Discretionary Power

- Lord Diplock in Secretary of State for Education & Science v Tameside Borough

Council:

- Discretionary power is the right of a person to choose any of the possible

courses of action where it can be reasonably believed that there are more

than one possible courses of action.

- Wide or broad power given to the administration to make decisions according to its

own opinion.

- An authority having discretionary power may not act according to any

principles, but instead according to its own whim and fancies.

- The rule of law demands not for wide discretionary powers to be eliminated, but for

the law to be able to control its exercise.

- The courts are reluctant to review discretionary power because its role is restricted

only to see that the decision-maker acts within and according to the law. Courts are

not allowed to interfere where discretion is exercised properly and in accordance

with law.

Judicial review exercised by the courts over discretionary power is through the application

of the doctrine of ultra vires:

- Narrow ultra vires: Embraces administrative action by public authorities which

literally exceeds their statutory powers, in either a substantive or procedural sense.

- Substantive ultra vires

- To ensure authorities exercise discretionary power to, and within the limits

set by, the Parent Act.

- A public authority may do only what the legislature has expressly authorised

and whatever may fairly be regarded as incidental to, or consequential upon

those things which the legislature has authorised. Any action by a public

authority which is outside the terms of its statutory power, or not incidental

to, is ultra vires and invalid.

- When discretionary action falls outside the express limits of a power:

- Francis v Municipal Councillors of Kuala Lumpur: The removal of an

employee by the Council, and not by the President, was held to

amount to wrongful dismissal as the power must be exercised by the

very same authority in which power is vested by law.

- Procedural ultra vires

- The statute conferring power on a public authority may prescribe procedural

requirements to govern the exercise of such power.

- Failure to observe such requirements may render its actions ultra vires,

depending on whether the requirement is mandatory or directory.

- Mandatory requirements: Generally results in invalidity.

- A decision-making authority must make an inquiry before

deciding

- A decision-making authority must consult a designated body

before deciding

- There must be a publication

- A hearing must be given to interested parties

- A decision-making authority must record reasons for taking

action

- The decision-making authority must ensure consent of some

designated authority before taking action

- A decision must be made within a prescribed period

- United Development Company Sdn Bhd v State Government of Sabah:

Where there was a failure to obtain a statutory approval (mandatory),

the acquisition of land for approximately 30 years earlier was ultra

vires and invalid.

- Directory requirement: Non-compliance will not have an effect on the

validity of any action taken.

- Broad or wide ultra vires:

- Where the authority abuses discretionary power

- Mala fide: Dishonest intention, corrupt motives or personal animosity behind the

discretionary act of an authority which leads to an abuse of powers.

- Where the authority, or the relations or friends thereof, stand to gain or

derive some benefit from the discretionary act.

- Where an administrator uses power to satisfy a private or personal grudge, or

to achieve a political purpose.

- Banshi Badan Banjeree v State of VP: The burden of proving mala fide lies

‘very heavily’ on the person alleging it.

- Privy Council in Yeap Seok Pen v Government of Kelantan: He who asserts bad

faith has the burden of proving it, mere suspicion is not enough.

- Partap Singh v State of Punjab: The petitioner was a civil surgeon, who had

been granted leave prior to his retirement. The leave was revoked and placed

under suspension pending the result of inquiry by the Chief Minister of

Punjab into certain charges against him on the ground that he accepted a

small bribe from some patient. The petitioner proved that the Chief Minister

has a grudge against him by reason of certain incidents. Thus, mala fide was

proved and the order was quashed.

- Improper purpose: A purpose lying outside the scope and purpose of the enabling

statute.

- If a statute confers power on an authority for one purpose (the purpose

which the statute aims to achieve), its use for a different purpose is invalid.

- An authority is not permitted to do an act under statutory power to achieve

an end which is unrelated to the purpose for which the statute has conferred

power.

- Municipal Council of Sydney v Campbell: The Council had statutory power to

acquire land compulsorily for the purpose of making or extending streets, or

carrying out improvements in or remodelling any portion of the city. It

decided to acquire the land on the ground that it was for the purpose of

remodelling and improving the city. However, it was actually acquired to

enable the Council to get the benefit of any increment in the value of the

land in question that was expected to accrue as a consequence of the

extension of a street nearby.

