Discretionary Power Research Articles

The Consolidation of Related Claims and The Balance of Interests Therein

There are some factual or legal connections in related claims, and the combined trial is conducive to the effectiveness of dispute resolution and the unity of adjudication. However, the consolidation of related claims involves not only interests of procedural, but also interests of substantive law. The arbitrariness, selectivity, and autonomy of exercising substantive rights constitute the premise basis for joinder of claims, and the public interest of litigation procedures sets the boundaries for the arbitrariness of joinder of claims. The consolidation of related claims does not always depend on the plaintiff's choice but is the result of a comprehensive consideration of the interests of multiple parties. Therefore, the procedural concept of joinder of related claims should move from plaintiff autonomy to judge's discretion, and the importance of positive clarification of judge in the consolidated trial of related claims should be strengthened. The initiation of the joinder of related claims is not only the freedom of the plaintiff, the defendant and the nonparty also have the right to request the joinder of the related claims when their interests are adversely affected, and the court should be in charge of the discretion and decision-making power of the joinder of the related claims from the perspective of safeguarding the public interest. In short, the procedural design of the joint trial of related claims aims to maximize the public interest and private interests, on the one hand, the arbitrariness of the plaintiff's exercise of rights should be weakened properly, and on the other hand, the judge should be prevented from abusing its power of litigation command.

Diskursus Pengujian Peraturan Kebijakan (Beleidsregel) oleh Peradilan Tata Usaha Negara

The policy rule, or beleidsregel, is a legal instrument derived from a discretionary legal authority known as freies Ermessen. Unlike legislation and decisions, which are grounded in formal legal principles, policy regulation is based on the principle of discretion. However, in the evolution of administrative law in Indonesia, the use of discretionary power has become more formalized, blurring the lines between policy rules based on discretion and statutory regulations. Despite this, the review and testing of policy regulations continue to rely on general principles of good governance. This reliance makes it challenging for judicial institutions to review or annul policy regulations if they infringe upon citizens’ rights. This paper employs a juridical-normative method, incorporating conceptual-theoretical, statutory, and comparative approaches, to evaluate and propose how the state can safeguard citizens’ rights violated by policy rules. It also examines whether the judiciary should have the authority to review policy rules. The study concludes that an appropriate mechanism should be established between the reviewing body and the standards for evaluating policy rules. Furthermore, the judiciary should have the discretion to determine the standards for policy regulations, whether by applying general principles of good governance or by also considering laws and regulations that a policy regulation might violate.

The delegation of discretionary power in international agreements: New comparative evidence from the association of Southeast Asian Nations

Abstract According to the transaction-costs perspective on delegation, decision-makers grant more discretion to implementers in relation to policies that are more complex and therefore require more specialist expertise to implement. Furthermore, decision-makers grant less delegation to implementers when those implementers have divergent preferences and are therefore more costly to monitor. The transaction-costs perspective has implications for the design of international agreements, such as those adopted by the European Union (EU) and the Association of Southeast Asian Nations (ASEAN). While delegation in the EU has been the subject of systematic research, delegation in ASEAN has not. We argue that ASEAN offers a particularly hard test of the transaction-costs perspective, especially in relation to its propositions concerning implementers’ policy preferences. Notwithstanding the unique characteristics of ASEAN, the evidence provides strong support for the transaction-costs perspective both in terms of specialist expertise and implementers’ preferences. The new dataset we examine includes information on more than 8,500 major provisions within the 235 legal instruments adopted by ASEAN since 1967.

A powerful local government's optimal discretion in simple menu contract of monopoly regulation

We analyse the optimal discretion of a powerful local government (LG) in deciding the instrument choice and setting standards of simple menu contracts (composed of a fixed price and a cost reimbursement) of monopoly regulation. Between the two, a fixed-price contract entails more incentives for efficiency than a cost-reimbursement contract, but ensures more profits for the firm. Due to a preference bias towards the firm's benefits between governments, an incentive reward, offered by the federal government (FG) to the powerful LG with informational advantage of efficiency gain from the regulation, is considered to induce an efficient regulatory policy. We find that under the FG's delegation mechanism, upper-level government conflict leads to a compromised policy as an exchange payoff and additional informational rent to the LG for part of their information value. For the remaining information, the reward is rejected, and the LG has the discretionary power to set policy criteria for simple contracts. The results suggest that bureaucratic political issues still lead to an excessive tendency towards either a fixed price or cost reimbursement scheme, depending on the bias direction of the LG's preferences regarding the monopoly. However, the delegation mechanism of hierarchical bureaucracy can effectively alleviate the influence of policy distortions caused by political factors.

