Ireland and Judicial (In)dependence in Light of the Twenty-Ninth Amendment to the Constitution
| Author | Clare Elizabeth Kelly |
| Position | Senior Sophister LLB (Law and Political Science) Candidate and Scholar, Trinity College Dublin |
| Pages | 15-41 |
© Clare Elizabeth Kelly and Dublin University Law Society
IRELAND AND JUDICIAL (IN)DEPENDENCE IN
LIGHT OF THE TWENTY-NINTH AMENDMENT TO
THE CONSTITUTION
CLARE ELIZABETH KELLY
“It is clear that when men seek for what is just they seek for what is
impartial; for the law is that which is impartial.”
1
INTRODUCTION
The Irish Constitution (Bunreacht na hÉireann) provides for a democratic
system of government, founded upon a tripartite separation of powers.
2
It
prescribes the rights and duties of the legislature, the executive and the
judiciary, as well as imposing limits to the capacity of their functions.
3
The
division of powers is vital in any democracy as it provides checks and
balances, restricting any particular branch from accumulating an excessive
amount of power which would lead to a slip from democratic rule to
tyrannical rule.
4
The Twenty-Ninth Amendment to the Irish Constitution confers
power on the executive and legislative branches (‘the Government’) to
reduce the remuneration of judges during continuance in office.
5
This brings
into question the proper relationship between the judiciary and the other
constitutional organs of state in the Irish constitutional democracy. In its
Senior Sophister LLB (Law and Political Science) Candidate and Scholar, Trinity College
Dublin. The author would like to dedicate this article to her parents, Cyril and Patricia. The
author would also like to extend a special thanks to Aisling Murray for her helpful analysis and
is also grateful to Professor Gerry Whyte for his insightful comments.
1
Huntington Cairns, Legal Philosophy from Plato to Hegel (The John Hopkins Press, 1949),
at. 114.
2
Article 6.1 recognises the “powers of government” as “the legislative, executive and judicial.”
3
Articles 15-27 of the Constitution of Ireland 1937 concern the legislature, Article 28 the
executive and Articles 34-37 the judiciary.
4
The Constitution does not explicitly refer to a ‘separation of powers’, but same is inherent in,
among other things, the democratic nature of the state and the division of the power of
government into the three branches. See TD v Minister for Education [2001] IESC 101, [2001]
5
Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Act, 2011.
2015] Judicial (In)dependence 16
original state Article 35.5 provided that “[t]he remuneration of a judge shall
not be reduced during his continuance in office.” Secured remuneration has
traditionally been regarded as an integral component in the effort to
maintain judicial independence in the exercise of the Courts’ constitutional
duties. The Amendment to Article 35.5, passed by a large majority of voters,
reflected citizens’ desire that judges should not be immune from the
economic hardship which the country was experiencing.
6
For some,
however, particularly those well versed on the operation of the legal system,
there was concern over the possible implications the provision could have
on the independence of the Irish judiciary, and thus the important societal
goals that independence exists to protect.
7
These fears primarily resulted
from the fact that any reduction made in line with the provision could be
effected by the government alone, restricted only by vague criteria
stipulated in the provision. Since its passing, relatively little academic
attention has been given to the real and practical implications of this
Amendment on the integrity and independence of the Irish judiciary.
However, should the powers under the Twenty Ninth Amendment be
invoked without recourse to an independent commission, there is a danger
that the democratic principles of the separation of powers and judicial
independence will be undermined.
The principal contention of this article is that, in order to alleviate
these concerns, an independent judicial pay commission should be
established in order to secure a meaningful separation between the judicial,
and executive and legislative organs of State. The primary authority this
argument will be based on is the judgment of the Canadian Supreme Court
in a case known as the Provincial Judges Reference.
8
Based on a very
similar set of circumstances as now exists in Ireland, it was held, in a six-
6
The Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Bill, 2011 was
adopted on a vote of 1,393,877 (79.74 per cent) in favour and 354,134 (20.26 per cent) against.
The turnout was 55.96 per cent.
January 2015).
