Abuse of administrative discretion
In the word of Justice Douglas of the US Supreme court: where discretion is absolute, man has always suffered … absolute discretion … is more destructive of freedom than any of man’s other inventions. And also absolute discretion like corruption , marks the begging of the end of liberty. It thus becomes necessary to devise ways and means to minimize the danger of absolute discretion. To achieve objectives a multipronged strategy has to be adopted.
The abuse of administrative discretion can be through 4 different ways as numbered below:
It is unlawful to use a discretionary power to achieve a purpose other than that for which the power was conferred.
Just as grant of power may specify the purpose to which they may be applied, so they may also indicate consideration which are to be taken into account on the exercise of the power. A failure to take those consideration into account can be ultra vires . the court have also held that the taking into account of irrelevant consideration can render the exercise the power unlawful.
As a nothing that an administration authority has not acted in good faith is such a serious thing. It is not surprising that it is a rare ground of review. Megaw LG. has suggested that bad faith involves dishonesty. Yet it is difficult to think of an example in which a dishonest exercise of power would not the consideration of an irrelevant purposes or seeking of an improper purpose.
In many cases decided that the discretion should be reasonable as well as in accordance with law and discretion should not be arbitrary. The cases are as follows: R v. commissioner of Fens(1666) 2 keb.43, Westminister Corporation v. L and NW Railway (1905) AC 426 at 430, and lord Macnaghten said that, “ nobody, of course, can dispute that the government or the board had a discretion in the matter. But it was not an arbitrary discretion… It was a discretion to be exercised reasonably, fairly and justly.”
Illegality is concerned with keeping authorities within their power, whereas irrationality insures that there is no breach of substantive principles which are independent of those in the statute, even if the decision or action is technically inside the scope of the legislative scheme.
Judicial review on the abuse of administrative discretion
To exercise statutory power reasonably, in good faith, and on correct ground. The courts are still working within the bounds of familiar principle of ultra vires. The analysis involves no difficulty or mystique. Offending acts are condemned simply for the reason that they are unauthorized. The court assumes that parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many of the case.
The fundamental principle of rule of law is all authorities and their actions are subject to law. The administrative authority is discharging their duties may act beyond the power or abuse the power conferred on them. As result, individual right and liberties may be affected, therefore it is necessary that there should be judicial control over misuse of discretionary power of the administrative authorities. So the rights of the peoples are not adversely affected and protect the notion of democracy and rule of law.
Judicial review can be on done for the declaring invalid the decision of the administrative decision. The administrative discretionary power is sometime very much authoritative and it hamper on the fundamental right of the individual at that time the court issue such order to repel that decision. The following case is one of the important example this regard.
Baburam Poudel v. HMG and council of ministers
Fact of the case
His Majesty Government gives retirement to a person by using the discretionary power. HMG claim that the conduct giving retirement is lawful as per the Civil Service Regulation 2021 rule 7.1(3). This rule state that any person who is reach at the stage of getting pension then government can give retirement to him or her.
Civil Service Regulation 2021, rule 7.1(3) talks about the discharging any government official from the service by the Government, when he/she is at the stage of getting pension. But any Act or Rules are void until the contradiction or inconsistency with Constitution is exist. This rule is some how contradict with the fundamental right. The use of discretionary power should be just and reasonable. The applicant discharge from his position and it is related with the positional right. So the decision regarding this matter should be just. The discretionary power should be use as consistent with the law; any decision made under that power is not done with the bad intention. The decision should consistent with the equality right provided by the constitution. In the question regarding, Whether is this type of decision rational and amiable? Whether are those laws inconsistent with the constitution under which decides about the retirement? If such laws are contradict with the constitution, then art. 88(1) of the constitution and the extra ordinary Jurisdiction of Supreme Court under art 88(2) provide authority to declare the conduct and laws as invalid.
The Supreme Court is competent and authoritative to decide on such constitutional issue so, supreme court can do judicial review on the decision regarding the retirement.
The universal principle is that, the discretionary power should not be arbitrary. Arbitrary acts are negative aspect of the Rule of Law. The constitution of Nepal aims to protect and follow the rule of law. That’s why the discretionary right is limited and controlled.
Civil Service Regulation 2021, rule 7.1 provide right for applicant that, applicant can stay on service until his age of 60. The Government conducts under rule 7.1(3) blunt the right provided by rule 7.1 so the use of discretionary power should be just.
Laws provide the discretionary power to the administrative executive officer, whereas the power is not arbitrary and absolute. It must be amiable. The abuse of power is not acceptable and the discriminatory conduct is functional. The decision of the administrative executive is free from the mal intention and biasness.
The decision of the Government regarding the retirement of the applicant is discriminatory and unlawful. So the decision of HMG in 2048/6/4 was made void by issuing the certiorari order. Again issuing the Mandamus, order to the general administrative ministry for the re-recruitment to the applicant.
The discretionary power provided to the administrative executive body for the reason of, quick and prompt decision making in the emergency. The discretionary power does not mean arbitrariness but must be used on the ground of reasonableness and just. To control over that arbitrary discretionary power the judicial review play a vital role. So the universally accepted principle regarding the discretionary power is just and reasonable.
The judicial review is done if the act or the laws are inconsistent with the constitution. In the Baburam Poudel v. HMG and council of minisry case, in this case also Government give retirement to a person by using the power of discretion. But that act was inconsistent with the same Regulation’s rule 7.1.
The civil servants are not absolute servants of the government. As same as the appointment and discharge the general servant the civil servant cant be appoint and discharge. The civil servants recruit as per the Civil Service Act 2013 and Civil Service Regulation 2021, so the discharging or give retirement from service also be done as per the Civil Service Act 2013 and Civil Service Regulation 2021. The doctrine of pleasure is not means that the ignorance of law. For having pleasure to any one the ignorance of law is not accepted and is not having the autocracy.
Thus Judicial review by Supreme Court can control over the massive discretionary power. It helps in protecting the democracy, rule of law and people’s fundamental right and legal right. In this case also the judicial review plays role for the protection of individual right which is protected by law and constitution. And applicant was reappointed in his post though was discharged using the discretionary power by government.
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