Judges' concern over who decides their salary is more than a fear about how much they take home

 

Judicial independence is a key concern for every citizen taking a case against the State, writes CAROL COULTER, Legal Affairs Editor

THE MEMORANDUM sent by senior members of the judiciary to the Government via the Attorney General outlines their concerns for their constitutional independence. There are many people both in political life and among the general public who think this is no more than a cover for resisting cuts to their pay.

While undoubtedly a number of individual judges feel sore about the pending swingeing cuts to their pay in what they had thought was a constitutionally protected position, the concern of the majority is for the manner in which such cuts will come about and the implications of what they see as a breakdown in respectful relations between the two branches of government.

The constitutional guarantee that there be no reduction in the remuneration of judges during their term of office, which will be amended if the referendum on the subject is passed next November, was not an invention of the judiciary, but comes out of a long tradition of judicial independence in the common law world.

In a major survey of the evolution of this tradition for the Hong Kong judiciary, Sir Anthony Mason, former chief justice of the high court of Australia, wrote that judicial independence “involves the capacity of judges to adjudicate fairly, free from direction, control, pressure or influence by the legislative or executive arms of government or by any other source. To protect judicial independence, it is necessary to ensure that the judges’ remuneration package is and continues from time to time to be sufficient and that it is properly protected from reduction and erosion.

“Direct reduction of judicial remuneration is an obvious violation of judicial independence. An indirect reduction of judicial remuneration is also a violation of judicial independence.”

He pointed out that this independence is either explicitly or implicitly present in all the constitutions in the common law world.

Many would argue that judicial remuneration in Ireland is certainly more than “sufficient”. The economic tsunami that has engulfed this State in the past three years has brought a reduction in the incomes of most people, in both the public and private sectors. It is important for the status of the judiciary in society that they are not perceived as immune from, or indifferent to, the economic reality in which the rest of us live. They acknowledge the seriousness of the economic crisis and the need to respond to it in their recent memorandum.

But achieving that reduction in a manner that does not impinge on their independence is a delicate task, and one being grappled with at present by the Attorney General as she considers the wording of a referendum on the subject.

However, her room for manoeuvre has been somewhat circumscribed by the Minister for Justice ruling out the use of an independent commission to examine the issue. It is understandable that the Government may not wish to overly complicate the matter by setting up yet another independent body when it would be easier to treat judges like other senior public servants. But there is a difference between judges and other public servants, in that those working in the civil service are working directly for the executive branch of government while judges are constitutionally independent of it.

This led the supreme court of Canada to consider that any reduction of judicial salaries had to be referred to an independent body, and the Canadians have held that, if this condition is met, judicial salaries can be reduced as part of an overall economic measure affecting all those paid out of public funds. According to Sir Anthony Mason, “the principle [is] increasingly accepted that direct negotiation by the judiciary with other branches of government over judicial remuneration is open to manipulation and incompatible with judicial independence.”

This is not an esoteric or theoretical matter. All citizens should feel that if they go to court, and especially if the issue concerns an arm of the State, that they will be heard by a judge who does not feel that his or her pay and conditions are decided by the government of the day untrammelled by any independent scrutiny.

Memorandum from judges case against proposed amendment

Conclusions of memorandum from judges on the proposed constitutional amendment to cut judges’ pay.

In our view, the suggested wording as published in the press is fundamentally deficient and would compromise the substance of judicial independence in the manner indicated. The principles of judicial independence require that any decision regarding judicial remuneration and the reduction in judicial pay must be taken by an independent body.

If it were otherwise, one of the essential features of a constitutional democracy and the rule of law would be compromised. Many judges dealing with asylum and immigration cases have encountered country of origin information dealing with the position of judges in developing countries where the independence of the judiciary is parlous and where such judges have limited institutional independence.

A finding by a reputable international court or observations by an international organisation that these fundamental guarantees of constitutional independence had been - even unwittingly – compromised, were the suggested wording
for the amendment to be adopted, would have huge reputational implications for Ireland and for confidence in our legal system.

That confidence is not only a bulwark of the Constitution’s freedoms which we as citizens enjoy in a free society, but is an essential bedrock of economic confidence on which our recovery from the ordeal to which the State is at present subject is completely premised.

This memorandum is not prepared in opposition to an amendment of the Constitution so as to ensure that judges bear a fair share of the burden of pay reductions, but rather proposes that, if this is to be achieved, the essence of constitutional independence must be safeguarded by means of an independent adjudication on what these reductions should be.