Question

Elaborate the relationship of administrative discretion and article 14 of the constitution

Answer 1

Answer:

Administrative discretion is critical in administrative process. Two foundational principles guiding a democratic government are transparency and accountability. The actions of public authorities therefore are viewed through the prism of rule of law in general and fundamental rights guaranteed in the Constitution in particular.

Administrative discretion is primarily questioned at two levels. The very law granting discretion or the action taken under the law could be challenged. Both these challenges are done at the touchstone of fundamental rights and judiciary is the forum to agitate the claims. This raise two questions for review as to whether the grant and use of discretion are valid? These questions could be bracketed as issues of ‘ultra vires’ and more specifically, ultra vires the constitution. The grant and use of discretion is tested against its consistency with the fundamental rights.

Administrative discretion provides space for creativeness within administrative spheres and in actions of public authorities. Discretion in most cases is conferred by the legislature itself to achieve a designate object. Having said that, increase of powers is perceived with skepticism as a prescription for arbitrariness. It is where discretion is read with the notions of limits, review and accountability.

The control of the discretionary power encompasses different concepts such as: “contrôle des motifs” (related to the test of the correct interpretation, or whether the fact has been correctly established); unreasonableness test; principle of proportionality; abuse of discretion; due process; improper purpose; irrelevant consideration; and the doctrine of legitimate expectation.

The purpose of this post is to highlight the importance of Administrative law in French legal history and its influence in Latin America.

Explanation:

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