Question
Discretion in Administrative law simply means discretionary powers or Administrative
discretion. Discretionary powers or Administrative discretion in Administrative law simply
refers to the power to choose between courses of conduct in the administration of an office or a
duty pertaining thereto. It is the exercise of professional expertise and judgment, as opposed to
adherence to regulations or statutes, in making a decision or performing official acts or duties.
In a nutshell, administrative discretion is simply the discretionary power that is conferred on a
public authority or officer to make a choice from a number of alternatives, in carrying out his
functions. Administrative discretion is simply discretionary power conferred on a public officer
to make a choice between various options or alternatives. Administrative discretion or
discretionary powers are granted to public officers or institutions by statute or delegation.
Discretionary powers do not impose an obligation to exercise them or to exercise them in a
particular manner. One of the reasons for conferring discretionary powers upon public officers is
that it is not possible for the law to make a provision for all contingencies and solutions to the
contingencies that may arise in daily life. It is for this reason that public officers are conferred
with discretionary powers, as has been stated above, discretionary powers do not come from
circumstances more often than not they are implied from the law that is statute.
There are a number of things that a public officer can do using discretionary powers and
sometimes people suffer not because they have broken the law but because a public officer has
made a strange decision. Discretionary powers do not only relate to those who exercise executive
1. 23 In sharp v Wakefield (1891) A.C 173 Justice Halsbury wrote: “Discretion means, when it is said that
something is to be done within the discretion of the authorities that something is to be done according to the
rules of reason and justice, not according to private opinion. According to law and not humour. It has to be
not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which
an honest man, competent to the discharge of his office, ought to confine himself.”
In Rooke’s case (1598) Justice Edward Coke Wrote: “Discretion is a science of understanding, to discern
between falsity and truth, between wrong and right, between shadows and substance, between equity and
colourable glosses and pretences and not to do according to their men’s will and private affections.”
36
powers but all branches of the government do exercise discretionary power in one form or
another. Whether discretion is conferred depends on the wording of the statute.
A statute will normally confer discretionary powers if the following words are used: Appropriate,
“Beneficial,” “Adequate,” “Convenient,” “Advisable,” “Computable,” “Expedient,” “Equitable,”
“Fair,” “Fit,” “Proper,” “Necessary,” “Reasonable,” “Profitable,” etc. On the other hand, where
the statute uses the word “shall,” it entails that the public officer has not been conferred with
discretionary powers. For example, Article 116 (1) provides that the president ‘shall’ appoint a
prescribed number of members of parliament as ministers. The word shall there is used to restrict
the options of the president. It entails that the president should only appoint Ministers from
among Members of Parliament. This means he has no discretion to appoint a person who is not
a member of parliament as Minister. It is for this reason that the president has to nominate a
person to Parliament first and then appoint them to a ministerial position, in situations where a
person is not a Member of Parliament.
On the other hand, where a statute uses the word “may” it means that a public officer has an
option or discretionary powers. For example, Article 30 (1) of the constitution provides that ‘the
president “may”, in consultation with Cabinet, at any time, by proclamation published in the
Gazette declare that a state of public emergency exists.’
Here, the president has been given discretion either to consult Cabinet or not to consult Cabinet
before making a declaration of a state of emergency explain in simpler terms
discretion. Discretionary powers or Administrative discretion in Administrative law simply
refers to the power to choose between courses of conduct in the administration of an office or a
duty pertaining thereto. It is the exercise of professional expertise and judgment, as opposed to
adherence to regulations or statutes, in making a decision or performing official acts or duties.
In a nutshell, administrative discretion is simply the discretionary power that is conferred on a
public authority or officer to make a choice from a number of alternatives, in carrying out his
functions. Administrative discretion is simply discretionary power conferred on a public officer
to make a choice between various options or alternatives. Administrative discretion or
discretionary powers are granted to public officers or institutions by statute or delegation.
Discretionary powers do not impose an obligation to exercise them or to exercise them in a
particular manner. One of the reasons for conferring discretionary powers upon public officers is
that it is not possible for the law to make a provision for all contingencies and solutions to the
contingencies that may arise in daily life. It is for this reason that public officers are conferred
with discretionary powers, as has been stated above, discretionary powers do not come from
circumstances more often than not they are implied from the law that is statute.
There are a number of things that a public officer can do using discretionary powers and
sometimes people suffer not because they have broken the law but because a public officer has
made a strange decision. Discretionary powers do not only relate to those who exercise executive
1. 23 In sharp v Wakefield (1891) A.C 173 Justice Halsbury wrote: “Discretion means, when it is said that
something is to be done within the discretion of the authorities that something is to be done according to the
rules of reason and justice, not according to private opinion. According to law and not humour. It has to be
not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which
an honest man, competent to the discharge of his office, ought to confine himself.”
