Discreation

Discretion in layman’s
language means choosing from
amongst the various available
alternatives without reference
to any predetermined criterion,
no matter how fanciful that
choice
may be.
Discretion in the context of the
term ‘administrative’ means
choosing from amongst the
various available alternatives,
but with reference to the rules
of reason and justice and not
according to personal whims.
Such exercise is not to be
arbitrary, vague and fanciful
but legal and
regular
Discretion in layman’s language means choosing from amongst the various
available alternatives without reference to any predetermined criterion, no
matter how fanciful that choice may be. Discretion in the context of the term
‘administrative’ means choosing from amongst the various available
alternatives, but with reference to the rules of reason and justice and not
according to personal whims. Such exercise is not to be arbitrary, vague and
fanciful but legal and regular.
Moreover, there is a danger of abuse of discretion by administrative officials. a
general rule is to be preferred to the case to case approach and ought to be
adopted wherever possible. It is desirable to have administrative uniformity to
the extent possible, because, as a matter of general principle, substantial lack
of uniformity would lead not only to administrative chaos but also to collapse
of public confidence in administrative fairness. In any individual case, it is
highly relevant to take into account what has been done in other cases of a
similar nature, otherwise a decision may result which could be regarded as
being improper or discriminatory.’
However if the adversely affected person has a ground to ask for a judicial
review if he is unhappy with the outcome after the decision maker exercises
his discretionary power. Judicial control over discretionary decisions is
exercised through the doctrine of ultra vires which literally means “beyond the
powers”. This doctrine in its basic form is concerned with the question
whether or not a decision-maker has exceeded the statutory power conferred
on him. An administrator must exercise his powers within the terms of the law.
If an administrator contravenes a legal provision, then the exercise of power by
him is ultra vires. For instance, if the administrator is authorised to control the
price of bread, it will be ultra vires for him to control the price of butter or
sugar. Even when a statute declares a decision by an administrator to be
“final”, the courts can still set aside an ultra vires decision. Finality can only
attach to “real” and not “ultra vires” decisions.
In Re Tan Boon Liat, the question was whether an ultra vires order becomes
non-challengeable because under the law it was declared that the order made
by the Yang di-Pertuan Agong was “final” and “shall not be challenged in any
court”. The Federal Court ruled that an ultra vires decision did not become
“final” and could be challenged in a court. When there is a misconception as
regards the power to make an order, it is incumbent on the court to rectify the
error. Even when a statutory provision seeks to confer “absolute discretion” on
the administration, the courts do not take the provision at its face value so as
to deny judicial review howsoever arbitrary or discriminatory the
administrative decision may be and this proposition is supported by the case
of Minister of Home Affairs v Persatuan Aliran Kesedaran Negara.
However, over the time this test has been developed. With the development
via different case laws and according to intensiveness of the review many
commentators divided this test into so called two parts. They are: Supper
Wednesbury test and Sub Wednesbury test.first we need to know what is
Wednesbury Unreasonableness: This is concept by which courts review the
merits of the decision of administration. This method is developed from the
decision on the Court of Appeal in Wednessbury Corporation (1984) case. A
condition given by the corporation based on section1 (1) of Sunday
Entertainments Act 1932 was challenged by the claimant. Where the condition
was reasonable or unreasonable that was the question before the court. Court
found it was valid,according to Lord Greene:"The power of the courts is not
interfere each decision of the authority but as a judicial authority courts are
concerned only to see whether the local authority have contravened the law
by acting in excess of the power which Parliament has confined in them."
The supper wednesburry test is that the courts accept judicial review cases
concerning problems of microeconomic policy, basic rights, governmental
policy, state security, and the separation of powers, among other things.In the
case of Smith [1996] it is one of important case on the ground of national
securities issues (dischargeof military personnel from army on ground of their
sexuality). Belmash can be cited for the same issue and the sub wednesbury
test is where an individual's basic or constitutional rights are at stake, courts
evaluate the authorities' judgement. Case law examples from before the
Human Rights Act of 1998 show how the courts used this strategy . Brind
[1991] is case where individual's freedom of expressions right was under a
review by the courts. Though court dismissed the appeal but in obiter it
expressed that freedom of expression right of an individual must be
adequately justified by the Secretary of State.The recent case R (Union) [2017]
is another example where Supreme Court impugned a change to the rules
concerning tribunal fees.
The above discussion of two types of Wednesbury test we have seen that it is
context sensitive approach. Like, in supper Wednesbury the courts consider
the macro policy types or national securities types matters. Whereas in sub
Wednesbury courts considers the cases of fundamental rights of individuals for
this dualist approach of Wednesbury unreasonableness some authors even
many cases suggested to replace this test with the modern approach named by
"proportionality". This is an alternative approach that was being used in other
jurisdictions. Such as in
Germany, to review the rationality of the decision of the authorities. In English
courts it is considered as one of the important grounds of judicial review. In
the CCSU case Lord Diplock recognised it. According to him:" I have in mind
particularly the possible adoption in future of the principle of proportionality
which is recognised in administrative law." While pointing out the
disadvantages of Wednesbury Le Sueur commented that" The problem of
using Wednesbury test is that, while it is simple of categories some cases into
one category or the other, there is a substantial "grey area" in between these
two bright lines, where the issues at hand might involve rights and policy".
Furthermore, according to Craig. P Wednesbury is an unclear test also in Daly
[2001] case, Lord Steyn, observed that there was a material difference
between proportionality and unreasonableness. In particular it required a
closer scrutiny of the act in question. When the fact the case is HRA then it will
be proportionality test.It can be said that it is time for the English courts to
replace the Wednessbury test with the proportionality for a clear and
structured outcome. regarding the issue final words may use from Lord
Neubarger comment in the case of Keyu that " Wednessbury rationality basis
for challenging executive decisions should be replaced by such a more
structured and principle challenged based on proportionality."
Conclusively, Wednessbury suffered from a number of drawbacks when the
proportionality approach was created. To make this area of law less
complicated, the legislature can pass legislation. It is past due for English
courts to replace Wednessbury with proportionality in order to achieve a
better result till then.