On The Limits Of Derogation In A State Of Emergency

Boxer years,will be the spread of the coronavirus,not only in the world caused great casualties and property losses,and has greatly changed the human way of free life,in order to maximize reduce risk,safeguard the interests of the human community and the public interest,to the national power to declare a state of emergency to become national governance system under an extremely effective way.The COVID-19 epidemic has made us deeply aware of the importance of actively applying the rule of law to safeguard the public interest.How to eliminate the traditional thinking mode and chronic disease of "no rule of law in emergency",we need to comb and understand it again on the level of rule of law,so as to explore the best way and effect to realize the effective operation of power in emergency.In fact,although the state of emergency is an abnormal social condition known to the public,there are still many problems to be understood and studied theoretically.Compared with the normal period,the relationship between power and rights under the state of emergency is more complicated.In order to concentrate the power to deal with the crisis under the state of emergency,the state power is bound to derogate the civil rights to a certain extent,which is necessary and justifiable.However,after the public power under the state of emergency is endowed with the power beyond the normal state,the individual rights of citizens will be in an extremely dangerous and weak state,which is easy to be damaged due to the improper exercise of the emergency right,which is obviously contrary to the spirit of the rule of law.The state of emergency is not outside the rule of law.The government’s governance ability under the state of emergency is an important indicator reflecting the level of a country’s rule of law.It is essential to promote the modernization of national governance system and capacity to pay attention to the legislation of emergency state,clarify the limit of derogation of rights and protect the rights of citizens under emergency state.This paper takes the theory of emergency self-defense as the basic frame theory of research,and advocates that the state derogates the rights of citizens in order to resolve the crisis and ensure the social order under the state of emergency.In the state of emergency,the value of order is higher than other values such as freedom,and the protection of public interests also takes precedence over other interests.Rights in a state of emergency should be divided into two categories,namely,non-derogable rights and derogable rights.Derogations may be made only from rights which are not necessary for the survival of the citizen and which are necessary.At the same time,the extent of the derogation should be commensurate with the severity of the state of emergency,so as to maintain a minimum standard that does not result in the total disenfranchisement of citizens.In order to protect citizens’ rights from being infringed by improper derogation of rights,it is necessary to explain the ways for citizens to remedy their own rights.This kind of relief is the procedural relief and the substantive relief.To be specific,citizens are endowed with the right of reconsideration and litigation,the right to know and supervise,the right to resist and the right to claim.Through empowering citizens in abnormal circumstances,the basic value and spirit of the rule of law should be maintained and practiced.