MINISTER FOR Justice Dermot Ahern has discounted the prospect of a referendum on the constitutional provision which excludes the judiciary from the public service pension levy.
And he specifically ruled out any referendum taking place on the same day as the Lisbon Treaty referendum in October.
“If I’m asked tomorrow whether we should have any referendum tagged on to the Lisbon Treaty my view would be absolutely not,” he said.
He also said he was absolutely satisfied, following advice from the Attorney General, that he did not have the power to compel the judges to take a cut.
Mr Ahern was responding to comments by the Limerick West Fianna Fáil TD Niall Collins who called for a referendum to be held, following the disclosure that, to date, only 19 of 148 judges have taken voluntary pay reductions.
The Attorney General Paul Gallagher advised the Government that the pension levy could not be made applicable to judges under Article 35.5. A voluntary scheme was arranged between the Chief Justice John Murray and the chairwoman of the Revenue Commissioners Josephine Feehily, in May.
Mr Collins said yesterday that the judges were a “group of elite untouchables” who should be made subject to regular procedures that applied to other public servants.
“In the modern day being protected by the Constitution is simply not good enough given that many thousands of people and their families are suffering falling incomes and job losses,” he said.
However, the voluntary scheme was strongly defended by Taoiseach Brian Cowen, who said that it wasn’t necessarily the case that judges who had not yet made a donation would not be doing so, “I think there is a reasonable expectation that in due course this issue will be such that . . . the arrangement that have been made with Revenue can be made applicable to [judges],” he said.
The Fine Gael and Labour justice spokesmen separately challenged the advice of the Attorney General that the pension levy could not be applied to judges.
Charlie Flanagan of Fine Gael said it was unjust in any society that any elite should be treated differently in terms of pay and conditions. Pointing to the salaries which range from €147,000 for a district judge to €295,000 for the Chief Justice he said that Irish judges were among the highest paid in the world.
He said that his “broad interpretation” of Article 35.5 was that “judges should pay this levy by legal means”.
That view was echoed by Labour TD Pat Rabbitte who said that the pension levy was a form of tax. He said the Supreme Court had held in 1959 that income tax was deemed to be of general application and applied to judges.
“I think that the pension levy can also be deemed to be of general application.
“It may have been best if the Government had made plain from the beginning that the pension levy for the duration of the economic crisis applied to every one paid from the public purse with no exceptions,” said Mr Rabbitte.
The retired High Court Judge Feargus Flood said judges had to make their own decisions on what to do. He said it was not a matter for the Government to put pressure on them.
Statement Issued By The Chief Justice, Mr Justice John L. Murray
IN ORDER to comply with the requirements of independence, the judiciary do not normally make public statements on matters of public controversy, even where criticism of the judiciary may be involved.
However, I am concerned that there are misapprehensions, which in turn have led to misleading statements, concerning the operation of the scheme for voluntary payments by the judiciary in relation to the pension levy.
Exceptionally therefore I have considered it necessary to issue this statement which I hope, by referring to certain objective facts, will provide a better and more accurate understanding of the position.
For reasons set out below, the judiciary, in circumstances which were not of their own choosing, sought and obtained, in the national interest, arrangements for the payment of voluntary contributions which they were not otherwise obliged to make. These arrangements were put in place by the Revenue Commissioners.
They are now only in place for a relatively short period. The Revenue arrangements provide for voluntary payments to be made at different stages so that judges could voluntarily contribute a sum equal to what they would have paid in any given year if the pension levy had applied. The fact that within the terms of those arrangements a judge has not yet made a payment cannot and does not mean that he or she has refused or will decline to do so. The due date for some forms of payment provided for by the Revenue Commissioners has not yet arisen.
When the Government introduced the pension levy by way of deduction from public service pay, it was decided on the basis of Article 35 of the Constitution that the Act introducing the levy could not apply to judicial pay. Article 35.5 provides “The remuneration of a judge shall not be reduced during his continuation in office.”
That provision of the Constitution, as adopted by the people, was not inserted for the benefit for or at the wish of the judiciary but as one of the elements in ensuring that they, the people, have an independent judiciary free from government pressure or retribution for decisions considered unfavourable to it.
That provision is also consistent with contemporary international principles on the independence of judges including those adopted by the Council of Europe.
Members of the judiciary considered it a matter of duty to seek ways to meet the constitutional inhibition while at the same time respecting the spirit of the Constitution (hence the confidentiality concerning individual contributions).
In circumstances where judges were placed in a position that the levy to be imposed on pensions did not apply to them, I made contact with the chairman of the Revenue Commissioners, Ms Josephine Feehily, with a view to ascertaining what arrangements could be put in place to enable judges to make an appropriate voluntary contribution.
As a result of this judicial initiative, a detailed document of some eight pages was produced by the Revenue Commissioners setting out the arrangements which they had put in place to allow voluntary payments to be made. This would have been received by post by most members of the judiciary by Monday 11th May last.
The arrangements put in place by the Revenue Commissioners allow for voluntary contributions to be paid on a (i) monthly, (ii) quarterly or (iii) annual basis. The statutory levy is imposed by reference to a percentage of gross annual salary.
These Revenue arrangements facilitate judges in making a voluntary contribution equivalent to the sum they would have paid in any given year if that levy applied.
Unfair and misleading statements have been made concerning the position of the judiciary such as to the effect that all those who have not yet made a voluntary contribution have refused to do so.
Although the making of contributions is necessarily voluntary and the decision of each judge with regard to them must be a matter for him or her, I expect that as the arrangements put in place by the Revenue Commissioners are allowed to operate according to the terms laid down by them, there will be a strong and continuous participation in it.