I. Introduction
Taiwan is standing in the midst of the global novel coronavirus (COVID-19) crisis. At the time of this writing, in Taiwan, 267 people (227 imported and 40 indigenous cases) are infected with this severe acute respiratory syndrome and 2 people have died.Footnote 1 The entire country is bracing not only for the public health challenges posed by the outbreak that respects no boundaries, but also for the social, economic and political ramifications.
The regulation and governance of communicable diseases in Taiwan are underpinned by the Communicable Disease Control Act (CDC Act).Footnote 2 The law serves as a framework for government actions during public health emergencies, including inter alia setting up a disease control network by dividing the country into regionsFootnote 3; establishing a centralised platform to command and coordinate agencies’ actions, share information and respond to inquiriesFootnote 4; integrating personnel, facilities and resources in preparation for outbreaksFootnote 5; issuing voluntary and mandatory isolation ordersFootnote 6; and implementing border restrictions.Footnote 7 A closer look at the legislation as well as more recent developments suggests an explicit institutional design choice that upholds technocracy and delegates significant authority and broad discretion to health experts in the Executive Branch to steer the country in times of emergency, entrenching an administrative stateFootnote 8 in this young democracy.
In January of this year, when China decided to lock down Wuhan due to COVID-19, Taiwan took an exceptionally precautionary approach based on three major factorsFootnote 9: Taiwan’s decades-long exclusion from the international health community without World Health Organization (WHO) membership/observership and access to other arms of the United Nations (UN)Footnote 10; traumatic experiences during the 2003 severe acute respiratory syndrome (SARS) outbreak, where regulatory failure led to a wave of reformsFootnote 11; and the island’s geographical proximity to and geopolitical suspicion of China. Because international exclusion has prevented Taiwan from benefitting through information-sharing and collective efforts underpinned by the multilateral WHO framework,Footnote 12 the country has developed a “self-help” approach in countering possible public health threats, which has partly resulted in a heavy reliance on technocratic decision-making.Footnote 13 This sense of exclusion and the need for “self-help” was strengthened by bitter SARS experiences, when the WHO offered limited help.Footnote 14 During the SARS outbreak, Taiwan lost 73 lives, had hundreds of its citizens hospitalised and experienced the controversial lockdown of Ho-Ping Hospital in Taipei,Footnote 15 and such a history has prompted Taiwan to take a highly precautionary approach. Furthermore, COVID-19 and SARS share the same origin – China – and everything related to China seems controversial in Taiwan (even more so after the current administration took power in 2016) because of the complex historical, social, economic and political relationship between the two countries. China earned a track record for concealing information during the SARS outbreak,Footnote 16 and it is widely believed in Taiwan that China has done the same regarding COVID-19. Economically, Taiwanese enterprises invest intensively in Wuhan and other provinces in China, which results in frequent travel between the two countries. Socially, a number of Taiwanese marry Chinese citizens, and the Lunar New Year is a time for family reunions, which may have contributed to virus transmission from China to Taiwan. Finally, and most importantly, the current administration in Taiwan is suspicious of China, which leads it to take a sober look at the information and news released by China and to take a precautionary approach in countering COVID-19.
