By Thushara Rajasinghe –
The stormy winds surrounded over the impeachment of the former Chief Justice Dr. Shirani Bandaranayake are gradually and mutely settling down and the propagators, both in support and in opposition of the impeachment are silently moving on to another issue in which they could find a forum to propagate. This usual post conflict amnesia within the so called issue centric freedom propagators in developing democracies is a stumbling block for more sustainable positive development over many social and political issues. It is a pertinent obligatory duty to avoid this post conflict amnesia over the issue of impeachment of the former Chief Justice and continue more constructive discourse over many issues which surfaced during the height of the conflict which undoubtedly link to the very existence of the judicial independence and democracy at large. Unprecedented to many common law jurisdictions, the judicial officers of Sri Lanka expressed their disagreement and concern opposition openly over some incidents by staying away from performing their day to day judicial duties. Apart from Justice Wigneswaran’s brief reference as “intrinsic freedom”, no much attention was given to the inner functional behaviors of a judicial officer and its impact on his judicial functions. This paper tries to discuss the impact of such inner functional behaviors of judicial officers on the issue of judicial independence.
As the title of this paper suggests, the concept of Judicial Independence consists of an invisible outer limit which goes beyond the visible limit that everybody could see and observe. In the famous speech made by Isaish Berlin on “Two concepts of Liberty” at Oxford in 1958, he identified two components of liberty as negative and positive, which provides an ably analogy to define the concept of judicial independence more conclusively[i]. He stated that “The first of these political senses of freedom or liberty (I shall use both words to mean the same), which (following much precedent) I shall call the ‘negative’ sense, is involved in the answer to the question ‘What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons?’ The second, which I shall call the ‘positive’ sense, is involved in the answer to the question ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”[ii]. He further elaborated negative freedom as, “ If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved. Coercion is not, however, a term that covers every form of inability. Coercion implies the deliberate interference of other human beings within the area in which I could otherwise act”[iii]. In his explanation of Positive Freedom, he emphasized that “The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish to be somebody, not nobody; a doer-deciding, not being decided for, self-directed and not acted upon by external nature or by other men and conceiving goals and policies of my own and realising them”[iv].
Having stated that these two concepts of liberty is quite useful in thinking about judicial independence, Pamela Karlan finds that Berlin’s analysis also suggests why it is easier to develop a strong consensus for the negative conception of judicial independence than for the positive one[v]. Justice C.V. Wigneswaran, found that the “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 extrinsic component therefore includes the constitutional procedures for appointment of judges, their security of tenure, salaries and perks, as well as their personal security, including threats and inducements. The intrinsic component includes how Judges think, react and behave. This component is what is truly within our power”[vi].
In view of these explanations, the concept of Judicial Independence is not only independence from external factors, institutions and individuals, but also independence from judge’s own reflective consciousness on the external factors, institution and individuals. The first limb of the definition is mainly visible as it mostly embodies with external structural system surrounded with the administration of justice. However, the second limb of this definition relates to the man’s invisible inner life and its interaction with external factors. In agreement with Professor Pamela Karlan, it is more convenient for observers to monitor the external factors and also advocate for the protection and enhancement of the independence from these external factors. Perhaps the meager attention on the second limb by the academic, intellectuals, and independence promoters in the mainstream discourse of the judicial independence, has created an illusionary horizon ahead of the actual outer limit of this concept which is the second limb. This paper is a modest attempt to sail beyond this horizon and explore and understand the inner mindset of a judicial officer and the scope and limits of its interaction with the external factors in the adjudicating process.
The term of “Reflective consciousness” which is used to define the second limb of the concept is borrowed from the works of the existentialist philosopher Jean Paul Sartre. In an article called “ La Transcendance de l’ego, Esquisse d’une description phenomenologiue” Sartre discussed the existence of pre-reflective and reflective consciousness which is quite useful in understanding the behavioral pattern of the mind of a judicial officer. Sartre explained that when we catch a glimpse of an object, there may be a doubting consciousness of the object as uncertain[vii]. This consciousness is our awareness of the existence of an object with which we encountered. This is the primary consciousness which Sartre identified as pre-reflective consciousness. When we deliberately think of our consciousness of awareness, it is a totally new act of consciousness of I. Sartre explained it as “I am aware that I doubt; therefore I am”. The object of this new consciousness is our primary consciousness of awareness, but not the object that we encountered initially. This is our reflective consciousness on our primary consciousness of the object. The main distinguished feature of these two concepts is that the object we initially encountered with is the object of our pre-reflective consciousness and our pre-reflective consciousness is the object of our reflective consciousness. Accordingly, our reflective consciousness constitutes with our own reaction to the pre-reflective consciousness and our earlier experiences and knowledge on such a situation. Our reflective consciousness defines our state of mind on the object we encountered. Our state of mind is the reflection of our ego, in general terms our self.
