New Policies Fighting Epidemics Must Take Basic Rights Into Account

This is a translation of the original 防疫政策亦應兼顧法律與人權 by Clarence Chou, the president of Taiwan Association for Human Rights (TAHR); Chia Wen-yu, a executive commissioner of TAHR; and Ho Ming-hsuan, the deputy secretary-general of TAHR. Originally published by Voicettank. Translation by Chieh-Ting Yeh.

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As the new COVID-19 virus (the Wuhan coronavirus) spreads, the Taiwanese government and the private sector deserves the respect of every citizen for their efforts in fighting the epidemic.

At the same time, human rights and the rule of law are facing some new limitations as a result of fighting the epidemic. These limitations are not clearly authorized by the law, and could risk overstepping into the basic rights of our citizens. We think certain policies for fighting the epidemic should be reviewed and possibly even revoked if they are potentially illegal, to stave off the possibility of legal liability when these measures are enforced.

In a democratic system, “legislating” isn’t just writing and approving formal, binding rules. At a more fundamental level, as the representative of all the diverse opinions of the entire country, the legislature confers legitimacy on the rules it formulates, and resolves differences in opinion through transparent debate and compromise. Of course, there are times of emergency when normal procedures cannot proceed; our constitution’s Additional Articles 2 Section 3 provides for the president, with the Executive Yuan, to “issue emergency decrees and take all necessary measures to avert imminent danger affecting the security of the State or of the people” (after which the Legislative Yuan has ten days to approve).

But if a crisis does not reach the level of seriousness described in the Constitution, then the government must follow the normal procedures, and avoid creating gray areas in laws and regulations that could violate basic rights. Otherwise the government, individual officials and relevant private sector actors will all be at risk of violating the constitution in carrying out hastily made policy.

Legal gray areas 

In recent weeks, not only are medical professionals working overtime, there are many legal scholars trying to find the legal basis for new policies. After the SARS epidemic, we have the Communicable Disease Control Act and disaster relief laws that provide the government with tools to respond to crises, but they are not blank checks to the government to disregard basic rights of the people. Below are some examples of how current policies are still vague on constitutional grounds, even after attempts to legitimize them legally. In the future their legality may be contested and spark additional controversy down the road.

Take for example, the policy of limiting the purchase of face masks based on real identities as registered on the national healthcare ID. The intention is benign, of course, but the National Health Insurance Act Article 16.1 clearly mandates that “the card may not store any information not used for medical care purposes as well as those unrelated to the insured receiving insurance medical services.” Since face masks are not covered by the National Health Insurance in most cases, unless the legislature amend the law, requiring the national healthcare ID card to buy face masks risks violating the law.

Meanwhile, the legal grounds of requiring private businesses (like convenience stores or pharmacies) to increase personnel to assist the government in distributing face masks is also questionable. The Communicable Disease Control Act provides for expropriation of goods (Article 54) and personnel (Article 53), as well as waived fair trade, labeling and tax duties (Article 55). But since convenience stores and pharmacies are neither “private medical care institutions” nor “medical devices for diseases” referred to in Articles 53 and 54 of the Communicable Disease Control Act, the losses of the employee wages in assisting the government would not be compensated. This legal uncertainty and risk isn’t something we should place on our businesses and government employees in this time of crisis.

Additionally, the digital monitoring tools that our government is fond of using recently also raises questions on human rights and legality. The proposal by the Ministry of Health and Welfare to record one’s location history on the national healthcare card may be considered a “disease control measure” for the purposes of Article 48 of the Communicable Disease Control Act, but location histories can very easily be overexposed and abused. It is also unclear when this function will be triggered, and when it will end. For law enforcement to require mobile carriers to turn over cell tower records to track the location of individuals in self quarantine is problematic, because cell phone locations are covered by Article 3-1 of the Communication Security and Surveillance Act, and in Article 11 only allows warrants for cell phone locations for investigations in criminal charges that carry a sentence of more than three years. Even if individuals in self quarantine may violate the Communicable Disease Control Act, it’s hard to say that automatically allows the police to monitor all cell phone location records.

Finally, as the epidemic continues to spread in China, the current regulations regarding China and Hong Kong are not adequate in dealing with a host of issues, including whether existing medical care capacities can handle medical evacuations, to what to do with political asylum and even “medical refugees.” The employee who was fired for reporting the manager’s failing to self quarantine after returning from Shenzhen could also have been better protected, had our whistleblower protection bill not been delayed for so long.

Fighting a viral epidemic is a serious undertaking. Our government has earned a great deal of approval for their speed and efficiency in protecting our health. But from the perspective of the long term democratic system in our country, we can still do better in clarifying the gray areas in our laws and be transparent in assessing the pros and cons of our policies. Protecting the nation’s health is a long term game, and carefully debating whether policies are legal and necessary, as well as upholding our rule of law and minimizing the risk of violating the rights of all stakeholders, are ways a democratic nation ought to conduct ourselves.