Judges must retain public's confidence
THE TAOISEACH has made it very clear that the Government is not going to put any pressure on the judiciary to cut their salaries or benefits to correspond with the sacrifices being made by other citizens, public servants in particular, writes CAROL COULTER.
Replying to a Dáil suggestion from Fine Gael’s Alan Shatter that they should voluntarily reduce their salaries by an amount equivalent to the pension levy, Brian Cowen said: “We need to recognise the constitutional position and not say or do or indicate anything that would in any way interfere with the independence in the role and functions of those important public servants in the judiciary who serve us so well.”
So what is the constitutional position? At first glance it seems quite clear. Article 35.5 states: “The remuneration of a judge shall not be reduced during his continuance in office.”
This is an expression in the Constitution of the view that the judiciary should be independent of the other branches of Government, the executive and the legislature, and judges should feel free to administer justice as they see fit without fearing that the wrong judgment could earn the disapproval of the Government and result in a pay cut.
It protects the judiciary from being nobbled by Government, and is ultimately a protection for every citizen. Therefore, the principle of judicial independence is an immensely valuable one.
But it does not mean that judges’ remuneration exists in a bubble outside the reality of the rest of the world, and specifically the rights and responsibilities of all citizens.
This was the view of the Supreme Court in a 1959 case in which the widow of a judge called Byrne brought a case claiming he should not have paid income tax, as this amounted to a reduction in his remuneration. The Supreme Court found, by majority, that the payment of income tax was not a reduction in remuneration.
The then chief justice, Mr Justice Maguire, said: “The purpose of the Article is to safeguard the independence of judges. To require 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 on his independence.”
There is a strong argument that the pension levy is an additional tax on public servants, imposed by the Government to help fund the pensions of public servants, and therefore constitutes a “contribution to the expenses of Government”, rather than the reduction of remuneration prohibited by the Constitution.
However, the Attorney General did not appear to share this view when he advised the Government that it could not impose the levy on members of the judiciary.
But even if the Government collectively does not feel it can “say or do or indicate anything” to the judiciary about its contribution to the collective national belt- tightening “to contribute to the expenses of Government”, there is nothing to stop members of the judiciary themselves making a voluntary contribution of part of their salaries on their own initiative.
There is the problem that the judiciary does not have a collective voice, and no single member can speak for anyone else. But if even some took such an initiative as individuals it would be likely to spread.
Doing so would send a clear message that they understand the crisis the State is in, and that they wish to contribute to its solution along with everyone else. In his judgment on Judge Brian Curtin’s challenge to the Oireachtas inquiry into his fitness for office, the Chief Justice, Mr Justice Murray, said the Oireachtas was concerned that “the judge is a person in whom the public can have confidence in submitting to him or her their disputes about their lives, liberties and interests”.
Such confidence is not just a matter for the Oireachtas, but also for the judiciary itself. It would be very dangerous for a view to gain ground that members of the judiciary did not understand the preoccupations of the people among whom they live, and on whom they make judgments.
That confidence, and the independence of the judiciary it underpins, is an enormous asset in our democracy.
Failing to engage with this national debate could undermine that confidence, and that would have serious repercussions for us all.
Carol Coulter is Legal Affairs Editor