I Introduction
Globally, the rise of illiberal democracy and authoritarianism continues even post-COVID-19 pandemic, during which many governments were given blank checks to combat the virulent disease.Footnote 1 Asian countries are no exception. From Japan to the Philippines and from Mongolia to India, emergency decrees were declared, and laws were enacted to concentrate political power, curtail individual freedoms, and even disrupt periodic elections. Autocratic leaders capitalized on gains in popularity and regained the people’s support.Footnote 2 Interestingly, however, against such democratic backsliding, some countries seem to have withstood the challenges posed by the pandemic and sustained their liberal and democratic governance to varying degrees. For example, in Taiwan and South Korea, democratic competition continued unabated during the pandemic, and rights assertions by affected individuals and human rights groups became even stronger.Footnote 3 In Singapore, albeit usually seen as an authoritarian constitutional polity, the government proactively sought community engagement and social support for undertaking pandemic measures, which were surprisingly less restrictive and far more transparent.Footnote 4
This chapter aims to investigate the respective constitutional foundations, jurisprudential developments, and democratic processes in Taiwan, South Korea, and Singapore that have enabled the varying degree of resistance against the rise of illiberal and authoritarian governance during the pandemic. While South Korea and Taiwan are strong democracies and Singapore is usually characterized as an illiberal and soft authoritarian polity, their experiences in combating the spread of COVID-19 have revealed three common features. First, by learning from one another’s experiences with severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS), as well as those of other Asian countries,Footnote 5 the pandemic responses in these three countries were not given blank checks but subjected to democratic oversight and political accountability. The incorporation of openness, trust, and transparency into government policies and practices in combating the pandemic helped the three countries avoid pathologies usually associated with democratic backsliding. Second, unlike other authoritarian governments in the region,Footnote 6 these three countries have adopted a relatively democratic approach. Not only was civil society oversight involved, but also institutional checks and balances both vertically and horizontally remained strong and effective. Third, judicial deference was generally provided by the courts of the three countries if the government measures did not seriously or repeatedly violate basic rights and fundamental principles. Meanwhile, a harder look would be given if rights protection was in stronger demand with less harm to public health safety.
As this chapter argues, the combating pandemic experiences of Taiwan, South Korea, and Singapore have demonstrated that adhering to democratic checks and balances within the framework of constitutional separation of powers was effective in managing the pandemic crisis. Democratic processes and institutions could continue to function within the established legal frameworks to ensure due process, civic participation, and political accountability during the pandemic. In addition, non-governmental organizations (NGOs) and courts in these three countries have played counterbalancing roles and acted as intermediaries between the government and affected individuals challenging government policies and pandemic measures. These experiences demonstrate that tensions between effectively combating the pandemic and preserving rule of law and human rights can be mitigated democratically. Additionally, Taiwan, South Korea, and Singapore share several common characteristics in their responses to the COVID-19 pandemic. Given that COVID-19 was a transboundary problem, these countries’ experiences highlighted considerable cross-jurisdictional learning and adaptation. Notably, they borrowed from each other’s strategies in pandemic legal frameworks, multi-level coordination between central and local governments, and the active role of NGOs. Together, these elements contributed to the effective management of the pandemic across all three countries. This insight that pandemic governance presents no excuse for democratic backsliding in these three Asian countries may enrich pandemic governance studies and shed light on the discussion of Inter-Asian Law.
II COVID-19 Pandemic Responses in Taiwan, South Korea, and Singapore
A. Pandemic Legislation: Lessons from SARS and MERS Experiences
To mitigate the impact of the COVID-19 pandemic, many governments implemented extraordinary measures such as declaring emergency decrees that easily raised concerns about grave human rights violations and government powers aggrandizement. Learning from their experiences of SARS and MERS,Footnote 7 the governments of South Korea, Taiwan, and Singapore, however, did not issue any emergency decrees but instead relied on existing laws or enacted new laws to manage the pandemic crisis.