The discretionary power of the judge to compel the Husband’s financial support for the wife after his refusal: A Comparative jurisprudential study with the laws of the Gulf Cooperation Council countries

The discretionary power of the judge to compel the Husband’s financial support for the wife after his refusal: A Comparative jurisprudential study with the laws of the Gulf Cooperation Council countries

County Sheriffs and Immigration and Customs Enforcement: The Will of the People or a Lack of Accountability?

County sheriffs hold a great deal of discretionary power at the county level; however, little is known about the decision-making of sheriffs. One key role they hold is overseeing county jails. In this role, county sheriffs choose how often to cooperate with Immigration and Customs Enforcement (ICE) when they make a detainer request of the county. This study investigates the factors influencing sheriffs’ decision making, specifically whether sheriffs make discretionary decisions based on the will of the people. Using ICE data about cooperation with county jails, and Cooperative Congregational Election Study (CCES) data, we assess if sheriff cooperation with ICE is politically motivated, in congruence with preferences of the voters countywide, or are other factors potentially influencing sheriffs. We find that sheriffs’ decision to cooperate with ICE is influenced by the demographics and economy of their county rather than their own political affiliation or their county’s ideological stance on immigration.

What Determines the Engagement of Nurses in Organizational Learning Post Covid-19? The Role of Street-Level Bureaucracy and Florence Nightingale Theories

This paper aims to explore what has caused nurses to engage in organizational learning since Covid-19. The empirical sample comprises 27 semi-structured interviews with nurses working full-time in public hospitals in the context of the developing economy of Egypt. Thematic analysis was subsequently used to determine the main ideas in the transcripts. The findings include the following three categories of factors: individual (discretionary power, ensuring care to large numbers of patients), contextual (absence of stakeholder pressure, poor funding and resources, lack of communication) and job-related factors (long working hours and demanding duties, low status of nurses) that determine the engagement of nurses in organizational learning. This paper contributes to the literature in public administration, human resources management, organizational learning and healthcare management as a pioneering study specifically addressing organizational learning among nurses before and after Covid-19 in a developing country (Egypt).

Дискуссии об избирательных правах должностных лиц крестьянского самоуправления в земстве в конце XIX века

This article examines the discussions by the zemstvo assemblies of the circular request of the Ministry of Internal Affairs about the possibility of banning volost elders and volost clerks from being elected as zemstvo deputies. Based on the materials of minute books and resolutions of the zemstvo assemblies, as well as reports of the zemstvo administrations, the main points of view on this issue are singled out. Five standpoints of the zemstvo assemblies and zemstvo administrations are considered here: to preserve the right of volost elders and volost clerks to be elected, to preserve the right of volost elders to be candidates, to ban volost elders from being candidates, to ban volost clerks from being candidates, and to ban volost elders and volost clerks from being candidates. The article provides key arguments of zemstvo representatives for preserving (voters’ trust and good knowledge of the needs of the peasant population) or abolishing (dependence on the land captains who are zemstvo deputies and difficulty of combining the work as a deputy with the official duties in the peasant administration) the right to be elected for the abovementioned officials in peasant self-government. Further, the paper presents zemstvo initiatives to introduce additional changes to the articles of the Statute on Zemstvo Institutions in order to protect the rights of peasant zemstvo deputies when executing their duties as such (restricting the discretionary power of land captains and banning land captains from being elected as zemstvo deputies). The discussion of these initiatives and their criticism are presented. Furthermore, a memorandum by the head of the Economy Department of the Ministry of Internal Affairs is introduced into academic discourse, demonstrating the distribution of the standpoints of the zemstvos on the right of volost elders and volost clerks to be candidates in zemstvo elections and the suggestions of the department’s leadership on how to solve this issue.

Does decentralisation promote learning? Local political settlements and education policies in Indonesia

ABSTRACT This article examines the effect of local political settlements on education policies in a decentralised political system. Under what conditions does decentralisation promote learning-enhancing policies? Despite the numerous works on decentralisation and education, little is known about how local politics influences student learning. We develop a novel approach to the politics of education policies by looking at the effect of local political settlements on education policymaking. Using a heuristic case study method comparing three districts in Indonesia, we found that constraints on the discretionary power of the district head over employment decisions in the bureaucracy matter for the development of learning-enhancing policies. Such a constraint can pave the way for the development of the bureaucratic capacity required for local governments to pursue quality-promoting reforms. In the absence of such a constraint, the extent to which district governments will implement learning-enhancing policies depends on district heads’ commitment to learning.

