Judicial Independence: Beyond the Horizon

Paper presented at the 2013 CLEA Conference in Durban

Thushara Rajasinghe
Resident Magistrate of the High Court of Fiji Islands, Suva, Fiji

Independency of the Judiciary guarantees the rights of the people through an independent, impartial, competence adjudicating mechanism. Judiciary stands amidst the powers of the state and subjects of the state to shape, establish, and regulate the relationship between them. The significance of the existence of the judicial independence is indisputably accepted. Nevertheless the precise nature and extent of its scope though often discourses and debated is not yet fully understood.

Justice C.W. Vigneshwaran depicted the main apparatus of the concept of Judicial Independence as “Independence of the Judiciary has two facets – extrinsic and intrinsic or the outside and the inside. The extrinsic component is made up of the structural, systemic and environmental factors that form the set up within which Judges function. The intrinsic component includes how Judges think, react and behave. This component is what is truly within our power. However, even the most altruistic would agree that the extrinsic component greatly shapes the intrinsic”. This elaborative description heartened to navigate further into this intrinsic component which is solely secluded to the inner judicial mind of the judge. This area of the judicial independence is traditionally less inhabited with many legal literatures and trainings.

This is a modest endeavor to sail into the sphere of inner thinking pattern of a judge and its functional and positional interaction with the external factors. In view of the speech of Isaish Berlin’s “two concepts of Liberty” which is quite useful to define judicial independence as not only independence from the external factors, but also independence from judge’s own reflective consciousness on the external factors. This paper tries to identify the consciousness behavior of the judge based on the philosopher Jean Paul Sartre’s concepts of “pre reflective and reflective consciousness and its influence in the judges’ decision. It will then discuss the subjective test of the judicial officer to deviate from his reflective prejudice and the objective test of the judicial officer’s such subjective test.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.