7
See for example, Law Society of Ireland, News Release: Law Society of Ireland expresses
grave concerns about Constitutional Referenda on Parliamentary Inquiries and Judicial Pay,
19 October 2011.
referenda_171011.pdf> (visited 27 January 2015).
8
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (No.
24508), Reference re Independence and Impartiality of Judges of the Provincial Court of
Prince Edward (No. 24778), R. v. Campbell, R. v. Ekmecic and R. v. Wickman (No. 24831),
and Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice) (No. 24846) [1997] 3
17 Trinity College Law Review [vol 18
one majority,
9
that in order to ensure the actual and perceived independence
of the judiciary is maintained, a judicial pay commission must be established
and interposed between the judicial and governmental powers. It will be
argued that the need for such a commission in Ireland can be inferred by
interpreting Article 35.5 harmoniously with other provisions of the
Constitution.
In Section 1 the Twenty-Ninth Amendment to the Constitution will be
scrutinised. The judiciary’s role in the Irish constitutional setting, the
components of judicial independence and its importance will be considered
in Section 2. The relationship between remuneration and judicial pay will
be set out in Section 3; first by examining the effects, if any, of the actual
level of judicial pay and subsequently, and more importantly, looking at the
ways in which any reduction to judicial pay can best be achieved while
upholding the principle of judicial independence. Following this, in Section
4, the focus of the article will examine foreign precedent on the issue of
judicial pay. In particular, the Canadian Supreme Court reasoning and
Judgement in the Provincial Judges Reference will be analysed. Section 5
will apply the reasoning of this Canadian jurisprudence to the Irish context.
It will thus be suggested that a proper interpretation of Article 35.5 would
imply that an independent judicial pay commission should be established in
order to uphold the vital constitutional principle of judicial independence.
I. The Twenty-Ninth Amendment
The Twenty-Ninth amendment to the Irish Constitution brings the
democratic principle of judicial independence into centre focus. The new
provision provides:
35.5.1° The remuneration of judges shall not be reduced during their
continuance in office save in accordance with this section.
2° The remuneration of judges is subject to the imposition of taxes,
levies or other charges that are imposed by law on persons generally
or persons belonging to a particular class.
3° Where, before or after the enactment of this section, reductions
have been or are made by law to the remuneration of persons
9
Lamer CJ giving the majority judgment with whom L'Heureux-Dubé, Sopinka, Gonthier,
Cory and Iacobucci JJ concurred. La Forest J giving the lone dissenting judgment.
2015] Judicial (In)dependence 18
belonging to classes of persons whose remuneration is paid out of
public money and such law states that those reductions are in the
public interest, provision may also be made by law to make
proportionate reductions to the remuneration of judges.
10
Simply put, this 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. Given the economic crisis at hand, this objective is, in
principle, understandable. However, the amendment gives rise to three
primary concerns. The dominant source of concern is the ambiguity of the
Amendment’s wording. First, the provision stipulates that the law must
simply “state” that any reduction is in the public interest. This obviates a
requirement that the reduction either is objectively perceived as being in the
public interest, or is, as a matter of fact, in the public interest. Any reduction
in governmental expenditure could be “stated” to be in the public interest;
whether it actually is, is a separate matter. Indeed, stating that the reduction
is in the public interest does not even require that the government itself
believes it is in the public interest; they simply have to state that it is,
something an unscrupulous government, by definition, would have a
disposition to doing. Secondly, the provision requires that this reduction
must be done “by law”. At first glance this appears to be an adequate
safeguard to judicial independence, limiting the ability of an unscrupulous
executive to abuse the power conferred by this Article by requiring that the
Oireachtas approve the measure. In practice, however, this aspiration is not
realised. The redundancy of this apparent safeguard becomes apparent when
one considers that the executive controls the majority in the Dail, whom
through the use of the whip, can be obliged to vote in line with the
executive’s wishes.
