The Four Courts
Clare Kelly | Contributing Writer
Two weeks ago, while speaking at a business lunch, Mr. Justice Peter Kelly of the High Court claimed that the government is demolishing judicial independence ‘brick by brick;’ a claim which his colleagues have subsequently supported. Since then, much media attention has been given to the unprecedented row which is unfolding between these two organs of state.
Many dismiss complaints by the judges as being founded solely on their grievances over recent reductions in their salaries: simply pompous old men in wigs, unwilling to share in the current economic hardship. Such a claim, however, is grossly misguided and unenlightened. It is a rather sad state of affairs that our national media, who should be privy in political and legal affairs, have failed to recognise the significance of the current debacle.
What should alert any political or legal correspondent is the unprecedented nature of the current saga. That, in itself, speaks volumes of the seriousness of the matter. Rarely, if ever, before in any common law country have judges taken to the national media to voice their concerns over the erosion of the democratic separation of powers. The very fact that this is what the Irish Judiciary have now done necessitates a more serious approach and evaluation of their claims.
The Need for Judicial Independence
First, it is important that we are all aware of what is meant by the whole concept of judicial independence. Despite what some commentators might let you believe, it is not to protect fat-cat lawyers from the ambit of executive control. Judicial independence is a vital feature of a democratic system, which is there to protect citizens from an encroaching state.
Judges are the interpreters of our Constitution, guardians of our rights and are often the last line of defence against extortionate political power. In the administration of justice the judiciary should not be subject to adverse pressure from any sphere; be it the executive or legislative, interest groups or commercial organisations. The need for judicial independence is for the good of all members of society. This is something which is quite commonly misconstrued, with headline-grabbers in the media nowadays often focusing more on scrutinising the independence of the judiciary rather than realising its societal worth. The Constitution belongs to the people of Ireland and if judges, who are the guardians of that Constitution, are pressured to reach a particular decision in fear of losing their job, receiving a reduction in their incomes or losing out in commercial interests, it is society who will suffer. An independent judiciary is indispensable to justice in our society.
The courts have, on many occasions, protected citizens and enforced their rights against an uncompromising government. It was the Courts that recognised a citizen’s right to use contraceptives; it was the Courts that insisted that a citizen has a right to travel without arbitrary interference; and it was the courts that ensure referenda are conducted fairly. When the government fails to act in an appropriate manner, it is to the courts citizens turn for protection. Without an independent and strong judiciary the future protection of citizens’ and minority rights would be uncertain.
The Current Debacle
As judges are required by constitutional oath to be impartial and apolitical, they are essentially prevented from effectively voicing their concerns. This has led to the heavily one-sided debate and misunderstanding of the situation, that has occurred through the national media over the last few days. It is understandable that the majority of citizens, not having a legal education, are not as aware of the importance of an independent judiciary in our democratic system of governance as would perhaps be ideal. However, that does not mean that their understanding of the current debacle should be manipulated by journalists and government ministers who have their own agendas to push.
What has caused the sudden judicial backlash against the government? Primarily it relates to the recent Constitutional amendment to Article 35.5 which allows for the government to reduce judicial pay during continuance in office in line with reductions received by others paid out of the public purse. However, it is imperative to recognise that it is not the reduction in pay, per se, which is a matter for concern; rather the way this is achieved.
Prior to the passing of the amendment, there was concern within legal circles of the possible dangers to the separation of powers the proposed process for reducing judicial salaries could cause. The Irish Judiciary called for an independent body to be charged with setting pay reductions; which, in itself, was an indication that they accepted they should share the country’s economic hardship. However, Alan Shatter, the Minister for Justice, ruled this out. He opined that by doing so would be to treat judges differently to other members of the public service. He, therefore, failed to recognise that judges are not public servants but Constitutional office holders and that the purpose of Article 35.5, in its original state, was that, given their important and crucial role in our democratic system, they should be treated accordingly.
In only two other common law jurisdictions in the world, Canada and Hong Kong, can judges’ remuneration be reduced during their continuance in office: In Canada this can only be done subject to prior recourse to an independent body.
The change which has occurred to the Irish Constitution is unprecedented, undoing a principle that has existed in Ireland since Act of Settlement in 1701. One year on, the repercussions are already becoming apparent. Relations between the government and the judiciary are at an all-time low and it seems, unless something is done, that it can only get worse. As Micheal Martin warned; this could become a ‘full-blown constitutional crisis.’ If it does it is us, the citizens of Ireland, who will pay the price. Prior to the passing of that amendment, Alan Shatter estimated that this amendment would save Ireland an estimated €5.5 million per annum. Surely we value our democracy at a higher level than that?
