Constitutional Challenges to Emergency Measures against Covid-19 Pandemic: Case studies of Japan, South Korea, and Taiwan

This paper explores the paradox of Japanese law on pandemic response. In Japan, the Constitution played a quite minor role in the pandemic. First, the Constitution does not have an emergency clause. The government's authority to respond to a pandemic is governed by legislation, not by the Constitution. Second, the Constitution does not adopt a federal system. Therefore, the distribution of powers between the national and local governments in a pandemic is also regulated by legislation. Third, the Supreme Court's constitutional jurisprudence leaves broad discretion over restrictions on economic activity to political branches. The absence of constitutional controls to address emergencies has been thought to invite the concentration and abuse of power. However, as a paradox, this has not been the case in Japan. Various factors can be considered, yet the Japanese case study suggests that we cannot easily predict the consequences of constitutional design in emergencies.

In Japan, COVID-19's measures were taken under the framework of heavy use of administrative guidance. In principle, such measures are recommended without any enforcement measures. Although citizens have the right to make a final decision, if they fail to follow the strong recommendation of the government, their names will be disclosed, and they will be subject to strong public criticism. Such a system has been criticized in various ways, but most of all, it has a fatal flaw in that the government cannot rescind the “disposition“ or take administrative action. In this report, we point out the problems from the viewpoint of the rule of law in regard to the fact that countermeasures against infectious diseases and corona were implemented and actually implemented with such fatal defects. Especially, regarding the importance of securing grounds for disposition and means of the dispute over disposition when responding to emergency situations will be discussed.

Looking back from Spring 2022, the COVID-19 pandemic has gravely damaged public health globally as well as undermined the constitutional commitments of each country. In South Korea, there was unprecedented encroachment on individual liberties and cutbacks in democracy and the rule of law, although it was praised for the effective response at the early stage of the pandemic. However, with the virus evolving and features of the risk changing, the state‘s response faced criticism for its unpredictability and ineffectiveness. I will examine what particular challenges the state branches(the legislative, executive, and judicial branches) respectively had to address over time and whether the existing constitutional standards were applicable to review the cases. In doing so, I will reveal constitutional loopholes in theory and practice in dealing with extraordinary matters and present some agendas in readiness for other emergencies such as future pandemics.

Taiwan is one of very few countries that may successfully control the Covid-19 pandemic and maintain the rule of law and democracy. This paper reviews Taiwan's experience on covid-19 and inquiries into the dynamics between the pandemic, law, and constitutionalism. This paper suggests that, the 2003 SARS experience had facilitated Taiwan to establish a comprehensive and flexible legal framework to combat emergent pandemic. In addition, Taiwan's well-established Healthcare system, technology, as well as a vibrant civil society enhance its its capacity to enforce the law and to mobilize collective action against the pandemic. Although the control from legislative and judicial branches seemed weak, the transparent and communicative process of decision-making and criticisms from the civil society initiated an ongoing constitutional dialogue between the civil society and the constitutional institutions that may bound executive powers and correct wrong policies.