Furthermore, the direct involvement of the Oireachtas does not
alleviate but rather compounds the separation of powers problem in terms
of judicial remuneration, because their involvement shrinks the “separation”
between all the organs of state. Finally, the guidance on the membership of
the “class of persons” who must similarly be subject to a reduction in
remuneration in order for judicial salaries to be reduced in accordance with
the provision is limited to the condition that they must also be “paid out of
public money.” This gives the legislature a wide discretion in construction
of “classes of persons.” If the government were to construct these
requirements narrowly, by, for example, identifying a relatively negligible
10
Article 35.5.
19 Trinity College Law Review [vol 18
“class” who meet these requirements this supposed safeguard would also
become futile. As a brief aside, it is interesting to note that a similar
provision to the old Article 35.5 which applies in relation to the President
of Ireland remains unchanged.
11
The failure to put this provision in relation
to the President to referendum, and thus leave him exempt from any
reduction in remuneration, seems to be at odds with the government’s
apparent desire that all those paid out of public monies should be subject to
the government’s austerity measures.
Overall, the lack of specificity in the provision, results in a failure to
protect against the possibility of an unscrupulous government using
reductions as a means of undermining judicial independence.
II. The Separation of Powers and the Role of the
Judiciary
An independent judiciary has been described as “a diamond” in a
democracy.
12
Judges are the interpreters of the Constitution, guardians of
our rights and are often the last line of defence against extortionate political
power. They are obliged to undertake their role “without fear or favour,
affection or ill-will towards any man.”
13
In the administration of justice the
judiciary should not be subject to adverse pressure from any sphere; be it
the executive or legislature, interest groups or commercial organisations.
14
A. Historical Origins and the Constitutional Position of the Judiciary in
Ireland
Political interference with the judiciary by the Stuart Monarchs in England
is the historical source of the Constitutional concern for judicial
11
Article 12.11.3°: “The emoluments and allowances of the President shall not be diminished
during his term of office.”
12
See for example, Lord Woolf “Should the Media and the Judiciary Be on Speaking terms?”
(2003) 38(1) Irish Jurist 25, at 27.
13
Article 34.5.1°.
14
It should be noted that the importance of an independent judiciary is recognised universally.
Article 11 of the Basic Principles on the Independence of the Judiciary, which was adopted by
the Seventh United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, states that: “The term of office of Judges, their independence, security, adequate
remuneration, conditions of service, pensions and the age of retirement shall be adequately
secured by law.” [1985] UNGARsn 36; A/RES/40/32 (29 November 1985). These U.N. Basic
Principles were endorsed by the United Nations General Assembly which later invited
governments “to respect them and to take them into account within the framework of their
national legislation and practice.” [1985] UNGARsn 148; A/RES/40/146 (13 December 1985).
2015] Judicial (In)dependence 20
independence in the Anglo-American tradition. It spread throughout the
common law world, and into Ireland, though the Act of Settlement in 1701.
In Alexander Hamilton’s Federalist Papers one finds the modern
formulation of the separation of powers that has been influential in the
subsequent establishment of modern democratic orders, including the Irish
regime.
15
Though referring to juries rather than judges, it is Montesquieu
who first identified the judiciary as a distinct branch in the tripartite
separation of powers. Even still, Montesquieu was able to recognise that of
the three powers of government “the judiciary is in some measure next to
nothing.”
16
Hamilton similarly recognised the precarious position of the
judiciary, opining that it “can never attack with success either of the other
two” organs of government and “all possible care is requisite to enable it to
defend itself against their attacks.”
17
Past experience, both in Ireland and
other jurisdictions, demonstrates the reality of Hamilton’s concerns and
illustrates the necessary co-operation and independence of the three
branches in order for the judiciary to adequately fulfil its functions.
18
B. Imperfect Separation and the Role of the Judiciary
The Constitution does not envisage a rigid separation between the three
organs.
