Judicial Independence; Beyond The Horizon
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].
GMOA SLAMS MEDIA FOR “PAINTING A WRONG PICTURE”
January 28, 2013
The Government Medical Officers’ Association says that media had made the presumption that the doctor was at fault over the incident at the Matara Hospital, which resulted in a law student losing her hand.It was reported yesterday that initial inquiries found that the amputation of a law student’s hand, after suffering fracture injuries in a fall, was caused due to negligence on the part of the doctor who treated her and the hospital staff.
Preliminary inquiries regarding the incident have not been completed yet and the investigative team is still nearing the hospital, GMOA spokesman Dr. Navin de Soysa said at a press briefing in Colombo.
He stated that “painting a wrong picture” by presuming that the doctors are fault will result in the public losing faith towards the health sector.
The report being compiled by the committee appointed to probe the incident should not be turned into a mere “piece of paper” and its recommendations should be implemented immediately, Navin de Soysa told reporters today.
He further pointed out that the GMOA has no objection towards any action being taken against the doctor if he is found guilty through a proper inquiry.