In Rooke’s case (1598) Justice Edward Coke Wrote: “Discretion is a science of understanding, to discern
between falsity and truth, between wrong and right, between shadows and substance, between equity and
colourable glosses and pretences and not to do according to their men’s will and private affections.”
36
powers but all branches of the government do exercise discretionary power in one form or
another. Whether discretion is conferred depends on the wording of the statute.
A statute will normally confer discretionary powers if the following words are used: Appropriate,
“Beneficial,” “Adequate,” “Convenient,” “Advisable,” “Computable,” “Expedient,” “Equitable,”
“Fair,” “Fit,” “Proper,” “Necessary,” “Reasonable,” “Profitable,” etc. On the other hand, where
the statute uses the word “shall,” it entails that the public officer has not been conferred with
discretionary powers. For example, Article 116 (1) provides that the president ‘shall’ appoint a
prescribed number of members of parliament as ministers. The word shall there is used to restrict
the options of the president. It entails that the president should only appoint Ministers from
among Members of Parliament. This means he has no discretion to appoint a person who is not
a member of parliament as Minister. It is for this reason that the president has to nominate a
person to Parliament first and then appoint them to a ministerial position, in situations where a
person is not a Member of Parliament.
On the other hand, where a statute uses the word “may” it means that a public officer has an
option or discretionary powers. For example, Article 30 (1) of the constitution provides that ‘the
president “may”, in consultation with Cabinet, at any time, by proclamation published in the
Gazette declare that a state of public emergency exists.’
Here, the president has been given discretion either to consult Cabinet or not to consult Cabinet
before making a declaration of a state of emergency explain in simpler terms
Answers
GPT-4o mini
Administrative discretion refers to the power that government officials have to make choices when carrying out their duties. This means that instead of just following strict rules or laws, officials can use their judgment and expertise to decide the best course of action in various situations.
In essence, administrative discretion allows public officials to choose from different options when they are making decisions related to their roles. This power is granted to them by laws or regulations and is necessary because it is impossible for the law to cover every single situation that might arise in everyday life.
For example, if a public officer faces a unique situation that the law doesn’t specifically address, they can use their discretion to decide how to proceed. However, it's important to note that this discretion should not be exercised in an arbitrary or unfair manner. Decisions should be made based on reason and fairness, according to the principles of justice, rather than personal opinions or feelings.
Judges in historical cases have emphasized that discretion involves understanding right from wrong and making decisions that are equitable and logical, not influenced by personal biases or whims.
Whether or not a public official has discretion depends on the specific wording of the law. When laws use terms like "may," it indicates that the official has the choice to act or not. For instance, if a law states that the president "may" consult with their cabinet before declaring a state of emergency, it grants the president the discretion to decide whether to do so.
Conversely, if the law uses the word "shall," it means the official must take a specific action and has no choice in the matter. For example, if the law says the president "shall" appoint members from Parliament as ministers, this means the president has to choose only from existing members of Parliament and cannot simply appoint anyone they wish.
In summary, administrative discretion allows public officials to make decisions based on their judgment, but it is governed by the specific wording of the laws that grant them this power.
In essence, administrative discretion allows public officials to choose from different options when they are making decisions related to their roles. This power is granted to them by laws or regulations and is necessary because it is impossible for the law to cover every single situation that might arise in everyday life.
For example, if a public officer faces a unique situation that the law doesn’t specifically address, they can use their discretion to decide how to proceed. However, it's important to note that this discretion should not be exercised in an arbitrary or unfair manner. Decisions should be made based on reason and fairness, according to the principles of justice, rather than personal opinions or feelings.
Judges in historical cases have emphasized that discretion involves understanding right from wrong and making decisions that are equitable and logical, not influenced by personal biases or whims.
Whether or not a public official has discretion depends on the specific wording of the law. When laws use terms like "may," it indicates that the official has the choice to act or not. For instance, if a law states that the president "may" consult with their cabinet before declaring a state of emergency, it grants the president the discretion to decide whether to do so.
Conversely, if the law uses the word "shall," it means the official must take a specific action and has no choice in the matter. For example, if the law says the president "shall" appoint members from Parliament as ministers, this means the president has to choose only from existing members of Parliament and cannot simply appoint anyone they wish.
In summary, administrative discretion allows public officials to make decisions based on their judgment, but it is governed by the specific wording of the laws that grant them this power.