In 2015, South Korea experienced the largest MERS outbreak outside the Middle East.Footnote 8 To prevent the previous mistakes of poor risk communication and government secrecy, the National Assembly revised the Infectious Disease Control and Prevention Act (IDCPA),Footnote 9 effectively preparing the government to combat COVID-19. Key revisions include providing a wide scope for administrative orders enabling the Minister of Health and Welfare and local governments to take necessary measures.Footnote 10 For instance, Article 34-2(1) allows public health authorities to disclose information on confirmed cases to the public. Article 40 authorizes the authority to shut down contaminated locations.Footnote 11 Article 76-2(1) authorizes the Minister of Health and Welfare to collect personal data to track confirmed patients without a court warrant during infectious disease emergencies.Footnote 12 Article 76-2(2) allows public health authorities to require medical institutions to provide information on patients and those feared to be infected.Footnote 13
To enhance the government’s response to the COVID-19 crisis, the Korean National Assembly revised the IDCPA, the Quarantine Act, and the Medical Services Act, which the President promulgated on March 4, 2020.Footnote 14 The revised IDCPA aimed to enhance responses to those exposed, regulate medical supply flows abroad, and strengthen epidemiological investigation capacity. For example, Article 40-3 of the revised IDCPA enables public health authorities to ban exports of drugs and medical supplies, such as face masks and hand sanitizers, when shortages are expected.Footnote 15 The Act provides a wide-ranging list of measures under provisions stating that public health authorities “shall take all or some of the following measures.” To balance the protection of human rights, Article 34-2 of the IDCPA states that “personal information determined to be irrelevant to the prevention of infectious diseases by Presidential Decree, such as sex, age, and so on, shall be excluded.”Footnote 16 The revised Quarantine Act clarifies the legal basis for requests not to allow anyone infected or suspected of being infected with COVID-19 to enter or leave South Korea, excluding South Korean nationals.Footnote 17 Finally, the revised Medical Service Act aims to establish and implement more effective monitoring of infections within healthcare facilities, obligating heads of medical institutions and medical personnel to voluntarily report to the Minister of Health and Welfare if an infection is detected within the institution.Footnote 18 These revisions formed the legal basis for the Korean government to implement administrative countermeasures against COVID-19.
However, some legal provisions raised concerns regarding privacy and surveillance.Footnote 19 Article 76-2 of the revised IDCPA allows national public health authorities or local governments to request information from various governmental and non-governmental institutions, potentially enabling infringements of human rights and rendering the protection of personal information ineffective.Footnote 20 Additionally, the ban on gatherings in the IDCPA, among the most commonly used administrative public health measures by the Korean government to restrict viral spread, may infringe constitutional rights. These gathering restrictions have also been used against protests, religious events, and gatherings at certain businesses.Footnote 21
Taiwan has learned hard lessons from the 2003 SARS outbreak, which resulted in the loss of medical personnel and individual lives.Footnote 22 In response, the Communicable Disease Control Act (CDC Act) was substantially amended. The CDC Act now serves as the framework for government action on communicable disease control and public health emergencies. It authorizes the creation of a centralized command system with clear power divisions between national and local governments. The Central Epidemic Command Center (CECC) or Central Command represents the central government, setting standards and providing regulatory measures such as inspection, contact tracing, quarantine, isolation, travel restrictions, requisition, expropriation, and compensation.Footnote 23 For example, Article 20 of the CDC Act requires the government to stock sufficient quantities of pharmaceuticals, devices, and protective equipment for disease control. It also includes provisions against discrimination and human rights infringement in the name of disease control. Local governments are primarily tasked with case-by-case enforcement.