However, Taiwan’s proactive and precautionary response to COVID-19 might at the same time pose a threat to this young democracy. The critical issue here is how a constitutional democracy survives a public health emergency with the unprecedented magnitude of COVID-19. To be sure, governments worldwide have adopted a wide range of regulatory measures,Footnote 17 such as social distancing and stay-home orders,Footnote 18 mass testing,Footnote 19 contact-tracing and surveillance,Footnote 20 the shuttering of non-essential servicesFootnote 21 and even border closures and national shutdowns.Footnote 22 The legality and legitimacy of such regulatory actions may be examined pursuant to different norms and standards underlying a country’s respective political system, legal tradition and social context. On the one hand, an emergency calls for stronger and swifter governmental actions to safeguard public health and national security in a manner that may not allow sufficient time for parliamentary deliberation or traditional administrative procedures.Footnote 23 The urgency to take effective and efficient measures oftentimes justifies a wide margin of executive discretion. On the other hand, measures adopted in times of emergency tend to linger and become normalised. Emergencies frequently serve to expand the power of executive agencies and side-line legislative or even judicial gatekeepers or lead to irreversible harm to fundamental human rights.Footnote 24 In Taiwan, among those measures adopted to combat COVID-19, the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (COVID-19 Special Act) seems to have triggered controversial questions about the bending and even breaking of fundamental human rights and core legal principles. This paper therefore aims to offer an anatomy of Taiwan’s regulatory actions taken in response to the global COVID-19 pandemic, assess their implications for risk regulation and governance in a global context and urge a reimagining of the administrative state in the – hopefully – post-COVID-19 world.
II. Taiwan’s regulatory actions: an anatomy
Public health emergencies such as COVID-19 usually compel governments to steer, coordinate and respond with various measures. Taiwan’s CDC Act, which was carefully re-evaluated and amended after the SARS outbreak, serves as the primary legal basis.Footnote 25 Overall, executive agencies are granted considerable power to adopt various regulatory measures to cope with imminent epidemics and public health threats, and such agencies enjoy a substantial margin of discretion under urgent circumstances. Yet the government has so far treated the COVID-19 outbreak as a national security issue and has adopted extraordinary interventions reflecting such a framing.Footnote 26 While these interventions have been largely effective and have garnered majority support from society, they might also risk breaking fundamental rule of law principles, causing irreversible harms to human rights and bending the country’s constitutional order with lasting and systematic effects.Footnote 27 Here, we examine some key measures taken by the government in Taiwan along three essential dimensions of risk regulation, providing an anatomy of Taiwan’s actions in its whole-of-society and global approach.
1. Advanced but informed risk assessment?
To address a rapidly changing pandemic of global concern that is uncertain and dynamic in nature, the right timing for regulatory action is always a guesstimate and can only be evaluated in hindsight. Acting too early and taking excessive precautions risk being criticised ex post as paranoid and unduly disrupting the market and society; acting too late may cause irreversible damage and miss the window of opportunity to tackle the problem. Therefore, the key to successful pandemic response is to determine how and when a specific event becomes a public health emergency with limited scientific data.Footnote 28 This is by no means an easy task.
Taiwan has learned from its SARS experiences that timely and accurate determinations about a public health emergency may pose a formidable challenge if the roles and responsibilities in the decision-making process are not clearly defined (eg tensions and overlapping jurisdictions between local and central governments) and if scientific evidence is inadequate, complicated or unavailable (eg exclusion from the WHO and failure to receive critical information).Footnote 29 To establish a unified authority and decision-making process,Footnote 30 Article 8 of the CDC Act grants the Ministry of Health and Welfare, particularly the Centers for Disease Control, the exclusive power and responsibility to determine public health emergencies and announce them with a single voice. This further entrenches the technocratic anchor in Taiwan’s legal framework for communicable disease control, which relies heavily on the medical profession, as it has long enjoyed prestigious status in society and has generally been regarded as a trusted expert voice in policy-making.
