Define administrative discretion?

What is judicial review in the context of

administrative discretion?

Submitted to: Ms. Syeda Lubna

Submitted by: Mahnoor Paracha

Roll Number: 2016-LLB-00

Fall 2021

Department of Law

Fatima Jinnah Women University, Rawalpindi

ABSTRACT

With the emergence of the concept of welfare state and multiplication of executive functions,
administrative discretion has to be accepted as a necessary evil. Discretionary authority
conferred on the executive is never been absolute rather subject to legislative and judicial
control. State functionaries, in performance of their duties, are entrusted with certain
discretionary powers to regulate state affairs and to advance the cause of justice. In the exercise
of discretionary powers, the executive authorities are bound to observe certain principles,
standards, and parameters articulated by legislature and the Superior Courts so as to avoid
misuse of authority. With the help of qualitative and deductive research methodology, this article
aims to examine various case laws wherein the Superior Courts enunciated principles and
standards for the proper exercise of discretionary authority, in order to keep the executive in its
bounds.
INTRODUCTION

Discretion, in its literal sense, means choosing amongst the various available alternatives. 1
However in terms of administrative law, administrative discretion means choosing from amongst
the various available alternatives but keeping in view law, rules of reason and justice and not
according to personal whims. Administrative discretion is one which is to be exercised in
accordance with policy or expediency and may not always involve any judicial elements. The
statutes conferring power or discretion on public officers are not expressly coupled with a duty to
exercise the power or discretion being conferred, but it has been construed that discretion so
conferred be exercised to meet the ends of justice. A discretionary power grants to the
administrative authority freedom to act in any manner it thinks fit but subject to legal restraints
and the requirement that it is exercised in a fair and just manner so as to promote the objectives
of the law.

The administrative authorities have to face a variety of situations whose course cannot be
predicted with any amount of certainty. To overcome such like situations, the administrative
authorities must possess capacity to take decisions on the spot. As the legislature cannot
definitely anticipate such situations, it has to confer discretion on the executive. However, in
case of a quasi-judicial body, the authority may be required to act according to the principles of
natural justice whose ultimate decision is non-reviewable on the merits.2

State functionaries while performing their functions must observe certain norms to achieve high
quality justice in a welfare society. These principles are motivated to advance the cause of justice
and to discourage the whimsical use of powers entrusted to public officials. Discretion should
not be exercised to supersede any statutory provision, nor should it be exercised by a person
other than the one in whom law vests authority to use that discretion. However, in case of denial,
access or abuse of observance of the norms of discretion, the aggrieved person may get the
impugned decision quashed or the proceedings frustrated which has affected or is likely to affect
any of his legal rights.

1
MERRIAM-WEBSTER’S UNABRIDGED DICTIONARY BRITINNICA ENGLISH, Definition of Discretion.
2
Khan, H. (2012). Principles of Administrative Law: A Comparative Study. Oxford University Press.
The courts also play a vital role by keeping executive authorities within their legal sphere. Till
recent past, the officials seemed to be enjoying much more privileges as to secrecy of records
and other immunities attached to public records and the courts were hesitant to go into the merits
of discretionary decisions. But, now with the 18th Constitutional Amendment wherein right to
information has been incorporated as fundamental right (Article 19A of the Constitution of
Pakistan of 1973) this judicial reticence is dissipating. Apart from the standards of fundamental
rights, the courts have evolved several other principles which the administration is bound to keep
in view while exercising its discretionary powers.3

1. ADMINISTRATIVE DISCRETION

Discretionary powers are permissive, not mandatory. They are powers granted either under
statute or delegation which do not impose a duty on the decision-maker to exercise them or to
exercise them in a particular way. Within certain constraints, decision-makers are able to choose
whether and/or how to exercise discretionary powers.

No public official has an unfettered discretionary power. Public officials must exercise
discretionary powers in accordance with any applicable legal requirements, reasonably,
impartially and avoiding oppression or unnecessary injury.4

Agencies should adopt policies and procedures which set out the general approach to be followed
in at least each major area of activity for which they are responsible. This should ensure that the
agency’s powers are exercised consistently from case to case, unless the merits of any particular
case justify a different approach.

