Legality and Enforcement of Covid Rules and Regulations (in Taiwan)

Yeah, I noticed that - hence my assumption that the business was closed, and these five friends just happened to be eating their food on premises which would ordinarily be operating as a restaurant (but which, at this point, is simply a large room with some tables in it). Therefore, the boss hasn’t actually broken The Rules.

Seems to me whether or not the restaurant is open or closed doesn’t matter. It’s still a restaurant and there are still not to be more than 5 people eating there indoors. If it’s a place of residence as well, then the 5 person rule wouldn’t matter if they all lived there. But they didn’t. Restaurant owner should be fined as well if the patrons did. At least that seems logical to me. Haha

Edit… Hell, nobody should be eating indoors, unless a resident or worker.

And…it’s quite possible the restaurant did get fined but, Taiwan News reporting

Yes, I realise that, but my argument was that that makes it doubly important to nail down in the Act precisely what powers you are intending to devolve, and where the limits of those powers are drawn. As written, the CDCA merely allows “competent authorities” to do … stuff, and to entirely bypass the judiciary in their enforcement of whatever rules they come up with.

The Act is quite clearly intended to override Article 8, 11, 14, 15, and arguably a few others, including Articles 1 and 2. This is not something trivial: whether or not it might ever be ruled unconstitutional, the people writing such an Act should be fully aware of the gravity of the situation and should take particular care not to produce something half-assed. Likewise, the people making rules based upon the Act should take particular care that those rules make sense, and can be followed and enforced without ambiguity.

Article 23 offers a limited basis for the CDCA - the limitation is in the words “such as may be necessary” - but it does not grant carte blanche to the government or to any lesser officials to make up rules however they please. In particular, it implies the usual requirement for proportionality.

Article 24 cannot be overridden by any Act, which would suggest that enforcing rules that are unjustified under the CDCA exposes officials to the risk of prosecution.

No, but AFAIK Taiwan’s system is of the “hybrid” variety in which precedent doesn’t carry anything like the importance that it would in (eg.) English law, but isn’t entirely irrelevant. My understanding is that precedent may be considered when weighty matters are on the table.

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At some work places, there is a room to eat lunch. Considering we are in level 3 where employers can still require employees to come into work, but gathering of 5 or more is a fineable offense…would people eating together in the workplace be in violation?

Or are things just sort of being made up as we go?

Makes zero sense to say it’s ok in the workplace, but not ok anywhere else.

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Philosophical question: is a restaurant a restaurant if it doesn’t allow people to come inside, sit down, and consume food in exchange for payment?

See, this is where it all gets a bit silly. The Rules must (we assume?) be compliant with the intent of the CDCA. So you can’t just say “no gatherings of 5 people” because then you’ve just made it illegal for anyone to have three kids (or one kid and two elderly parents living with them). So then you say: we will define “people” to mean individuals who aren’t in continuous contact anyway. Hmmm. What happens if a family of four want to invite a friend over? Does dad have to leave the room? And if that makes it all legal, precisely what has been achieved here, since (if the friend is positive), the whole family are at risk of infection anyway?

How about the meaning of “gathering”? Returning to the scenario at hand, it seems that these five friends would apparently have been having a “legal meal” if they had been separated into two “gatherings”: if a group of four of them had met up, and then another group of four had met up the next day, no rules would have been broken. Is that somehow a critical epidemiological distinction? I don’t think so. What if they had all sat at separate tables, two meters apart? Does that still count as a gathering? And if it does, doesn’t that mean that those queues of people waiting to get into the supermarket are illegal? Does it mean that my local supermarket - which is inside a mall - can only have four people queuing, while a supermarket which is outside can have nine?

Remember that, to create this confusing and largely-pointless situation, an Act has been written that completely demolishes the very foundations of the Law.

Any rational person should conclude that the Law isn’t going to achieve the desired result, whichever way you swing it. It’s going to produce perverse side effects (eg., the situation where a group of four is totally OK, but a group of five attracts a life-altering fine).
And that being the case, it seems that the desired result would be far better achieved by simply telling people the facts and advising them what to do. As was done in Sweden, for example.

But why not? Since we’re not allowed to eat outdoors, banning people from eating indoors would seem to present something of an existential threat.

