Some aspects of judicial control of administrative discretion a study of discretionary powers its exercise and limitation thereof

Abstract

The essence of decision making by Administrative Bodies may be said to be the discretion exercised by them. K.C. Davis the pioneer writer on discretion observed "Writers about law and government c h a r e c t e r i s t i c a l l y recognise the role of discretion and explore a l l around the perimeter of i t but seldom penetrate i t " . Therefore i t w i l l be useful to consider the nature of discretionary power and j u d i c i a l control of such powers and limitation thereof. This study examines the importance and relevance of j u d i c i a l review and the attitude of Courts and writers regarding the extent of such review especially in relation to the exercise of discretionary powers. The Restraint and Activist models of review are considered and the relevance of judicial review to the concept of Rule of Law and Separation of Powers discussed. An analysis of the concept of discretion i s made and the views of leading writers in this regard are discussed. Consideration has been given to the view of K.C. Davis and i t s relevance today. The relationship between other closely connected concepts with discretion such as fairness and arbitrariness i s also b r i e f l y made. The concept of unreasonableness as a ground of review is discussed and the development of the Wednesbury unreasonableness considered. The attitude of Courts to accepting unreasonableness as a ground of review, particularly in relation to English and South African decisions i s also considered. The development of the oncept of Patent Unreasonableness in Canada in a somewhat different manner ora the corresponding Wednesbury Principle in England i s noted. The recent evelopment of the review of the prerogative i n several jurisdictions is onsidered with reference to the leading decisions of such j u r i s d i c i t o n s. e latter half of the study consists of some of the principles developed in he judicial review of discretionary powers. Judicial review of improper otive and purpose i s considered and the development of the no evidence' IV concept discussed. Thereafter review on the ground of irrelevant consideration is discussed and f i n a l l y an analysis of the subjectively phrased clauses granting discretionary powers considered and the trend of recent decisions in this regard analysed. In discussing these aspects a comparative approach i s adopted and an attempt i s made to discuss not only some of the leading English and S r i Lankan decisions but also the decisions of the Commonwealth, South Africa and a few other countries.