Debate on pay masks tyranny of judiciary
Many judges love power. If independence is a worry the public should appoint them in a vote, writes JOHN WATERS
IT IS one thing to suspect, in an abstract kind of way, that words can remake reality, and another thing to observe it happening. We have a rare opportunity to observe this process in action now, as
media friends of the judiciary seek to get the judges off the hook of the “remuneration referendum”, in the process casting new descriptions of reality out of fiction, fantasy and humbug.
The fiction is that the judiciary is independent of the political process, the fantasy that this independence is something our democracy depends on. The humbug is that, out there in the country, people rely on the independence of judges to sleep easy in their beds.
In fact, the most fundamental protections afforded to our most essential liberties arise not from the vigilance of the judiciary but from whatever limited scrutiny and criticism of judges remains possible in a society where people in wigs are all but omnipotent.
We are told a referendum to enable the Government to cut the pay of judges may place in jeopardy the fragile balance between democracy and justice. Why? Because judges are not like other kinds of public servants, but direct servants of the people, no less.
These servants of the people, meanwhile, write to the Government to warn that any attempt to interfere with their perks will result in the compromising of constitutional democracy and the rule of law.
To preserve our freedoms, then, we need some kind of “independent” mechanism – presumably some kind of tribunal? – to decide how much judges should be paid.
I have noticed that most of the commentaries on this subject contrive to omit the proposed wording of the amendment to Article 35.5 of the Constitution. For the avoidance of doubt, here it is: “The remuneration of judges shall not be reduced during their continuance in office save as
may be regulated by law on the basis of reductions that are made by law, in the public interest, in the remuneration of persons generally or a class of such persons in the public service, including the Oireachtas and other office holders.”
Thus, any reduction in judges’ salaries must be linked to general pay reductions or to reductions in the remuneration of other public servants, including politicians. How such an instrument might be fashioned into a means of interfering with the judiciary remains unclear.
Far from being tribunes of the people, judges amount to one of the last and most untouchable branches of the establishment. Many times in my working life I have become aware of abuses by judges which it has been impossible to make public because of laws of court secrecy and contempt of court, which nowadays serve to protect the wrongdoers more often than vindicate the innocent.
Ask the average member of the public for a judgment on the judiciary and you will more than likely provoke mention of names such as Philip Sheedy, Judge Brian Curtin, or another of the handful of cases in which the veil has slipped and the inner wheels of the judicial system have become visible.
Judges cite “best international practice” to justify their protected salaries, but not when it comes to procedures which might expose them to genuine public scrutiny or sanction.
Let us be frank: although there are some good and decent judges, many are totally unsuited to their positions, political hacks who have gained preferment not on the basis of ability or commitment to the principles of justice and truth, but according to their loyalty to particular parties, with which they will have cultivated links assiduously for many years before being elevated to the bench.
As for independence, it is clear that judges at every level see themselves as arms of the State, deferring to other arms of the State, whether these be guards or traffic wardens or social workers, who clearly believe the law is there to vindicate them, as it all but invariably does.
The majority of Irish people, asked to express their sincere opinion of the judiciary, would say something to the effect that many judges are petty tyrants, in love with the sound of their own voices.
You only have to skim through the provincial papers of a Friday to understand some district justices act like tyrants in their courtrooms, dispensing folksy tirades and vindictive jibes at the expense of people who have had the misfortune to be cast before their tender mercies by virtue of some minor breach of some insignificant statute.
Many judges love power and appear to abuse it whenever they can, for the prosaic reason that they are utterly unsuited to the positions their political allegiances have delivered them into.
Judges’ pay is a red herring. What we need is a referendum on the way judges are appointed, offering voters the option of a system whereby judicial offices become subject to appointment by public vote.
This would represent a first step on the way to a judicial system genuinely representative of the people, and potentially independent of the other branches of government and the State.