Judges' integrity caught in spotlight of promotion
OPINION:The judiciary and State are at loggerheads over salary reforms – an undesirable backdrop against which our politicians will select the next chief justice
A NEW chief justice is to be appointed shortly to replace Mr Justice John L Murray whose 10-year term ends later this month. In all probability, previous practice will be followed and the person appointed will be chosen from the existing judges of the Supreme Court or High Court and rewarded by a higher salary and some extra perks.
This situation has implications for judicial independence that have not been adequately ventilated.
Legislation dating back to the 18th century has been in place to ensure that independence of judges is not undermined by the prospect of government reducing their remuneration. This was incorporated in the Constitution of Ireland adopted in 1937 and, in recent times, has been invoked controversially to prevent the downward adjustment of all judicial salaries in line with other public servants.
Yet we have lived easily with a system where government has it in its power to promote individual serving judges, so granting them extra remuneration.
Given that the State is frequently a party to litigation, this is potentially destructive to judicial independence in that judges seeking promotion have an incentive to please government or, at least, not to offend it.
The suggestion that our judges would be influenced by the prospect of promotion runs the risk of being dismissed with frothing indignation as an outrageous attack on their integrity. Yet those very judges insist that persons exercising positions of trust should not be placed in a position where their interest and duty conflict. Often they invoke the principle that justice must not only be done but should also be seen to be done.
The kind of invidious situation that can arise was pinpointed in the 1990s when it fell to the government of Albert Reynolds to appoint a successor to chief justice Thomas Finlay. Liam Hamilton, then president of the High Court, was the sole member of the beef tribunal charged to adjudicate inter alia on the conduct of Reynolds in a previous post. The report was published. It criticised decisions taken by Reynolds as a minister but did not impugn his integrity. Shortly afterwards, Hamilton was appointed chief justice.
It is no reflection on anybody involved to say that this was an unsatisfactory situation.
What, then, is the alternative? It would be in line with the practice of the European Court of Justice and the European Court of Human Rights to allow the members of the court to elect its chairman, which is the essential role of the chief justice. This would honour the principle of judicial independence perfectly. If it is considered that such a closed system is too cosy, the choice could be made by a committee consisting of judges, lawyers and respected laymen along the lines of the Judicial Appointments Advisory Board that now screens appointments from the profession to the bench.
The problem is wider than that of the appointment of a chief justice. The president of the High Court, who ranks second in the judiciary after the chief justice, has a higher salary than the ordinary judges of the Supreme Court or High Court. Judges of the Supreme Court are paid more than judges of the High Court from whose ranks they are generally recruited. Appointment to the Supreme Court is often a reward for a judge’s performance in the High Court. Giving government unfettered discretion to decide on promotions within this structure is fraught with dangers for judicial independence.
If a difference in status and remuneration between judges of the High Court and Supreme Court is retained, which may be disputed, judicial independence requires that the decision on promotions from the High Court should be removed from government to an independent body. This would be in line with what happens in England and Northern Ireland.
It is an obstacle to any reform of the kind here proposed that the Constitution ordains that judges must be appointed by the President who, in this matter, must act on the advice of the Government. A constitutional amendment would be required to allocate the choice to another body. It would probably be required even to regulate the exercise of the Government’s present discretion in the matter.
We are promised a referendum before the year’s end permitting the reduction of judicial remuneration in certain circumstances. It may be that we need a more general reconsideration of the implications of the constitutional guarantee of judicial independence reviewing the system of judicial appointments, the tenure and accountability of judges, guarantees of their impartiality and how their remuneration as well as the overall funding of the courts should be decided.
At present, judicial independence is invoked, often speciously, to obstruct much needed reforms. But in other respects, such as the promotion of serving judges, it is insufficiently protected by the very Constitution that purports to guarantee it.
Charles Lysaght is a barrister and freelance writer