When the world saw only uncertain signs of mysterious pneumonia cases in Wuhan in December 2019, Taiwan treated them with the utmost urgency.Footnote 31 On 31 December 2019, when China silenced doctors from disclosing information, the Taiwanese government warned China and the WHO International Health Regulations (IHR) Contact Points of the danger of human-to-human transmissionFootnote 32 and began to send officials to board all direct flights from Wuhan and inspect passengers for fever or pneumonia symptoms, prepared contact tracking and tracing mechanisms and surveyed the availability of medical supplies.Footnote 33 Regardless of the insufficiency of scientific evidence and clinical data at the time, the government spent great effort on assessing whether the disease constituted an emergency.Footnote 34 Taiwan sent two experts to Wuhan to obtain more information on the outbreak.Footnote 35 On 15 January 2020, Taiwan officially determined COVID-19 to be a Category V Communicable Disease,Footnote 36 setting up the Central Epidemics Command Center (CECC) on 20 January to coordinate all control measures across various agencies.Footnote 37 Following an advanced risk assessment, and recognising the need to act swiftly, the CECC moved to prevent Wuhan residents from entering the country on 23 January 2020, suspended tours to China on 25 January and, in the end, banned all Chinese visitors on 6 February.Footnote 38
Yet, such an “advanced” risk assessment was not necessarily science-based or informed by sufficient clinical data, but was rather a multifaceted decision based on a complex weighing and balancing of technical, social, economic and political factors. First, because of China’s concealment of information in the early stages of the outbreak and the WHO’s failure to take appropriate action, there was very little scientific evidence or international guidance for risk assessment. Second, due to the tensions between Taiwan and China and the former’s exclusion from the WHO, the management of risks in public health emergencies is not merely a technical and scientific issue, but also a socioeconomic and even a political task. The government is forced to make decisions in the absence of solid data and to take additional steps ahead of emergencies by using its own judgement. Thus, public health risk assessment goes beyond disease control and extends to holistic social, economic and political management.Footnote 39 This reflects a classic paradox in risk regulationFootnote 40: if a country adopts a precautionary approach and engages in advanced preparedness, such a decision is thus to be made in the absence of sufficient data and scientific certainty and to run counter to the principle of scientific-based decision-making. Transparency and reasoning requirements are likely to be side-lined in the decision-making process. In times of emergency, such a paradox is exacerbated by the urgency and uncertainty of an event and may only be partly addressed by ex post review and accountability mechanisms, which are also prone to hindsight bias.
2. Effective and efficient risk communication
Risk communication plays an important role in tackling public health emergencies. Effective and efficient risk communication informs people of potential hazards and ensures public trust, which serves as the very premise of successful control measures. In order for complicated technical information to be conveyed to the lay public and subsequently transformed into concrete disease control measures, the Taiwanese government has employed both formal and informal channels (such as social media platforms and messengers) and has also worked with civic technology groups to facilitate two-way communication between the CECC and the public on a daily basis.Footnote 41 Information about new imported and indigenous cases, global prevalence, new and revised control policies, clarification of misinformation and even the availability of medical masks and household necessities is provided at least once a day in a national press conference, followed by an open session for questions from the media and the public.Footnote 42
The government has also taken measures to counter fake news, or disinformation. Taiwan has fought a long battle with fake news (China is the primary origin) since 2012 and has modernised its legislative and regulatory responses.Footnote 43 Citing the CDC Act and the Social Order Maintenance Act (SOM Act), the government has fined or even arrested individuals for spreading rumours regarding COVID-19 and the shortage of household necessities.Footnote 44 These measures may seem well-intentioned and make some sense in theory, but they may lack the scope of sensitivity regarding what is at stake. Some criticise the fairly broad authority and substantial discretion extended by law to competent authorities in determining when and what information should be contained and punished.Footnote 45 If the government fails to strike a proper yet difficult balance,Footnote 46 the fight against fake news and misinformation may ultimately backfire, resulting in a chilling effect that causes further information withholding, self-censorship and poor communication. Noting this dilemma, the government is gradually shifting to an open communication method that aims to actively inform the public via social media and rectify the marketplace of speech with correct information in a timely manner.
Overall, the CECC has played a successful role in establishing and maintaining a credible channel for communicating information to the public in plain language and in a timely and consistent manner. There is also a responsive mechanism to address public enquiries, concerns and criticisms, which promotes public awareness and ensures constructive dialogue without politicising key messages. This open, responsive and credible risk communication helps the government build public trust when imposing necessary restrictive measures, encouraging citizens to self-report their health status and debating risk management options and broader policies.
