LAW 309

DISCRETIONARY
POWER (DP)

PREPARED BY :-
MUHAMMAD FIKRI BIN OTHMAN
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 Definition of DP
 The power which is exercisable by the
administrative authority in which they can
choose between alternative courses of
action.
 The administrative authority vested with
the discretionary power has a range of
options and he uses his personal judgement
in making his decision (making the choice)

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 Nature of DP
 The discretionary nature of such a power is
denoted by the use of expression such as:-

Necessary

Reasonable

If it is satisfied

If it is of the opinion

As it thinks fit

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 Nature…
 Eg – Sec 8(1), Internal Security Act
“...if the Minister is satisfied that the detention
of any person is necessary with a view to
preventing him from acting in manner
prejudicial to the security of Malaysia, ... he may
make a detention order directing that person be
detained for any period not exceeding 2 years”

The parliament must have conferred the discretion

on the authority (e.g Minister) with the intention
that it should be used to promote the policy and
objects of the Act. The policy and objects of the Act
must be determined by construing the statute as a
whole and the construction is always a matter of law
for the court.
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Nature…
 The rule of law demands that there should be
a control on the exercise of discretionary
power.
 Usually the statutes do not lay down
standards to guide the exercise of
discretionary powers and leave the
administrators free to exercise the powers
according to their judgement. This creates
the danger of administrative arbitrariness and
discrimination.
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 Effect of Broad DP
• Create the possibility of administrative arbitrariness which is
1. subversive of the doctrine of equality and the rule of law

• Be a danger that an authority having DP may not act

2. accordingly to any principles but to his whims and fancies

• Probably not react uniformly in similar situations

3. (discrimination)

• Give different treatment to individuals in similar

4. circumstances

• Threaten individual’s freedom

5.

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 The Need to Control DP
 Court do not interfere with discretionary action or
decision if the discretion is exercised properly and
according to the law.
 However, the court does not accept the concept of
absolute or unfettered discretion.

Through the Doctrine of U.V.

How To Control If the Administrator exercised the
the DP vested on DP vested on him arbitrarily – the
the Administrator? decision making process will be
reviewed by the court and may be
declared U.V.
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The Need to Control..
Pengarah Tanah dan Galian,
Wilayah Persekutuan v Sri Lempah Enterprises Sdn Bhd.
(1979) I MLJ 135

 Raja Azlan Shah stated “Every legal power must have legal
limit, otherwise there is dictatorship. Every discretion
cannot be free from legal restraint; where it is wrongly
exercised, it becomes the duty of the courts to intervene.
The courts are the only defence of the liberty of the subject
against departmental aggression”. The court review the
manner in which the decision was made (the decision
making process) through the doctrine of Ultra Vires.

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GROUND FOR JUDICIAL REVIEW
GROUNDS
PROCEDURAL
ULTRA VIRES
SUBSTANTIVE
ULTRA VIRES
EXTENDED ABUSE OF DP
ULTRA VIRES
NON-EXERCISE
OF DP

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Ground…
Mala Fide

Improper Purpose

ABUSE OF DP Irrelevant Consideration

Leaving Out Relevant

Consideration

Unreasonableness

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Ground …

Authority Not Applying its

Mind

NON-EXERCISE Acting Under Dictation

OF DP
Acting Mechanically

Fettering Discretion

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Procedural Ultra Vires
 If the decision or action taken by the authority fails
to observe the mandatory procedure prescribed by
the Act, then the decisions/action can be challenged.

Pow Hing V Registrar Of Titles

 Held: the forfeiture was not legal because the
Collector of Land Revenue did not comply with the
procedure prescribed by the Land Code in the
process of forfeiting and selling the land; hence, it
was an invasion of the right of property of the land
holder.

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Procedural UV…
Re Roshidi Bin Mohamed [1988] 2 MLJ 193

Held :
The court quashed a detention order made by the
Magistrate (under Sec 6, Drugs Dependants (Treatment
and Rehabilitation) Act 1983) for failure to comply with
the mandatory provisions of the Act[Sec 6(1), 6(3), 6(4),
6(5)] i.e failure to give the detainee (arrested by the
police on suspicion of being a drug dependant) an
opportunity to make representation. The writ of
habeas corpus was issued.
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Procedural UV…
V. Sinnathamboo V Minister Of Manpower

 Facts: According to S. 20 of the Industrial Relation

Act, if a workman who is not a member of a trade
union, considers that he has been dismissed without
just cause, he may, within one month of his dismissal,
make representations in writing to the Director
General.
 Held: The non-compliance with the one month’s rule
is fatal to the applicant’s right as the time limit
prescribed by the statute is mandatory.

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Substantive Ultra Vires
 Administrator must confine itself within the ambit
and scope of powers/jurisdiction given by law. If the
authority steps out of the limits set by the controlling
statute, then its act is invalid.