True.

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I have a restaurant. My restaurant is also my residence. Under level 3 I’m not allowed to let customers eat at my restaurant, so I don’t. They aren’t even allowed past the outside gate. My family consists of 4 people, including myself. The only person outside my family who’s been allowed inside was the guy who brings new gas tanks when needed. Even when my restaurant is closed for the night/days off/midday break, it’s still a restaurant. It’s registered as a restaurant, it has signs stating it’s a restaurant. It’s a restaurant. But, it’s also my home. We eat at our home…all the time. And that means eating at a table in the restaurant dining area, because there isn’t anywhere else to eat. All other tables are not in use and it’s clear to anyone’s eye they are not in use. I believe I am doing things correctly.

The restaurant in question has all tables still available for use. It had people who don’t reside at the restaurant, have no familial relationship, yet are eating there. Under level three there is to be no indoor dining at a restaurant.

So, it’s grey. A restaurant is a restaurant. If it’s also a residence, then residents can eat there, in my opinion of course.

I guess if the restaurant owner lives there and wants to invite friends over, they should hide them from public view, upstairs, curtain, etc… I would never do that, but if regular people can have people over then why can’t they?

Personally I think the restaurant owner should get the bigger of the fines and the patrons the minimum.

For the record, I don’t disagree with most, if not all, of your statements on this. I think they are valid.

Cheers

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No it’s not “stuff”. It’s

  • “other disease control and quarantine measures”;

  • “measures [to] regulate schooling, meeting, gathering or other group activities”; and

  • “other disease control measures announced by government organizations at various levels”.

As for bypassing the judiciary, what are you talking about? If you don’t accept an administrative penalty, you file a complaint either administratively or judicially, or first administratively and then judicially. (And this being Taiwan, there’s always the Control Yuan too.) This is not an innovation.

You’re serious? Okay, my hot date from Venus bailed on me, so I have time. Let’s take a look:

  1. The Republic of China, founded on the Three Principles of the People, shall be a democratic republic of the people, to be governed by the people and for the people.

Yeah, democracy as generally understood in modern times means elections. Vote for the people you want in the LY and the EY (if you’re a citizen that is). Don’t like them? Vote them out. It doesn’t mean instant veto power to the people.

Plus, when was individualism ever purported to be the dominant theme in 三民主義? :rofl:

  1. The sovereignty of the Republic of China shall reside in the whole body of citizens.

See 1.

  1. Personal freedom shall be guaranteed to the people. Except in case of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with the procedure prescribed by law. No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial, or punishment which is not in accordance with the procedure prescribed by law may be resisted.

When a person is arrested or detained on suspicion of having committed a crime, the organ making the arrest or detention shall in writing inform the said person, and his designated relative or friend, of the grounds for his arrest or detention, and shall, within 24 hours, turn him over to a competent court for trial. The said person, or any other person, may petition the competent court that a writ be served within 24 hours on the organ making the arrest for the surrender of the said person for trial.

The court shall not reject the petition mentioned in the preceding paragraph, nor shall it order the organ concerned to make an investigation and report first. The organ concerned shall not refuse to execute, or delay in executing, the writ of the court for the surrender of the said person for trial.

When a person is unlawfully arrested or detained by any organ, he or any other person may petition the court for an investigation. The court shall not reject such a petition, and shall, within 24 hours, investigate the action of the organ concerned and deal with the matter in accordance with law.

Note the “provided by law” and “prescribed by law” parts.

  1. The people shall have freedom of speech, teaching, writing and publication.

See Art. 23, or go and look up “fire in a crowded theater”. :runaway:

  1. The people shall have freedom of assembly and association.

I fully agree that this one is an area of concern. :white_check_mark:

But again, see Art. 23. The legal logic is sound. The room for debate is in whether or not the interpretation of scientific data on which the law is based is sound, because that’s what it comes down to – the questions of (1) whether or not Covid is a big enough problem to warrant these measures and (2) whether or not these are the right kind of measures to mitigate Covid (i.e. reasonable expectation that the measures will be effective and not inadvertently cause even more spread of the virus).

  1. The right of existence, the right of work, and the right of property shall be guaranteed to the people.

I’m totally :rofl: imagining how an argument between us on this one would go and thinking it’s not worth our time, despite the hilarity of it.