Administrative decisions often include the exercise of discretion. Discretion exists when the
decision-maker has the power to make a choice about whether to act or not act, to approve or not
approve, or to approve with conditions. The role of the decision-maker is to make a judgment
taking into account all relevant information.5

3
Constitution of the Islamic Republic of Pakistan [Pakistan], 10 April 1973,
4
Administrative Discretion, Global Encyclopedia of Public Administration, Public Policy, and Governance,
Northern Arizona University Flagstaff USA.
5
Cooper PJ (2000) Public law and public administration, 3rd edn. F.E. Peacock Publishers, Itasca
 2. POWERS TO ACT AND TO   EXERCISE DISCRETION

For public sector decision-making, legislation generally provides the lawful authority for action
to be taken and for decisions to be made. Public sector decision-making may be undertaken:
As part of fulfilling responsibilities to ensure the efficient and effective management and
performance of a public authority, eg, under the general public sector legislation; or as part of
taking action or making decisions under agency or department-specific legislation relating to the
services delivered by the public authority.6

3. RELEVANT ADMINISTRATIVE LAW PRINCIPLES

In exercising discretionary powers, various principles of administrative law require public

officials to:

 use discretionary powers in good faith and for a proper purpose (ie, honestly and only
within the scope of and for the purpose for which the power was given)
 base their decision on logically probative material (ie, logical reasons, information that
proves the issues in question, relevant and reliable evidence)
 consider only relevant considerations and not consider irrelevant considerations
 give adequate weight to a matter of great importance but not give excessive weight to a
relevant factor of no great importance
 exercise their discretion independently and not act under the dictation or at the behest of
any third person or body
 give proper, genuine and realistic consideration to the merits of the particular case, and
not apply policy inflexibly, and
 observe the basic rules of procedural fairness (ie, natural justice).

Other principles of administrative law preclude public officials from:

6
Otenyo E.E. (2016) Administrative Discretion. In: Farazmand A. (eds) Global Encyclopedia of Public
Administration, Public Policy, and Governance. Springer, Cham.
  making decisions in matters in which they have an actual or reasonably perceived conflict
of interests
 Improperly fettering their own discretion (or that of future decision-makers) by, for
example, adopting a policy that prescribes decision-making in certain circumstances
 exercising a discretion in a way that is so unreasonable that no reasonable person would
have exercised the power in that way
 exercising a discretionary power in such a way that the result is uncertain
 acting in a way that is biased or conveys a reasonable perception of bias
 making decisions that are arbitrary, vague or fanciful
 refusing to exercise a discretionary power in circumstances where the decision-maker is
under a duty to do so, or
 Unreasonably delaying the making of a decision that the decision-maker is under a duty
to make.7

It is a serious matter for public officials to ignore valid advice or valid considerations,
particularly for the purposes of avoiding discomfort or embarrassment on the part of the
government, agency or decision-maker.

4. POLICIES AND PRACTICES TO GUIDE THE EXERCISE OF

DISCRETIONARY POWER

Not every situation demands a policy, and policies are not a panacea capable of properly
addressing all circumstances. However, policies are an important means of guiding decision-
makers in exercising discretionary powers appropriately, consistently and fairly.

Policies should include an objective and the criteria to be used in decision-making to help ensure
that:

 all relevant legal requirements are complied with

 all relevant factors are considered

7
Applicable Principles of Administrative Laws, LAW COMMISSION OF ONTERIO, the Law Society of
Ontario, Osgoode Hall Law School, and York University
  there is consistency in decision-making, and
 the decision-making process is transparent and accountable.

As a matter of principle, it is unacceptable for an agency to adopt and implement a policy that
adversely affects, or could adversely affect, the rights or interests of any member of the public
where the existence or content of the policy is kept secret or the policy document is not available
for inspection and purchase on request.

Policies adopted by agencies should be communicated to relevant staff and members of the
public. In this regard, s.15 of the Freedom of Information Act requires that agencies must ensure
each of their policy documents are available for inspection and purchase by members of the
public.

5. JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS

 
Judicial review is the doctrine under which legislative and executive actions are subject to review
(and possible invalidation) by the judiciary. Specific courts with judicial
review power must annul the acts of the state when it finds them incompatible with a higherautho
rity (such as the terms of a written constitution).8

a) NEED FOR JUDICIAL REVIEW

 
The function of judicial review is to act as “a check against excess power in derogation of private
right” yet it cannot supervise all administrative adjudications for it exists to check, not to
supplant them.

b) RATIONALE

Through past experiences it has been learned that if the executive is allowed to exercise its
powers unchecked by the judiciary, it may become dictatorship, political influence sand
arbitrariness etc. so this makes up the historical rationale for judicial review.

8
Prof. I. P. Massey, Administrative Law pp.62, 8th edition
 c) PRACTICE AND CONCEPT

The concept of judicial review has developed in countries like England, US, and also Pakistan
and India.

d) PAKISTAN

In Pakistan the development of judicial review of administrative action has followed that of
Britain and USA. There has been no marked opposition to the administrative process but it has
been accepted as imminent of national planning and growth of the welfare state.9

9
MOHAMMAD AQIB ASLAM, Judicial Review of Administrative Actions An Overview.