論法院作為法治例外狀態的守門人──以Covid-19防疫措施下的司法審查為中心

On Judicial Review in the Covid-19 Pandemic: Court as a Guardian of the Rule of Law in the State of Exception

本文從例外／緊急狀態中，法律與政治互動的常見思考框架出發，檢視以色列Ben Meir v. Prime Minister of Israel和紐西蘭Borrowdale v. Director General of Health of New Zealand等防疫司法審查案件的比較經驗。這些常見框架背後一定程度是奠基於常態和例外／緊急狀態的區分，然而學界近年逐漸認為兩者界限日益模糊，而出現例外狀態常態化的趨勢，進而衍生出緊急權力遁入常態法制的制度風險。面對此風險，一般認為法院在例外／緊急狀態會展現較一般管制情境更高的司法順從，這種態度也確實反映在我國Covid-19防疫的司法審查經驗。為管控此風險，本文分別從形式和實質合法性面向切入，反思法院對緊急權力的監督可能。尤其在實質合法性層面，本文分別從不確定性類型化、審查基準選擇及政府舉證說明義務切入，對實質合法性審查概念工具進行反省，試圖縮減法院與行政權的專業落差，確保法治主義與政府防疫任務的合理平衡。

This paper begins by examining the conventional framework to understand the relationship between law and politics in the state of exception/emergency. It then applies the framework to comparative judicial review cases amidst the Covid-19 pandemic, including Ben Meir v. Prime Minister of Israel and Borrowdale v. Director General of Health of New Zealand. The conventional framework is largely grounded on the widely accepted distinction between the state of normalcy and the state of exception/emergency. The distinction, however, is increasingly blurred. Many believe that we are now entering the normalization era of the state of exception. Emergency power exercised in the new era can often be disguised as part of the normal legal order, and it is commonly believed that the court has limited capacity to rein in the excessive exercise of emergency power, an observation supported by the judicial review experience in Taiwan during the past two years. To manage the risk of emergency power being disguised, the paper, in its concluding sections, explores the court's potential to meaningfully control excessive emergency power from both the angles of formal and substantive legality. In particular, the paper proposes to reflect on and reconstruct existing doctrinal tools for reviewing substantive legality along the following three lines: categorizing the uncertainties, lowering the standard of review, and imposing the essential burden of proof for the government to explain their emergency decision-making. In doing so, the paper aims to not only narrow the knowledge gap between the court and regulatory agencies but also ensure a better balance between abiding by the rule of law and fulfilling the mission of pandemic control.