Concern cited by judiciary does not stand up to scrutiny

 

OPINION:Judges risk losing public faith in the long run if they are seen as a self-interested elite

CONCERNS HAVE been raised in the legal world about next week’s referendum on judicial pay, which, if passed, will allow the pension levy and public sector pay cuts to be extended to the judiciary. The fear is that the wording of the amendment may allow vindictive judicial pay reductions undermining judicial independence, and ultimately, harming the impartial administration of justice. However, these concerns have been greatly overstated.

The existing Article 35.5 of the Constitution protects judges’ independence by requiring that “the remuneration of a judge shall not be reduced during his continuance in office”, the purpose of this rule being to protect judicial independence from political manipulation. Controversially, this was thought to prevent the extension of the pension levy to the judiciary.

The proposed amendment sets out specific circumstances in which judges’ pay may be cut by law. Where reductions are made to the remuneration of “classes of persons whose remuneration is paid out of public money”, then, “proportionate reductions” may correspondingly be made to judicial pay. This assumes that only reductions targeted at the judiciary would be problematic for judicial independence.

Some fear the term “classes of persons” is so vague as to allow a future Oireachtas to vindictively target judicial pay by reducing the pay of a relatively obscure and powerless comparator class – say, student nurses – in order to improperly pressurise judges. However, the term “classes of persons”, plural, implies judicial pay can be cut only in line with reductions to an appropriately broad category in the public sector.

Courts will have to read the amendment against the broader principle of judicial independence in the Constitution: “all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. Technical or literal ambiguities in the Constitution are generally read in light of the values and purposes they embody.

It is remarked that little will be saved by the measure, but this misses the point. It is normal, in a republic, to expect that the general and equal applicability of legislation should be the norm, and any exception tightly justified with reference to the common good. In the longer run, a threat to judicial independence could arise from any public perception of the judiciary as a privileged, self-interested elite, spared from the sacrifices imposed on others.

Ultimately, judicial independence cannot be protected by formal laws alone; it is protected by the conventional respect it commands in the polity at large, and its ultimate foundation also lies partly in the respect the idea commands in public opinion. Without an enduring popular acceptance of the ideal, public opinion might be ‘softened up’ for future potential assaults by governments on judicial independence.

Popular vigilance, along with law, plays a role in the perpetuation of our democratic constitutional system. This is overlooked by lawyers’ cliched charge of “populism”, which itself betrays a culture of elitist ambivalence to the world of politics.

Thus, judicial independence is a delicate organic resource, constituted socially and politically as well as legally. It could easily be diminished through weakened public esteem for the judiciary. This danger was overlooked in the memorandum the judiciary itself recently published on the courts website, commenting negatively on the proposal.

Its use of an official forum to comment on the merits of a referendum proposal represented an unprecedented invasion of a sphere which under our constitutional system, is reserved to the people and their elected representatives alone though the amendment process. The judiciary has no power or no democratic right to intervene in this process, but worse, the content of the intervention itself was ill-judged because it potentially undermined the public perception of judges as impartial and motivated by the rule of law rather than self-interest.

Judges are normally loath to intervene in questions they perceive as “political”, which made it so unfortunate that the lone amendment on which they officially commented was that which directly affected their personal interests. Yet this extraordinary intervention provoked hardly any reproach in legal and academic circles.

Lawyers, perhaps understandably, are quite protective of the judicial sphere but less eager to defend an appropriate autonomy for the political organs as well, keen in their constitutional analysis to constrain politics, but less so to empower and facilitate its legitimate role.

Lawyers, culturally ambivalent to politics, will inveigh against political attacks on the judicial realm, but are less keen to resist ideologically motivated judicial assaults on politics conducted from politically unaccountable plateaus. The executive, not the judiciary, is indeed the “most dangerous branch” of government but the recent debacle must serve to remind us that in a republican democracy judicial power, too, needs to be confined within its proper domain.


Eoin Daly is a lecturer in law in Dublin City University

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