AN INSIGHT INTO EXECUTIVE
DISCRETION
By
FAKHAR MAHMOOD MAKHDOOM*
PREFIXTURE
The grant of wide discretionary powers, which was once
believed to be incompatible with the concept of rule of law has now became a
necessary by product of the modern welfare state.[1]
The rapid and phenomenal growth in functions of state during the present
century has necessitated the grant of wide discretionary powers to a variety of
public bodies and officials. Since these powers and discretion of executive
bodies are linked with the valuable rights of the citizens therefore, its
exercise must be regulated so as to protect the common man from despotism. The
legal concept of discretion implies power to make a choice between alternative
courses of action. If only one course can lawfully be adopted, the decision
taken is not the exercise of a discretion but the performance of a duty.[2]
It is generally accepted notion that the exercise of any public power is
subject to express and implied limitations imposed by law.[3]
The scope
of judicial review of such discretion will often be determined mainly by the
wording of a power and the context in which it is exercised.[4]
Thus the legislature while granting discretionary powers imposes some
conditions e.g. to record reasons of decision, to consult the interested
person, to hold a public inquiry before taking any action under the statute.
In
“In accordance with British Jurisprudence no member of
the executive can interfere with the liberty or property of a British Subject
except on the condition that he can support the legality of his action before a
court of justice”.
The courts
insist that the grant of discretion in always accompanied by certain implied
conditions which guard against the irresponsible exercise of powers. The
control of discretionary powers
is perhaps the most critical problem of the modern Administrative
Law.[6]
An
administrative body is under a duty to act justly, fairly and reasonably,[7]
and where it acts unreasonably, capriciously, or arbitrarily, the court will
interfere with its judgment.[8]
Long ago chief justice Coke laid down the rule in Rookes
case (1598) that discretion is “a science or understanding to discern between
falsity and truth, between right and wrong, between shadow and substance,
between equity and colourable glosses and pretences
and not to do according to wills and affections.”[9]
Normally courts do not enter into the complexities of modern administered
process and they are usually concerned only with the control of illegal
exercise of discretion.
English
Common Law has developed certain general rules regarding exercise of
discretion. In Robert vs Hopwood[10]
a borough council empowered under the Act to pay such wages to their employees
as it “may think fit”, paid over generous wages and the district auditor
disallowed the payments. On challenge the decision of auditor was ultimately
upheld by the House of Lords. Lord Wren bury held that a discretion does not
empower a man to do what he likes merely because he is minded to do so…he must,
by the use of his reason, ascertain and follow the course which reason directs.
He must act reasonably.
In wednesbury case[11]
Lord Greene MR observed, “It is true that discretion must be exercised reasonably.
A person entrusted with discretion must direct himself properly in law. He must
call his own attention to the matters which he is bound to consider. He must
exclude from his consideration matters which are irrelevant to what he has to
consider. If he does not obey these rules, he may truly be said to be acting
unreasonably.
In padfield vs Minister of
Agriculture, Fisheries & Food[12]
the action of the minister refusing to forward the complaint to the
investigation committee on irrelevant ground was held to be abuse of discretion
similarly in Breen vs Amalgamated Engineering Union[13]
Lord Denning MR relying on Padfield case observed
that, “discretion of a statutory body is never unfettered, it is to be
exercised and guided by relevant and plausible considerations”.
Again it
has been held in a number of celebrated cases in England that exercise of
discretion should not be fettered by over rigid policies so hat in the exercise
of discretionary powers every case must be decided on its own merits and the
compulsion of the public interests.[14]
In
In Agha Muhammad Khan vs District
Board Lahore[16]
justice B.Z. Kaikaus observed,
“Any
exercise of power which is arbitrary, oppressive and wanton is an abuse and is
not an exercise of power within the meaning of the statute at all, all abuse in
excess”
In
In
Federation of Pakistan vs Muhammad Aslam[18]
the Supreme Court has reitrated the rules to control
and review the executive discretion. Justice Shafi-ur-Rehman
observed,
“The limit
now well recognized is that all executive power has to be exercised fairly and
justly, for advancing the objects of legislation. In other words every such
exercise of power has to satisfy the test of reason and relevance.”
