemic is in name only. 

Yet, what is more controversial is the proximity of the amendment to and the original enactment of the special legislation. Notably, the Covid-19 Special Act has already been amended short of two months since its enactment even before the parliament receives the required first tri-monthly report from the government, which is due after 24 May. Seen in this light, the original Covid-19 Special Act appears more symbolic than normative, providing a skeletal framework enabling the executive to rely on an obedient legislature to make changes as it sees fit in terms of the concrete situation. Granted, iterative lawmaking seems to be the rule in the ongoing state of exception. Still, compared to such new normal, Taiwan’s iteration and open-endedness in legal responses are as spectacular as its record in public health.   

If the above indicates the new chapter in the development of open-ended lawmaking, another is more of a page taken from the old playbook: the blank-check authorization. One provision that has been left out from the existing commentary on Taiwan’s legal response to the Covid pandemic is also the most controversial part of the Covid-19 Special Act: the crown, or rather, corona clause, ie, article 7. It is true that broad delegation seems to be the destiny of the rule of law with the rise of the administrative state and the current pandemic emergency makes this even more salient. Yet, compared with other legislative examples in the global legal landscape, the corona clause is in a league of its own and deserves quoting in full: ‘The Commander of the Central Epidemic Command Center may, for disease prevention and control requirements, implement necessary response actions or measures (中央流行疫情指揮中心指揮官為防治控制疫情需要，得實施必要之應變處置或措施).’ Moreover, to give the corona clause teeth, article 16, paragraph 3 further provides for penalty up to NT$ 1 million (approximately 33,000 US dollars). Note, Taiwan’s official forecast of per capita GDP of 2020 is 27,437 US dollars.

At first glance, the corona clause may seem to be another miscellaneous clause, which is not uncommon in comparative legislative practices. The question is that the CDC Act (article 37, paragraph 1) has already had such a miscellaneous provision after providing for specific measures the administration may take in response to epidemic diseases (article 37, paragraph 1, subparagraph 6). Thus, the corona clause can only be construed as going beyond the mandate of the CDC Act. The trouble is that the corona clause is a standalone provision whose scope cannot be determined by necessary implication in the way the miscellaneous provision of the CDC Act (article 37, paragraph 1, subparagraph 6) has been. Rather, as its original wording in Chinese suggests, it is effectively dictated by the concrete situation under the law of necessity as the Commander of the Central Epidemic Command Center, or rather, the pandemic czar, sees fit. 

If we conceal its place of origin, the corona clause may well be suspected of an example of the blank-check authorization or ‘enabling legislation’ taken from any authoritarian regime. Yet, it has been the major source of power for the Minister of Health and Welfare, the designated pandemic czar, to impose an overseas travel ban on pupils and teaching staff of all schools (universities and colleges excluded). Also it has been invoked to lift the statutory restrictions on the use of personal mobile phone data. Two examples here suffice to illustrate my point. 

I take no interest in disputing whether school pupils and teaching staff should be allowed to travel abroad amidst a global pandemic or not. Nor do I intend to gauge the balance struck by the czar between privacy and public safety. Rather, I am concerned about what lesson such an enabling statutory provision will teach students of comparative public law.

Taiwan’s legal response to the Covid pandemic as discussed above shows that even a robust constitutional democracy is not immune from some diseases public law scholars have long identified in the lead-up to executive abuse and even authoritarian regime. Either through subsequent amendments or through the czar-mandated measures, the Covid-19 Special Act amounts to an instance of open-ended lawmaking, blurring the distinction between legislation and executive measures. In this way, the newfound liberal darling is inadvertently conceding the last laugh to the crown jurist of the Third Reich. The concrete situation becomes the best guidance on Taiwan’s flaunted proactive legal response. 

Set the Record Straight: No Darling in the Fight against the Pandemic

Taiwan deserves more attention indeed. Yet, taking Taiwan’s response to the Covid pandemic as the model without differentiating its public health and legal dimensions or noting the flaws of its underlying legislative framework, we fail to see the whole picture. Worse, just like Benjamin Netanyahu’s invocation of Taiwan as his source of inspiration to justify extending the controversial anti-terror technology to counter the Covid pandemic in Israel, Taiwan’s special legislation may lend inadvertent support to malevolent regimes. 

Taiwan has been saved from the havoc wrecked by the disease and executive dictatorship not because of its underlying legal framework. I am not sure whether it should be attributed to the good faith of the government or just the people’s good luck. My fear is that when migrating to some unexpected jurisdictions, the underlying legal framework underpinning Taiwan’s response to the Covid pandemic may not just be another instance of iterative lawmaking but would rather bring about draconian measures unseen in Taiwan. Open-ended lawmaking buttressed by the blank-check corona clause is no inspiring innovation in Taiwan’s outstanding fight against the Covid pandemic. Rather, it is another manifestation of how easily the rule of law may give way to administrative expediency and the unvigilant public can succumb to executive domination amidst fear, even in a healthy constitutional democracy like Taiwan.

There is no darling in the real-world responses to the Covid pandemic. Only lessons, good and bad, can be learnt in our eager search for the panacea both in medicine and law in times of pandemic. Bad practice in legislation may not necessarily yield poisonous fruit when it is in the hands of a benevolent government but will likely cause disaster when it is transposed to authoritarian realms. This is the cautionary note I sound on Taiwan’s legal response to the Covid pandemic.

Suggested Citation: Ming-Sung Kuo, A Liberal Darling or an Inadvertent Hand to Dictators: Open-Ended Lawmaking and Taiwan’s Legal Response to the Covid Pandemic, Int’l J. Const. L. Blog, Apr. 30, 2020, at: http://www.iconnectblog.com/2020/04/a-liberal-darling-or-an-inadvertent-hand-to-dictators:-open-ended-lawmaking-and-taiwan’s-legal-response-to-the-covid-pandemic