ANALYSIS:The debate on judges' pay must be broadened to include the method of judicial appointment and their accountability
A REFERENDUM on Article 35 of the Constitution is now inevitable and we should take the opportunity to consider the issues at the heart of the articles facing amendment – judicial independence and accountability.
Judicial independence has many dimensions other than security of tenure and payment, relating to the manner in which judges are appointed and how they are held to account. Both could be greatly improved.
In Ireland judges are appointed by the president, on the nomination of the government. However, it is unheard of for the president not to appoint someone so nominated, so effectively they are appointed by the government of the day. This follows a vetting process carried out by the Judicial Appointments Advisory Board, which forwards seven names to the government.
It is an open secret that over the years, many barristers and solicitors have lobbied TDs and ministers for appointment to the bench. Those with an affiliation to a government party are more likely to be preferred – although there have been exceptions.
It is also the case that once appointed, political party affiliation does not generally play a decisive part in decision-making.
Still, a more transparent process is highly desirable.
There are various options available. In 39 US states, for example, some of the state judges are elected, but there is little enthusiasm for this model internationally. Its pitfalls are illustrated in a recent New York Timesstory from Wisconsin, where a minimally qualified small town trial judge ran a $5 million (€3.5 million) campaign, with TV adverts suggesting, wrongly, that the only black judge on the US Supreme Court had helped to free a black rapist. He was elected.
Former US Supreme Court judge Sandra Day O’Connor commented: “No other nation in the world does that [elects judges] because they realise you’re not going to get fair and impartial judges that way.” In contrast, in most of continental Europe judges enter a separate career stream.
In the common law world, judges are drawn from the ranks of successful legal practitioners.
Across the Irish Sea, legislators have come up with a judicial appointments commission, whose 15 members, apart from three judges, are appointed following open competition. They then recommend candidates on merit, “having regard to the need to encourage diversity in the range of people available”. If the government does not accept its advice, it must explain why.
Last week Minister for Justice Alan Shatter told the Dáil he had ordered a “review” of the system of judicial appointments, but no further information is available.
In the UK, judges also appear before parliamentary committees to discuss practical issues, including resource allocation. The Commons committee on the subject said there was no reason why parliament could not have “constructive dialogue” with the judiciary on constitutional issues.
Ireland is now the only state in the European Union not to have a judicial council, which could speak for and assist the judiciary, as well as provide for education and for regulating their conduct.
Among the problems in the current debate is that no formal mechanism exists for judges to engage with the Government or for their views to be expressed. Had such a framework existed, much of the recent controversy could have been avoided.
In addition, judges are seen by many as unaccountable.
Recently a District Court judge, when trying a member of the Travelling community for theft, expressed the view that Pádraig Nally (who in 2004 shot dead Traveller John Ward), had the right approach to people like the defendant. There is no vehicle in Ireland for making a complaint about such a remark, or about any other inappropriate behaviour from a judge, and that cannot but undermine their public standing.
Last year, after 10 years of stop- start discussions, the previous government published the heads of a Bill to provide for a judicial council. This provided for two bodies: a judicial council to promote education and the independence of the judiciary, and a conduct committee, including a mechanism for dealing with complaints against judges.
Legislating for setting up a judicial council is in the current programme for government, although no timescale exists.
The issue of judges’ pay must be dealt with. What is under debate between judiciary and Government is the mechanism to achieve reductions in their pay.
The public is largely unsympathetic to their arguments outlining the link between this and judicial independence.
One of the reasons is judges’ pay, along with that of those in the higher echelons of the public and private sectors, has risen more rapidly in recent years than that of most other members of society.
If it is to have credibility, the Government must narrow that gap, which means challenging rich and powerful groups, not just judges. It remains to be seen how resolute it will be in doing so.