Discretionary power: is it conceit or necessity?

In Bangladesh, the judges decide cases using their discretionary power imposed by the statutes. The laws of Bangladesh have articulated the word 'discretion' many times but have not defined its perimeter specifically. However, according to Lord Justice Bingham, 'an issue falls within a judge's discretion, if being governed by no rule of law, its resolution depends on the individual judge's assessment of what it is fair and just to do in the particular case (Bingham, 1990).' Ahron Barak sees discretion as choosing one from more alternatives within the legal purview (Barak, 1989). Maurice's view is that when there is no fixed principle, then the judges lie on their discretion (Maurice, 1972). Dworkin confined the periphery of discretion at the time of deciding 'hard cases' when the statutory laws are not clear enough (Dworkin, 1975).

Discretionary power applies differently in civil cases than from criminal cases in Bangladesh. In civil cases, discretionary power is applied at the time of deciding interlocutory matters and also at the time of awarding cost. In the latter case, the court has to decide 'who will pay' and 'to what extent'. The 'costs follow the event' rule is broadly being prescribed in the statutes in deciding who will pay but 'to what extent' is something that entirely rests upon the judge's decision, though the laws specify a ceiling of maximum costs. As the law has not any mandatory provisions of awarding cost, therefore, the picture of the uneven imposition of costs is very common even when the nature of the case is similar.

For criminal matters, the discretion applies at the time of granting bail or sentencing the offender. While sentencing, the law made a boundary of maximum and minimum punishment. But at the time of granting bail, even if it is a non-bailable offence, the judges exercise entire freedom.

It has been discussed in a case that the court usually acts like rubber stamping the punishment that is prescribed by the statute (BLAST and Others v Bangladesh & Others (2015) 1 SCOB (AD)). However, it has been discussed in the said case that our penal provisions allow the judges to exercise their discretion at the time of awarding sentence considering the facts and circumstances of each case. To make it clearer, an example was given that the judges should not give the same sentences if a fracture of a finger is caused by a sharp cutting weapon and if the eyes of the victim are gauged by the similar type of instrument, though both the offences are grievous in nature and punishable under 326 of the Penal Code 1860 (Bangladesh). The general accepted rule is to fix a maximum penalty for the worst cases and to apply discretion  only while reducing the same. However, to consider a case as worst also depends on the judge's discretion. 

If judges step aside from the law following personal, moral and political views, we may risk judicial lawlessness (Barak, 2002). As the judges' logic, emotion, personal experiences are different from each other, therefore it would not be illogical to say that they would not apply their discretion evenly. Therefore, a guideline in applying discretion both for civil and criminal cases is an utmost need. Davis also argued for confining, structuring and checking discretion (Davis, 1970). He explained how the discretion should be exercised within the borderlines of the statutes, rules. Injustice may be reduced by properly confining, structuring and checking discretion. However, it should be kept in mind that maximising confining, structuring and checking of discrimination might introduce new evils, such as rigidity, inadequate individualising, expense awkwardness.

It is settled that judges can barely ensure justice without discretion, but a wide range of discretion may give the scope of wide discrimination as judges' personal experience and views influence him at the time of exercising his discretion power. It causes inequality at the time of delivering judgment. Some countries are following a guideline to check inequality. In Bangladesh, the discretionary inequality is not very uncommon. Therefore, it is high time to set a guideline to ensure a confined, structured and checked discretionary power to control its misuse. The need for discretion in no way justified the vast scope of misapplication of discretionary power.

The writer is Joint District Judge, Bangladesh Judicial Service.