3. Proactive risk management
Taiwan has taken various proactive and swift risk management measures to control the spread of COVID-19.Footnote 47 Here, we examine three dimensions of Taiwan’s risk management strategy: optimisation of key medical supplies; border control and travel bans; and big data-powered mechanisms for tracking and tracing the illness.
a. Optimisation of essential medical resources
The outbreak has led to a global shortage of medical masks. Taiwan first banned the export of medical masks on 24 January 2020, and further implemented a nationwide requisition and real-name rationing scheme premised upon the National Health Insurance (NHI) system after only a few days.Footnote 48 From an economic perspective, the government has taken necessary measures to prioritise the acquisition and allocation of key medical supplies. To ensure a steady domestic supply, the government even drew up a budget of US$6.66 million to invest in equipment and 60 production lines by way of public–private partnerships.Footnote 49 Taiwan’s supplies of medical masks have since risen at a steady pace, growing from daily manufacturing capability at 2.44 million units on 22 January to 13 million units in early March 2020.Footnote 50 Such a surge in domestic medical mask production has made possible special allocations to medical personnel, airport control and schools. Taiwan further agreed to provide 100,000 masks per week to the USA in exchange for protective medical clothing when its production capacity is stabilised.Footnote 51
In the process of optimising the supply of medical masks, however, a more ethics-sensitive framework to address distributional justice issues (eg unequal access to medical mask outlets in practice due to urban–rural differences) was overlooked. This can also be seen in the government’s management of medical resources in disaster preparedness planning. In Taiwan, the Communicable Disease Control Medical Network (CDCMN) was established following the SARS outbreak to centralise and optimise medical resources,Footnote 52 under which designated infection hospitals would be appointed as centres for the provision of treatment and resource mobilisation during public health emergencies. The CDCMN also facilitated the expansion of negative-pressure isolation rooms (1100 beds)Footnote 53 and isolation rooms (21,000 beds).Footnote 54 Yet this system and its methodology for prioritisation are predominantly based on biomedical models and medical resources rationing. Accordingly, they may overlook complex socioeconomic dynamics and varying local needs.Footnote 55 A framework for healthcare rationing and clinical prioritisation, especially under such exceptional circumstances, is desirable. Understandably, it may not be possible to set up ex ante criteria due to the uncertainty of an emergency. As such, extending broad discretion to physicians seems justifiable.Footnote 56 Yet, even so, legal and ethical guidance that strikes a balance between efficiency and fairness,Footnote 57 and transparency and due process in different circumstances, is much needed, as it can help guide the process of rationing medical resourcesFootnote 58 and facilitate ex post review and accountability mechanisms.Footnote 59
b. Border control and travel bans
Because cross-border travel constitutes the primary source of COVID-19 transmission for Taiwan, it proactively imposed entry restrictions for people from China as early as January 2020.Footnote 60 Such restrictions were subsequently widened, and travellers from other countries listed on the Travel Notice were required to be quarantined for 14 days, eventually followed by a ban of all inbound foreign visitors on 9 March 2020.Footnote 61 In addition to prohibiting inbound travel, outbound travel is also restricted: medical personnel, civil servants and middle- and primary-school teachers, students and staff are prohibited or strongly discouraged from travelling abroad, with a view towards maintaining human medical resources and avoiding transmission among vulnerable groups.Footnote 62 These border control measures and travel bans are supported by the general public in the name of public interest at the expense of individual liberty.Footnote 63
In times of health emergencies, public interest may serve as a justification for the government to bypass the legal imperatives and bring about a downwards cycle.Footnote 64 An illustrative example is the CECC’s decision to publish the names of quarantined individuals who travel “unnecessarily” to these countries and to deprive their eligibility for the quarantine subsidy.Footnote 65 Whereas the CDC Act, in Article 58(I)(4), authorises the government to impose home-based quarantine on individuals entering Taiwan from the worst-affected countries, the publication of the names of the quarantined individuals is without legal basis and disproportionately invades individuals’ privacy. The travel bans also suffer from the same weaknesses. Article 5(I) of the Immigration Act authorises the government to restrict the freedom to travel abroad for individuals involved in national security, yet neither medical professionals nor teachers/students are subject to the Act.Footnote 66
c. Big data and surveillance