Fadzil Mohammed Noor v UTM

 Facts: A university lecturer was dismissed by the
University Council on the ground that he was absent
without leave. Under the constitution of the
University, only the Disciplinary Committee has the
right to decide on disciplinary issues. The University
Council is the executive body of the University and
not the disciplinary authority.
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Fadzil Mohammed Noor v UTM…
 Held: A statutory body must act within the limits
and confine to its statutory powers. It could only
do such acts as are authorized directly or indirectly
by the statute creating it. Hence it has to follow the
proper procedure as prescribed by law before
punishing any member of the staff, if not, the
decision made is ultra vires as it goes outside the
limit prescribed by the statute.

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Substantive UV…
Francis v Municipal Councillors of KL
[1962] MLJ 40
 Under Sec 16(5), Municipal Ord. 1948, the
power to dismiss the employees was vested
in the President. Therefore, the dismissal of
the employee by the Establishment
Committee of the Municipal Council (not
the President) amount to wrongful
dismissal i.e the dismissal was UV.

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Extended Ultra Vires - Abuse of DP
Mala Fide/Bad Faith
 The exercise of discretionary power by the authority should be
exercised with good faith.
 There must not be any dishonest intention or corrupt motive behind
the exercise of a discretionary act, which leads to abuse of powers.
 Examples :
- the motive behind the discretionary act is personal animosity
against the person affected
- the authority concerned or their relatives/friends stand to gain
benefit from the discretionary act
- the authority uses his power to satisfy his personal or political
purposes.

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Extended UV - Abuse…
Re Tan Sri Raja Khalid bin Raja Harun
[1988] I MLJ 182
Held :
The applicant’s detention by Inspector General of Police
was invalid and unjust (he was detained on the ground of
disturbing public security). His detention was based on
mala fide as there was no evidence to suggest that he is in a
position to do something in the future, which will affect
the security of the country. Habeas corpus was granted
because there were elements of mala fide in his detention

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Extended UV - Abuse …
Partap Singh v State of Punjab AIR 1964 SC 72
Held : Supreme Court
Disciplinary action initiated against an employee (Petitioner, a civil surgeon)
by the government on the ground of accepting a small bribe from patient
was quashed as it felt satisfied that the discretionary power was used with
malicious motive – Chief Minister of Punjab has a grudge against him
because of certain incidents. (the charge of mala fide against the Chief
Minister was established).

The onus of providing mala fide is on the person who makes the allegation
i.e to prove improper or bad motive and not mere suspicion. He needs to
establish that the action taken by the authority is caused by bad motive
against him. The onus providing mala fide is difficult to discharge
(Abdoolcader SCJ in PP v Dato Yap Peng [1987] 2 MLJ 311) and in this case
the applicant had failed to prove the existence of mala fide.
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Extended UV - Abuse …
 Re Tan Boon Liat
 Yeap Hock Seng @ Ah Seng v Minister of
Home Affairs

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Extended UV - Abuse …
Improper Purpose
 Improper purpose is a purpose which lies outside
the scope and purpose of the enabling statute. An
authority must act so as to promote the policy and
objects of the Act conferring power on it. Exercise of
power for an improper purpose is unlawful.
 If a statute confers power on an authority for one
purpose, one authorises and the other not
authorised, the administrative action may be held
valid if the authorised purpose is the primary or
dominant purpose.
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Extended UV - Abuse …
Sydney Municipal Council v Campbell

Fact : The council was empowered by statue to acquire land for the
purpose of making or extending streets, or for carrying out
improvement in or remodelling any portion of the city. The council
decided to acquire the respondent’s land for the purpose of
remodelling and improving the city.

Held : Privy Council

No plan for improvement or remodelling has been decided upon the
Council. The land was not really required for the stated purpose but
rather by unauthorised or improper purpose of enabling the council
to obtain the benefit of an expected increase in the value of the land.
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Extended UV - Abuse …
Irrelevant Consideration

 In exercising discretionary power, the public authority

must ensure that its decisions are not guided by
irrelevant consideration i.e those matters lying outside
the scope of the statute concerned.
 If the statute spells out the relevant criteria which have
been taken into consideration in exercising the given
power, then the task of the court is to assess whether
relevant considerations have been applied and
irrelevant considerations not taken into account.
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Extended UV - Abuse …
 The principle was formulated in Short v
Poole Corporation
“ It may be possible to prove that an act
of the public body, though performed in
good faith and without the taint of corruption,
was so clearly founded on irrelevant grounds
as to be outside the authority conferred on
the body and therefore inoperative”

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Extended UV - Abuse …
Congreve V Secretary Of State For Home Affairs

 Revocation of a TV licence was quashed for the

power was exercised for reasons, which were bad
in law. A licence, valid for 12 months, was revoked
prematurely by the Minister simply to enable him
to raise more money.
 The court ruled, “Want of money was no reason
for revoking a licence”. Thus, the governmental
powers are to be used only on proper grounds.

