Tuesday, May 14, 2013

How the treatment of consequences of Discretion differs from treatment of Decision-making

The power of Discretion is most certainly to be differed from the duty to make judicious decisions.
       Dictionary defines Discretion as 'making a judicious choice'. However, in law, whether the choice is judicious or not becomes a matter of intense debate, which enforces law and management to create distinction between Decision-making and Discretion.
      Every man born has a discretion available to him. Shakespeare tells us that a man is a slave because he has so chosen to be. He can always liberate himself by taking his own life. Thus a most fundamental discretion to commit suicide exist with everyone.
     Other times ,people in authority have discretion, desired and undesired, to pick people 'at random' from the lot for exercise of authority. A policeman on duty has discretion on whom to pick when a number of people are in violation of speed limit law. No judge, no person can argue with him , 'why did you pick me only for overspeeding? Why not the next guy? '. Thus, the law reluctantly agrees to this power of discretion to policemen. However if it be technically possible, the law would want all the overspeeding guys to be pulled-over. This, with the aim to reduce discretion which the policeman ,in one possibility, might have applied with vested interest motives against that person. Also the agenda of law, that is, law abiding for everyone's safety will be most sincerely achieved now.
          We all stand in violation of one law or the other at some point of time. The policeman and other all government authorities too. So, the power of discretion of 'A' against 'B' is an unavoidable inconvenience.
      In contrast, in a decision-making exercise, the policeman has duty to pick only the wrong-doer when he is investigating a case where some people are law compliant and some are not. He arrests only those people who are in violation with respect to the case he is investigating. He has no duty and no business to arrest people for those violations which are not in the purview of his investigations. Most certainly because even the policemen can be demonstrated to not be 100% law-abiding all his life. Thus decision-making is an exercise certainly avoiding the random liberty to choose. This reduces the inconveniences which may otherwise happen in a discretion. A non-judicious decision is a bad decision. There can be case of judicious decision but the unwanted outcomes. Such decisions are not punished. Bad decisions with agreeable outcomes are either reprimanded or punished as the case may call.
     This situation is meant to describe difference between Discretion and Decision-making.
      Decision-making is a conscious exercise of choice from a range of options available. The creation of these options is through various business contracts and legal duties. Discretion is 'random' exercise of choice from an unlimited range, which may sometime even bear a secret agenda as there is no range offered.
    When an executive chooses to skip all the available options from the range available to him, and acts from outside these choices, he is technically in exercise of discretion. Law prefers decision-making over discretion. The diagnosis of secret agenda in a discretion is very difficult. One party or other will always allege a secret motive to be the cause of exercise of a given discretion, which the law would find difficult to verify.
        People who are not in knowledge of this distinction between Discretion and Decision-making often mistakenly invoke the 'power of discretion' to establish the motive of their bad-decision. Power of Discretion is accorded to people by force of law itself because the ultimate aim of law is to prevent harms, in which a case of the harms happening due to adherence to the law are also accounted. The investigation must check that when a range of choices is available of which one decision has been picked , which turned out to be bad decision, the decision-maker should not escape the consequences of this bad decision. Often , it is by a misplaced use of vocabulary that bad decisions and it's consequences are escaped , first by labeling his power exercise as 'his discretion' and then invoking the statutory protections made avail to certain fundamental discretions.
   Discretions with unwanted outcomes are simply punished.