Rights must be preserved even in times of pandemic


As the number of domestic COVID-19 cases in Taiwan rises, some called on health authorities to tighten restrictions, while others pleaded for a return to ‘normal’ and ‘life’ with the virus. . What is missing from the ongoing debate on the pandemic is a discussion of human rights, in particular the fundamental democratic principle requiring that all limits on human rights be proportionate and necessary.

Restrictions such as mandatory quarantines, compulsory wearing of masks and limits on public gatherings restrict human rights. The International Covenant on Civil and Political Rights, which Taiwan ratified in 2009, contains a catalog of basic human rights.

A mandatory quarantine, which detains a person for days in a designated area, is a serious limitation on personal freedom, as stipulated in Article 9 of the pact. The use of the term “detainee” is intentional, as a mandatory quarantine – whether in a government facility or at home – is a deprivation of liberty under international law. Detainees in quarantine must, in principle, benefit from the same, if not superior, procedural safeguards as detainees in prison or in police custody.

Of course, when a society is at “war” with an invisible enemy like COVID-19, certain rights may be limited. Some temporary restrictions do not constitute a violation of the rights of individuals, but each limitation must be proportionate and necessary to the threat.

For example, when the government imposed restrictions on arrivals from countries that had an increase in cases of the highly dangerous Delta variant of SARS-CoV-2, it was difficult to challenge such measures. Whether the authorities maintain these strict measures after the virus situation has eased is another matter altogether.

Similarly, when authorities impose a mandatory quarantine in a government facility on someone who has violated a home quarantine or has previously been infected with the virus, the measure seems legitimate.

However, when a blanket measure requires every arrival to be held in a quarantine hostel, even when people could effectively self-isolate at home, the measure appears disproportionate.

The same applies to general restrictions imposed without exception on vulnerable groups, such as pregnant women or families with children. The proportionality test also applies to mask mandates, restrictions on public gatherings and other measures.

Simply put, human rights limitations during a pandemic are generally acceptable, but arbitrary limitations are not.

If the government wants to remain democratic and respect the rule of law, the authorities must at all times respect the principle of proportionality and not restrict individual freedoms more than is strictly necessary to manage the emergency.

Otherwise, the limitations are arbitrary and incompatible with democratic principles. As seen on social media, the draconian measures imposed by the Shanghai authorities speak for themselves.

Over the past few months, there have been several instances where the measures imposed on Taiwan have been disproportionate, particularly regarding mandatory quarantines.

Taiwan has often been touted as a world leader in handling COVID-19. Despite the government’s unprecedented success in containing the virus situation, successful public health policies not only keep the number of infections low, but also uphold human rights and democratic principles.

Hopefully infection rates and human rights will both be protected in Taiwan in the coming months.

Pavel Doubek is a Czech human rights lawyer and postdoctoral researcher at the Institutum Iurisprudentiae of Academia Sinica.

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