Extremely true. :white_check_mark:

Article 24 cannot be overridden by any Act, which would suggest that enforcing rules that are unjustified under the CDCA exposes officials to the risk of prosecution.

I think you’re slightly misunderstanding this one, but anyway, if you want to go down that road see the State Compensation Law.

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The powers given to bureaucrats around the world using the “Public Health Emergency” excuse are alarming.

For example, in Queensland, Australia, these powers give that state government pretty much unlimited power to do anything they want.

The Taiwanese bureaucrats and politicians have adopted this approach, albeit maybe in a lesser degree. IMO the restrictions imposed upon the general populace here have been unwarranted and impinge on basic human rights.

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Btw regarding Art. 15 I should clarify: I do understand the lockdowns-cause-economic-devastation concept. I just don’t think Finley and I would accomplish much arguing about how to interpret “the right of work and the right of property”, regardless of whether it’s in a Covid context or not.

Well, that’s clear as mud, isn’t it? “Other disease control measures”? Even for lawyers, that’s poor, and I don’t think that’s an oversight (these people are smart and experienced - there’s no way they put this together over a weekend of drinking and mahjong). In theory, local governments can mandate that all old people must be confined to their rooms and fed through a slot in the door, as long as enough people believe that’s a valid disease control measure.

My point was that laws making adjustments to the Constitution needs to make it absolutely clear not just what local authorities can do (in detail), but what they cannot (you appear to agree with this sentiment in connection with my comment on Article 23). It should spell out, perhaps, what level of evidence is required for any given intervention, what kind of cost-benefit analysis must be done, how results must be measured, and what level of public consultation/disclosure is required.

As @FairComment pointed out, these laws are open to abuse and have been abused, to a greater or lesser extent, in most of the countries where they were enacted. It’s something that should be uppermost in the minds of those tasked with drafting them.

In theory. That did actually happen in the UK, and full marks to the CPS and the judiciary for stomping the Coronavirus Act into the mud. I’m not personally a fan of the CPS, but in this case they fulfilled an unexpected “checks and balances” role to constrain the power of government.

But what a waste of everyone’s time and money that was. And what a lot of unnecessary stress. Trust in the Police - who were put in the position of enforcing legislation as vague as the CDCA and the rules that dropped out of it - is now at an all-time low.

As I and others have observed, Taiwan is acting with the benefit of a lot of hindsight here. Ignoring what happened elsewhere would seem to transcend either ignorance or carelessness.

I get the feeling that the populace are not inclined to exercise their right to challenge the might of the State, not least because it costs a shitload of money to hire a lawyer. The government is fully aware that nobody is going to challenge a NT$10,000 fine, because it would cost more than that to even try, and the probability of success is small. Is there such a thing as a “class action” in Taiwan? AFAIK there isn’t.

You have perhaps missed my point. I’m not suggesting that those Articles (the first list) have been completely rescinded, but they are definitely being trespassed upon, and I’m surprised anyone would argue with that.

Consider the right to work: this is a right that is sacrosanct in all countries except failed States (particularly those of a Marxist bent). True, a few occupations are constrained - drug dealers, thieves, etc - but that is done on the basis that (a) those careers involve breaking other big, important laws and (b) both the public good and the good of the individual is best served by making better career choices. By and large, people are left alone to earn money as they see fit.

If you want to stop (certain) people working, then you need to make absolutely sure that they can continue with their occupation when you’ve finished disrupting their lives. It isn’t acceptable to permanently take away someone’s livelihood on the basis of ‘disease control’. I’m thinking here of mom-and-pop restaurants, which may represent a lifetime of investment.

If people are deprived of property as an indirect consequence of government action, that would seem to me to violate the spirit of the Constitution at least; I’m not sure that it makes a difference if someone’s property is confiscated by a government official, or lost through government-imposed hardship. I’m thinking here of the forumosan who (apparently) lost his income and therefore couldn’t meet the payments on his motorcycle, forcing him to sell.

Infringing on freedom of movement doesn’t even work as intended, as I sketched out in my response to Pizzaman. It’s a blunt instrument for a delicate task.

I did. Article 8 suggests to me that summary fines are Unconstitutional.

