Reimagining the Administrative State in Times of Global Health Crisis: An Anatomy of Taiwan’s Regulatory Actions in Response to the COVID-19 Pandemic

Abstract

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 factors: 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); traumatic experiences during the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak, where regulatory failure led to a wave of reforms; and the island’s geographical proximity to and geopolitical suspicion about China. Yet 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. 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 normalized. Emergencies frequently serve to expand the power of executive agencies and sideline legislative or even judicial gatekeepers or lead to irreversible harm to fundamental human rights. 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 re-imagination of the administrative state in the—hopefully—post-COVID-19 world.

Keywords: COVID-19, risk regulation, global governance, administrative state, regulatory state, health law, infectious disease control, international law