Discretion without constraints is unregulated power

We recently learnt that Court sentences can be deleted from the public database, at the discretion of the Court’s Director General.

While the practice of deleting Court sentences is a highly debatable one, there is an element in the controversy that seems to have been missed.

The decision was an arbitrary and unilateral one taken by justice minister Owen Bonnici, based exclusively on his discretion. The implications and ramifications of the word “discretion” are all too often underestimated.

In a nutshell, what happened was that at his discretion, Bonnici empowered the Director General to delete public records of sentences at his discretion. In so doing, Bonnici granted judicial power to a civil servant.

Now discretion, generally speaking, when not constrained by precise and well defined criteria and limits, runs counter to the principles of Rule of Law and good governance.

The Rule of Law presupposes the absence of wide discretionary powers. Decisions taken solely on the basis of unconstrained and unfettered discretion are based on the fickle and inconsistent yardstick of a person’s assessment, are subject to errors of judgement, and are an open invitation to corruption and injustices.

Discretion without clearly defined constraints is unregulated power, and power corrupts and is corruptible. And to add insult to injury, since discretion is based on arbitrariness, it is hard to challenge at law, so often there is no remedy to any injustice caused by the misuse or abuse of discretionary powers.

There are several examples around us of the misuse and abuse of discretion by politicians and also bureaucrats.

There is for example a high degree of unrestricted and unrestrained discretion in the political appointment of “persons of trust” which currently number around 700.

According to Kevin Aquilina, the dean of faculty of law, this is unconstitutional and runs counter to the principles of Rule of Law.

There is also a high degree of discretion when it comes to direct orders. In reply to a parliamentary question, it was revealed that six government entities dished out around €5 million in direct orders in the space of twelve months. This runs counter to the principles of Rule of Law.

Of course there are a number of circumstances where a certain degree of flexibility and discretion are necessary, but always within defined limits and with defined criteria as to how this discretion is to be applied.

In his book ‘The Rule of Law’, the former Lord Chief Justice of England and Wales Tom Bingham wrote “The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to potentially be arbitrary. No discretion may be legally unfettered.”

Another author who wrote a number of books which examine public issues, LJM Cooray, summed it up nicely. In his book ‘The Rule of Law’ he wrote “An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is (more or less) certainty, there is certainly impartiality (equality before the law) and consistency. A person may stand upon his legal rights without fear or favour. Discretion, on the other hand, undermines justice.”

Article has been amended as it incorrectly stated that the discretion to delete judgments was conferred on the Court Registrar