OPINION:ARTICLE 36 of the Constitution enables the Oireachtas to regulate "the remuneration, age of retirement and pensions" of the judiciary. However, to preserve judicial independence from influence by government, Article 35.5 states that "the remuneration of a judge shall not be reduced during his continuance in office", writes ALAN SHATTER
In the 1958 landmark judgment of O’Byrne v Minister for Finance, the Supreme Court rejected the contention of deceased Supreme Court judge John O’Byrne’s widow that this provision precluded the State from imposing income tax on his salary. Chief Justice Maguire asserted 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 cannot be said to be an attack upon his independence”. However, both Chief Justice Maguire and other court members distinguished between imposing on judges’ non-discriminatory taxes common to all and a tax particular to a judge which would, in the words of Mr Justice Kingsmill-Moore, “worsen his position vis-a-vis the rest of the citizens of the State”.
In last week’s Budget speech, Brian Lenihan stated that the Review Body on Higher Remuneration in the Public Sector concluded that Article 35.5 of the Constitution prevented it from recommending a reduction in judicial pay. Consequently, the Financial Emergency Measures in the Public Interest (No2) Bill 2009, before the Dáil today, which implements the Budget’s reductions in public sector pay, expressly excludes their application to judges.
For the same reason, last spring the Government did not apply the public sector pension levy to judges. This exclusion was consistent with the 1996 Supreme Court decision in District Judge McMenamin v Ireland in which “remuneration” was held to include pension entitlements as “deferred remuneration”.
However, this is more questionable because Article 36.1 distinguishes between “remuneration” and “pensions” and Article 35.5 only expressly applies to “remuneration”. Moreover, the levy would not have reduced judicial pensions but imposed a non-discriminatory charge consistent with the pension levy imposed across the public sector.
Presumably to avoid the possibility of getting entangled in difficult litigation with an uncertain outcome, the Government excluded judges from the pension levy. However, at its urging, the Chief Justice and the presidents of the District, Circuit and High Courts have reportedly encouraged all judges to pay the pension levy voluntarily. Interestingly, the Minister announced that the Finance Bill 2010 will contain provisions to facilitate such voluntary levy payments, but not to facilitate any voluntary salary reductions or repayments.
The explanatory memorandum of the Bill to reduce public sector pay explains its introduction in the context of “the priority being given to the stabilisation of the public finances, including the need to achieve an adjustment of over €1 billion in the public sector pay and pensions bill in 2010”.
It is inevitable that there will be calls on the judiciary to volunteer a pay cut. We have been here before. In an article in The Irish Law Times(No 19, 2009) Donal K Coffey records that in 1932 then chief justice Hugh Kennedy rejected a request from minister for finance Ernest Blythe that the judiciary contribute "towards solving a national problem" by reducing their pay voluntarily. The Free State Constitution contained provisions similar to Article 35.5 and Kennedy perceived the request as setting the judiciary apart from other citizens in receipt of similar income and as an attack on judicial independence. The Fianna Fáil government that followed in 1933 also attempted but failed to achieve a reduction in judicial pay.
The separation of powers and the independence of the judiciary is a core value at the heart of our constitutional democracy. The Government’s targeting the judiciary by calling for voluntary pension levy payments or salary reductions may understandably generate public support but flagrantly disregards this core value and sets a dangerous precedent.
The revelation by the Revenue or the Minister for Finance of the percentage of judges who have “voluntarily” paid the levy may be followed by calls to publish the names of who did and who didn’t. This could lead to a public perception that the judiciary are susceptible to government pressure and to some members of the judiciary believing that only those who co-operate will be in line for promotion.
This is a very slippery slope.
Not only must the independence of the judiciary be preserved, but public respect for it must be maintained. Our judges should not be perceived as succumbing to political pressure or as an elite living in a financial ivory tower immune from the financial emergency confronting the State. The financial disaster which the Government has visited on us all was never anticipated when the 1937 Constitution was adopted. Constitutional change is now needed to address the exceptional circumstances we are living through.
In the Dáil on November 17th last, I introduced the 29th Amendment of the Constitution Bill 2009. The Bill passed first stage that day and second stage will be debated early in the new year. It proposes that Article 35.5 be replaced by way of a referendum by the following: “The remuneration of a judge shall not be reduced during his continuance in office, save where it is necessary to address a serious threat to the State’s economy, there is a compelling need to stabilise the State’s finances and as a consequence it is necessary to effect a reduction in public service remuneration. In such circumstances, any reduction in the remuneration of all public servants or in the remuneration of a class of public servants may be applied to effect a comparable reduction in the remuneration of all members of the judiciary.”
Some €3 million was earmarked in the Budget to hold a children’s rights referendum in 2010. At minimal additional expense, a referendum on judicial remuneration could be held on the same day.
Government support would facilitate this change while maintaining our constitutional core value of the separation of powers and the preservation of judicial independence. It would also facilitate extending the pension levy to the judiciary without the Government dangerously attempting to use public pressure to influence judicial conduct.
Alan Shatter is Fine Gael frontbench spokesman on children