Administrative Action Tools

Discretion and Policy Rule

Department of Administrative Law

Faculty of Law UI
©hn2013
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Tools

• Regulations
• Policy Rule (beleidsregel)
• Decision
• Plans

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State based on Law (Rechtsstaat)
Procedural (formële) Substantive (materiële)
• Legality • Effectiveness/ goal-
(rechtmatigheid) as orientation (doelmatigheid)
main principle; as main principle;
• Legality as main • People’s welfare as main
objective;
objective i.e. legality for • Substantive approach i.e. in
the sake of legality; addition to legality,
• Formal/procedural administrative power may
approach i.e. no action take action where there is
without law. actual public
needs/interest.
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Welfare State (materiële rechtsstaat)
• State should NOT play passive role i.e. only
maintaining law and order.
• State, particularly Administrative Power
should ACTIVELY regulate, take care, and
provide for the People (public service).
• Administrative authorities grow more
complex, with the main objective to provide
welfare for the people.

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Discretion
• Freies ermessen:
• Frei: free, unattached, independent;
• Ermessen: to consider, to assess, to estimate, to
appreciate
– Freedom to consider, assess and estimate.
– Consideration taken by an OFFICIAL
occupying certain OFFICE which is relevant
to a certain MATTER, SITUATION or
PROBLEM.
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Entry in Law Dictionary for Discretion:

Right or authority of an administrative official to

take necessary or appropriate action pertaining
to a certain actual matter, situation or problem
at hand.

– Assessment based on a consideration that such

action is appropriate to be taken by the official.
– Appropriateness of an action can be based on an
emergency situation necessitating such action to
be taken, or where greater loss may occur should
no action be taken.
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Prof. Prajudi’s definition

“discretion is freedom to act or decide for State

administrative officials having relevant authority
and obligation based on own’s consideration.”

• Subject: Administrative official/body

• Object: to give latitude to the Administration to act
according to actual conditions.
• Basis: “General” authority of public officials
(remember administrative authority as extraordinary
authority)

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Possibilities to Discretion

 No exact stipulation
 Stipulation gives options of
implementation
 Stipulation delegates authority

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• Although free, discretion should not
constitute:
– Unlawful act. (onrechtmatige daad)
– Abuse of power.
– Arbitratiness.

• “Legal” Basis for Discretion

– Emergency situation/ situation necessitating
action.
– No clear or detailed stipulation.

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• Hawkins: discretion is the means by which law is translated into
action.
• Bell: Discretion involves choice, power and legitimacy given by
law.
– Discretion as choice: self-determination as a result of
responsibility  Freies Ermessen
Officials must never refuse to act just because there is no
legal rule.
– Discretion as power: Authorization to determine one’s own
reasons for acting... it enables the discretion-holder to affect
unilaterally the position of other persons in society.
– Discretion conferred and legitimated by law: Discretion is not
merely choice. It conveys a sense of legitimate choice, a
decision reached within the confines of certain restrictions.
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Draft Law on Government Administration
Discretion is decision and/or act that is done by
government official to address concrete
problems faced in the implementation of
administration.

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Types of Discretion
• Dworkin:
 Strong
 Weak
• Limited by strict rules; or
• Requiring superior’s consent.
• Goodin:
 Formal discretion (options are explicitly written into
a rule) vs. informal discretion
 Provisional discretion (decisions are subject to
review and possible reversal by another official) vs.
ultimate discretion

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Types of Discretion (continued)

Schneider: four types of discretion

– Khadi-discretion: Discretion-maker is considered wise, so she is
able to decide while considering legal, ethical, emotional and
political aspects benevolent dictator?
– Rule-failure discretion: Discretion made to overcome complex,
varied and complicated problems which render rules to be
ineffective
– Rule-building discretion: Discretion made to build
rulesrequired particularly when there is a rapid social change
– Rule-compromise discretion: Discretion made as a parliament’s
compromise to the government, because, as the lawmakers,
they failed to reach agreement on certain issues

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Purpose of Discretion
 As a lawmaking tool when rules do not function
• Schneider:
 Discretion solves rule conflicts
 Discretion offers flexibility where rule application results in
undesireable situation which is contradictory to the
purpose of the rule itself Discretion allows decision
makers to implement justice
 Discretion provides freedom to decision makers to decide
upon complex problems

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 Decision complements rules or fills legal vacuum
 Schneider:
 Decision makers need facts/information.
• Fact-finding involves discretion because it requires
assessment/judgement e.g. Over what
facts/information that should be gathered/considered.
 Decision makers must decide upon the most
relevant rule
 Decision makers must have the power to decide
which rule to apply to any problem she faces

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Dangers of Discretion
Hawkins:
• Subjectivityinconsistency: different treatment to
same cases
• Arbitrary decision makingbased upon criteria that
do not relate in any rational way to organizational
ends
• Abuse of power discretion can lead to uncertainty,
insecurity, and…intrusive behavior of officials
• Discretion may be based on inaccurate procedure, not
dependable, and irrelevant
Discretion must be limited!
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Limits to Discretion
• Dworkin: “Discretion, like the hole in the doughnut, does not
exist except as an area left open by a surrounding belt of
restriction”
o Big Discretion: limited by vague norms e.g. “public interest” or “fair and
reasonable”
o Small Discretion: limited by strict rules
Example: Highway Traffic Management!
• Davis: Discretion must be limited, structured, and monitored
o Confined discretion: eliminating and limiting discretionary power....(and)
fixing the boundaries and keeping discretion within them
o Structured discretion: to control its exercise in an orderly fashion
o Checked discretion: its exercise is scrutinized by another as a protection
against arbitrariness

