The amendment poses no threat to the constitutional safeguard of judicial independence, writes ALAN SHATTER
THE PEOPLE will have the final say in a referendum on whether the Government should have the power to cut judicial pay on the same basis as it has cut the pay of public servants. The proposed referendum does not endanger judicial independence.
The amendment, which the Attorney General is drafting, would retain the general principle that the pay of sitting judges cannot be reduced while they are in office. Creating an exception to this general principle, the amendment would empower the Oireachtas to reduce judges’ pay in limited circumstances by way of legislation.
The first point about the referendum is that the reductions to be made will not unfairly single out the judiciary. They will reflect cuts already applied under the two Financial Emergency Measures in the Public Interest Acts of 2009 to comparable levels of pay in the public service.
Remember that public servants have borne two pay cuts and a pensions levy. A further 10 per cent reduction comparable to that applied from January 1st, 2011, to some new grades in the Civil Service will apply to newly appointed judges.
Political integrity requires the Government to honour its election pledge to the people to cut – as an emergency response to a financial crisis – pay rates for judges, who are paid out of the public purse. The 2009 Report of the Review Body on Remuneration in the Public Sector said it would have considered a cut in judges’ pay in line with those borne by senior public servants, but that Article 35.5 of the Constitution barred it from doing so.
This objective and independent report recognised the ability of sitting judges to contribute proportionately – on the same basis as all other public servants, from the most junior to the most senior – to the cost of overcoming the nation’s financial troubles.
The referendum will allow the people to remove the anomaly that prevents judges from contributing their fair share. Enabling judges to share the national financial burden will enhance public confidence in the administration of justice. Second, the amendment would not dismantle the tripartite constitutional architecture that divides governmental power into three distinct branches of government – legislative, executive and judicial. These branches are independent except in the specific ways the Constitution itself provides for their interaction. The essential function of the judicial branch is independently to interpret, apply, and enforce the laws in cases brought before them. The constitutional safeguard of judicial independence will remain. Article 35.2 states: “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.” This article, and the bedrock guarantee it embodies, will remain intact.
Any attempt to reduce judges’ pay to pressure judges to conform to a government’s view of how cases should be decided would plainly offend this guarantee. The courts have the power to strike down such a law in a constitutional challenge. Judges can use their capacity for rational judgment to distinguish between pay cuts made for a compelling public purpose and those designed to influence their decisions. In this regard, they have jurisdiction to scrutinise, from a constitutional perspective, the effects and purpose of any law that reduces their pay.
Third, it is true that judges must not only be independent but be seen to be independent. This condition is crucial for securing the right of individuals before the courts to impartial adjudication.
Linking judges’ rates of pay to reductions in public servants’ rates of pay does not create the impression that judges are civil servants whose role is serving the government. Judges will retain – and be seen to retain – independent control over the decisions that relate directly to the exercise of the judicial function.
Fourth, it is not imperative to have an independent body to review judges’ pay rates. The crucial thing is to make a fair, reasonable, and objective decision on the issue. There is no obvious reason to think that a review body would question the equitable conclusion that reductions to judges’ pay rates should match those applied to senior public servants. Does anyone seriously think that a revived review body on remuneration in the public sector would depart from the recommendations it made more than 18 months ago? In any event, even if an independent body were to be asked to make recommendations about judges’ pay, it would still fall to the Oireachtas to make the policy decision and enact the required legislation. When financial measures, painful as they are, apply fairly across the board to public service employees, as well as to judges, no one can honestly argue that judicial independence is being threatened. Any reasonable person can see that personally, functionally, and institutionally, judges will remain independent in judicial functions.
Voters will face a single issue: is the proposed constitutional amendment a reasonable method of enabling judges to contribute their fair share to our financially stricken country while preserving their essential independence?
The answer is Yes.
Alan Shatter is Minister for Justice, Equality and Defence