Discretion as a Policy Alternative to Rigid Legislation (original) (raw)
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Necessity of Discretionary Powers: A Critical Appreciation as a Necessary Evil
Global Regional Review, 2020
With the evolution of the modern welfare state system, state functions have multiplied manifold that consequently necessitated delegation of wide-ranged discretionary powers in the hands of administrative authorities to address ever-growing complex issues with the help of framing rules and deciding matters accordingly, which otherwise came within the exclusive domain of legislative and judicial authorities. With qualitative research methodology, this research aimed to investigate how the idea of administration emerges and whether or not discretion is an unavoidable evil. The research at hand conceptualized administrative actions, various modes for conferring discretion, and explicated its pros and cons. This paper also examined how discretion is a need of modern administrative dispensation and how to control its potential exploitation.
Jurisprudential Aspect of Administrative Discretion
Discretion is the fundamental basis to achieve the aim or objective of any statute or legal objectives. In the welfare state, we serve only via means of discretion for any contingency which is not properly laid down in any statute. The formulation of standard of its application varies by different facts and circumstances. If we are not able to handover the freedom to take steps according to the given situation, then we can say that we are unable to do any thing whereas physically and mentally sound, in other words, we may say that we invited problem himself. Jurist approaches towards discretion is very clear in regard to norms and standards to kept in mind. If we exercise those in minds we say that we form a better civilization in any country.
Criteria for Delimiting Discretionary Power from Excess of Power in the Work of Public Authorities
2017
A problem of essence of the state is the one to delimit the discretionary power, respectively the power abuse in the activity of the state's institutions. The legal behaviour of the state's institutions consists in their right to appreciate them and the power excess generates the violation of a subjective right or of the right that is of legitimate interest to the citizen. The application and no observance of the principle of lawfulness in the activities of the state is a complex problem because the exercise of the state's functions assumes the discretionary powers with which the states authorities are invested, or otherwise said the 'right of appreciation" of the authorities regarding the moment of adopting the contents of the measures proposed. The discretionary power cannot be opposed to the principle of lawfulness, as a dimension of the state de jure. In this study we propose to analyse the concept of discretionary power, respectively the power excess, havin...
Časopis pro právní vědu a praxi, 2018
Abuse of power is one of classic concepts in administrative law. According to the classical approach, this concept is based on the assumption that the scope of discretion of public administration bodies is defined, beside competence norms, procedural and legal grounds for action, also by the objective for which the discretionary powers was granted. The classic concept has evolved over the years. It is also evident that its importance has been in decline nowadays. The priority objectives of my study concerned more practical than theoretical aspects of the topic. The key issue of my work is to analyze how courts have changed their approach to the judicial review of the discretionary powers of public administration. I set myself two goals in this study: first, I would like to indicate the fundamental direction in which the classic concept of abuse of power evolves. Secondly, I would like to describe the contemporary role of this concept and to response whether it can still be an effective instrument to protect an individual from arbitrary decisions of the public administration.
Controlling Administrative Discretion: The Role of Law
ACTA UNIVERSITATIS DANUBIUS, 2018
Abstract: The title of the paper has to be suitable, clear, concise and accurate. The Abstract: Discretion is a decision to explain policies that explicitly do not regulate certain activities. To interpret it is necessary for government administrators for protected by the formal legal administration so that they are not in the case of abuse of authority. This article was the view from the other side about the control discretion from logic formal. The formal logic we select for to clarify the general principles of reasoning about knowledge attribution for a claim and explain the implications and consequences of inferential control discretion and the role of law. The results of this research revealed that formal rules should control discretion so that the administrative irregularities in the government activity can avoid. This article also confirms the government administrators that discretion is not an activity that violates the law, but has controlled from the interpretation that is biased caused by lack of knowledge, relations of power, and the interests of a particular group. Keywords: controlling; administrative discretion; the role of law
Accountability of Discretion Act by Government Officials in the Perspective of State Law of Welfare
2020
Accountability of government officials' actions is strongly related to the exercise of government authority. In carrying out duties to realize the general welfare, the authority used by organs or government officials is based on the provisions of the laws and regulations (the principle of legality). However, it is not uncommon for the task to be carried out based on discretionary authority. The freedom of government officials to make decisions based on discretionary authority has a great potential to be abused which results in consequences from both point of view of administrative law as well as of criminal law. In the practice, there is discrepancy among law enforcers on the understanding of the principles related to the accountability of discretionary authority held by government officials.
SSRN Electronic Journal, 2014
It is conventionally assumed that administrative discretionary decisions are determined by political and expert-driven considerations and that law's structuring and constraining capacity in that regard is and should be limited. Law defines a space within which discretionary choices are irrelevant to law because they have the same legal value. These tenets have shaped both the ways the Court of Justice of the European Union has approached judicial review of discretion and, more generally, the way law is perceived to structure administrative discretion in the Member States and also in the EU. However, the recent expansion of the regulatory powers of the European Union justifies revisiting these basic axioms. In particular, how far should discretion be shielded from the values that EU law conveys? distinction between interpretation of legally undermined concepts and discretion-that have informed the way administrative lawyers in Europe, in particular those influenced by German law, approach administrative discretion also in EU law. These are the prolegomena of a normative framework of a broader research project. They need to be refined, but point the way towards acquiring, first, a better understanding of how law, as a tool in the hands of administrations, grounds and bounds their discretionary decisions and, secondly, a yardstick of critique of how far courts should review these decisions.
International Journal of Criminology and Sociology, 2021
This study aims to explore how government administration has so far been carried out within the authority framework of discretion owned by government agencies. This study uses a qualitative method with a descriptive normative analysis approach to obtain a paradigmatic study as a legal assessment to investigate the authority and right of jurisdiction of public sector governance. The focal point was to examine discretion in government administrative law as contained in Law No. 30 of 2014 about Government Administration. The results showed that as a freedom of thought and action in legalization, discretionary authority lies in the authority to carry out positions held by government administrative officials. The results also highlight that discretion is still rigid in its application in Indonesia because the procedure to perform this discretion is tiered. The theoretical implication revealed that the difference has led to controversy between scientific discretion and the discretion contained in the Law on Government Administration, decreasing public official's willingness to do something for the benefit and welfare of society and seekers of justice.
Position of Principle of Propriety in the Use of Discretion in Government Actions. Uji Plagiasi
2019
One characteristic of the 'welfare state' concept is the government's obligation to seek public welfare or bestuurszorg. If the state's obligation, or in this case the government in promoting public welfare, is a feature of the concept of a welfare state, it can be concluded that Indonesia is included as a welfare state since the government's duty is not only running the government sectors, but also carrying out social welfare to realize the state goals set forth in paragraph IV of the Preamble of the 1945 Constitution of the Republic of Indonesia which are carried out in national development. The administration of government activities must not be terminated due to the absence of underlying legal basis. Therefore, administrative officials are given discretionary authority whose formulation of qualifications was carried out after the enactment of Law number 30 of 2014 concerning Government Administration related to discretion. The use of discretionary authority is regulated starting from the terms of use, purpose of use, to the legal consequences of its use. One of the conditions for the use of discretionary authority is that it must be in accordance with the Good Governance Principles (AUPB) in which the principle of propriety is not required in its implementation. The principle of propriety is only as an explanation of the principle of legal certainty. In fact, the principle of propriety has a different meaning from the principle of legal certainty. Although they are in a unity, essentially, the principle of propriety and the principle of legal certainty are two different things.