Oct 25, 2011
Judicial Pay Referendum – Much Ado about Nothing?
We are delighted to welcome this guest post from Laura Cahillane. Laura Cahillane is a Post Doctoral Fellow in the Law Department at University College Cork. Her research interests lie primarily in Constitutional Law, Legal History and Administrative Law. You can contact Laura at l.cahillane@ucc.ie
The debates on the judicial pay referendum seem to have taken a dramatic turn in recent days with fears that the amendment will give the Government too much power in relation to control of judicial salaries and that this, in turn, will lead to an erosion of the independence of the judiciary.
I feel it important to note, in the context of fears of an autocratic Government determined to undermine the independence of the judiciary, that the action of reducing judicial salaries in line with general public pay-cuts or subjecting the judiciary to the pension levy could very well have been accomplished without an amendment to the Constitution in the first place.
The reason it has not been done is because the Government has taken an unnecessarily cautious approach in their interpretation of the Constitution. It was decided to exempt the judiciary from the spate of public pay-cuts on the basis that the Constitution precludes a reduction in the salaries of judges. The relevant provision in the Constitution is Article 35.5 which states that: “The remuneration of a judge shall not be reduced during his continuance in office.” However, it appears that the purpose of this provision has been forgotten.
This provision was intended to protect the independence of the judiciary and it harks back to the “Glorious Revolution” in seventeenth century England when the era of judicial independence began. Before that time, judges held their office “at the pleasure of the monarch” and could be dismissed on a whim. It was only following the Act of Settlement in 1701 that judges were given life-long tenure and could only be removed for misconduct. Thus, the provision inserted into the Irish Constitution was a historical response to the issue of judicial independence and was intended to ensure that the Government could not influence judicial decisions.
It was not intended to give judges a more favourable position than other public servants. This much was made clear by the case of Byrne v. The Minister for Finance in 1959 when the Chief Justice of the time, Maguire CJ, dismissed a claim that Article 35.5 meant that judges’ salaries could not be made subject to income tax as this amounted to a reduction in remuneration. It was made clear that the purpose of the provision was “to safeguard the independence of the judiciary from control or inroads by the executive and not to exempt the remuneration of judges of the High Court and Supreme Court from taxation common to all citizens.” The Chief Justice also remarked that “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 could not be said to be an attack upon his independence.” The precedent set out here would surely answer any constitutional challenge to legislation which purported to include judges in the public sector pay-cuts.
Unfortunately, it seems the Government and Attorney General have taken a different interpretation and we are now faced with a referendum in order to allow for the reduction of the judges’ salaries. The newly proposed Sections 2 and 3 of Article 35.5 will read:
“2° The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class.
3° Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.”
Regrettably, the proposed provision is quite vague; there is no definition of the word “class” and the criterion of public interest is nebulous in that most governmental actions are said to be in the interest of the public. However, while the provision could have been worded better, claims that it amounts to an attack on the independence of the judiciary are exaggerated. What seems to have been forgotten (and Professor David Gwynn Morgan has alluded to this in a recent letter to the Irish Times) is that this provision, if passed would still have to be interpreted in light of the Constitution as a whole. Even allowing for an expansive interpretation of the new provision which, it has been argued, might allow for an unfair reduction in judges’ salaries, there are adequate safeguards already in the Constitution to prevent this occurrence, including Article 35.2 which protects the independence of the judiciary.
Furthermore, as Dr Eoin Daly has pointed out in an earlier post, “In the Paperlink case, Costello J. held that the nature of the Constitution as ‘a political instrument as well as a legal document’ means that a ‘purposive’ rather than a literal approach is appropriate to its interpretation.” The purpose of the amendment is to allow judicial remuneration to be reduced in line with the public sector pay-cuts, thus, any governmental action which discriminated against judges or threatened to undermine the independence of the judiciary would still be unconstitutional.