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Draft Law on Government Administration
A. Discretion Maker and Purpose of Discretion (Art. 12)
• Discretion can only be made by government officials
with relevant authority.
• Any Discretion is made with the purpose of:
– Smooth implementation of government administration;
– Filling legal vacuum;
– Providing legal certainty;
– For the sake of public interest, overcoming stagnation in
administration in certain situations;

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B. Scope of Discretion (Art. 13)
Discretion constitutes the making of
decision or action...
 which is based on legal stipulations that
involve choices of decision and/or action;
 in a situation where there is no legal
stipulation;
 in a situation where legal stipulation is
unclear;
 in an emergency situation for the sake of
wider public interest.
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C. Requirements to Discretion (Art. 14)
Government official, in making discretion,
shall...
 Clarify the objectives of discretion
 Provide legal stipulations which act as legal bases
to the discretion
 Pay close attention to the Principle of Good
Governance
 Provide objective justification
 Make sure that there is no conflict of interest
 Be based on good intention.

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• Discretion Requirement in
Draft Government Regulation on Discretion
1. Substantive requirements:
• In accordance with the purpose of making the
discretion
• In accordance with legal stipulations which act as legal
bases to discretion
• In accordance with the principles of good governance
2. Formal requirements:
• Made by government official having the authority to
decide over problems at hand
• Do not cause conflict of interest;
• Based on objective justification;
• Does not constitute abuse of power and/or
arbitrariness.
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D. Report on Discretion (Art. 15):
 Discretion basically does not require
reporting
 Reporting is required only if discretion
involves legal consequences
• Ex-ante report: if a discretion has the potential
to incur costs to State budget or sparks public
unrest
• Ex-post report: discretion in
urgent/emergency/disaster situation

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E. Discretion Procedures (Art. 16)
 Officials, in making discretion, shall clarify
intentions, purpose, substance and its impacts to
administration and State finance.
 Officials, in making discretion, shall submit such
written clarification to her direct superior official.
 Within 2 (two) working days, the superior official
issues endorsement, instruction to corrections, or
rejection.
 Reasons to rejection by superior official shall be in
written.

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F. Discretion that constitutes an abuse of
power, arbitrariness and/or violates the
Principles of Good Governance
– Art. 19: Abuse of power
• Using authority not for the purposes stipulated by
regulations;
• Implementing the wrong procedure in making
discretion.
– Pasal 20: Arbitrariness
• Made by official with no authority;
• Trespassing limits of authority, both in terms of
territory and/or subject matters;
• Made by official whose authority is expired.
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  Art. 21: Officials, in making discretion, shall pay close
attention to the following Principles of Good
Governance.
• Legal certainty;
• Balanced;
• Impartiality;
• Prudence;
• No transgression, abuse and/or confounding of authorities;
• Openness;
• Public interest.
 Discretion that constitutes an abuse of authority, is
arbitrary, or violates the Principles of Good
Governance shall have the following legal
consequence.
• Can be annuled
– Discretion maker shall correct her decision/action
– Discretion maker shall annul her decision/action
• Null and void.
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Policy Regulation (Beleidsregel)
A. Basis: Freies Ermessen
B. Defintion
C. Elements
D. Implementation
E. Types

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Discretionary Power gives birth to Policy
Regulations, that have 2 (two) aspects:
 Freedom to interpret the scope of authority
stipulated in the legal basis of such authority.
This freedom is objective in nature.
 Freedom to decide on when to implement the
authority. This freedom is subjective in nature.

(C) HN_2008
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 Definition
• “Policy” regulations only function as a part
of the duties to implement administration.
They, therefore, may never deviate from
legislations (“ordinary” regulation)
• Policy regulations are also called pseudo
legislation

(C) HN_2008
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 Elements
1. Abstract and general in nature
2. Outwardly applicable
3. Issued by officials having relevant public
authority.
4. Intended to further regulate/ stipulate on the
implementation of government administration
5. Subject matters about public order
6. Administrative sanctions

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 Policy vs. Ordinary Regulation
Policy Ordinary
Similarities
•Applicable to general public,
•Outwardly-applicable, not only to the administration
•Issued by public officials
Differences
• Administrative function • State functions
• Regulates decision making, • Regulates all aspects of public life
authorities in private laws, • Sanctions are administrative and
and plan making CRIMINAL
• Sanctions are administrative
• Reviewed against legality and
• Reviewed against
effectiveness.
effectiveness (doelmatigheid)
and the Principles of GG. 30
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 Implementation of Policy Regulations
• In accordance and consistent with the
purpose of legislations that gives freedom
of action
• In accordance with Principles:
o Equality before the Law
o Fairness and Properness
o Balance
o Fulfillment of needs and expectations
o Appropriateness in consideration about
public interest
(C) HN_2008
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Types
• Notifications (mededelingen)
• Policy Outlines (beleidslijnen)
• Wisdom (het beleid)
• Rules (voorschriften)
• Guidelines (richtlijnen)
• Regulations (regelingen)
• Circulars (circulaires)
• Policy Notes (beleidsnotas)
• Execution Instructions
• Technical Instructions
(C) HN_2008
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