THE CONTROVERSY between the Government and judiciary over a referendum to allow cuts to judges’ pay raises issues about the nature of our democracy and the place in it of judicial independence that require careful consideration. This means separating the issue of cutting judges’ pay from that of the mechanism through which this may be achieved.
There is no doubt that judges in Ireland are paid very well, and, with certain other professionals, their pay has increased much more in recent years than that of other workers. Few people, and indeed few judges, would argue that, in the context of the economic crisis, judicial pay should not be cut in line with similar cuts to the pay of others paid out of the public purse. Were judges to be exempt from sharing in the burden of resolving our crisis, it would rightly be perceived as unfair and would impact adversely on the regard in which they are held.
Reducing the pay of serving judges is prohibited by the Constitution, so a reduction requires a constitutional amendment. This prohibition follows the practice in all countries in the common law tradition, including the UK, the US, Australia and Canada, and this principle has also been endorsed by international bodies representing the civil law tradition. While judicial independence is about much more than pay, providing for security of tenure and remuneration for judges has been seen as a cornerstone of democracy for centuries. This is because of the role of judges as independent arbiters of disputes between citizens and between citizens and the state. If their pay could be reduced by the executive, judges could feel constrained in ruling on matters of concern to that executive.
Judges, therefore, are not public servants in the sense that civil servants are. The latter work directly for the executive branch of government while judges are direct servants of the people, described as a separate branch of government by the Constitution.
While this may not always be obvious, particularly in the context of our very political system of judicial appointments where it is known that individuals have lobbied politically for appointment to the bench, it is a principle enshrined in our Constitution and one worth upholding. Otherwise citizens would have nowhere to turn when they feel their rights are infringed by organs of the State.
The proposed referendum on an amendment to permit a reduction in judicial remuneration, on a non-discriminatory basis, must therefore include a mechanism that respects the independence of the judiciary and the debate must embrace the issue of independence.
The apparent breakdown of communications in recent weeks between the judiciary and the executive has led some judges to consider where they now stand in our society. Some are even considering their continued role as judges. Were they openly to challenge the executive, or were there to be large-scale resignations, this could lead to a constitutional crisis that our battered credibility does not need at the moment. A resolution to the impasse needs to be found.