Those who would like to make judges subject to the general pay-cuts but who fear that the amendment will result in an incursion of the rights and the independence of judges should rest easy in the knowledge that the rest of the Constitution will not be negated by the proposed amendment. On the contrary, a harmonious reading of the Constitution will ensure that the provision is quite harmless and will do what it is intended to do.
Laura
You may well be right that any change would be harmless to judicial independance but I would rather not take that chance. The whole point of the Constitution is to ensure that the Executive does not hold so much power that it can abuse its power and the People’s trust. While many Citizens may be persuaded to support a reduction in judicial pay they are not voting for a reduction but to empower the executive to have a level of control over the Judicial Arm of the State, even if, seeminly harmless and innocuous. We have previously seen what can come of things when Governments persuade the electorate to support things that will not effect the ordinary decent man on the street, -things like the right to silence, Jury Trial, terrorist laws, temporary powers they were nearly all passed off as things that would not adversely effect the adminsitration of justice and fair trials –there are many examples around the world, as well as in Ireland, who thought voting for things that gave their governments greater powers, the arguements were the same then as you suggest now, that in the scheme of things it is no big deal. Whole peoples and marginalised groups learned differently that watering down Constitution rights and previlages did effect Justice –they learned the hard way. We can poo poo empowering the Executive to reduce existing Judges pay for what overall may save nothing in comparison to what it could cost. That a Judge’s pay is Constitutionally protected is not a begrudged previlage that only Judges enjoy, but on occassion, State accused persons have escaped the prejudice, bias and desires of various Governments down the years and that is not to be dismissed as ‘much ado about nothing’.
Hi Christy,
Thank you for your comment. I agree with you that it is important to ensure that the Executive does not hold an inordinate amount of power over the other branches of government. However, I do not believe that this amendment would result in such power being given to the Executive. It does not give a general power to reduce judicial remuneration at random. It provides for a specific circumstance only and, as I mentioned in the post, there are already adequate safeguards contained in the Constitution to ensure that even if an attempt was made by the Government to undermine the independence of the Judiciary, this would not be possible under the Constitution.
Hi Laura
I appreciate that you did make emphasis that there are ‘already adequate safeguards contained in the Constitution’. Common Law has been developed over the centuries and it is from long, and often costly, experience that certain fundamental principles are considered to be so important, and the architects of our Constitution had benefit from both centuries of experience in Ireland and reflection on the French and US models. Law is often a very precis and exact beast that only minor tampering with one principle can have a greater impact upon another at the Citizens detriment. Only from actual cases going before the Courts can anyone know for sure if ‘adequate safeguards’ remain. There is not one draconian law that has ever been introduced in these islands that politicians have not argued in their favour on ground that ‘adequate safeguards’ remain and the ‘innocent’ citizen need not worry. Why should the citizens of Ireland give up one safeguard on political assurance that suffient others remain? Fiona de Londras makes good argument on the financial arguments why we should not be swayed because of immediate financial concerns. As the Constitution stands as is at present it is not to ensure the enrichment of Judges but to protect the Citizen from the State.
In our neighbouring country Lord Nicholls of Birkenhead makes clear that the administration of justice protects individuals against abuses by those to whom we entrust power,
“Every court has an inherent power and duty to prevent abuse of its
process. This is a fundamental principle of the rule of law. By recourse to
this principle courts ensure that executive agents of the state do not misuse
the coercive, law enforcement functions of the courts and thereby oppress
citizens of the state. … The role of the courts is to stand between the state
and its citizens and make sure this does not happen.” R v Loosely [2001] UKHL 53, 2001 WL 1171942
Unlike our counterparts the Irish Citizen possesses the responsibility to safeguarding the independance and integrity of the Judiciary. Constitutional safeguards should not be bartered for no other reason than the current financial state of the market place which by its nature perpetually fluctuates every so often; and on assurances from politicians that to do so will cause no harm. Maybe it will cause no harm but there is no compelling reasons why we should put that to the test and give up what we already have.
