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What role does, and should, legal, political, and constitutional norms play in constraining emergency powers, in Asia and beyond.
This dissertation, "Emergency Powers and the Constitution: a Case Study of the Republic of China (1912-1991)" by Man-lung, Cheng, 鄭文龍, was obtained from The University of Hong Kong (Pokfulam, Hong Kong) and is being sold pursuant to Creative Commons: Attribution 3.0 Hong Kong License. The content of this dissertation has not been altered in any way. We have altered the formatting in order to facilitate the ease of printing and reading of the dissertation. All rights not granted by the above license are retained by the author. Abstract: The research question of this thesis is twofold. On the one hand, it attempts to address the issue of the legitimate basis of emergency powers and its implications for the study of emergency laws in modern Chinese history. The issue is significant for our understanding of the relationship between emergency powers and the constitution, particularly when the latter is not equipped with an "eternity clause." As constitutional and statutory emergency powers existed in the Republic of China, and not all of its successive constitutions had "eternity clause," this thesis focuses on the case of the Republic of China. On the other hand, by selecting the Republic of China for study, the thesis also attempts to address the issue of inadequate knowledge of emergency powers of the Republic of China in the period from 1912 to 1991, most of which have not been studied before. With regard to the research question, this thesis first formulates a theoretical framework, following Carl Schmitt's dualistic notion of the constitution, to distinguish the constitution in the "absolute" sense from the constitution in the "relative" sense, where the former is understood as the legitimate basis of emergency power, which is what the exercise of emergency power should protect and eventually restore from crisis. Having formulated a constitutional perspective that can identify what was absolute and essential in the successive constitutions of the Republic of China, the thesis reconstructs the hypothetical legitimate basis of emergency powers in the Republic as an analytical framework for statutory analysis. Secondly, statutory analysis is conducted, according to the above theoretical framework and standard categories in the study of emergency laws, for different periods of republican history. Laws are selected for analysis based on the criterion of whether they could demonstrate their relationship with the hypothetical absolute constitutional order and the legal pattern of each period in the history of the Republic of China. Similarly, the research outcome is also twofold. On the one hand, as the first attempt to apply Carl Schmitt's constitutional perspective to the case of emergency powers in the Republic of China, this thesis demonstrates how to formulate a hypothetical legitimate basis of such emergency legislations, and how to take the eventual restoration of the absolute constitutional order as a criterion to evaluate the legitimacy of these emergency powers. Besides, this intellectual exercise of applying Schmitt's perspective to the case of the Republic of China has led to a finding about the significance of the "eternity clause" in the constitution of 1923, and to the typological issue of the emergency nature of the constitution of 1931, which may also have significant implications for Chinese emergency law studies. On the other hand, by studying a large number of statutes, spanning eighty years, the statutory analysis in this thesis demonstrates the basic features and legislative patterns of major emergency laws in the Republic of China. Such analysis has not been undertaken before in this manner. Thus this thesis can enrich our understanding of the emergency laws of the Republic of China. Subjects: War and emergency powers - China War and emergency legislation - China
Derived from the renowned multi-volume International Encyclopaedia of Laws, this very useful analysis of constitutional law in China provides essential information on the country’s sources of constitutional law, its form of government, and its administrative structure. Lawyers who handle transnational matters will appreciate the clarifications of particular terminology and its application. Throughout the book, the treatment emphasizes the specific points at which constitutional law affects the interpretation of legal rules and procedure. Thorough coverage by a local expert fully describes the political system, the historical background, the role of treaties, legislation, jurisprudence, and administrative regulations. The discussion of the form and structure of government outlines its legal status, the jurisdiction and workings of the central state organs, the subdivisions of the state, its decentralized authorities, and concepts of citizenship. Special issues include the legal position of aliens, foreign relations, taxing and spending powers, emergency laws, the power of the military, and the constitutional relationship between church and state. Details are presented in such a way that readers who are unfamiliar with specific terms and concepts in varying contexts will fully grasp their meaning and significance. Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable time-saving tool for both practising and academic jurists. Lawyers representing parties with interests in China will welcome this guide, and academics and researchers will appreciate its value in the study of comparative constitutional law.
