On The Legal Control Of Executive Emergency Powers

Executive institutions play a key role in the response to emergencies due to its access to updated information and its great efficiency in crisis operation, which authorizes the exercise of executive emergency powers in the event that the nation is threatened by crisis, exigency, or emergency circumstances. However, the constitutionality or legality of the exercise of executive emergency powers are always controversial. It seems necessary on one side that constitutional regimes recognize extraordinary powers which temporarily increase governmental faculties and authorize the restriction of some constitutional guarantees and personal fundamental rights in order to defend the constitutional order and reestablish normality. This seems necessary for the continuity of the rule of law. But on the other side a dilemma emerges because these extraordinary powers become an instrument to undermine the rule of law in emergency, which was so apparent in the national response to SARS in China in the year 2003 as to invite great concerns over the legality of the executive emergency measures aftermath.This paper sets out to study how to restrain the executive regarding emergency powers by perfecting both the legislations and the institutions of emergency response, falling into five parts: In the first part I define the key concept "executive emergency power" by explaning first the concept of "emergency" and that of "emergency power". Following is an theoretical introduction of key issues concerning legislative and judicial scrutiny of the concrete measures taken by the executive during the state of emergency. In the third part I make a comparative study over the legal control system of executive emergency powers in different countries and turn back to China's existing legislation and exercise of the supervision of executive emergency powers' in the forth part. The last part advocates a variety in legal supervision of executive emergency powers achieved by improvements both in legislation and institution constructions, suggesting that the focus of legal control lies in the supervision of emergent legislation and emergent measures.