Independence of Judiciary and Demarcation of Discretionary Power of Judges

Independence of Judiciary and Demarcation of Discretionary Power of Judges

ON THE ISSUE OF THE PRINCIPLE OF RATIONAL FORMALISM IN THE DISCIPLINARY PROCEDURE REGULATED BY THE ACT ON THE DEFENSE OF THE HOMELAND

The principle of rational formalism in the Homeland Defense Act is a directive according to which procedural activities in the course of military disciplinary proceedings should be carried out in a form specified by legal norms. By specifying the mechanisms for carrying out procedural steps in the course of proceedings, the Act limits the scope of discretionary power of disciplinary bodies, thereby protecting participants in proceedings against arbitrariness, including the voluntarism of jurisprudence.

Achieving electoral equity after Brnovich: A case study of Native activism in Nevada

AbstractObjectiveWe examine the role of local election officials in voter suppression of Native Americans and opportunities for legal redress using state law.MethodsWe present a case study of the Shoshone and Paiute Tribal leaders, Native activists, and lawyers in Elko County, Nevada, to provide electoral access on the Duck Valley Reservation.ResultsWe document the successful legal strategy against Elko County officials in state court following a newly adopted provision of the state constitution that committed Nevada to providing “equal access to the elections system without discrimination.”ConclusionThis case study is a reminder of the discretionary power wielded by local election officials in the United States, and it presents a potential roadmap for fighting voting abuses using state laws and courts following the Supreme Court's Brnovich v. Democratic Central Committee (2021) ruling.

Russian war, Estonian exceptions: Sovereignty, governmentality, biopolitics

The author analyzes Estonia as a case study to explore two interrelated research questions – how exceptions are produced and reversed through the mechanisms of sovereignty and governmentality projected onto geo- and biopolitical domains, and how the new practices of exceptionalization and de-exceptionalization contribute to the emergence of a new spatial order at Europe’s eastern margins? Three types of policies unfolded in Estonia as reactions to the Russian war against Ukraine are identified. First, the Estonian government introduced extraordinary measures based on the logic of national interests, which left much space for discretionary power to define risks, threats, and dangers. Secondly, some policy domains were intentionally de-exceptionalized for the sake of their better integration into Estonian normative space and as a reaction to the effects of the war. Third, in some cases there were exceptions from exceptions, which meant certain steps back toward normalization of the previously taken exceptional measures. The theoretical frame of the article consists of two nodal concepts – sovereignty and governmentality to be projected onto geo- and biopolitics treated as spheres in which sovereign and governmental powers operate and expose their political qualities.

Principle of Impartiality and Neutrality in the Exercise of Discretionary Powers in the Light of a Decision by the Administrative Court

Principle of Impartiality and Neutrality in the Exercise of Discretionary Powers in the Light of a Decision by the Administrative Court

Public Healthcare Financing during Counterinsurgency Efforts: Evidence from Colombia*

AbstractHow do government counterinsurgency efforts affect local public health financing during civil conflicts? We investigate this question in the context of the protracted conflict in Colombia. Using data on antinarcotics operations and health transfers from the central government to municipal governments, we employ both panel estimations and an instrumental variable to address concerns of endogeneity. We first show evidence of a government discretionary power over the allocation of health transfers. We do not find evidence that counterinsurgency operations causally affect health transfers to municipalities. Our results rule out political alignment between mayors and the national governing party as an intermediary factor that could influence the flow of fiscal transfers in municipalities exposed to the conflict.

Extent of Discretionary Power of NCLT under Section 7 of Insolvency and Bankruptcy Code

The research paper at hand aims at identifying critical aspects around the so said "discretion" given to the NCLT with respect to admission of application for Corporate Insolvency Resolution Proceeding (CIRP) by a financial creditor. The law in this aspect is quit unresolved at the moment and requires the involvement of the legislature or the judiciary to give out the answer with this regard. Additionally, the difference between an operational creditor and a financial creditor is also analysed in this paper.