Three key provisions in the CDC Act balance human rights and individual freedoms.Footnote 24 Article 10 prohibits the disclosure of information related to patients or suspected patients with communicable diseases, imposing fines for violations.Footnote 25 Article 11 guarantees the dignity and legal rights of those with communicable diseases, medical personnel, patients under quarantine, and their families, ensuring they are respected and protected without discrimination. Article 12 obliges public and private persons and institutions not to deny patients with communicable diseases their rights to education, employment, nursing care, or housing, nor to provide any unfair treatment.Footnote 26
To supplement the CDC Act, Taiwan’s Legislative Yuan passed the Special Act for Prevention, Relief, and Revitalization Measures for Severe Pneumonia with Novel Pathogens (“Special Covid-19 Act”) on February 25, 2020. This Act authorized a special budget of TWD 60 billion (approximately US$2.15 billion)Footnote 27 and set a term from January 15, 2020, to June 30, 2021, with the possibility of extension by the Legislative Yuan. Since the CDC Act had already equipped the government with significant power against the pandemic, most provisions of the Special COVID-19 Act focused on relief, compensation, and stimulus. However, two provisions of the Special COVID-19 Act caused concern. Article 7 was criticized for granting the Central Command exclusive power to implement necessary measures for pandemic control, potentially violating the principle of proportionality and infringing on freedom of movement.Footnote 28 Additionally, Article 8 gave the Central Command the power to release personal data if an individual violated a quarantine or isolation order, raising concerns about possible violations of privacy protection and proportionality.Footnote 29
Singapore, along with South Korea and Taiwan, utilized the Infectious Diseases Act (IDA) instead of emergency measures to address the COVID-19 crisis.Footnote 30 The Act, reinforced after the 2003 SARS outbreak, involves protocols to identify and isolate infected individuals for two weeks.Footnote 31 On April 7, 2020, the Parliament of Singapore passed the COVID-19 (Temporary Measures) Act (CTMA), authorizing the Ministry of Health to implement necessary public health measures if COVID-19 poses a serious threat. The CTMA includes provisions to restrict activities to prevent virus spread, compensate distressed parties, facilitate in-person meetings, maintain court functions through remote technology, and suspend contractual obligations. To enforce the IDA,Footnote 32 the Ministry of Health implemented subsidiary legislation, such as the COVID-19 (Temporary Measures) (Control Order) Regulations 2020, regulating corporate meetings, charities, trade unions, and societies, reducing rent, and providing temporary relief for unfulfilled contracts.Footnote 33
In May 2020, the Parliament of Singapore revised Article 64 of its Constitution, allowing members to meet remotely if it is difficult or unsafe to assemble in one place.Footnote 34 This revision designates a temporary alternative parliamentary meeting location, valid for six months with a possible six-month extension.Footnote 35 After the July 2020 parliamentary elections, this framework was implemented for the first time during the State Opening of Parliament.Footnote 36
In terms of legal frameworks, as discussed above, each country not only adapted its legislative responses by learning from others’ experiences with SARS and MERS but also demonstrated significant cross-jurisdictional learning and borrowing to manage the pandemic crisis effectively. For example, inspired by South Korea’s amendments to its IDCPA after MERS, Taiwan’s CDC Act empowered the CECC to coordinate with local governments on contact tracing and data collection, establishing a real-time, centralized system.Footnote 37 Another example is Singapore’s IDA, which included public health data management provisions. Drawing inspiration from Taiwan’s CECC, Singapore used digital platforms to gather public policy feedback, enabling local districts to tailor responses to community needs while aligning with central guidelines.Footnote 38
B. Pandemic Central and Local Politics
The global experiences of the COVID-19 pandemic have shown that tensions can easily arise between national and local governments, particularly when there is uncertainty about the division of competences. To address the rapid spread of the pandemic, intergovernmental dialogue and political coordination between national and local governments are crucial.Footnote 39 Different levels of government embody different merits and limits. One advantage of centralized power is that it can provide more consistent policies and mobilize resources on a large scale, yet it may be incapable of dealing with a sudden outbreak. In contrast, local governments are on the frontlines of the crisis and can respond immediately but also require greater discretion in their swift responses.Footnote 40 Local delegation may better cope with local variations and mobilize resources, and yet fragmented implementation may result in unequal treatment and inconsistency. In the face of the pandemic, neither central nor local government alone guaranteed the best policy.
