In the face of this global pandemic, Japan has declared an intermittent state of emergency since March 2019 until February 2021, with 431740 cases and 8251 deaths as of the end of February 2021. However, as a countermeasure against infectious diseases, domestic and international traffic restrictions are imposed, controls are implemented from the perspective of public health, schools, public facilities and commercial facilities are closed, and people are asked to refrain from entering their homes. There have been restrictions on individual freedoms and rights in a variety of areas. In particular, Covid-19 is characterized by the spread of infection by asymptomatic infected individuals, and by a high incidence of severe illness and mortality among the elderly. This paper focuses on the issue of “triage of the critically ill” and patients’ right to life and health in such infectious disease pandemics, and examines it from the perspective of constitutionalism.
Discussant from a perspective of international human rights law
The paper aims to offer a matrix to explore the constitutional questions related to the countermeasures against the COVID-19 pandemic. There are numerous countermeasures: (1) state of emergency; (2) border control; (3) curfew and other restrictions of movement of the people; (4) closure of schools and facilities; (4) distribution of essential services and goods, particularly medical good such as masks and PPEs; (5) persuasion of the people to take certain behavior changes: (6) financial supports for small business and vulnerable groups of the society; (7) Vaccination; (8) Measures taken by local governments etc. The paper sets constitutional questions to share in the panel: (1) Who decides which measures should be taken by how?; (2) Who and how oversees the implementation of measures?; (3) Where and how can individuals get a help when there is a problem?
The phased social distancing scheme without regional lock down or nightly curfews is an important strategy of pandemic risk regulation in South Korea. The presentation focuses on analyzing the ‘social distancing guidelines’ as administrative measures of controlling the infection. These instruments also inevitably entailed the danger of functionless rule of law and excessive restrictions on the human rights.
The presentation content consists of: (1) COVID-19 Management Framework of South Korean Governance; (2) Legal Issues regarding Social Distancing Guidelines and the Role of the Constitutional Court; (3) Considerations of Civil Liberties and Discrimination, and (4) Improving the function of Rule of Law against the Pandemic.
Compared to other countries around the world, Taiwan has shown success in blocking the influx of the coronavirus and preventing its spread there. Learning from the painful experience of SARS in 2003, the Taiwanese government quickly imposed various public health measures, such as mandatory face-coverings, timely border controls, and the use of digital devices to monitor the health of all people under quarantine since the outbreak of the Covid-19 pandemic. The major legal authorities supporting those measures have been the Communicable Disease Control Act and the Special Covid-19 Act. Although some public health measures and provisions have raised human rights concerns, no serious human rights violations have been charged nor have further judicial actions been taken. The author argues that democratic governance and the well-established collaboration between government and civil society are the main factors that can best explain Taiwan’s success in controlling the Covid-19 pandemic.
The constitutions in the democratic countries protect the right not to be discriminated. Regardless of whether one is vaccinated against Covid-19 or not, one should not be discriminated against. Differential treatment of people may not be discriminatory, if it can be objectively and reasonably justified. But there are a range of potential discrimination issues. For instance, a nursery teacher at a public daycare center in South Korea was fired in early April for refusing to be vaccinated against the Covid-19. The head of the daycare center said that the teacher may have the right to refuse vaccination, but the safety of the children is a priority. This shows the difficulty of potential discrimination issues in job places. There are also a range of possible discrimination issues that may be raised by vaccine passports or certificates: Are vaccine passports that presuppose compulsory vaccination are compatible with human rights such as self-determination and inequality?