From Announcing Their Pregnancy to Returning to Work: The Experience of Pregnant Street-Level Bureaucrats in non-Western Public Contexts

Drawing on the theory of social stigma, this article explores how female street-level bureaucrats experience pregnancy in the Egyptian public service and the main challenges they face. The empirical sample comprises semi-structured interviews with 40 female street-level bureaucrats working in four ministries in Egypt. Thematic analysis was subsequently used to determine the main ideas in the interview transcripts. The findings show that during pregnancy, female bureaucrats find it easy to announce their pregnancy without any fear or concern about being challenged with intensive job duties. However, during that stage, they predominantly suffer from abusive clients and a lack of organizational support. During maternity leave, female bureaucrats mostly feel forgotten by their colleagues and managers, and once they return to work, they find it difficult to balance the new obligations of motherhood and their regular job tasks. Furthermore, pregnant bureaucrats consider the marginal discretionary power to craft job duties, stigmatising the performance of pregnant bureaucrats and the primitive laws regarding pregnancy as the main challenges they face in public contexts.

Policing juvenile delinquency in China: Exploring the influence of officer-related individual and organizational factors on discretionary police decision-making

PurposeThis study aims to explore police officers’ decision-making patterns for punishing, educating, and providing assistance to minors who have committed property, violent, or illegal drug use offenses. It further examines the impact of both officers’ individual characteristics and perceived organizational support on police reactions to the respective offenses. MethodsSurvey data were collected from 454 police officers at 18 police stations in a southwestern Chinese city. Police officers were provided with scenario-based vignettes that elicited their responses to the described offenses. Ordinary least squares (OLS) regressions were conducted to examine officer-related individual and organizational factors that influenced police decisions to punish, educate, and provide assistance to juvenile offenders involved in property, violent, and illegal drug use offenses. ResultsThe descriptive findings suggest that police officers may consider all three types of actions (i.e., punishing, educating, and assisting delinquent youth) in addressing juvenile delinquency (JD), with some variations in the actions taken in response to different types of offenses. The findings of the OLS regression analyses generally confirmed that both individual and organizational factors influenced police discretion on JD, but the effects varied according to police response and offense types. Specifically, punitive police attitudes toward delinquent youth and knowledge of relevant laws were robust predictors of officers’ intentions to punish juvenile offenders, and officers’ perceived community service roles and supervisor support were primarily correlated with their preferences for the use of education or assistance measures in addressing delinquency. Organizational training, however, did not show any significant effect on police inclinations in handling JD, regardless of decision or offense types. Unexpected findings are discussed in the “Discussion and Conclusion” section. ConclusionsThe study contributes to extant literature on police–juvenile encounters by examining the under-investigated individual and organizational correlates of police decision-making in the Chinese context. The findings highlight the importance of supervisory support and organizational training in managing individual officers’ discretionary power.

Does digital government hollow out the essence of street‐level bureaucracy? A systematic literature review of how digital tools' foster curtailment, enablement and continuation of street‐level decision‐making

AbstractThe growing use of digital tools in policy implementation has altered the work of street‐level bureaucrats who are granted substantial discretionary power in decision‐making. Digital tools can constrain discretionary power, like the curtailment thesis proposed, or serve as action resources, like the enablement thesis suggested. This article assesses empirical evidence of the impact of digital tools on street‐level work and decision‐making in service‐oriented and regulation‐oriented organisations based on a systematic literature review and thematic qualitative content analysis of 36 empirical studies published until 2021. The findings demonstrate different effects with regard to the role of digital tools and the core tasks of the public administration, depending on political and managerial goals and consequent system design. Leading or decisive digital tools mostly curtail discretion, especially in service‐oriented organisations. In contrast, an enhanced information base or recommendations for actions enable decision‐making, in particular in regulation‐oriented organisations. By showing how street‐level bureaucrats actively try to resist the curtailing effects caused by rigid design to address individual circumstances, for instance by establishing ways of coping like rule bending or rule breaking, using personal resources or prioritising among clients, this study demonstrates the importance of the continuation thesis and the persistently crucial role of human judgement in policy implementation.

Allocating budget in developing countries, the need to fight corruption: evidence from Sub-Saharan African countries

This paper highlights the need to fight corruption in developing economies to ensure a better allocation of public resources in a context of institutional failure with the discretionary power of budgetary authorities. The study uses a panel of 48 Sub-Saharan African countries by combining several databases (WDI, WGI, SPEED BASE DATA and PWT), estimate by generalized moment method in system, the bias-corrected estimation linear dynamic panel data [6] and the type of error correction (Driscoll–Kraay). The results indicate that the phenomenon of corruption in the form of rent capture has two effects on public resources. One effect is linked to the level of public spending and the other to the distribution of public resources. Thus, corruption leads to an increase in the overall level of public spending. Corruption reduces spending on education, mining and communications, but increases spending on the military, health and transport. The study recommends that political leaders in developing countries strengthen and rigorously enforce anti-corruption laws, and raise public awareness of the underground economy.