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Extended UV - Abuse …
Padfield v Minister of Agriculture (1968) 1 AER 694

 Fact: Appellant complained to the Minister and asked that the

complaint be referred to a Committee of Investigation. The
Minister declined to do so as he did not consider the matter
suitable for such investigation. The Divisional Court granted an
Order of Mandamus directed the Minister to refer the matter to
the Committee of Investigation. The case went up to the Court of
Appeal and the order was set aside. The matter then went up to
the House of Lords (HOL).
 Held: The Minister had used his discretion in a manner, in
which was not in accordance with the intention of the statute.
The decision was based on bad reason and extraneous
consideration.
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Extended UV - Abuse…
Leaving Out Relevant Consideration
 The relevant consideration was not taken into
account.
Re Tan Boon Liat (1977) 2 MLJ 18
 The detention order was quashed as Art. 151(1)(b) of
the Federal Constitution was not taken into
consideration when reaching the decision.

Robert v Hopwood [1925] AC 578

 Failure to consider the cost of living and the interest
of the ratepayer was considered as contrary to the
law.
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Extended UV - Abuse …
Unreasonableness
 Unreasonableness means something so absurd
that no reasonable or sensible person could have
come to that decision.
 In Tameside, HOL held that two reasonable
persons can reasonably come to opposite
conclusions but to be unreasonable an act must be
of such a nature that no reasonable person could
possibly entertain such a thing. This effect gives
judges with discretion of deciding what a
reasonable man might think.
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Extended UV - Abuse …
Roberts v Hopwood

 The council had given a power to employ servants

and may state the wages as the council may think
fit. The council paid a minimum wage of $4 for
every employee regardless of the nature of the
work done by him.
 Held: The discretionary power conferred upon the
council had to be exercised reasonably. The fixing
of salary by the council without regard to existing
labour conditions was not an exercise of that
discretion.
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Extended UV- Non-Exercise Of DP
Authority Not Applying Its Own Mind
 Authority must personally exercise the
discretionary power given to them ie – apply its
own mind on the facts and circumstances of
each case and come to a decision.
 Eg- to consider the merits of an application.

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Extended UV- Non-Exercise of DP…
Sukumaran s/o Sundaram v Timbalan Menteri Hal
Ehwal Dalam Negeri Malaysia (1995)
 Fact: Detention Order was issued against SS.
According to the wording of the order it was the
Minister and not the Timbalan Minister who was
satisfied that SS be detained but he did not signed
the order.
 High Court: quashed the detention order made
under S. 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969 because the
detention order was signed by the Timbalan Menteri
without applying his mind. The Minister can only be
said to be satisfied if he himself signed the order.
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Extended UV- Non-Exercise of DP…
S. 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969 :
“If the Minister is satisfied that with a view
to preventing from acting in nay manner
prejudicial to public order it is necessary
that that person be detained,….. the Minister
shall make an order directing that that
person should be detained….”

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Extended UV- Non-Exercise of DP…
Acting under dictation

 If the decision maker does not consider the matter

itself, the action taken is invalid.
 Eg – the authority acts under the direction of his
superior officer.
 Hence, there shouldn’t be any interference or
dictation from any higher officer.
 The principle is found in Simms Motor Unit v
Minister of Labour when the court quashed an
order made by the national service officer acting
under the direction of the Minister.
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Extended UV- Non-Exercise of DP…
P. Patto v Chief Police Officer Perak
 Fact: Appellant applied to the OCPD for permission
for holding a dinner and a lion dance in public place.
Sec 27(2) of the Police Act empowered the OCPD
himself who is the licensing officer to grant or refuse
permission. The OCPD in this case, instead of dealing
with the application, he forwarded the application to
the higher authorities. The application was rejected
by the CPO. The decision was then challenged.
 Supreme Court : the refusal was invalid. Power to
grant license is vested in the OCPD himself who is the
licensing officer. CPO is the appellate authority.
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Extended UV- Non-Exercise of DP…
Acting Mechanically

 Authority must apply its mind to the facts and circumstances

of the case before taking an action.

Emperor v Sibnath Banerjee

 Privy Council : quashed a detention order issued by the
Home Secretary which was issued automatically on the
recommendation of the police. The Home Secretary’s
personal satisfaction was a condition precedent to the issue
of the order. In such situation, the Home Secretary did not
personally satisfy himself whether such an order was justified
or not.
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Extended UV- Non-Exercise of DP…
Fettering Discretion
 When an authority uses a policy to regulate its
discretion without taking into account the
different merits of each individual case, the
decision can be challenged.
 The policy created must not be used in an
inflexible way.

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Extended UV- Non-Exercise of DP…
B. Lavender v Minister of Housing

 Fact : Govt adopted a policy to reserve high

quality agricultural land for purpose of agriculture
against disturbance by gravel working. The
Minister of Housing who has discretion to allow
extraction of mineral refused permission to the
petitioner to extract minerals from an agricultural
holding on the ground that the Minister of
Agricultural objected to the proposed use of the
land for reasons of agriculture.

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Extended UV- Non-Exercise of DP…
 Held : The refusal by the Minister of Housing to
give permission for the extraction of minerals due
to objection from the Minister of Agriculture was
held to be a fettering of discretion and an
improperly delegated power of discretion. The
order was quashed on the following ground:
The Minister followed an inflexible policy
The Minister left the making of the decision to
the Minister of Agriculture who had no power to
make an effective decision.
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 THANK YOU
FOR
YOUR ATTENTION

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