To have a clear picture of the travel and contact history, health records, real-time movement and other relevant information of (potentially) infected persons, the government has resorted to “big data” technologies to facilitate the effective implementation of quarantine measures and efficient contact tracing and locating. For instance, the government has actively integrated individuals’ travel records from the National Immigration Agency with other existing databases, such as the NHI and even police systems. Physicians then have a channel by which to access a patient’s travel history through the NHI card reader. The government also used the NHI database, which contains the entire population’s medical records, to review all patients’ health status and to locate suspected patients. Several patients’ daily routes, explored through surveillance cameras and mobile phone tracking, were disclosed to the public so that people who have visited these places can be on alert.Footnote 67 A monitoring system, which can track individuals through GPS using their mobile devices and receive their daily health reports, was built to ensure individuals’ compliance with the quarantine order.Footnote 68
Despite their effectiveness, these measures, with their great potential to infringe upon individuals’ privacy, were not carefully scrutinised according to rule of law and constitutional principles. Indeed, aggregating databases and mobility data can help fight COVID-19 by mapping travel and contact history, measuring social distancing and ensuring compliance with quarantine orders, but only when “appropriate legal, organizational, and computational safeguards [are] in place”.Footnote 69 The Personal Data Protection Act sets out rules for collecting, processing and using personal data, such as lawfulness, purpose limitation, data minimisation and data security,Footnote 70 but it has long been plagued by inflexible legal transplant and legal formalism without taking into account local contexts, and it has failed to provide a healthy regulatory environment. Furthermore, while the CDC ActFootnote 71 and the COVID-19 Special ActFootnote 72 authorise the government to impose quarantine, isolation care and “other necessary measures”, it remains debatable whether linking multiple national databases, disclosing names, collecting mobile data and analysing surveillance data qualify as “necessary measures” and pass the scrutiny of fundamental rule of law principles. Additionally, there is no notification process, revision mechanism or appeal process for those affected to challenge and seek dispute resolution.Footnote 73 Again, these formal requirements merely serve as minimum safeguards and by no means suffice. A stronger mechanism that ensures deliberation, transparency and accountability by dynamic agency interaction and oversight is urgently needed.
In light of this development, the Taiwan Association for Human Rights (TAHR) has raised the question of whether privacy protection mechanisms, such as proportionality, transparency, due process and expiration, are overlooked in the process.Footnote 74 In a crisis-driven fashion, mass surveillance techniques have become a convenient tool for the government to employ, with the aim of protecting people from COVID-19.Footnote 75 The bottom line is fairly straightforward: while some exceptional measures may be justified by a “legality of emergency”,Footnote 76 ignoring existing rule of law and human rights safeguards seems to be a dangerous move and may ultimately institutionalise exceptionalism and leave a lasting impact on the legal system and culture.Footnote 77
III. Contextualising Taiwan’s experience: a reimagining of the administrative state and global health governance
In combating COVID-19, the Executive Branch of government in Taiwan has enjoyed technocratic legitimacy and has played a dominant role. By enacting the COVID-19 Special Act in a swift manner, the Legislature further empowered the Executive Branch to exercise significant authority by way of broad and ill-defined delegation. While such “an open-ended grant of authority is in tension with the overriding aim of presenting the emergency regime as a temporary and limited exception to the principles of limited government”,Footnote 78 are lawmakers aptly equipped to provide stronger and clearer guidance beyond delegation in times of public health emergencies? What are the implications of Taiwan’s experience for the administrative state and global health governance? Here, we further unpack and contextualise Taiwan’s experience in order to assess its broader, normative ramifications. As a developmental state, technocrats and experts tend to have an upper hand in shaping the direction and content of policies in Taiwan. In times of emergency, the need for a swift response favours the entrenchment of the administrative state at the expense of representative, democratic legitimacy. Furthermore, the nature of public health emergencies that respect no boundaries introduces a “double-jeopardy” for Taiwan’s Legislature to guide and oversee the Executive Branch. On the one hand, because Taiwan is excluded from the international health community, the Legislature is not equipped with international guidelines or best practices to “correct” domestic measures that may verge on arbitrariness or abuses. On the other hand, even in the context of global health governance, policies are primarily shaped by technocrats and experts, where the domestic legislature has limited access.Footnote 79 The expansion of Executive power and technocracy appears unavoidable in an area of specialisation such as public health and in a time of emergency.Footnote 80 Yet, even so, can we harness the administrative state with only traditional safeguards such as due process, proportionality and judicial review? What are the merits of a dynamic deliberation and accountability mechanism? Most importantly, how should we reconfigure the administrative state post-COVID-19?
