The occurrence of a rare major earthquake in Taiwan on September 21, 1999, prompted the President to issue an emergency degree on September 25 of the same year. To execute the emergency decree, the Executive Yuan drafted and submitted to the Legislature, for their information, the "Emergency Decree Execution Outline of September, 1999" (hereinafter referred to as the "Execution Outline"). Mr. Chi-Mai Chen and 78 other Members of the Legislature applied to this Yuan for an interpretation as to the constitutionality of the Execution Outline and of the Legislature*s authority to review. The said application, in this Yuan*s view, conformed to Article 5, Paragraph 1, Subparagraph 3, of the Interpretation Procedure Act.
The issuance of emergency decrees under the Constitution is an endeavor to maintain the Nation*s existence and restore its constitutional structure in the event of national emergency when the existing legal system is insufficient to eliminate danger or handle a major crisis. The criteria, procedures and review of emergency decrees are governed by the Constitution to prevent misconduct by government authorities and to safeguard the rights of the people and the order of a democratic society. Article 2, Paragraph 3, of the Amendment to the Constitution provides that "The President may, in order to avert imminent danger affecting the national security or of the people or to cope with any major financial or economic crisis, issue emergency decrees and take all necessary measures through resolution of the Cabinet meeting, and is not subject to the restriction specified in Article 43 of the Constitution. However, such decrees shall, within ten days of issuance, be submitted to the Legislature for ratification. Where ratification is denied by the Legislature, the said emergency decrees shall cease to be valid." Accordingly, emergency decrees are proclamations made by the President pursuant to resolution of the Cabinet, in order to avert imminent dangers to the State or the people or to deal with a major crisis, when the existing legal system and legislative process are unable to provide countermeasures. The effectiveness of such decree is restricted to a definite emergency period and location and has the effect of temporarily replacing or altering existing laws. Therefore, emergency decrees are an exception to the constitutional rules that the Legislature is to legislate on behalf of the people while the Executive Yuan is responsible for the execution of laws. As a principle, their content should be thorough and detailed so they can be executed forthwith without the need of supplementary regulations. In case of time constraint where provisions for detail and technicality are impracticable and supplementary regulations by the executive authorities are required to achieve objectives of emergency decrees, then the decrees must contain a provision expressing their objectives and be proclaimed only after ratification by the Legislature. To adhere to the constitutional structure, supplementary regulations (or by whatever term it is named) should be reviewed by the Legislature in accordance with the review procedures set out in the administrative orders. The issuance of emergency decrees, though not restricted by the principle of legal reservation stipulated in Article 23 of the Constitution, should observe the principle of proportionality. The requirement of ratification by the Legislature, within 10 days of issuance of emergency decrees, stipulated in the said Amendment to the Constitution is a representative review mechanism for the emergency measure. The Legislature, upon exercising its power of ratification, may only resolve as to the appropriateness of emergency decrees but not alter their contents. Where some parts of an emergency decree are considered to be inappropriate, partial ratification is available if the remainder of the decree has no impact on and is necessary to the entirety of the emergency measure.
Emergency decrees issued by the President pursuant to the said Amendment must be delivered to the Legislature for ratification under Article 15, Paragraphs 1 and 2, of the Legislative Yuan Functioning Act. During the recess of the Legislature, the legislators in recess shall meet within three days and ratify such decrees within seven days pursuant to Paragraph 3 of the said Article. Further, supplementary regulations contingent to an emergency decree issued by the Executive Yuan shall cease to be valid once the effective period of the decree elapses. Upon enactment of laws on the relevant emergency measures by the Legislature to replace the contents of emergency decrees, such decrees shall forthwith cease to be valid to the extent of the enactment.
The matters of whether executive authorities may issue supplementary regulations after issuance of emergency decrees and whether such orders should be presented for review by the legislative authorities were, prior to this Interpretation, pending under the existing laws. Thus, although the issuance of the said emergency decree on September 25, 1999, by the President, and the draft of the contingent Executive Outline by the Executive Yuan failed to comply with the procedures set out above, there was no breach of the Constitution.
*Translated by Wei-Feng Huang of THY Taiwan International Law Offices.