1. ABUSE / EXCESS OF
DISCRETION
i) Malafides
Malfides or bad faith means dishonest
intention or corrupt motive. The Supreme Court of India has observed,
“malafide exercise of power
does not necessarily imply any moral turpitude as a matter of Law. It only
means that the statutory power is exercised for purposes foreign to those for
which it is in law intended”.[19]
In this
sense, malafides is equated with any ultra vires exercise of administrative power. However the term malafides is not being used in the broad sense, but in the
narrow sense of exercise of power out of dishonest intent or corrupt motive. Malafides in this narrow sense would include those act
where the motive behind an administrative action is personal animosity, spite,
vengeance, personal benefit to the authority itself or to its relatives or
friends, or which is designed to favour[20]
or harm someone[21].
Malafides is a question of fact which must
be established by evidence[22]
however High Court can enquire into malafides if the
disputed question of fact can be ascertained from the documents on record.[23]
Where government took a disciplinary action to ensure probity and purity in the
public service and not to wreak personal vengeance, it was declared not to be malafides or ultra vires but at
the some time it is clear that malafides is a
distinct ground for quashing administrative action apart from ultra vires.[24]
Furthermore,
it has been ruled in number of case that the plea of malafides
is not available against the Legislative Action[25]
and somewhat surprisingly it has been so ruled even in a case of a law made by
an individual for example a Martial Law Administrator.
ii) Unreasonable and
Arbitrary Action
The Superior courts in
Similarly
the action was held invalid when an election tribunal based its findings on the
solitary evidence of the election officials[30]
or a criminal court gave temporary possession of the crime property to a person not at all entitled to it.[31]
Where malice was imputed for procuring order which from circumstances seemed to
be possible, the supreme court of
The
authority while passing orders in administrative matters must follow rules and
principles of justice and equity so that even when such order has been passed
should not stamp such order as malafides and result
of bias or malice[33].
It is not necessary for the individual to prove what particular official of the
government acted malafides. There is no such burden
on the individual as facts lie within the knowledge of the government.[34]
iii) Improper Purpose
If a statute confers powers for one purpose, its use for
a difficult purpose would not be regarded as valid exercise of power and the
same could be quashed. for instance the government my be empowered to acquire
property if its is “satisfied” to the existence of public purpose, its order would be legal,
provided of course that the circumstances which it has found to exist do in Law
constitute public purpose.[35]
In the area of preventive detention, it has been held in
a few cases that the power of preventive detention cannot be used as a
convenient substitute for persecuting a person in a criminal court. It was held
that the power of detention could not be used on “simple solitary incident” of
theft of railway property, and the proper course to persecute the person was in
criminal court. In some of the cases the court has used the phrase “colourable exercise of power”[36]
which term does not differ substantially from improper purpose. It has however
been ruled in some cases that a prior
court case, or lack of it would not make the detention order invalid.[37]
iv) Irrelevant considerations
A power conferred by a statute must be exercised on the
consideration mentioned in the statute or relevant to the purpose for which it
is conferred whenever administrative authority is given power to pass some
order, it should exercise its authority independently by taking into
consideration all relevant circumstances where such an authority had made
decision and issued order there under, under extraneous influence such order
should be quashed as invalid.[38]
Thus public functionary vested with power in respect of determination of rights
of a citizen qua the state resources is required to exercise the same fairly
and properly on sound judicial principles and keeping in view relevant
considerations having logical nexus with the object of law and not arbitrarily
and whimsically.[39]
2. FAILURE TO EXERCISE
DISCRETION
A statutory functionary who is given discretionary powers
under the statute is required to exercise these powers by applying his
independent mind and without being influenced by others. Where a scheme was
published by the manager without the corporation applying its mind to the case
before it and the scheme was approved by the governor, the court held it
invalid because the corporation had not applied its mind.[40]
In the
“It is
perfectly clear from this proceeding that the additional district magistrate
who made the order under section 3 merely acted as a tool to the land
acquisition department of the government and did not at all apply his mind to
the question whether it was necessary or expedient to requisition the property
for a public purpose on this ground alone, therefore the order must be held to
be invalid”.
