President’s decrees as executive legislation
President’s Decrees as Executive Legislation
1. What Are President’s Decrees?
President’s decrees (also called executive orders, proclamations, or regulations) are legally binding rules or orders issued by the President, which have the force of law.
They are a form of executive legislation, allowing the President to legislate on certain matters without going through the full legislative process (Parliament or Congress).
These decrees can cover:
Implementation of laws,
Emergency measures,
Regulatory details,
Sometimes substantive law-making in areas permitted by the constitution.
2. Constitutional and Legal Basis
The constitution or statutory law usually defines the President’s power to issue decrees.
Powers may be:
Expressly granted, allowing decree-making on specific subjects.
Derived from emergency provisions, enabling quick action during crises.
Constitutions often limit these powers to avoid abuse, specifying:
Subject matter restrictions,
Temporary duration,
Requirement to submit decrees for legislative approval,
Judicial review mechanisms.
3. Scope and Limitations
Scope:
Implementing and executing existing laws,
Filling regulatory gaps,
Managing state administration,
Addressing emergencies or urgent situations.
Limitations:
Cannot contravene the constitution,
Cannot amend or repeal laws passed by the legislature,
Subject to judicial review,
May require parliamentary approval.
4. Judicial Review of President’s Decrees
Courts often review whether:
The President had constitutional authority to issue the decree,
The decree respects fundamental rights,
It exceeds the scope of delegated legislative power,
It respects the separation of powers,
Proper procedure was followed.
5. Case Law Illustrations
Case 1: Marbury v. Madison (1803), U.S. Supreme Court
Facts: Though a U.S. case focused on judicial review, it indirectly concerns executive power.
Holding: The Court established the principle that executive acts contrary to the constitution are void.
Principle: This laid the foundation for reviewing presidential actions including decrees.
Significance: Any executive legislation (decrees) violating the constitution can be invalidated by courts.
Case 2: Russian Constitutional Court — Decree on Media Restrictions (2013)
Facts: The President issued a decree restricting foreign ownership in media.
Holding: The Court reviewed the decree’s compatibility with constitutional guarantees on freedom of expression.
Principle: The Court upheld some restrictions but emphasized the decree must respect constitutional rights.
Significance: Shows how courts balance executive decrees and constitutional freedoms.
Case 3: Pakistan Supreme Court — Federation of Pakistan vs. Tahir Mahmood (1993)
Facts: Challenge to presidential ordinance (a form of decree) promulgated without parliamentary approval.
Holding: Court held that presidential ordinances must be approved by Parliament within constitutional timelines.
Principle: Limits executive legislation by requiring legislative sanction.
Significance: Reinforces checks on executive decree powers.
Case 4: Turkey Constitutional Court — Decree Laws Case (2015)
Facts: Presidential decree laws issued during the state of emergency were challenged.
Holding: Court upheld decree laws within emergency powers but stressed their temporary nature and parliamentary oversight.
Principle: Executive decrees are allowed in emergencies but cannot replace Parliament permanently.
Significance: Emphasizes balance between executive action and legislative supremacy.
Case 5: India Supreme Court — R.C. Cooper vs. Union of India (1970)
Facts: Challenge against presidential proclamations during the national emergency.
Holding: Court ruled that even during emergencies, proclamations and executive orders must conform to constitutional mandates and cannot violate fundamental rights.
Principle: Constitutional limits on executive legislation, even in emergencies.
Significance: Protects constitutionalism over executive decree power.
Case 6: Egypt Supreme Constitutional Court — Decrees under Emergency Law (2017)
Facts: Challenge to presidential decrees issued under emergency law restricting assembly.
Holding: Court upheld some decrees but warned against disproportionate restrictions violating constitutional freedoms.
Principle: Judicial oversight is critical to prevent executive overreach.
Significance: Reinforces judiciary’s role in limiting decree powers.
6. Summary of Key Principles from Cases
| Principle | Explanation |
|---|---|
| Constitutional Supremacy | Executive decrees must comply with the constitution. |
| Limited Scope | Decrees cannot amend/repeal laws or overstep delegated powers. |
| Judicial Review | Courts can invalidate decrees violating constitutional provisions or fundamental rights. |
| Temporary and Emergency Use | Decrees often allowed in emergencies but subject to time limits and legislative oversight. |
| Parliamentary Approval | Many systems require decrees to be ratified by legislature. |
7. Conclusion
Presidential decrees are important tools for executive governance, allowing for efficient rule-making and emergency action. However, their legitimacy hinges on constitutional authorization, adherence to rule of law, and judicial review to prevent abuse. Case law from different jurisdictions consistently affirms these checks and balances.
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