To strengthen collaboration within multi-level governance on pandemic management, South Korea and Taiwan restructured and centralized their respective public health approaches and institutions after the SARS outbreak in Taiwan in 2003 and the MERS outbreak in South Korea in 2015. These reforms have enhanced the ability of multiple-level governments to respond effectively. For example, after 2015, South Korea’s reforms placed primary responsibility for epidemics in the hands of the Korean Centers for Disease Control and Prevention.Footnote 41 In Taiwan, the Central Command, a rapid-response agency, was created within the Ministry of Health and Welfare.Footnote 42
During the pandemic, the relations between national and local governments in both South Korea and Taiwan were often characterized by tension. For instance, when South Korea faced shortages of COVID-19 vaccines, Mayor Kwon Young-jin of Daegu City announced that Daegu would purchase the Pfizer vaccine through a foreign trading company. The city submitted its import proposal to the central government. However, the Ministry of Health and Welfare rejected this action as untrustworthy,Footnote 43 and Pfizer also raised concerns about the foreign trading company, noting that its vaccines are not provided through intermediaries. Consequently, the mayor apologized to the citizens and the entire nation in a news conference and withdrew the proposal.Footnote 44
Another dispute between national and local governments in South Korea concerns privacy issues. With the need for real-time tracing, the IDCPA was amended to include provisions for pandemic surveillance.Footnote 45 These provisions authorized national health authorities to access information that was previously exclusive to law enforcement authorities. This significantly enhanced their capacity to focus testing and quarantine efforts on individuals at greater risk of infection.Footnote 46 Hence, the central government of South Korea employed two apps to trace and isolate those infected or suspected of being infected. One app is used for contact tracing, notifying individuals if they may have crossed paths with a confirmed case. The other app is used to monitor self-quarantine compliance.Footnote 47 However, these measures were criticized for infringing on the privacy of infected individuals, who did not consent to them and who faced social stigma. Some local governments also expressed concerns over excessive collection and disclosure of personal data in the process of epidemiological investigation and through the use of contact tracing devices.Footnote 48 They were worried that the use of those digital tracing apps might infringe on individuals’ privacy and human rights through excessive collection and release of personal information.Footnote 49
In Taiwan, significant executive power has been vested in the Central Command. Under Article 37(3) of the CDC Act, the Command was the ultimate authority in coordinating the anti-pandemic efforts. Some disputes have arisen when the Central Command has opposed the introduction of stricter disease control measures by local governments. For example, in August 2020, Chang Hua County decided to test all outside visitors for COVID-19, regardless of whether they had symptoms. Even if some epidemiologists supported the measure, it raised ethical concerns that the testing was not properly reviewed as part of a government-funded research project and that the proper review process had not been followed.Footnote 50 Accordingly, the testing was suspended because it violated the Human Subjects Research Act of 2016. Concerned that false positives might overwhelm the country’s medical system and undermine COVID-19 prevention measures, the CECC overruled the initiative.
Furthermore, local governments expressed their discontent with the Central Command. Some demanded more discretion and resources, while others demanded more precise rules and procedures. The dissenting voices prompted the Central Command to adjust its measures and coordinate with local authorities. Upon the declaration of level 3, the Central Command held a National Epidemic Prevention Meeting with city and county governments to coordinate regulatory measures and distribute testing resources.Footnote 51 Another example is Kinmen County’s policy of requiring all passengers entering the island to be tested for COVID-19. Citing Article 37 of the CDC Act, the Central Command revoked the order. Due to the limited medical resources of this outlying island, the Central Command then agreed to test all passengers in Taiwan’s main airports before they visited Kinmen.Footnote 52
During the COVID-19 pandemic, multi-level governance frameworks that enhanced coordination between central and local governments in pandemic managementFootnote 53 were not only implemented in Taiwan, South Korea, and Singapore, but also evolved as part of a learning process among these three countries. In South Korea, for instance, amendments to the IDCPA included data-sharing practices that local governments adopted.Footnote 54 These centralized data were accessible by local jurisdictions, mirroring Taiwan’s integration model,Footnote 55 and facilitated rapid, localized responses while maintaining alignment with national health regulations. Singapore implemented a similar approach by utilizing digital platforms to collect public feedback on pandemic measures, inspired by Taiwan’s responsive CECC model. Local districts used these platforms to address specific community concerns while ensuring consistency with central guidelines.Footnote 56 Through shared experiences and mutual adaptations, each country drew insights from the others, refining governance frameworks to manage public health crises more effectively.
