A Review on Constitutionalism and State Contingency:A Synthetic Overview of Contemporary National Emergency Powers,Especially Focusing on the Implementation of the ROC’S and the ROK’S Practices and Theroies

• Main Authors: Juin-Wei Chen, 陳俊瑋
• Other Authors: 李建良
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/04643641514946774690

碩士 === 臺灣大學 === 國家發展研究所 === 98 === Most Modern States turn swiftly to law in an emergency.The Global response to the September 11, 2001 terrorist attacks on the United States was no exception and the wave of legislative responses is well documented. Yet there is an ever-present danger , borne out of historical and contemporary events(such as 1999 Chi-Chi earthquake in Taiwan , 2003 SARS Crisis in Hong Kong , 2008 Sichuan Earthquake In China , 2009 H1N1 pandemic flu contigency in Mexico , 2010 Haiti Earthquake and so on) , that even the most well-meaning executive , armed with emergency powers,will abuse them . And this inevitably leads to another common tendency in an emergency , to invoke law not only to empower the state,but also in a bid to constrain it. Is the rule of law optional for liberal democratic societies ? It is hardly a new claim that in a time of emergency even liberal democracies have to suspend the rights which those subject to the law enjoy in ordinary times in order to preserve themselves. All that is new is the prevalence of the same only claim that this emergency has no foreseeable end and so is permanent , we frequently fall into. Can law constrain the emergency state or must the state at times act outside the law when its existence is threatened? If it must act outside the law,is such conduct necessarily fatal to aspirations of legality? This thesis standing at the intersection of legal,political and social theory and practice explores law’s capacity to constrain state power in times of crisis. While there are so many eminent contigencies needed to tackle with , in face of ”consecutive crisis era” , the best solution to rebuild and consolidate state sovereignty and protect civil and political rights is to launch further probe into the problems of ambiguities for on the topic of ” Constitutional dictatorship , human rights protection and legality in a time of emergency ”. In the first and middle part of my thesis , using well known examples from the cold war confrontations to " terrorism, insurgency , extremism and cyber espionage on so forth.” show that we need to look more closely at the kinds of conditions in which a suspension of ordinary legal regulation might occur . In addition , many questions have been asked about a state’s legal response to an emergency. Are new laws strictly necessary to cope with state contigencies? Do the state’s counter-terrorism measures strike the right balance between national security and human rights? What specific legal limits should be placed on the state’s response and which rights , if any , are non-derogatory even in times of emergency? These are important and contentious questions about which will be discussed in the last part of my thesis. I will set out my conception about rule of law which must aspire to realize principle like Harold J.Berman and William R.Greiner’s idea that legal order must aspire to realize principles of an “ inner morality of law ” . My thesis maintain that Constitutionism(the commonality of the rule-of-law) shows it as inter-dependent and inter-connected as a joint project, it requires cooperation between and among institutions more than the pure hypothesis of President or Supreme Court as a sole guardian of the Constitution. To sum up , The realization of the rule of law dependent on legislative and executive commitment and judicial guardianship.