Held: A body such as the Council, authorised to take land compulsorily for

specified purposes will not be permitted to exercise its powers for different

purposes.

- Irrelevant consideration: Considerations lying outside the scope of the statute

concerned.

- If the authority takes into account considerations which are irrelevant, the

act can be declared invalid.

- Padfield v Minister of Agriculture, Fisheries and Food: Where the Minister was

requested to refer a certain complaint to an investigating committee, which

the Minister was given power to appoint; he refused to do so and gave

reasons that the matter raised ‘wide issues’ and that he would be

embarrassed if he did so.

Held: The Minister had used his discretion in a manner which was not in

accordance with the intention of the Parliament and his refusal was based on

bad reasons and extraneous considerations.

- Leaving relevant consideration

- If the statute has expressly or impliedly provided for a matter to be taken

into account when making decisions, the administrator must do so without

fail.

- Leaving relevant considerations may nullify a discretionary decision.

- Re Haji Sazali: Sec. 6(1)(a) of the Malaysian Drug Dependants Act 1983

empowers a magistrate to remand a person to a drug rehabilitation centre.

Before passing such an order, the magistrate was required to have regarded

several matters specified under Sec. 6(4). The magistrate’s order was

quashed under Sec. 6(1)(a) as he had not taken into consideration the

specified matters. The statute had laid down relevant considerations, but

the decision-maker ignored them.

- Unreasonableness

- Although the decision-maker acts within the four corners of the discretion

conferred by statute, the decision can still be challenged if it is unreasonable.

- Associated Picture Houses v Wednesbury Corporation: The test of

unreasonableness is whether something is so absurd that no reasonable or

sensible person could have come to that decision.

- Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service

used the term irrationality as being the meaning of Wednesbury’s

unreasonableness.

- ‘Irrationality’: The decision must be so outrageous in its defiance of

logic or of accepted moral standards that no sensible person who had

applied to his mind the question to be decided could have arrived at.

- Chai Choon Hon v Ketua Polis Daerah, Kampar: A license was granted to hold

a meeting from 5-11.30pm under the Police Act. A condition was imposed

that the number of speakers would only be 7.

Held: The condition imposing a restriction on the number of speakers was

unreasonable as the police had the means to deal with any infringement of

the time-frame.

- Pengarah Tanah Galian, Wilayah Persekutuan v Sri Lempah Enterprises:

Where the condition imposed to surrender freehold for a 99 year lease in

consideration for permission to develop the land was characterised as

unreasonable.

- Where the authority fails to exercise its discretionary power

- Dictation

- When an authority does not consider a matter itself, but acts under dictation

from, or at the command of, a superior officer, it fails to apply its discretion.

This amounts to a non-exercise of discretion by the authority, and the action

taken is invalid.

- P Patto v Chief Police Officer, Perak: The appellant applied to the Officer in

Charge Police District (OCPD) for the grant of a license to hold a lion dance in

a public place. Instead of dealing with the application himself, he forwarded it

to higher police authorities. The application was rejected half an hour before

the lion dance by the Chief Police Officer.

Held: The OCPD as the licensing authority under the Police Act had

surrendered his discretionary power by transmitting the application for

consideration and determination by the Chief Police Officer. He had thus

acted under dictation and fettered the discretion legislatively vested in him

as the refusal of the license was made by the wrong authority.

- Acting mechanically

- Where an authority vested with discretion, must apply its mind to the facts

and circumstances of the case. If it passes an order mechanically without

applying its mind, its act may well be ultra vires.

- Emperor v Sibnath Banerjee: The Home Secretary issued an order of

preventive detention in a routine manner on the advice of police without

himself applying his mind to the materials and satisfying himself,

independently of the police recommendation, whether an order of

preventive detention was called for in the circumstances of the case. The

Privy Council quashed the order and ruled that the Home Secretary’s

personal satisfaction in each case was a condition precedent to the issue of

an order without which it would be invalid.

- Fettering discretion

- ‘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 of 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.

- 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 minerals, 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.

Held: 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.