Sir, – Conor Walsh’s letter (June 28th), questioning who would hear a constitutional challenge to any judges’ pay amendment, suffers from a basic misunderstanding.
The fact is that, once an amendment has been passed by the people at referendum, it cannot then be challenged in any way in court. As for the separate, but related, question – of who would hear any such challenge to a compulsory levy on judges’ pay, in the absence of such an amendment – the answer is that necessity is a defence to the usual rule against bias which is contained in the concept of natural justice.
In other words, given that we have no other body capable of assessing the constitutionality of such a measure, the judiciary must necessarily do so, regardless of concerns which Mr Walsh may have about its ability to do so impartially.
On the evidence, I would suggest that one should perhaps not despair too much in this regard. The last time a case was mounted in our courts in these circumstances (O’Byrne v Minister for Finance, 1959), the Supreme Court found against the judge concerned in the following terms: “The purpose of the Article is to safeguard the independence of judges. 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.” – Yours, etc,
Sir, – I refer to your headline article (Front page, June 25th). There is no convention that judges can’t return to the bar. There is a convention, but not in those exact terms, the distinction is slight but there nonetheless – you can go back but you do your work in courts at a higher level than those in which you sat as a judge.
Therefore High or Supreme Court judges who wished to return to the bar could not do so in the latter case as there is no higher domestic court and in the former case could not make a living from a Supreme Court practice alone.
As the co-author of a text book on Irish arbitration law it behoves me to suggest that any retired judge could of course sit as an arbitrator or mediator. Lastly any judge appointed from 1996 onwards, when the 1995 Courts and Courts Officers Act had been enacted, retires at 70 and not 72 as suggested. – Yours, etc,