Hi Christy,
For a compelling reason, see Professor David Gwynn Morgan’s letters to the Editor of the Irish Times and Dr Eoin Daly’s post on this website. Both academics highlight the danger of the creation of a privileged elite by failing to subject the judiciary to the same rules as the general public.
Hi Laura,
I did not find them compelling they both seem to think that judicial greed is what matters and encroachments on independance are baseless and unmerited concerns that only lawyers will argue.
If one were to apply a purposive reading of article 35.5 then judicial pay levels can be addressed without need for any amendments. A judge’s paylevel is a negotiable contract at various stages throughout the life time of any judge –it does not remain static from inception but can, for example, take into account promotions or demotions. At these stages it is instated as a completely new contract that cannot be reduced during his/her time in that office. At these stages of negotation there is nothing in the Constitution that guarantees that a judges pay will rise and not fall; a matter that neither gentleman to whom you refer seem to take into account. In the early 1980′s I myself was asked by my employer to take a pay cut. The company involved could not legally impose it and my acceptance required signing of a new contract. In the over exagerated ‘class condition’ attached to the amendment, ie, for example, that some scheme would be hatched that nurses pay would not be cut to mask an attack on Judges pay serves little point other than demean what is at stake. In fact such arguments further highlight the dangers to the integrity of the judicial arm –especially should they ever have to join nurses and other public sector workers on a picket line over wages desputes –that would make a mockery of justice.
I think we will have to agree to disagree!
No I think more accurately I gave regard to your arguments and you passed over mine.
PS: If your, and both, Professor David Gwynn Morgan and Dr Eoin Daly’s arguments were correct then the Judiciary could justifiably become involved in future pay disputes as any other public sector –if that were to occur and with the same frequency as nurses often need to strike or protest over pay then that would be clear evidence that judicial independance would be a politically negotiable commodity attached to wages.
Laura’s post is about the most sensible thing I have read written about the constitutional amendment. The idea that this government or any government would choose to wield so public, limited and counter-productive a weapon as a blanket pay cut to all judges is wildly implausible. You don’t ensure judicial compliance with government whim by docking them all, you do it by creating an ability to reward compliant judges over those that are not. Insofar as pay is a tactic to that end, the constitutional change still retains this most essential safeguard.
That said, Fiona is quite right in the other post that it could have been better drafted and referred to an independent body. Nevertheless, in a few year’s time this will be a neglected, no-brainer curio, like the abolition of the death penalty
Hi P Mac
The argument that “The idea that this government or any government would choose to wield so public, limited and counter-productive a weapon as a blanket pay cut to all judges is wildly implausible.” is of little more than sensationalism. I have not seen that put forward by anyone as grounds for why people should vote No. It is been an overhyped argument by you and others.
If the Government can tamper with the judiciaries wages as it can with nurses wages then Judges would be entitled, at times, to publically protest and complain as we have seen of nurses and any other public sector compalin about wages –that would not only be unseemly behaviour for Judges but clear evidence of a loss of independance from government –to whom they would then be dependant upon for wage settlements in any disputes. Defend that as sensationally as you like.
Judges are entitled to protest. Their protests are however misguided and self-serving,. See above.
Hi P Mac
You should read and try to understand the above –and Dr Eoin Daly’s post on this website! Where it is correctly pointed out how Judges have inappropriately protested prior to yesteday’s vote. BUT, if Judges are subject to the same political wheeling and dealing over wages as Nurses are often subject to –then they too WOULD BE entitled to protest as they have done previously inapproriately –as they too would be in Solidarity with Nurses and other public sector workers. Etiquet may prevent them from picketing outside of their place of employment and their protest may even be less public generally which would make matters even more worrisome. They would be in direct negotiation with Government Ministers over their wages –where questions of what give and take may be involved –that would be a real risk upon the Administration of Justice.
I completely agree with Laura C, she makes a solid argument.