VI.4 Administrative Discretion

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Past paper: 2024 Q5. Verdict to write: support structured discretion, oppose unfettered discretion.

📖 Definition

• The freedom of a public official to make, interpret and apply decisions where the law leaves room for judgement.

✅ Merits

• flexibility · speed · individual fairness · expertise-based decisions.

❌ Demerits

• risk of arbitrariness · bias · inconsistency · corruption · hard to hold accountable.

🇵🇰 Pakistan stance (do you support such powers?)

• discretion is necessary — the state cannot function without it;
• but it must be structured and controlled — clear guidelines, recorded reasons, transparency, audit, judicial review;
• verdict: support structured discretion, oppose unfettered discretion.
  • Example: a DC's discretion to open flood shelters fast is good; the same DC's unchecked discretion to award contracts to friends is dangerous — the fix is rules + transparency, not abolishing discretion.

📝 Extra notes

• Grounds of judicial control (Lord Diplock, GCHQ, 1985): illegality, irrationality (Wednesbury unreasonableness — Associated Provincial Picture Houses v Wednesbury Corporation, 1948) and procedural impropriety.
• Abuse of discretion: acting for improper purpose, ignoring relevant considerations, taking irrelevant ones, acting on dictation of another, fettering discretion by rigid policy, bad faith.
• Kenneth Culp Davis (Discretionary Justice, 1969): confine, structure and check discretion through rules, open findings and reasons.
• Controls in Pakistan: Art. 199 writs; Art. 4 and Art. 25 (due process and equality); Art. 10A (fair trial and due process, inserted by the 18th Amendment) — verify scope; RTI (2017), audit, ombudsman, departmental appeals, and citizen charters.
• Discretion vs arbitrary power: discretion exercised according to law and reason vs power exercised by whim.
• Areas in Pakistan: licensing, land allotments, transfers and postings, procurement, tax assessment, law-and-order (section 144).

🧪 Worked example — allotment of a public plot

• Discretion: the authority may allot plots to deserving applicants.
• Abuse: allots to relatives and ignores criteria.
• Structured discretion: published eligibility criteria, open ballot or points system, recorded reasons, and appeal.
• Remedy: writ of certiorari; audit objection; ombudsman complaint.

Deeper understanding — discretion must remain legally directed

Discretion is a choice within lawful boundaries. Fettering discretion occurs when a decision-maker treats a policy as inflexible despite a duty to consider relevant circumstances. Acting under dictation occurs when the legally responsible authority simply follows another's improper direction.

Original decision protocol: establish facts → identify statutory purpose → consider relevant factors consistently → hear affected parties where required → explain reasons → provide the appropriate review route. Record why an exception is justified.

Three different questions: legality asks whether power exists; rationality asks whether the decision has a defensible connection to reasons and evidence; procedural fairness asks whether the process meets legal requirements. Proportionality may be relevant in particular rights and legal contexts; do not assume identical tests across jurisdictions.

Pakistan anchors: Article 4 concerns treatment according to law; Article 25 concerns equality; Article 10A concerns fair trial and due process in its stated scope. Constitution.

Exam conclusion: rules can structure choice without eliminating judgement. A transparent exception process may protect fairness better than either unrestricted discretion or mechanically identical treatment.

✅ How to score

• Define → merits / demerits (table) → judicial control grounds → Pakistan example → verdict.

⚠️ Common mistakes

• Calling for the abolition of discretion.
• Forgetting judicial review grounds.

❓ Active recall

• State the three grounds of judicial control over discretion.
• Give one Pakistan example of abuse and one structuring tool.