C. Elections, Recalls, and Referendum
The COVID-19 pandemic has put democracy and elections at risk across the world. A number of scheduled elections were either postponed or canceled to protect electoral integrity. In addition, despite the ongoing pandemic, a number of countries adopted various voting procedures in their electoral processes. Some countries decided to hold elections in person despite the high infection risks and practical difficulties of holding elections. Other countries opted for remote voting procedures, such as postal voting.Footnote 57
In contrast to other countries, South Korea, Taiwan, and Singapore still held their elections as scheduled. On April 15, 2020, South Korea was one of the first countries to hold parliamentary elections following the pandemic outbreak. On March 9, 2022, it also held its presidential election. In addition, new voting procedures were adopted in elections during the pandemic.Footnote 58 For example, in February 2022, the lawmakers of South Korea revised their election laws to allow infected voters to vote in the presidential election from quarantine or healthcare centers and to allow early voting in parliamentary and presidential elections.Footnote 59 In addition, the National Election Commission of South Korea provided comprehensive plans to regulate elections.Footnote 60
In Taiwan, all 2020 elections were held as scheduled despite the pandemic. After the Central Command was established to address the pandemic crisis on January 20, 2020, several elections including the reelection for the mayor of Kaohsiung.Footnote 61 In addition, Taiwan also held a referendum on December 18, 2021. The election for local officials and councilors was also held on November 26, 2022.Footnote 62 The National Election Commission of Taiwan also provided comprehensive plans to regulate elections and referendums.Footnote 63
On May 4, 2020, Singapore’s lawmakers passed the Parliamentary Elections (COVID-19 Special Arrangements) Act, which established a special statutory regulation for holding parliamentary elections during the ongoing pandemic. The Act allows quarantined voters to vote in places of mass isolation, such as hotels or student dormitories,Footnote 64 and candidates who are ill to miss the nomination process and to make special arrangements for polling and counting. Following the dissolution of Parliament on June 23, 2020, Singapore, like South Korea and Taiwan, held its 2020 general election despite the high public health risks and economic crisis brought on by the pandemic.Footnote 65
D. Judicial Response
A pandemic presents a compelling challenge for courts – strong or weak – to provide oversight when the government fails to meet its legal obligations to protect its citizens. In backsliding democracies, judicial oversight is typically limited, ineffective, or nonexistent due to lack of independence, authority, and/or capacity.Footnote 66 In contrast, courts in South Korea, Taiwan, and Singapore continue to operate smoothly during the pandemic. Pandemic-related lawsuits are categorized as follows:
Habeas Corpus Lawsuits
The implementation of regulatory measures for pandemic control, including inspections, contact tracings, quarantines, and inbound and outbound travel restrictions, undoubtedly raised human rights concerns. In Taiwan, several judicial challenges against quarantine orders and civil penalties were mostly rejected by the courts. For instance, the Taiwan High Court approved a petition concerning quarantine orders and due process under Article 8 of Taiwan’s Constitution and the 2014 Habeas Corpus Act that the district court had dismissed.Footnote 67 Another argument claimed that strict discharge requirements for repeated negative laboratory tests resulted in an unjustified and unconstitutional extension of quarantine, but this petition was also rejected.Footnote 68 Concerns also arose regarding the deportation of foreign nationals. J.Y. Interpretation No. 708 of the Taiwanese Constitutional Court granted legal remedies to foreign nationals facing deportation or temporary detention.Footnote 69 However, in May 2020, a migrant worker’s appeal against his temporary detention due to the pandemic was denied, considering the detention facility’s hygiene measures. After considering all relevant factors, including the detention facility’s hygiene measures, the court eventually denied his request.Footnote 70
Lawsuits against Other Government Measures
In Singapore, political activist Han Hui Hui and others had their appeal against vaccine-related regulations denied by the High Court, which found the petition lacking legal merit.Footnote 71 Courts also jailed individuals who refused to wear masks for violating COVID-19 regulations.Footnote 72 In South Korea, bans on mass gatherings were challenged but mostly upheld by the courts due to the pandemic’s severity.Footnote 73 The Korean government’s vaccine pass programs also faced legal challenges. For example, one constitutional petition challenged this vaccine pass system as violating the fundamental rights of unvaccinated people. The Constitutional Court, however, dismissed the petition on procedural grounds.Footnote 74 However, the Seoul Administrative Court temporarily excluded private educational facilities from vaccine pass mandates and suspended the vaccine pass plan for children at all seventeen types of facilities.Footnote 75 In Taiwan, after the May 2021 wave of infection, opposition politicians filed a lawsuit arguing that the Central Command was legally obligated to provide the public with sufficient vaccines. The plaintiffs’ claim was rejected since the court held that there was no legal basis for requiring such an obligation.Footnote 76
Compensation Lawsuits