This volume analyses under-researched institutions and practices in China's criminal justice system, arguing that derogations from the rule of law constitute an organic component of the legal order.
The emergence of severe acute respiratory syndrome (SARS) in late 2002 and 2003 challenged the global public health community to confront a novel epidemic that spread rapidly from its origins in southern China until it had reached more than 25 other countries within a matter of months. In addition to the number of patients infected with the SARS virus, the disease had profound economic and political repercussions in many of the affected regions. Recent reports of isolated new SARS cases and a fear that the disease could reemerge and spread have put public health officials on high alert for any indications of possible new outbreaks. This report examines the response to SARS by public health systems in individual countries, the biology of the SARS coronavirus and related coronaviruses in animals, the economic and political fallout of the SARS epidemic, quarantine law and other public health measures that apply to combating infectious diseases, and the role of international organizations and scientific cooperation in halting the spread of SARS. The report provides an illuminating survey of findings from the epidemic, along with an assessment of what might be needed in order to contain any future outbreaks of SARS or other emerging infections.
Derived from the renowned multi-volume International Encyclopaedia of Laws, this book provides a systematic approach to legislation and legal practice concerning energy resources and production in China. The book describes the administrative organization, regulatory framework, and relevant case law pertaining to the development, application, and use of such forms of energy as electricity, gas, petroleum, and coal, with attention as needed to the pervasive legal effects of competition law, environmental law, and tax law. A general introduction covers the geography of energy resources, sources and basic principles of energy law, and the relevant governmental institutions. Then follows a detailed description of specific legislation and regulation affecting such factors as documentation, undertakings, facilities, storage, pricing, procurement and sales, transportation, transmission, distribution, and supply of each form of energy. Case law, intergovernmental cooperation agreements, and interactions with environmental, tax, and competition law are explained. Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable resource for energy sector policymakers and energy firm counsel handling cases affecting China. It will also be welcomed by researchers and academics for its contribution to the study of a complex field that today stands at the foreground of comparative law.
Derived from the renowned multi-volume International Encyclopaedia of Laws, this very useful analysis of constitutional law in China provides essential information on the countryandrsquo;s sources of constitutional law, its form of government, and its administrative structure. Lawyers who handle transnational matters will appreciate the clarifications of particular terminology and its application. Throughout the book, the treatment emphasizes the specific points at which constitutional law affects the interpretation of legal rules and procedure. Thorough coverage by a local expert fully describes the political system, the historical background, the role of treaties, legislation, jurisprudence, and administrative regulations. The discussion of the form and structure of government outlines its legal status, the jurisdiction and workings of the central state organs, the subdivisions of the state, its decentralized authorities, and concepts of citizenship. Special issues include the legal position of aliens, foreign relations, taxing and spending powers, emergency laws, the power of the military, and the constitutional relationship between church and state. Details are presented in such a way that readers who are unfamiliar with specific terms and concepts in varying contexts will fully grasp their meaning and significance. Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable time-saving tool for both practising and academic jurists. Lawyers representing parties with interests in China will welcome this guide, and academics and researchers will appreciate its value in the study of comparative constitutional law. andnbsp; andnbsp;
Debates about emergency powers traditionally focus on whether law can or should constrain officials in emergencies. Emergencies in Public Law moves beyond this narrow lens, focusing instead on how law structures the response to emergencies and what kind of legal and political dynamics this relation gives rise to. Drawing on empirical studies from a variety of emergencies, institutional actors, and jurisdictional scales (terrorist threats, natural disasters, economic crises, and more), this book provides a framework for understanding emergencies as long-term processes rather than ad hoc events, and as opportunities for legal and institutional productivity rather than occasions for the suspension of law and the centralization of response powers. The analysis offered here will be of interest to academics and students of legal, political, and constitutional theory, as well as to public lawyers and social scientists.
This volume is a comparative study to examine both in theory and in practice the employment of constitutional emergency powers in five polities to combat internal and/or external threats. The focus is only on limited governments and not on absolutist government free of legal constraints.