ADMINISTRATIVE

DISCRETION
Muhammad Akhtar Abbas, PSP

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OUTLINE

 Conceptual Background
 Principles of Administrative Discretion
 Addressing Corruption and Maladmistration
 Role of Ombudsman /Judicial control
 Question/Answers

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CONCEPTUAL FRAMEWORK
 Discretion: Choosing among various alternatives
 Law
 Act or not to Act  Rules
 Justice Administrative
 Approve or not to approve  Policy Discretion
 Expediency
 Approve conditionally  Precedents

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ADMINISTRATIVE DISCRETION DEFINED
 BlackLaw’s Dictionary: A public official’s or agency’s power to exercise
judgment in the discharge of its duties.
 The West Encyclopedia of American Law: The exercise of professional
expertise and judgment, as opposed to strict adherence to regulations or statutes,
in making a decision or performing official acts or duties. It is something
informal and therefore unprotected by safeguards inherent in formal procedures.
It is a freedom to make a choice among potential course of action.
 Justice Edward Coke: A science or understanding to discern between falsity
and truth, between right and wrong, between shadows and substance, between
equity and colorable glosses and pretences, and not to do according to their will
and private affection.
RATIONALE
 Legislature feels there ought to be a law to deal with some current problem
but can not decide in detail just what the law should provide and
accordingly adopts a statute declaring the general objectives which should
be accomplished and granting to an administrative agency the duty of
working out best ways to accomplish these objectives.
 Under the impact of the contemporary philosophy of ‘ welfare State' as
well as that of the emergency situations, a phenomenon generally
discernible in democratic countries is the vesting of large discretion in the
hands of the administrative authorities.
RATIONALE
 Use of shall vs. will
 Use of may vs. must
 Use of phrases like:
 in public interest
 if it is satisfied
 may deem it necessary
 Expedient
 in the exigency of service
 public security/safety.
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EXAMPLES
 Any police-officer may, without an order from a Magistrate and without a warrant
arrest any person who has been concerned in any cognizable offence (Section 54;
CrPC)
 No police officer shall detain in custody a person arrested without warrant for
period longer than, under all the circumstances of the case is reasonable and such
period shall not, in the absence of a special order of a Magistrate under Section -
167 exceed twenty-four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate's court (Section 61; CrPC)
 Where any Court has reason to believe that a person to whom a summons has been
addressed, will not or would not produce the document or thing as required by such
summons or requisition ---, it may issue a search-warrant (Section 96; CrPC)
 The term of the Head of District Police, shall not be less than two years and not
more than three years from the date of his posting unless transferred earlier due to
exigency of service or misconduct (KP Police Act 2017).
WHY NEEDED?
 Administrative / operational flexibility
 Missing legislation/Rules

 Missing procedures
 Exigency of service  Efficient decision making
 Unforeseen situations  Tailored Solutions
 Widening of policy objectives  Avoids legal rigidity
 Due diligence  Crisis management
 Time saving

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 ILLUSTRATION

 Article 25: Equality of citizens: Right to Equality does not provide everyone
should be treated equally having no regards to their situations. In fact, if
unequals are treated equally, it violates the right to equality.
 Fundamental Freedoms (Articles 15-19): Certain freedoms are guaranteed
but they are not absolute. Reasonable restrictions can be imposed on these
freedoms under the authority of law. The reasonableness of the restrictions is
open to judicial review.

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PRINCIPLES OF ADMINISTRATIVE
DISCRETION
 Legal Framework  Ethical Considerations
 Public Interest  Stakeholder Engagement
 Reasonableness  Accountability

 Consistency  Proportionality

 Transparency  Discretionary Space

 Non-Discrimination  Review and Appeal

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KEY STEPS TO BE CONSIDERED WHEN
EXERCISING DISCRETION
 Determine that the decision maker has the power
 Follow statutory and administrative procedures
 Gather information and establish the facts
 Evaluate the evidence
 Consider the standard of proof to be applied
 Act reasonably Act fairly and without bias
 Observe the rules of procedural fairness
 Consider the merits of the case and make a judgment
 Keep parties informed, advise them of the possible outcome and
provide them the reasons for the decision
 Create and maintain records
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CONTROL OF ADMINISTRATIVE DISCRETION
Power tends to corrupt and absolute power corrupts absolutely (Lord
Acton)
 Rule of law Vs. Administrative discretion
 Magna Carta: The charter became in the process of time an enduring
witness that the power of the crown was not absolute. And when in
subsequent ages the state swollen with its own authority, has attempted to
ride roughshod over the rights and liberties of the subject it is to this
doctrine that appeal has again and again been made, and never, as yet,
without success…..There is a law which is above the king and which even
he must not break (W. Churchill)
 Case of Proclamations 1610: The King himself ought not to be subject to
man, but subject to God and the law, because the law makes him King
(Lord Chief Justice Coke)
PARLIAMENTARY CONTROL OF ADMINISTRATIVE
DISCRETION
 Constitutional articles 8, 25
 Legislative oversight
 Questioning and debates
 Parliamentary committees including the PAC
 Budget approval
 Calling reports

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JUDICIAL CONTROL OF ADMINISTRATIVE
DISCRETION
 Whether a decision making authority exceeding its power?
 Committed an error of law?
 Committed a breach of rules of natural justice?
 Reached a decision which no reasonable tribunal would have
reached?
 Abused its power?