In another
celebrated case[42]
justice Hamood-ur-Rehman ruled, “we are of the
opinion that it behaved the chief settlement commissioner to apply his own
independent mind to the questions raised before him and to deal with the three
revision petitions put up before him according to law. By merely countersigning
the note of settlement commissioner we are clearly of the view that he had not
exercised the jurisdiction vested in him in accordance with law”. The Lahore
High Court quashed n administrative decision when it was found to be taken on
dictation of another which was required to be taken on dictation of anther
which was required to be taken by the authorized administrative authority on
his independent judgment.[43]
In Sher Mohammed vs Abdur Rasheed,[44]
Supreme Court has termed such as action as “abdication of jurisdiction,
surrender of discretion and refusal to exercise jurisdiction.
3. THE SUBJECTIVE
FORMULATION OF POWER AND JUDICIAL REVIEW
“Reasonableness” provides quite a flexible basis for the
court to interfere and in other factual situations requiring reasonable
administrative action, the scope of judicial review may be much wider. In such
situation the scope of judicial review is determined by practical realities and
it would be absorbed to suppose that the attitude of the courts towards such
words as “reasonable grounds” in one legislative context must be reproduced in
every other.[45]
This may be elaborated with reference to two classical English cases.
In Liversidge vs
“If the
secretary of state has reasonable cause to believe any person to be of hostile
origin and that by reason thereof it is necessary to exercise control over him
he may take an order against that person directing that he be detained”.
The House
of Lords was faced with the question whether the words “reasonable cause to
believe” should be given on objective or subjective meanings. The House of
Lords interpreted the words subjectively and held that parliament had conferred
an absolute discretion on executive who is not bound to satisfy any body else.
This ruling was criticized as it disclosed a definite bias in the courts
towards subjective interpretation. In Nakkuda Ali vs Jayaratne[47]
The privy council stated that it would be very unfortunate if the decision in
the Liversidge case came to be regarded as laying
down any general rule as to the construction of such phrase the court further
held that when the legislature used the word “reasonable” it must have been
intended to serve in some sense as a condition limiting the exercise of an
otherwise arbitrary power.
But f the
question whether the condition has been satisfied, is to be conclusively decide
by the man who wields the power, the value of the intended restraint would in
effect be nothing the courts have on the whole, been extremely reluctant to
impart the requirements of reasonableness (at least in the broad sense of going
into the merits) into a statute by implication. While quashing own executive
action under the Companies Act. 1956 the Supreme Court of India stated in Rohtas industries vs S.D. Agarwal.[48]
“We do not
think that any reasonable person much less any expert body like the government
on the material before it, could have jumped to the conclusion that there was
any fraud involved in the sale of the shares in question”.
It is an overriding principle of the French
Administrative Law that an administrative act is proper and therefore lawful
only if it is reasonable, the opposite of capricious, or arbitrary, and further
the administrator must produce the reason before the tribunal (counsel d` Etat) whenever it thinks that there is sufficient ground
for producing the reason.[49]
In Mardana Mosque Trustees vs Mahmud[50]
the Privy Council interpreted the orders “where the minister is satisfied” and
held that there must be some grounds n which the minister could be satisfied.
The judicial trend was finally approved by the House of Lords in Tameside case[51]
However the English courts were no more sympathetic towards Liversidge
rule being war time case yet it took them about forty years to complete its
burial. The Rule of Liversidge was also applied in
Similarly
the Lahore High Court held[54]
that the satisfaction of executive must be based on some tangible material. The
Supreme Court Pakistan has vividly interpreted[55]
the word “satisfaction” of detaining authority must be state of mind which has
been induced by the existence of reasonable grounds for such satisfaction.
In summary,
the courts are not willing to concept that their jurisdiction, particularly the
constitutional jurisdiction can be ousted by the use of subjective language.
This is quite justified for the reason that otherwise the executive will be
armed with arbitrary power which will seriously hamper the Rule of Law, cause
of justice and fair play.
EPILOGUE
From the foregoing elaboration, it has been established
that grant of discretionary power is never unlimited and that the judiciary has
placed some restrictions on exercise of such powers to ensure that the same is
being used in a responsible and sensible manner. The counseil
d’Etat in
In
* Assistant Professor of Law, International
Islamic University
[1] A.V Dicey,
“Law of the Constitution”.
