Grand Justices Interpretation No. 690

Judicial Yuan Interpretation No. 690 (Grand Justices Council Sept. 30, 2011) (Taiwan).
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Country:
Region: Asia
Year: 2011
Court: Grand Justices Council
Health Topics: Hospitals, Infectious diseases, Public safety
Human Rights: Right to due process/fair trial, Right to liberty and security of person
Tags: Custody, Detention, Infectious diseases

According to Article 37 of the Communicable Disease Control Act, revised January 30, 2002, “Any person who had physical contacts with patients of contagious diseases, or suspected of being infected, shall be detained and checked by the competent authority, and if necessary, shall be ordered to move into designated places for further examinations, or to take other necessary dispositions, including immunization, etc.”

The petitioner, who was a medical doctor and the director of Gastroenterology Department in Taipei Municipal HoPing Hospital (“the Hospital”). In April 2003, there was an outbreak of SARS in the Hospital, the Taipei City government,  according to the Article mentioned above, ordered the doctors and employees of the Hospital to go back to the Hospital for concentrated quarantine, including the petitioner. The petitioner, however, did not go back before the due date and therefore resulted in the punishment.

The petitioner submitted the case the Grand Justices Council after the other domestic remedies alleging that Article 37 of the Communicable Disease Control Act violated the principle of legal clarity, and disproportionately violated Article 8 (the right to liberty and the right to due process) of the Constitution of Taiwan.

 

The Council concluded that the Article did not violate the principle of legal clarity. The scrutiny to determine whether its statutory elements conform to the principle of legal clarity is stricter when the regulation that severely restricts the right to liberty to be commensurate to criminal punishment. However, though the person is also in custody in a certain location, the compulsory quarantine differs from criminal punishment and should only adopt a general rationality test of judicial review, because the purpose of it is for the protection of person's safety and health; moreover, it is related to medical treatment and public health profession.

The Council concluded that the Article did not disproportionately violate Article 8  (the right to liberty) of the Constitution of Taiwan. The Council considered that the method adopted under the Article was necessary and effective for controlling diseases, which spread quickly and inflicted (or would inflict) multiple deaths or serious injuries nationwide. Moreover, it did not constitute a violation of the human dignity as the sanction of detention.

The Council held that there was no violation of Article 8 (the right to due process) of the Constitution of Taiwan. The due process in compulsory quarantine is different from the criminal due process. The decision of compulsory quarantine should be made from the professional authorities basing on the knowledge of medical and public health, instead of an independent, impartial court determines whether or not to detain a person for trial and interrogation.

"[...] Although compulsory quarantine restricts personal freedom to a specified location, yet its purpose is to protect people’s life, safety and health. It differs from criminal punishment in nature. It also involves medical treatment and public health professions. Therefore, a general rationality test shall be adopted for judicial review in lieu of a strict scrutiny test used for reviewing criminal sanctions restraining personal freedom. [...]" Paragraph 5 of the reasoning.

"[...] The purpose of compulsory quarantine prescribed by the provision at issue is not directly aimed at restraining the personal freedom of quarantined persons, but rather to deal with the abrupt outbreak of a new type of contagious disease, various statutes regulating the quick spread of contagious diseases inflicting (or will inflict) multiple deaths or serious injuries nationwide (e.g. the Severe Acute Respiratory Syndrome outbreak in March 2003, hereinafter SARS), to prevent the spread of disease, to obtain quick control of the epidemic situation, for important public interests to mitigate fear, anxiety etc. in society, ordering persons who had contacts with patients of contagious disease, or suspected of being infected, to move into designated places for a reasonable period of mandatory quarantine, for further observation, examination, immunization, and medical treatment. [...]" Paragraph 6 of reasoning.

" [...] A decision made by the competent authority to impose necessary dispositions for compulsory quarantine, balancing seriousness of epidemic and surrounding circumstances, will be better than a decision made by the court for prompt disease control. [...] " Paragraph 7 of reasoning.

 

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