The referendum on judicial pay is ill-conceived
OPINION:THERE ARE three primary articles in the 1937 Constitution governing judges and courts, articles 34 to 36. Of these a subsection of one, article 35.5 appears to be about judicial pay. “The remuneration of a judge shall not be reduced during his continuance in office.”
The problem is, that appearances to the contrary, this is not about judges’ pay. The proposed wording of the referendum, soft spoken assurances to the contrary, is also not about judicial pay.
Article 35 of the 1937 Constitution is about judicial independence. It replicates article 68 of the 1922 Irish Free State constitution about which Maguire CJ held ( O’Byrne v Minister for Finance IR 1) “The purpose of the article is to safeguard the independence of Judges.”
He continued that requiring a judge “to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of government cannot be said to be an attack upon his independence.”
Unfortunately, the former attorney general and government do not appear to have accepted this as a statement of law. Instead, they excluded the judiciary from the general income levy citing article 35.5. as a constitutional barrier.
Arising from further apparent misinterpretation of the purpose of this article, we are now confronted with a proposed amendment which, if passed, may well have the short-term effect of reducing judges’ real income.
It is the longer-term effects with which we should be more concerned.
The proposed new wording is extraordinarily complicated. For example, a newly inserted article 35.3.3 will read: “Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make reductions to the remuneration of judges.”
It is probable that were there legislation with such unclear and non-specific wording, a legal challenge to the section in question would result in it being struck down. It is all the more unacceptable in our Constitution. It seems to mean that if ever it was stated in a law that in the public interest there is a reduction of pay of anyone who is paid from public funds, who belongs to what might be defined as a class, judges’ pay may be reduced too.
There is no definition of “class”. There is no link in this wording to a particular category of public servant . . . could it be teachers, assistant secretaries, prison officers, soldiers? That is left open. If there is to be such a reduction is it to be applied to one judge or to all judges? That too is left open.
This presents a scenario that very few have taken time to consider and debate. If one judge of the High Court decides against the Government in say another Nama case, or if a seven-judge Supreme Court decides against the Government in an article 26 reference from the President, as in the nursing home charges legislation which sought to make charges that had been unlawful lawful, will that trigger a reduction in remuneration and if so, for whom?
Clearly, the process would have to start with a law reducing pay for a number of persons in receipt of public pay who belong to a recognisable class. Cleaning staff under contract is probably a bit far-fetched as a starting point but as an example highlights the fact that the wording does not specify that the chosen persons are even required to be in direct State employ. The requirement is that they are remunerated from public funds.
A more realistic choice perhaps is student nurses. They are a class who are so dependent on being able to complete their training that they find it difficult to mount any organised challenge when their pay is threatened. So, having selected the persons who initially have their salary reduced the next question is which judges will have their pay reduced? Will the reduction be confined to those who have held against a government action or policy or will it be applied in totality across all judges?
Such hints that a government may interfere with judges’ remuneration without ironclad guarantees directly affects a judge’s security of tenure. It is not solely a matter of salary or pension. It is far more a matter of independence of action arising from guaranteed security of office.
The Constitution has placed the judges in a balancing position in our parliamentary democracy. They are required to protect the people without fear or favour against potential and real abuse of power by elected politicians and appointed public officials. It is a judge who has been appointed to head the Referendum Commission. Normally it would not need to be said that he will act impartially and objectively.
On this occasion not only must it be said, but the principles of independence underlying his unquestioned impartiality must be seriously considered. The proposed erosion of those principles should be rejected.
Estelle Feldman is a research associate, school of law, TCD, and co-author of constitutional law chapter in Annual Review of Irish Law.