[2]
[3] H.W.R.
Wade, “Administrative Law”. 6th ed. (1994) Pg. 348
[4] Secretary
of state for education & science vs Tameside M.B.C. (1977) A,C,. 1047 per Lord Wilberforce. (“But
there is no universal rule as to the principles on which the exercise of discretion may be reviewed, each statute or
type of statute must be individually looked at”)
[5] Eshugbayi vs Government of
[6] See Final
Report of the Bland Committee on Administrative Discretion (1973)
[7] Hadi Ali vs Govt. of West
Pakistan PLD 1956 Lah. 824
[8] Abdul Majid vs
24QBD213; Robert vs
Hopwood (1925) A.,C. 578
[9] [1598] 5
[10] [1925]
A.C. 578
[11] Associated
Provincial Pictures House Ltd. Vs Waynesburg corporation [1948] 1-kB 223
[12] [1968] A.C
997
[13] [1971] 2
QB175 at Page 190
[14] R VS Hillingdon B.C. ex. P. Islam [1983] AC 688, R Vs
[15] Article 10
of Pakistan Constitution 1973, article 22 (5) of Indian constitution.
[16] PLD 1957
[17] PLD 1957 Lah. 914
[18] 1986 CMR
916 at pp. 928-929 see also PLD 1989 SC 162
[19] Jaichand vs West Bengal AIR 1967
SC 483-at P. 485
[20] Ahbab Corporative Housing Society vs
Commissioner Lahore Division PLD 1978 Lah 273
[21]
[22] Masood Ahmad vs State PLD 1962 Lah 878, PLD 1974
[23] Akhtar Hussain vs Ahangoo Khan 1981 CLC 1971
[24] S.A de
Smith, “Judicial Review of Administrative Action”. (1973) edn.
P. 282 at p. 293
[25] Fouji Foundation vs Shamim
[26] Charsadda Sugar Mills vs Govt. of
Pakistan. PLD 1971 Pesh. 210, PLD 1981 Lah. 368 1982 CLC 2101
[27] Muhammad Aboo Abdullah vs
[28] Muhammad
Ali vs Election controlling authority PLD 1963 Lah. 346
[29] Malina Rani Sons vs province of East Pakistan PLD 968 Dcca
177
[30] Shafiqur Rehman VS M.S. Mian PLD 1968
[31] Abdur Rashid vs Sessions Judge
PLD 197 Lah. 613
[32] University
of the
[33] Ibid
[34] State of
[35] Muhammad Jamil Asghar vs
the improvement Trust. PLD 1965 SC 698
[36] Zafar – ul –Ahsan
vs The Republic of Pakistan. PLD 1960 SC 113
[37] Samir Chatterjee vs state of west
[38] Jawed
Hotel vs CDA, PLD 1994 Lah.
315, Arif Builders vs Govt.
of Pakistan PLD 1994 Kar 627
[39] Muhammad Zahoor ul Ha vs
Quarter Master General 1994 CC 2449
[40] Manikehchandra vs state AIR 1973 Gau. 1
[41] 11 DLR
(Sc) 411
[42] Ghulm Mohi-ud-Din vs Chief Settlemnt Commisoner PLD 1964 SC 829
[43] Ahmad Zaman Khan vs Governmnet
of Pakistn. PLD 1977 Lah.
735
[44] 1980 SCMR
928
[45] S. de
Smith, “Judicial Review of Administrative Action”. 1973 ed. Pg. 306 46. (1942)
A.C. 206
[46] (1942)
A.C. 206
[47] (1951)
A.C. 66
[48] AIR 1969
S.C. 707
[49] Hamson. “Executive Discretion & Judicial Review” (1954)
495.
[50] (1967) AC
13
[51] (1977) AC
1014
[52] Sibnath Banerj is case. LR 72, 1A
241 & Vimlabai Dispande’s
case LR 71 1A, 114
[53] Ghulam Mohammad Khn vs Crown. PLD 1949
[54] Sakhi Daler Khan’s case PLD 1957 Lah. 8B
[55] Ghulam Gilani vs
Govt. of West Pakistan. PLD 1968 SC 373