JUDICIAL INDEPENDENCE is a vital element in the proper functioning of a democracy and should be resolutely upheld. Since its foundation, the State has been served in an exemplary fashion by judges whose rulings on constitutional and other matters have upheld the rights of individuals and, on occasion, have forced reluctant governments to embark on legislative action.
In that context, a protection against reprisals accorded to judges under the Constitution – that pay will not be reduced during their time in office – is understandable. But surely that provision was not intended to elevate the rights of judges above all other State employees in our present circumstances?
The Government has undertaken to clarify this position by way of a referendum that will allow for a reduction of judicial salaries in line with other public servants. It should never have come to this. Judges are not civil servants. Conflicting legal opinions existed on whether such a referendum was necessary. But, because of government timidity and judicial arrogance about their immunity from the circumstances in which the country finds itself – as witnessed by the behaviour of some judges who refused to take a voluntary pay cut – such a course became inevitable.
It is unfortunate that a referendum on judges’ pay will be held in conjunction with a second referendum that proposes to grant greater powers of investigation to Oireachtas committees. The separation of powers detailed in the Constitution, under which the Oireachtas legislates and the Judiciary adjudicates, has served this State very well. Roles and responsibilities are vigilantly guarded. Any perception of a power struggle emerging between arms of government could be damaging to both. The Law Society has warned that “a serious erosion of the doctrine of separation of powers may be an inevitable consequence” of strengthening Oireachtas committees. Minister for Justice Alan Shatter will have to act with circumspection in framing any future legislation.
Change is one of the great certainties in life. As society develops and becomes more complex, its institutions must respond to new circumstances. That is as true for the Judiciary as it is for Government, the Oireachtas and the public service. For the past three years this society has been undergoing an economic and fiscal crisis that has forced a reduction in living standards. Judges were formally exempted from successive pension and pay levies. But when Chief Justice John Murray asked his colleagues to take a voluntary pay cut, he was ignored by one in seven judges. That selfish behaviour has damaged the public image of the entire Judiciary at a time when trust in our public institutions has imploded. There is still public confidence in the administration of justice.
In spite of such a self-inflicted wound, the enormous contribution made by judges to the development of a caring, human-rights-based society in this State should be acknowledged. The wording of a referendum on judicial pay and any subsequent legislation will have to be drafted with a view to delicate sensibilities on the separation of powers in our society.