[Fact Check] Can the President Issue Emergency Orders Only During a State of Armed Conflict?

Daegu Mayor Kwon Young-jin Demands Emergency COVID-19 Order... Cheong "Not a Measure That Can Be Enforced Now"

[Asia Economy Reporter Ryu Jeong-min] “The president’s emergency decree power cannot be exercised at this time.” This was the statement conveyed by Kang Min-seok, the Blue House spokesperson, during a briefing on the 3rd. On that day, there was a Cabinet meeting presided over by President Moon Jae-in, during which the topic of the ‘emergency decree power’ was mentioned while explaining the contents.

The emergency decree power became an issue when Kwon Young-jin, Mayor of Daegu, urged the securing of hospital beds in relation to the novel coronavirus infection (COVID-19). On the 2nd, Mayor Kwon said, “Please support securing more than 3,000 rooms as quickly as possible by activating the president’s emergency decree power if necessary, utilizing public training centers and large corporate training centers that can be used as residential treatment centers.”

This was a call for extraordinary measures by the president to respond to COVID-19. The president holds powers guaranteed by the Constitution, one of which is the emergency decree power. In a national emergency requiring urgent action, the president can issue emergency measures to uphold constitutional order. Emergency decrees have legal effects such as enacting or repealing existing laws.

[Image source=Yonhap News]

The idea of granting the president authority in a national emergency to resolve the situation may seem understandable at first glance. It can be perceived as a flexible response that can bypass existing procedures to solve problems.

However, presidential powers are granted based on law. Having power does not mean it can be exercised arbitrarily. The same applies to the emergency decree power. Why did the Blue House spokesperson claim that the emergency decree power cannot be exercised now?

Kang Min-seok also mentioned the following: “The president’s emergency decree power is one of the constitutional emergency measures... It requires a serious state of armed conflict and the impossibility of convening the National Assembly.”

The phrase “serious state of armed conflict” stands out. The fact that the emergency decree power can be exercised only in a serious state of armed conflict can be interpreted as meaning it is effectively limited to wartime situations.

The provisions regarding the emergency decree power are specified in Article 76 of the Constitution. Paragraph 1 of Article 76 covers emergency financial decrees, and paragraph 2 covers emergency decrees.

[Image source=Yonhap News]

Article 76, Paragraph 1 of the Constitution states, “The president may, in cases of internal disorder, foreign invasion, natural disasters, or serious financial or economic crises, when urgent measures are necessary to ensure national security or maintain public order and there is no time to wait for the National Assembly to convene, issue orders with the effect of law concerning financial or economic matters to the minimum extent necessary.”

Article 76, Paragraph 2 states, “The president may, in a serious state of armed conflict concerning national security, when urgent measures are necessary to defend the nation and the National Assembly cannot convene, issue orders with the effect of law.”

This means that emergency decrees can only be issued in a state of armed conflict related to national security when urgent measures are necessary and the National Assembly cannot convene. The premise includes both a state of armed conflict and the inability of the National Assembly to convene.

A serious state of armed conflict means a large-scale armed clash. The inability of the National Assembly to convene means a legal or factual situation where the Assembly cannot be held. It does not mean that the president can exercise emergency decree power simply because the Assembly is not convened due to political struggles between parties.

The Blue House spokesperson’s explanation that “the president’s emergency decree power cannot be exercised now” relates to this. Since there is no state of armed conflict and the February extraordinary session of the National Assembly is currently in session, the president’s emergency decree power cannot be exercised.

[Image source=Yonhap News]

The reason the president must be cautious in exercising the emergency decree power (including emergency financial decree power) is that abuse of this authority could lead to impeachment for violating the Constitution. This is confirmed by the Constitutional Court’s precedent (Case 93HunMa186).

The petitioner (lawyer Park Seong-hoon) argued in August 1993 regarding the president’s emergency financial decree on the real-name financial system, “Even if the content of the emergency decree is constitutional, the procedure may be unconstitutional, violating the Constitution, and the National Assembly should impeach the president for such unconstitutional acts.”

Case 93HunMa186 concerns emergency financial decrees but confirms the Constitutional Court’s interpretation of Article 76 of the Constitution.

The Constitutional Court explained, “The president’s emergency financial decree is an emergency legislative measure issued to overcome financial and economic national crises that cannot be addressed by normal constitutional order power exercise methods. Although temporary, it inevitably infringes somewhat on the principle of separation of powers and individual fundamental rights.”

Furthermore, the Court pointed out, “When the National Assembly is realistically unable to convene due to recess or other reasons, and waiting for the Assembly would defeat the purpose, the emergency decree must be exercised within the minimum necessary limits to remove the direct cause of the crisis and maintain or restore the existing order, following the procedures prescribed by the Constitution.”

The Court dismissed the petitioner’s claim regarding the National Assembly’s failure to impeach and rejected the claim concerning the emergency financial decree on the real-name financial system.

What can be confirmed from the Constitutional Court’s decision is that the president’s emergency decree (including emergency financial decree) is a choice accompanied by responsibility as well as authority. It cannot be exercised arbitrarily based on political purposes or judgments but must be decided strictly according to legal grounds.

Meanwhile, Kang Min-seok, the Blue House spokesperson, conveyed the following regarding the Cabinet meeting held via video conference on the 3rd.

“Mayor Kwon Young-jin apologized to President Moon Jae-in for requesting the activation of the president’s emergency decree power to secure 3,000 hospital beds. Mayor Kwon said, ‘I apologize for mentioning the president’s emergency decree power without sufficient legal review.’”