In Korea, the Seoul District Court awarded compensation to a man harmed by the COVID-19 vaccine.Footnote 77 The Disease Control and Prevention Agency had previously rejected his application, but the Seoul Administrative Court admitted his petition, recognizing a causal relationship between the vaccine and his condition.Footnote 78 The court also recognized victim status and compensation to a paralyzed nursing assistant post-vaccination.Footnote 79 Additionally, the Seoul Central District Court ordered the Ministry of Education to compensate individuals barred from the national qualification exam due to COVID-19 symptoms.Footnote 80
Election Lawsuit
In Taiwan, the quarantine order banning COVID-19-positive individuals from voting was criticized for violating fair election principles. Despite requests for policy revision, the National Election Commission defended the ban’s constitutionality,Footnote 81 and the Taipei High Administrative Court dismissed an injunction petition, prioritizing public health.Footnote 82 In Singapore, a petition argued that COVID-19 measures deprived voters of free and fair elections. The Court of Appeal rejected this, finding no evidence that the measures violated voting rights, stating that health concerns should be addressed separately.Footnote 83
Misinformation
Governments in all three countries have strengthened laws against spreading misinformation about infectious diseases. Taiwan’s Special Covid-19 Act and CDC Act impose criminal penalties for disseminating false information.Footnote 84 South Korea’s law includes severe penalties for spreading fake news online.Footnote 85 Criminal sanctions against misinformation raise concerns about free speech infringement. In Taiwan, a local prosecutor charged an individual for sharing false COVID-19 information on Facebook. Initially acquitted, the case was appealed, and the Taipei High Court sentenced the accused to three months in jail under the Special COVID-19 Act.Footnote 86
NGOs
During the COVID-19 pandemic, human rights groups in South Korea, Taiwan, and Singapore actively voiced concerns regarding legislative and regulatory measures that could serve to aggrandize government powers. South Korea and Taiwan feature a fairly robust civil society that has played a crucial role in shaping democratic constitutionalism and human rights discourse.Footnote 87 These entities are alert to potential compromises of fundamental freedoms or civil liberties. For example, human rights NGOs in Taiwan were the first to oppose the passage of the Special COVID-19 Act due to its expansive delegation of power.Footnote 88 When the digital tracking program was launched, concerns regarding privacy violations were raised.Footnote 89 One well-known NGO, the Taiwan Association for Human Rights, expressed worry that the vast amount of personal data collected by such digital systems may be misused by the government. It was due to these NGOs’ persistence that the deletion of relevant personal data and security of data transmissions were promised and eventually written into the Special COVID-19 Act.Footnote 90 Another, more recent, example arose when the CECC required all inbound passengers, including Taiwanese nationals, to provide a test report before arriving at an airport in Taiwan. Human rights NGOs and lawyers – citing the fundamental right to return home – successfully pushed the CECC to make changes and accommodations overnight.Footnote 91
In South Korea, the Human Rights Commission and NGOs have expressed similar concerns with respect to the excessive collection and disclosure of personal data in the process of epidemiological investigations and contact-tracing devices.Footnote 92 They were concerned that such digital tracing apps would infringe on privacy and human rights due to the excessive collection and use of personal information. In response to their concerns and after taking advice from the Human Rights Commission, the South Korean government narrowed the scope of information collected on confirmed COVID-19 cases that could be released to government agencies or the public.Footnote 93
Non-governmental organizations in Singapore also criticized the pandemic measures of the Singapore government, particularly on the issues of migrant workers.Footnote 94 For example, NGOs expressed their deep concerns about the implementation of the revised Employment of Foreign Manpower Regulations, which allows employers to confine migrant workers in their accommodation.Footnote 95
During the COVID-19 pandemic, NGOs in Taiwan, South Korea, and Singapore also played key roles in cross-jurisdictional learning, borrowing, and collaboration. They hosted numerous virtual workshops and training sessions to enhance public health awareness, promoting educational campaigns on hygiene, vaccination, and social distancing.Footnote 96 Taiwanese NGOs, for example, organized webinars to share their experience with effective contact tracing and community health initiatives, attended by participants from South Korea and other countries.Footnote 97 Additionally, NGOs in three countries engaged in cross-jurisdictional dialogues to enhance policy advocacy efforts. A notable example is their focus on the impact of preexisting migration policies and COVID-19 public health measures on migrant workers.Footnote 98 By sharing experiences in lobbying for governmental support, housing rights, and employment protections, these NGOs strengthened legal support mechanisms within their respective countries.Footnote 99
III Features of Democratic Resilience in Combating the Pandemic Crisis
A. Democratic Values Reflecting from Past Experiences
Democracy and the rule of law were tested during the COVID-19 pandemic when governments took the opportunity to expand their powers by enacting emergency laws or undertaking strict administrative measures that violated fundamental legal principles and infringed on human rights. South Korea, Taiwan, and Singapore were no exceptions to this tendency.
