INTRODUCTION

A discretionary power is a power exercisable at the discretion of the concern authority.

Officials in whom discretionary power is vested have, to greater or lesser extent, ‘a range of
options’ at their disposal and they exercise a measure of personal judgement in making choices.
Discretionary also helps individualization decisions. Statutes make general provisions, subject
to these provision, specific cases have to decided.

Accordingly, authorities have come to be vested with large discretionary power, which
means they enjoy large areas of choice between alternative courses of action. They can decide
whether to act or not in a given factual situation or when to act or how to act. Discretion of
power id conferred in the area of subsidiary legislation. When statute authorities a Minister to
make rules to carry out the purposes of the Act, it confers, broad discretion to decide what rules
should be made. The statute seldom gives guidance to the Minister on the sort of rules to make.
Thus, the Minister enjoy a wide of choice to make rule subject to the doctrine of ultra vires.

Usually, discretionary powers are couched in very board language without a any
substantive or procedural safeguards and thus, a very large area of choice is left open to the
Administrators. A point that needs to be emphasized is that a discretion, which is too broad, has
its own dangers and pitfalls. It creates the possibility of administrative arbitrariness, which is
subversive of the doctrine of equality and rules of law. Discretionary of power may be abused or
misused by the authority concerned. It may not react uniformly in similar situations but may
discriminate between and give differential treatment to person similarly circumstanced.

It is necessary to ensure that the authority properly exercises discretion. A strategy that
can achieve this objective is that it is desirable the statute conferring power also lay down
norms, principles or standards subject to which administrator must exercise the discretion.
ISSUE:

Whether the decision made by Tan Sri Kamal, which refused to renew the license can
be challenged on the ground of fettering discretion under the failure to exercise discretionary
power under substantive ultra vires.

LAW:

The category for this situation is under substantive ultra vires that is the failure to
exercise discretionary power. The ground in which the failure to exercise discretionary power
that had risen is fettering discretion. Failure to exercise discretionary power under fettering
discretion is when the authority acts, blindly adopting an inflexible standard to apply to each
case, regardless of the variance of the merits in each individual case. As per Lord Denning, the
administrative authority is entitled to apply its policy in individual cases, but no so rigidly as to
completely silence off the applicant’s views. ‘Non-application of mind’ by an authority arises
when it lays down a policy to regulate its exercise of discretion in some matter and seeks to
apply that policy inflexibly to all cases regardless if the merits of the case. When a statute
confers discretion on an authority to decide on individual cases, the authority is required to
consider each case on its merits. The courts do not approve of an authority fettering its
discretion by adopting a policy and applying it generally to all cases irrespective of their merits.

In the case of H Lavender and Son v Minister of Housing and Local Government. The
government adopted a policy to reserve high quality agricultural land for agriculture against
disturbance by gravel working. The Minister of Housing who had discretion to allow extraction of
mineral, refused permission to the petitioner to extract mineral from an agricultural holding on
the ground that the Minister of Agriculture objected to the proposed use for agricultural reasons.
The court held that the order of the Minister of Housing was quashed on the ground that the
minister followed an inflexible policy in such cases and fettered his discretion by a self-created
rule of policy. The minister in effect left the decision-making to the Minister of Agriculture who
under the law had no status to make an effective decision except perhaps in a consultative
capacity.
APPLICATION:

Referring to the situation of where Tan Sri Kamal had made a decision that refused to
renew Cinta Sayang Holiday Tour Bus Sdn Bhd’s licence after being advised by the Minister of
Environment. Tan Sri Kamal did not apply his own mind when making the decision as he had
acted on the advice of the Minister of Environment. Applying the case of H Lavender and Son v
Minister of Housing and Local Government, where the Minister of Housing who had discretion to
allow extraction of mineral, refused permission to the petitioner to extract mineral from an
agricultural holding on the ground that the Minister of Agriculture objected to the proposed use
for agricultural reasons. The court held that the order of the Minister of Housing was quashed on
the ground that the minister followed an inflexible policy in such cases and fettered his
discretion by a self-created rule of policy. Hence, applying to the current situation, the act of Tan
Sri Kamal to make the decision after being advised by the Minister of Environment showed that
Tan Sri Kamal had failed to apply his mind in making the decision. He had simply resorted to
such decision after being advised by the Minister of Environment without applying his mind to
consider other facts, which are relevant.

CONCLUSION:
In conclusion, the decision made by Tan Sri Kamal, which refused to renew the license
can be challenged on the ground of fettering discretion under the failure to exercise
discretionary power under substantive ultra vires.

hen a statute confers discretion

on an authority to decide on
individual cases, the
authority is required to consider
each case on its merits. The
courts do not approve of an
authority fettering its discretion
by adopting a policy and
applying it generally to all cases
irrespective of their merits.