Turning back to the main issue under review of this paper, the explanation of Sartre on pre-reflective and reflective consciousness could be applied to understanding of the judicial decision making process. The judicial adjudicating process encloses with several procedural stages. The first stage is to collect date, information, and facts in the form of evidence. Subsequent to that, the judicial officer has to find and form correlation of these evidences and give a description for this correlation. Then, he is required to provide an explanation for this description of correlation of the facts according to the applicable laws. Accordingly, it is transpired that the judicial decision making process consists of two main functional elements. First is, to form a correlation on the evidence presented during the hearing and provide a description for this correlation. The second element is, to endow this description of the correlation with an explanation of applicable laws and procedures.
The judicial officer undoubtedly identifies, understands, values and places the evidence presented before him, based on his reflective consciousness on them in his correlation formation process. The existence of such a reflective mind in the judicial officer is discussed by Circuit Court Appeal Judge Mr Jerome Frank in “In Re J.P. Linahan”[viii]. He held that “Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking impartiality and disinterestedness. If, however, “bias” and “partiality” is defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education – formal and informal – creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudicial. Without acquired “slants,” or pre-conceptions, life cannot go on. Every habit constitutes a pre-judgment; were those pre-judgments which we call habits, absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem he would go mad. Every human society has a multitude of established attitudes, unquestioned postulates. Cosmically, they may seem parochial prejudices, but many of them represent the community’s most cherished values and ideals. Such social pre-conceptions, the “value judgments” which members of any given society take for granted and use as the unspoken axioms of thinking”.
Justice Frank further stated that “In addition to those acquired social value judgments, every judge, however, unavoidably has many idiosyncratic “learnings of the mind,” uniquely personal prejudices, which may interfere with his fairness at a trial. He may be stimulated by unconscious sympathies for, or antipathies to, some of the witnesses, lawyers or parties in a case before him”.
The existence of the reflective mind which constitutes on our own prejudices, values, understanding and reactions is an integral part of any human made decision with which the judiciary could not deny the influence of such. In the present day context of life, gigantic influence of the free flowing of information and mammoth advancements of communication devices have substantively designed our capacity of volition. The once secluded domain of judges’ official and personal lives is being mostly penetrated by the scrutiny of media vigilance. On the other hand, judges are also either forced or required to venture into the fields which they are traditionally reluctant to expose by the modern day demands of the life. Thus making visible the judicial behavior – official and personal – more frequent to the public domain. The judges are not required to enclave themselves into a different tribal entity as it will be detrimental for their personal and professional functions. They are not supposed to be zero minded to receive all the facts of the disputes as wholly new scenarios in their lives. Judicial life must indeed be dynamic, pragmatic and rational. The paradoxes of being vigilant engagement with the external factors and variables, and also refrain from brining own reflective conceptive prejudice, values and understanding on them into the decision making process determines the ultimate outer limit of the judicial independence.
The dichotomy of vigilant engagement and refrain from engaging with their own reflective prejudice has made the invisible outer boundary of the judicial independence an exclusively inner personal function of the judicial officer. It is a judicial officer’s own judgment and calculation to properly manage these two paradoxes. The threshold point of this engagement and disengagement with the external factors defines the finality judicial independence. Justice Frank in his foregoing celebrated judgment explained the threshold of this dichotomy as “Frankly to recognize the existence of such prejudices is the part of wisdom. The conscientious judge will, as far as possible, make himself aware of his biases of this character, and, by that very self-knowledge, nullify their effect. Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases”.