Albeit marginalised, lawyers’ input into the debates and discourses in countering COVID-19 would seem ever more urgent. Haunted by the ghost of martial law, Taiwan strives to maintain a high degree of democratic governance and rule of law. This in part explains why the government has been reluctant to issue an across-the-board lockdown that bears an authoritarian legacy. The same also applies to the Legislature’s expeditious enactment of the COVID-19 Special Act as a legal basis for countering and containing the epidemic, with a view to fulfilling minimum democratic legitimacy and rule of law. Similarly, whereas the opposition party proposed that the President should invoke Article 43 of the Constitution to issue emergency decrees,Footnote 81 the President has so far declined to do so on the practical ground of the sufficiency of the COVID-19 Special Act, and perhaps also on the ideological ground of past bitter experiences. Nonetheless, constitutional and legal guarantees of human rights and the rule of law extend far beyond a formal legal basis for emergency-response measures. In recognition of broad and unlimited delegation, as endorsed in Article 7 of the COVID-19 Special Act, some members of the Legislative Yuan (Legislature of Taiwan) have proposed an amendment with more stringent rules designed to strengthen democratic oversight, remedy rule of law deficits and prevent systematic failure.Footnote 82 Relatedly, Taiwan’s dynamic and robust civil society serves as an additional safety net for extreme measures in the name of emergencies.Footnote 83 In particular, the TAHR issued a statement emphasising the importance of democratic governance and the rule of law in times of pandemic, calling for resistance to blank-cheque authorisation.Footnote 84 Yet sticking to such a formalist understanding of legal safeguards remains inadequate. A broader socio-political mechanism that involves different stakeholders to ensure constructive deliberation and to address challenges seems desirable.
Taiwan’s experience should also be read together with the dynamics of global health governance. Despite its alleged failure, the WHO continues to play a key role in providing guidance, expertise, technical assistance, a collaborative forum and personnel and practical tools, especially when the entire globe has been affected by COVID-19.Footnote 85 From Taiwan’s perspective, meaningful participation in the WHO has been of the highest priority in its foreign relations, both for political reasons and for public health concerns. However, there is growing resentment of this organisation due to the sense of exclusion and the belief that is shared by at least some Taiwanese that this organisation uncritically takes positions that are overly favourable to China. Taiwan’s scepticism towards the WHO and its relationship with China has driven the country’s precautionary approach to coping with COVID-19. For the moment at least, the WHO seems to have lost its legitimacy and authority in global health governance and, subsequently, its charm for the Taiwanese people. Taiwan’s experience may further fuel the existing momentum in favour of a global call for WHO reforms.
