HOW THE Government, the Oireachtas and the judiciary have dealt with the issue of cutting judges’ pay, on which voters decide by referendum next week, has been unsatisfactory and disappointing. The Constitution provides that “the remuneration of a judge shall not be reduced during his continuance in office”. Judges, therefore, were neither subject to the pension levy, nor to the public sector pay cut introduced in the 2010 budget. Ireland’s judiciary are among the best paid in the world – the salary of the chief justice of the United States is less than two-thirds that of his Irish counterpart.
At a time of economic crisis, a sense of shared sacrifice and a spirit of solidarity must prevail to maintain social cohesion. The heavy burden of fiscal adjustment must be borne on a fair and equitable basis. But when judges’ pay is exempt from salary cuts and pension levies that the rest of society must endure, then that is hard to sustain and impossible to defend. The attempt to ensure that judges paid the pension levy voluntarily has been largely unsuccessful. A minority – one in seven judges – failed to do so, while no member of the judiciary has, it seems, accepted a voluntary pay cut in line with that applied in the public sector.
The Government, in framing its amendment to the Constitution to allow for judges’ pay to be reduced, has produced a formula of words that has been variously criticised as vague and threatening. The amendment would allow a government to cut judicial pay in line with any reduction in the pay of public servants that is deemed to be “in the public interest”. A former chief justice, Ronan Keane, has suggested the amendment could weaken the independence of the judiciary, and make it “dangerously subservient” to the executive. Mr Keane acknowledges that while an amendment to allow for judicial pay reductions is needed, the arbiter should be an independent body, not the Government. His fears about a dilution of the separation of powers may be dismissed as exaggerated by some but they deserve the consideration and attention of voters.
The Government has allowed too little time for public discussion and political debate. The bill to amend the Constitution was rushed through both Houses of the Oireachtas with indecent haste, in a matter of hours. Few dissenting voices were heard. Rarely has a proposal to change the Constitution received so little critical scrutiny from TDs and Senators. This lack of rigorous debate has denied voters what they have every right to expect: the presentation of a full range of arguments both for and against the proposed amendment. For in a referendum the people become the lawmakers who decide the State’s fundamental law. But to discharge that responsibility and to reach an informed decision, voters also need the benefit of first, a thorough debate by the Oireachtas, and second, a public campaign in which TDs and Senators are fully engaged and committed. They have received neither. Without that contribution, the electorate has been handicapped, democracy has been diminished, and the voters’ task on October 27th has become more difficult than it should be.