Executive Power Leashed

Abstract

Abstract Rule-of-law principles are subjected to extraordinary strain when the nation is in peril and when the chief executive pardons individuals convicted of crimes. This chapter argues that executive pardon powers and emergency powers can and must be legally bridled. It is possible to design standards and processes to strip executive pardon power of its arbitrary features and turn it to its valued use as a corrective for law and legal processes that have gone wrong. In times of crisis, critics charge, law goes silent, that it cannot constrain executive power. However, this claim disguises as either a conceptual or psychological claim the normative claim that law should not limit executive power. This chapter challenges this normative claim, arguing that, in times of crisis, protocols are needed to protect decision makers from characteristic modes of bias and failures of rationality. Several constitutional systems around the world have incorporated carefully calibrated bridling laws, guided by principles like the following. (1) Power to determine the occasion for the exercise of emergency powers must be clearly and narrowly assigned. (2) The scope of emergency powers must be carefully defined. For example, certain fundamental rights must designated as non-derogable and the constitutional order must be protected against amendment. (3) Arrangements must be established for public assessment and accountability of governmental actions, through the courts where feasible or by other tribunals or informal or ad hoc institutions, when they might be expected to do a more effective job.