Dissertation > Political, legal > Legal > UNIVERSITY > National law,the Constitution

Under the constitutional validity of a state of emergency

Author ZhangYan
Tutor MiaoLianYing
School Zhengzhou University
Course Constitutional and Administrative Law
Keywords State of emergency Constitutional validity National emergency powers Civil rights
CLC D911
Type Master's thesis
Year 2009
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Today, national emergencies frequently, to the normal order of the countries and citizens lives and property caused great impact on the state of emergency as a system to deal with extreme emergencies by more and more countries have adopted. Its roots are still in that state of emergency rule in the Constitution State and society, government and civil binary relationships and focus on the performance of each of the main rights and obligations under the Emergency regroup and special adjustments, so the Constitution should play in an emergency maximum effect to adjust the relationship between government and citizens. State of emergency, in response to a state of crisis, the rapid restoration of social order, national emergency powers came into being, on the one hand, it's efficient and effective so that your country can survive the crisis, but on the other hand, national emergency powers to break the power of the original configuration structure, the original constitutional order had a negative impact, and the use of emergency powers once poor supervision disadvantage would make a great civil rights have been violated. Meanwhile, emergency constitutional validity will be some impact, in an emergency core issue of constitutional validity of the Constitution is in fact the relationship with the emergency law, constitutional order is a cornerstone of the country's emergency law is a state of emergency legalization, including emergency powers in an emergency state to take the various state organs of power structure also includes some changes to limit the terms of civil rights, while the main content of the Constitution is the limit state power and the protection of civil rights But the emergence of national emergency powers both have some changes, and thus have an impact on the constitutional validity. In a state of emergency because the state emergency powers after the acquisition will cause changes of state power, state power changes involve at least two aspects, one is the transverse re-integration of state power, it is only temporary, not for re-division of state power, specifically the legislature, the executive, the judiciary, the military authorities in an emergency there is the power of content. Second, the emergency powers of the central and local re-integration. In civil rights, in an emergency in order to restore normal order, the State enjoys a certain emergency powers to deal with extreme conditions, while in the public interest, public safety, public health, public morality, public order purposes, can the rights of citizens a certain limit, which is called an emergency with respect to loss of civic rights, refers to the state of emergency, state or government to take urgent measures to confront the need for the exercise of emergency powers to terminate the Constitution and laws of part or all of the rights of citizens and freedom. However, the behavior of derogable rights must be limited, which is composed of state and government of the fundamental purpose of the decision, the fundamental purpose is to everyone's life, safety, property and welfare. But the reality of the expansion of the emergency powers and the rights of citizens inevitably causing harm, as some observers have pointed out, in many countries, emergency practice, national emergency exercise of power beyond the limits necessary to safeguard national survival , constitutes a serious threat to human rights. So in order to maintain normal constitutional order and protect citizens' rights, uphold the Constitution of the effectiveness of the legal system in an emergency must be specified in which rights of citizens can be derogated, derogations basic principles and procedures and so on. The effectiveness of the Constitution and general laws compared to its most fundamental constitutional validity is characterized by the highest resistance, which is the most essential features of constitutional validity. Constitutional validity of the highest nature, rooted in the fundamental law of the Constitution as the country's status, and some even believe that the effectiveness of the Constitution refers to \Legal effect of the primitive is the fundamental basis of the law to be effective, that is, a state of emergency under the Constitution has the highest efficacy reasons, causes or sources. Constitution is a legal norm, it will inevitably have a general law when the characteristics, it is also a right of all citizens and organizations have binding rules, but the legal system as a whole in the country's Constitution in the legal status of why high than others do? Why continue to explore emergency of Constitution do? First, the supremacy of the Constitution is both constitutional self-empowerment, but also a constitutional democracy needs. Supremacy of the Constitution refers to the formal validity Constitutional Code declared itself the supreme law of the effectiveness of the legal form of the performance of the authority of the Constitution is greater than all state organs and personal authority. Constitutional practice in the world, the majority of the Constitution provides for the protection of constitutional norms supremacy of the value of the content, confirm the supremacy of constitutional norms themselves. Constitution is behind self-empowerment support and reflects the state power, specifically in terms of the Constitution, is the nature of the constitutional rights and legal status of externalization. Meanwhile, Mr. Mo Jihong expressed his state of emergency under the constitutional validity of the point: \He is mainly from the perspective of constitutional logic to solve the \to be able to exist on this \So, in an emergency should adhere to the Constitution of the highest legal force, and should make maximum effectiveness in emergency situations to be realized. The protection of civil rights and the restrictions on state power is the most important manifestation of constitutional validity, is the core spirit of constitutional government, under any conditions that the spirit has the highest effect. Although it ought to point that the Constitution has the highest legal force is a self-evident proposition, however, said that from the perspective of the Real, the Constitution from a certain sense just a declaration, as it is depends on the ability to achieve In practice, the use of the. With the constitution does not necessarily mean the realization of constitutional government, it needs to become a reality from the paper constitutions in constitutional, if the spirit of the Constitution, principles, rules often suffer from the parties, the civil rights are restricted random and unconstitutional acts without due sanction, then the Constitution is just a piece of paper. In fact, for the maintenance of emergency constitutional validity of fundamental human rights is mainly for the review and supervision of derogations, which actually involves two aspects: First, the decision to implement a state of emergency for examination and supervision, the second is for the examination and supervision of emergency measures . Some people think that the identification of the state of emergency is actually not a legal logical deduction, but rather a political value judgments. Countries will act as a national state of emergency decision to exclude from the scope of judicial review, and on judicial review of the state of emergency to take another reality both rationality operability, so we will review the state of emergency decision to Parliament, through parliament, judicial supervision, restricting the rights of a state of emergency under the constitutional validity realized.

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