OPINION:THERE IS no doubt that fairness dictates that the judiciary should take pay cuts in line with others who work for the State. Judges work extremely hard, but so too do nurses, teachers and many other public servants. Everyone must cut their cloth.
If the only question facing the Irish people on October 27th was simply whether judges should take a pay cut, then, of course, people should emphatically vote yes. However, this is not the key issue in the 29th Amendment to the Irish Constitution. Instead, the referendum will ask whether we are in favour of jeopardising the independence of the Irish judiciary, and consequently, delivering a blow to Irish democracy.
Article 35.5 of the Constitution reads: “The remuneration of a judge shall not be reduced during his continuance in office.” On the face of this language, one might excuse the Government for believing that the Constitution prohibits them from cutting the judiciary’s wages.
However, the Constitution is not intended to be read like an Ikea instruction manual. For many years, in line with liberal democratic thought, the Irish Supreme Court has looked to the purpose behind the actual language used in provisions of the Constitution.
In O’Byrne v Minister of Finance the court held that the purpose of article 35.5 was to protect the judiciary’s independence from the influence of the executive/legislature (if one can find a genuine distinction between the two in Ireland). With this in mind, if the current Government were to pass legislation reducing judicial pay in line with pay cuts made throughout the public sector, it would almost be beyond belief to think that a Supreme Court judge would interpret such legislation as being an attempt to interfere with their independence.
That being so, such legislation would not be unconstitutional, judges’ pay would be reduced and we would not be faced with the proposition of giving the government wide powers to cut judicial pay, which is open to serious abuse.
Democracy is a value which needs to be earned and nurtured. Many states bestow upon themselves the title of democracy because they realise the value in being seen as a democracy. But, of course, just calling the state a democracy is not enough. The state has to put in place procedures and systems that legitimise government.
The recognition of fundamental human rights is unquestionably a condition which needs to be fulfilled in a true democracy. These rights must be recognised regardless of what the majority believe. Indeed, the only reason majority voting is often fair in a society is because it takes place in a context where rights are defended by the courts. This is why it is a crucial principle of any democracy that the judiciary be independent and free from the executive/legislature’s influence.
It has been recognised for some time that the power of the government to lower a judge’s wages while on the bench could give rise to situations where judges were punished for making decisions the government did not like, such as striking down a legislative act as being unconstitutional. This would leave the protection of rights in Ireland in a perilous position.
And make no mistake about it, we do depend upon the judiciary and their being independent to protect our rights and Ireland would be a very different place today without some important decisions of the Supreme Court over the past 60 years. Rights to bodily integrity, privacy, access to the courts and legal representation on criminal charges are all rights which the Supreme Court has recognised in the face of opposition by various Irish governments.
Democracy withers where the citizenry take it for granted. Those who do not quite see Enda Kenny as the dictator type are probably right, but such a view is short-sighted. The current economic climate is the perfect environment for radicalism to be fostered. Indeed the rise of extreme parties on the left and the right throughout Europe is becoming more and more evident.
We cannot know what is around the corner and we cannot leave our democracy to chance. We must continually nurture our democracy by ensuring core principles are being adhered to, and we must remain constantly vigilant against anything which threatens those core principles.
And why is the core principle of judicial independence being threatened in the current instance? Is it because the Government has been deprived of competent legal advice? Or is it an act of bravado on the Government’s behalf to demonstrate it is in touch with its citizenry by putting the judges back in their place and showing them they are not a special class of citizen.
But where is the evidence that judges ever thought they were a special class? They certainly did not see themselves as a special class of citizen in the O’Byrne case I referred to above, and it was the government which decided not to levy judges pensions, hence in the mind of voters giving the impression that judges were a special class of citizen. What an impressive, yet sad, sleight of hand it would be if the Government tricked us into enabling them to interfere with judicial independence on the basis of an impression they themselves had implanted in the minds of voters.
Maybe I am wrong about what the Supreme Court would do when faced with legislation to cut its wages. However, is it not worth investigating what it would do? An expedited piece of legislation, referred to the Supreme Court by the President, could be adjudicated upon before this disastrous referendum is to take place, and at much less expense to the people of Ireland than holding a referendum.
In doing this, we would have nothing to lose but everything to gain. Until the Government tries to pass such legislation, it should not ask us to strengthen its power over the judiciary. And even if the legislation is struck down as being unconstitutional, then we need to discuss the creation of an independent commission to decide upon judicial wages, similar to those set up in Canada and England. It is our Constitution, our democracy; it is up to us whether we nurture it, or allow it to be smothered.
Dr Stephen King is a doctoral researcher and was a lecturer in the school of law, University of Limerick