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LEGAL BASIS FOR JUDICIAL REVIEW
 Supreme Court under the Article 184(3)
 High Court under the Article 199 of the Constitution
 Habeas Corpus
 Mandamus

 Prohibition

 Quo Warranto

 Certiorari

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FORMULATIONS FOR JUDICIAL CONTROL THE
EXERCISE OF ADMINISTRATIVE DISCRETION
 Authority has not exercised its  Authority is deemed not to have
discretion properly- ‘abuse of exercised its discretion at all- ‘non-
discretion’ application of mind
 Mala fides  Acting under dictation
 Irrelevant considerations  Self restriction
 Leaving out relevant  Acting mechanically and without
considerations due care
 Arbitrary orders
 Colorable exercise of power
 Noncompliance with procedural
requirements and principles of
natural justice
 Exceeding jurisdiction. 16
INJUNCTIONS
PROCEDURAL / EXECUTIVE CONTROL OF
ADMINISTRATIVE DISCRETION
 Legal Framework

 Administrative procedures/SOPs

 Supervisory tiers

 Accountability mechanisms

 Ethical guidelines

 Performance evaluation

 Feedback system 18
ROLE OF OMBUDSMAN
 Carrying out independent  Areas outside the purview of
investigations into complaints about Ombudsman
maladministration  1. Matters that are sub-judice
 Federal Ombudsman  2. Matters relating to External
 Independent Ombudsman for Affairs
 Tax matters  3. Matters relating to Defense
 Insurance matters concerning private  4. Service Matters
insurance companies
 5. Federal Public Service
 Banking matters concerning private
banks Commission
 Harassment of women at workplace
 Provincial
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Ombudsman
CASE LAWS WHERE EXERCISE OF
DISCRETION WAS UPHELD

 Kulsoom Khaliq v. Shahbaz Sharif (PLD 2015 Lahore 276): In this case, the
Lahore High Court upheld the discretionary powers of the Chief Minister of
Punjab in appointing members to the Punjab Public Service Commission.
 Muhammad Saleem v. The State (PLD 2016 Lahore 157): The Lahore High
Court, in this case, upheld the exercise of discretion by a police officer in
granting or denying bail to a suspect.
 Abdul Basit v. The State (PLD 2019 Lahore 192): The Lahore High Court, in
this case, upheld the discretionary powers of a district education officer in
granting or refusing permission to open a new private school.
CASE LAWS WHERE EXERCISE OF DISCRETION
WAS DECLARED UNLAWFUL
 Benazir Bhutto v. President of Pakistan (PLD 1988 SC 416): In this case, the
Supreme Court of Pakistan declared the presidential discretion to dissolve the
National Assembly and dismiss the Prime Minister as unlawful. The court held
that the exercise of such discretion must be based on cogent and valid reasons
and should not be arbitrary or whimsical.
 Manzoor Elahi v. Federation of Pakistan (PLD 2007 SC 370): In this case, the
Supreme Court of Pakistan declared the 2002 referendum to extend the
presidential term of General Pervez Musharraf as unconstitutional and illegal
 Asghar Khan v. General Pervez Musharraf (PLD 2012 SC 835): The Supreme
Court, in this case, declared the 2007 NRO (National Reconciliation
Ordinance) unlawful and unconstitutional. The court's ruling emphasized that
the exercise of discretion through the NRO was arbitrary and against the
principles of justice.
CASE LAWS WHERE EXERCISE OF DISCRETION
WAS DECLARED UNLAWFUL
 Mehram Ali v. The Federation of Pakistan (PLD 1998 SC 1445): This case dealt
with the exercise of discretion by the President of Pakistan to dissolve the
National Assembly. The Supreme Court held that the President's discretion to
dissolve the Assembly must be exercised in conformity with the Constitution and
could be subject to judicial review if it was unlawful.
 SuoMotu Case No. 16 of 2004 (The Lal Masjid Operation Case): In this
prominent case, the Islamabad High Court declared the actions of the police and
security forces in the Lal Masjid operation as excessive and in violation of
fundamental rights. The operation was conducted to remove militants from the
Lal Masjid (Red Mosque) in Islamabad in 2007. The court held that the police's
use of force and the way the operation was carried out were unlawful and
disproportionate.