Although Taiwan and South Korea have authoritarian histories, they have evolved into strong Asian democracies, holding periodic elections to ensure that the representative governments are accountable to the people.Footnote 100 In contrast with authoritarian China and other countries, the responses of South Korea and Taiwan governments were based on democratic oversight and accountability. Their political leaders, having learned from their experiences during the SARS and MERS outbreaks in 2003 and 2015, respectively, as well as from one another’s responses, framed the pandemic in democratic terms, showing strong commitment to the democratic values of their societies.Footnote 101 For example, when asked if Taiwan took advantage of emergency measures against COVID-19, President Tsai Ing-wen stressed that democratic institutions and processes could function within existing legal frameworks to ensure transparency, accountability, public participation, and due process.Footnote 102 Likewise, in South Korea, President Jae-in publicly emphasized that Korea’s response to COVID-19 demonstrated democratic solidarity and cooperation.Footnote 103
Recognizing the importance of maintaining public trust and democratic accountability during a pandemic, top health officials in South Korea and Taiwan incorporated openness and transparency as core values in their relevant policies and regulatory measures.Footnote 104 For example, Taiwan’s Central Command held daily live-broadcast press conferences to update the public regarding the pandemic and government policy for dispelling fake news and misinformation.Footnote 105 Similarly, in South Korea, the Korean Disease Control and Prevention Agency, led by top scientists and health experts, held daily public briefings since the start of the outbreak.Footnote 106
Furthermore, to manage the pandemic effectively, the presidents of Taiwan and South Korea allowed public health officials to control the communication of pandemic guidelines and showed high respect for their professional expertise and decision-making. To maintain administrative efficiency, the decisions of Taiwan’s Central Command were substantially followed, with President Tsai Ing-wen and Premier Su Tseng-chang refraining from interference. Similarly, in South Korea, President Moon Jae-in allowed public health officials to take the lead in initiating government responses.Footnote 107
Further, elections and referendums during the pandemic exemplified democratic resilience in South Korea and Taiwan.Footnote 108 Democratic values such as openness, accountability, and transparency helped these countries avoid issues commonly found in undemocratic societies. Similarly, Singapore, traditionally regarded as a hybrid authoritarian regime, demonstrated stronger democratic governance during the pandemic. For instance, the government maintained parliamentary functions and held a general election on July 10, 2020, months before the parliament’s term ended. The largest opposition party won ten seats, the highest number in Singapore’s post-independence history.Footnote 109 Additionally, increased political activity and criticism during the pandemic also led to policy changes in the areas of immigration and asylum.Footnote 110
B. Political Discourse in Vertical and Horizontal Dimensions
As China or other authoritarian countries demonstrate, the pandemic has strengthened a preexisting techno-authoritarian project aimed at maintaining public health and public order, which violates fundamental human rights. Even worse, several weak democracies have also exhibited democratic erosion or pandemic autocracy.Footnote 111 Contrary to countries that exhibit authoritarianism or illiberal democracy, the experiences of these three Asian countries show that civil society oversight and institutional checks and balances between central and local governments remain effective in managing and adjusting pandemic responses through a democratic approach.Footnote 112
For example, unlike NGOs in illiberal democracies that may encounter legal obstacles or political retaliation when opposing government actions, NGOs in these three countries were able to operate as mediating forces to regulate the exercise of government powers during pandemic crises. In addition, people were willing to assert their individual rights and may resort to judicial remedies if they were not satisfied with the government’s decisions. More importantly, even though the governments in the three countries were provided with more leeway and greater deference by the people, the NGOs continued to serve as a counterbalance, questioning government policies and decisions that were not reasonably