The findings of justice Frank emphasizes the requirement of inner self regulatory functional awareness of the judge to dealing with the dichotomy of external vigilant engagement and the disengagement with his own reflective consciousness on it. This functional awareness of his own reflective consciousness and act independently from it in his judicial decision making process is being tested objectively not subjectively. The issue of judicial bias is twofold. First is the principle of actual bias and second is the principle of apparent bias. Hence the judicial bias constitutes not only the existence of actual bias, but also the existence of apprehension of bias though it does not actually exist. This twofold approach on the issue of judicial bias derives from the well founded common law principle of “”justice must not only be done but must manifestly be seen to be done”
It is now appropriate to turn to review the approaches of the common law jurisdiction on the issue of apprehension of judicial bias. There is a distinguish contrast in the approach of England over this issue with the other principle common law jurisdictions such as Australia, New Zealand and Canada. The approach of England could be found in the R v Gough[ix] where Lord Goff of Chieveley held that “ the test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors whether being applied by the judge during the trial or by the court of appeal when considering the matter in appeal, namely whether in all circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand”. Lord Goff of Chieveley by outlining his dictum in R v Gough further stated that “ in my opinion if in the circumstances of the case, it appears that there was a real likelihood in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. Furthermore, the test as so stated gives sufficient effect, in cases of apparent bias, to the principle that justice must manifestly be seen to be done and it is unnecessary in my opinion to have recourse to a test based on mere suspicion or even reasonable suspicion for that purpose”.
Deviating from the test of Gough on the issue of apparent bias, the High Court of Australia held in Ebner v Official Trustee in Bankruptcy[x] that the test of apparent bias is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide. Gleeson CJ in Ebner v Official Trustee in Bankruptcy held that “the application of the test of apparent bias requires two steps. First it requires to identification of what it is said might lead a judge (or Juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on merits. The bare assertion that a judge ( or juror) has an interest in litigation or an interest in party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulate”.
Mason CJ in Webb v R[xi] held by distinguishing the two approaches in England and other common law jurisdictions that “the test enunciated in R v Gough tends to emphasis the court’s view of the facts and placed inadequate emphasis on the public’s perception of irregular incident”. In the meantime, the Gough test was tested and argued in England specially in line with the principles applied in European Court of Human Right in Strasbourg. Having considered all the recent developments on the issue of “apparent bias”, around the common law jurisdictions and the European Jurisdiction, Lord Hope of Craighead held in Proter v Magill[xii] “the relevant test is whether the fair minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. In line with the tests enunciated in Proter v Magill and in Ebner v Official Trustee in Bankruptcy, it seems that the England approach is based on “real possibility” as opposed to the Ebner approach of “reasonable apprehension”.
The approach on the issue of “apparent bias” in the jurisdiction of new Zealand is well founded in Muir v Commissioner of Inland revenue[xiii] where it was held that “in our view, the correct enquiry is a two stage one, first it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be biased. This factual inquiry should be rigorous in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasized to the challenged judge that a belief in her own purity will not do, she must consider how others would view her conduct”.
These judicial precedents on the issue of apparent bias more conclusively indicate that the issue of understanding of his own prejudice and reflective consciousness is the judge’s own subjective judgment. However, the test of his subjective judgment of his own bias and prejudice is objective and tested from the eyes of informed public.
Moreover, the positional and functional role of the judicial officer within the parameters of judicial independence is also embodied in these two limbs of definition. The responsive reaction of the judicial officer over the intrusion and interference from the external factor to the judicial independence indubitably defines the actual and/ or apprehension reflective consciousness of the judicial officer. Thus, the role of the judge on the issue of judicial independence is not a retaliatory active promotional nature as such reaction detrimentally hinders the purpose of second limb of the judicial independence. Judges are the passive unvoiced pillars of the judicial independence. Likewise, the role of functional behaviors of the judges constitutes the integral axis of judicial independence and he is not a vocal protector and promoter around the periphery of it.
In view of this multitude nature of the concept of judicial independence, it demands a greater understanding of the behavioral functions of the judicial officer not only within the domain of his official ambit, but also in his personal activities. The laxity of judicial attention, education, training on this pivotal area of judicial independence not only condenses the qualitative judgment making process but also erode the ultimate confidence of the public on the judicial system.
[i] TWO CONCEPTS OF LIBERTY, Isaiah Berlin,Berlin, I. (1958) “Two Concepts of Liberty.” In Isaiah Berlin (1969) Four Essays on Liberty.Oxford: Oxford University Press, http://www.wiso.unihamburg.de/fileadmin/wiso_vwl/johannes/Ankuendigungen/Berlin_twoconceptsofliberty.pdf
[vii] Jean- Paul Sartre, Being and Nothingness, translated by Hazel E Barnes, Washinton Square Press, 1992, page xi,
[viii] 138, F 2d, 650 (1943)
[ix] (1993) AC 646
[xi] (1994) HCA 30, (1994) 181 CLR 41)
[xii] 2002) 2 AC 357 at 494,
[xiii] (2007) NZCA 334. (2007) NZLR 495),