When laws are made against free speech, the government may find itself hoist by its own petard if it doesn’t carefully clarify what is being proscribed, and use the law with a light touch. It has done neither of these. Furthermore a lot of the ‘official’ news coverage and press statements have been blatant fearmongering - even if not technically untrue, then at least designed to either offer false reassurance (eg., “a mask will shield you from the lurgy”) or to spread panic in a situation where forming an orderly queue might be more productive. Look up “fire in a crowded theater”.

I’ve also seen a lot of snake-oil products accompanied by false advertising - eg., googles, faceshields, and magic virus-killers - that don’t seem to attract any official opprobrium.

Indeed. Again, though, Taiwan has the benefit of hindsight. Several of Taiwan’s interventions been shown to be ineffective, harmful, or pointless. I wouldn’t take the WHO as the arbiter of truth, but they do have a lot to say on the subject of lockdowns (ie., they cause more harm than good, which perhaps is why Taiwan has so far shied away from a full lockdown despite the Rules allowing for it), and spells out distinctions between mask-wearing in confined spaces and other scenarios.

Perhaps it reads differently in Chinese. It seems clear enough in English. The SCL seems to (deliberately?) slim down its intent.

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These new laws give the government unprecedented powers. They are so vaguely worded as to allow them to do practically anything and anything under the guise of ‘protecting public health.’ And that’s absolutely intentional.

The general masses are so afraid of death and dying that they’ll allow the politicians to completely eradicate their own freedoms and liberties, even as they witness these very same emergency measures destroy their own lives and livelihoods.

Unfortunately, it’s most likely that in the end they’ll thank the leaders for oppressing them, and vote for them again.

You’re conflating some discretion with absolute discretion. You can’t legislate for every situation – it just isn’t feasible – ergo you cannot give the state zero discretion and still expect it to get things done.

At the risk of getting you started, consider the Labor Standards Act. It was originally just for the seven industries listed in Art. 3 but included a subparagraph allowing the competent authority to add more industries, which it gradually did, and now it applies to something like 95% of the private sector. You might call that legislative/executive creep, but it was in keeping with the purpose of the Act as stated in Art. 1, which is in keeping with Art. 153 of the Constitution.

It should spell out, perhaps, what level of evidence is required for any given intervention, what kind of cost-benefit analysis must be done, how results must be measured, and what level of public consultation/disclosure is required.

That sounds like a great idea, but if you’re going to have a reasonable degree of consistency in these analyses and consultations, you need specialists, which means “more government” or at least more expenditure. So while it is a move towards greater constitutionalism, when this kind of thing happens in a western country, it inevitably gets spun by certain media groups and angry righty bloggers as the Communist Conspiracy of the Day. :doh:

I’m not following the news too closely, so I don’t know to what extent Taiwan is mimicking the UK in the manner of enforcement. :idunno:

It’s not expensive if you don’t need to pay for a lawyer.


Oh God, no!!! :runaway:

Okay I skimmed your mini-rant. I’ll say this: any infringement on the right to work resulting from a lockdown is really a side-effect of the infringement on freedom of assembly/association. If your job depends on people congregating, a restriction on congregating means a restriction on your job. Ergo if you solve the first restriction, you also solve the second one. If the first restriction is justified, the state should still take reasonable mitigation measures for the second one, which we’re vaguely seeing in the form of (for example) buxiban subsidies, but those are obviously flawed (for example part-time teachers don’t count), so obviously the system is far from perfect, even if the restriction on congregation is justified (and I’m not saying it is or isn’t).


Are traffic tickets unconstitutional?

Ooh, getting :yin_yang: on me now, are we? :upside_down_face:

See the part above about not legislating for every possible situation. Also see the arguments between jurists in the West over where to draw the line. Social standards change. The meanings of words change. There’s no single answer that will always be correct, ergo the state needs some discretion. I personally think Taiwan has a decent record on freedom of speech in recent years, if you don’t mind the public insult law. Do you have evidence that Covid is changing this, or just a general fear? (Feel free to PM me.)

Are we still talking about 中華民國? :face_with_raised_eyebrow: :grandpa:

For general discussion of Covid related laws in the rest of the world, I think one of the other Covid threads is a more appropriate venue.

Cross-post:

Another one:

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