balanced and diminishing the tendency of power concentration that has been observed in other countries where democratic backsliding or authoritarian governance was gradually revived.Footnote 113 The dialectical processes between various levels of government offer an alternative approach for establishing accountability and fostering healthy competition for better coordination.Footnote 114 In Taiwan, local governments voiced disagreements with the Central Command, pushing it to coordinate with local authorities and adjust measures for greater effectiveness. This process also prevented local governments from abusing power. For instance, when the Miaoli County government prohibited all migrant workers from leaving their dormitories, the Central Command intervened, urging adherence to level 3 alert rules and facilitating testing to lift the ban.Footnote 115 Additionally, competition among local governments served as a check on each other’s power. The sincere efforts of local governments, such as hotspot testing in New Taipei City, created a feedback loop that encouraged the central government and other local governments to expand testing. This competition for more efficient vaccination also initiated a process of mutual learning among local governments.Footnote 116
C. Responsive Judiciary
In response to the severity of the pandemic, the courts in South Korea, Taiwan, and Singapore used various legal tools and strategies to find a balance between the guarantee of human rights and government actions. These decisions demonstrate that the courts of the three countries generally presented a great deal of deference to the administrative discretion provided that the exercise of their power did not gravely or excessively violate basic rights and fundamental principles.Footnote 117 The lawsuits involving the habeas corpus, vaccination pass programs, elections, and regulating misinformation are obvious examples. However, in some rights-oriented cases, the courts may become less deferential and rule against the government. As the vaccine compensation cases demonstrate, the Korean court recognized victims as eligible for government benefits and compensation if the vaccination and the victims’ illness are directly connected. In conclusion, in the majority of cases, the courts in the three countries deferred discretion to the competent authorities. In the COVID-19 context, this judicial deference is understandable; however, the courts should carefully examine each case and explain their underlying reasoning to the relevant agencies and the general public.
IV Conclusion
The COVID-19 pandemic has provided governments with an excuse to expand their powers, for better or worse, through the use or creation of emergency laws and tough administrative measures. However, governments’ dangerous expansion of power increases the risks of democratic backsliding and exacerbation of existing human rights violations, if no effective legislative or judicial checks are put in place. As China and other countries show, the pandemic has reinforced a preexisting techno-authoritarian project aimed at protecting public health and public order, thus infringing fundamental human rights. Even worse, some weak democracies also have exhibited democracy erosion or pandemic autocracy.
However, unlike those countries, South Korea, Taiwan, and Singapore have demonstrated their strength and success in combating the spread of COVID-19. For example, in South Korea and Taiwan, democratic processes and institutions continued to function within the established legal framework, ensuring accountability, civic participation, and due process during the pandemic. Even in Singapore, often seen as an illiberal and authoritarian regime, legal and political institutions have shown resilience, fostering political consciousness and encouraging greater citizen participation. Such an achievement demonstrates that a stronger democracy is still the most effective approach to combat COVID-19. Meanwhile, their successful experiences show how the conflicts or tension between preserving democracy and human rights and regulating the drastic impacts of COVID-19 might be reduced or mitigated. Moreover, as COVID-19 was a transboundary issue, the experiences of these three countries demonstrated substantial cross-jurisdictional learning and adaptation in pandemic legal frameworks, multi-level governance between central and local authorities, and the active role of NGOs. Together, these factors enabled effective pandemic management across all three countries, highlighting key features of Inter-Asian Law in the realm of pandemic governance.
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