The changing global order represents yet another context by which to expound upon Taiwan’s actions in fighting COVID-19 and its pursuit of health diplomacy. The growing influence of China in international organisations is due in part to the US’s turn from multilateralism to bilateralism, particularly under the Trump Administration.Footnote 86 Because Taiwan is at the forefront in containing the transmission of COVID-19, as well as China’s expansionist ambition, a close bilateral US–Taiwan collaboration is natural. On 18 March 2020, the USA and Taiwan issued a joint statement to strengthen their consultation and cooperation in combatting COVID-19.Footnote 87 This joint statement is of practical and political importance. Practically, it reflects the two sides’ wish to pursue closer collaboration; politically, after the USA switched its diplomatic relations from Taiwan to China, it marks the first time that the Taiwanese Minister of Foreign Affairs signed an agreement or issued a statement with a US authority, albeit still through the American Institute in Taiwan.Footnote 88 In addition, the compelling need for cooperation in addressing the global COVID-19 crisis and for sharing experiences and information have similarly been felt by other countries.Footnote 89 Leaders in Western countries have voiced their support for Taiwan’s participation in the WHO,Footnote 90 signalling yet another wave of contestation against international public authority. Is multilateralism in freefall in the face of this global public health crisis?
IV. Conclusion
The global COVID-19 crisis has driven governments worldwide to adopt exceptional measures to address imminent threats that may bend or break fundamental legal principles and constitutional guarantees in the process. While Taiwan has done an extraordinary job in response to this grand challenge, it is not immune to this dilemma. Drawing from the lessons of SARS and COVID-19, how do we reinvent the administrative state and ensure an adequate governance framework that safeguards core human rights and legal principles in cases of public health emergencies?
To begin, democratic governance and open society are cornerstones, not only for the state of normalcy, but also for the state of emergency. Congressional oversight and the principle of legal reservation remain the first gatekeepers and the foundation for safeguarding the rule of law and human rights. The COVID-19 Special Act, regardless of its controversial open-ended delegation, reflects this young democracy’s attempt to maintain its democratic legitimacy. With a large degree of transparency, the Chief of the CECC communicates daily with the affected population, which builds trust within the community and strengthens the legitimacy of its decisions. In response, human rights advocates and non-governmental organisations continue to point to the danger of human rights violations surrounding these emergency measures.
Furthermore, law, especially a set of pre-established procedures and substantive rules designed for risk regulation in times of such public health emergencies, is the second gatekeeper and remains the key instrument to guide and discipline Executive power. With its bitter lessons learned from SARS, Taiwan revised the CDC Act and relevant regulations, which provide a well-functioning framework to prepare for and respond to another public health emergency. This legal fabric helps prevent the Executive Branch from exercising its power in an arbitrary, capricious, misinformed or excessively disproportionate manner. A well-designed framework with pre-established procedures and substantive rules also enables effective ex post judicial oversight. Nevertheless, this second gatekeeper should go beyond a formalist understanding of legal safeguards and enlist innovative and dynamic approaches to broader socio-political checks and balances.
Finally, pandemics hit unevenly, both within this island country and across the globe. Emergency measures carry significant distributional justice implications, and the vulnerable are most susceptible to the threat of pandemics. Whereas Taiwan has so far produced a successful story in countering COVID-19, it has not been without cost: medical professionals are one example, and existing, chronic patients who are crowded out of treatment due to resource mobilisation are another. At the international level, the current health governance regime is by no means global or universal. Apart from Taiwan’s exclusion, it does not really reflect the interests of those most in need of assistance. Time will tell as COVID-19 hits the least-developed countries of the world. Therefore, a distributional justice logic deserves to be institutionalised as the normative anchor and the third gatekeeper of national and global health governance.
Taiwan’s experience in fighting COVID-19 presents an alternative model to China’s myth of authoritarian effectiveness. It also points to the failure of the current international public authority in moving beyond the political boundaries that diseases neither recognise nor respect. In the post-COVID-19 world, we deserve a new system of global health governance that delivers rather than undermines global public goods.
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