19
In Crotty v An Taoiseach
20
Finlay CJ provided a helpful
explanation of the extent of judicial power where the legislature or executive
are concerned. The Chief Justice stated that the Court’s right to interfere in
respect of acts of the legislature is limited to examining the validity of any
impugned legislation and, if found to be inconsistent with the Constitution,
to condemn it. The Court may also be requested by the President to assess
15
For example, according to Lavery J, “[i]t is demonstrable that the founders of the State and
the framers of the Constitution were inspired by the same ideas which actuated the founders of
the United States of America which are enshrined in the Declaration of Independence and in
the Constitution of the United States.” O’Byrne v Minister for Finance [1959] IR 1, at 39.
16
Montesquieu, The Spirit of the Laws (Hafner Press, 1949), at 156
17
Federalist 78, Ian Shapiro ed. The Federalist Papers: Alexander Hamilton, James Madison,
John Jay (Yale University Press, 2009), at 292.
18
classic American example see Worcester v Georgia 31 US 515 (1832). In this case the state
government of Georgia contemptuously ignored a treaty the federal government had entered
into with the Cherokee nation that guaranteed them their nationhood. When the matter came
before the Supreme Court, Marshall CJ ordered that the government of Georgia adhere to this
treaty. In response to this, President Jackson, a supporter of the actions of the government of
Georgia, remarked; “John Marshall has made his decision; now let him enforce it!”
19
20
21 Trinity College Law Review [vol 18
the constitutionality of any Bill.
21
In respect of executive acts, the Court has
the duty to interfere with the activities of the executive in order to protect or
secure the Constitutional rights of individual litigants.
22
Ultimately, the
powers of each organ are not restricted to the powers expressly set forth in
the Constitution. Though perhaps easily stated, in practice the exercise of
these powers and carrying out of these duties, is not without uncertainty. For
example, as judges are the interpreters of the Constitution, it has been found
through universal experience that this division of governmental functions
“cannot, as a matter of practical polity, be carried out to its logical
conclusion and can only take place as an approximation”
23
C. Politico-legal Underpinnings of Judicial Independence
In understanding why judicial independence is regarded as important to a
democracy it is beneficial to consider politico-legal theory on judicial
review. The debate over whether the judiciary should have any power to
review acts of the democratically elected executive and legislature is a
divisive one. Jeremy Waldron is one of the doctrine’s most pronounced
critics. He posits that there is “no need for decisions about rights made by
legislatures to be second-guessed by Courts.”
24
Waldron advances his
arguments based upon a number of conditions about the society in question,
the most significant of which is that the society has good working
democratic institutions and that most of its citizens take rights seriously.
25
Waldron notes, “the argument against judicial review is conditional; if any
of the conditions fail, the argument may not hold.”
26
It is submitted that, in
a fundamental way, this misses the crucial point. The very argument in
favour of judicial review is that it can be utilised for the protection of
21
Article 34.4.4° and Article 26.
22
Articles 40-44.
23
24
Jeremy Waldron, “The Core of the Case against Judicial Review” (2006) 115(6) Yale Law
Journal 1346, at 1360.
25
The four conditions, as he describes them, are:(1) democratic institutions in reasonably good
working order, including a representative legislature elected on the basis of universal adult
suffrage; (2) a set of judicial institutions, again in reasonably good order, set up on a non-
representative basis to hear individual lawsuits, settle disputes, and uphold the rule of law; (3)
a commitment on the part of most members of the society and most of its officials to the idea
of individual and minority rights; and (4) persisting, substantial, and good faith disagreement
about rights (i.e., about what the commitment to rights actually amounts to and what its
implications are) among the members of the society who are committed to the idea of rights.
(Waldron, note 24, at 1360)
26
Ibid, at 1360.
2015] Judicial (In)dependence 22
citizens and their fundamental rights precisely when the workings of those
supposed democratic institutions are called into question. Judicial review is
therefore an institutional remedy for the possibility that democratic
assemblies over-step the limits of their authority, it is a safeguard against
the abuse of democratic powers.
27
In order for judicial review to perform
this role it requires administration by an independent judiciary which is
willing, where necessary, to restrain the exercise of governmental action.
An independent judiciary, like a floodwall, is put in place in anticipation
that stormy weather may lie ahead. Without this independence, judicial
review, and thus the purported protection of rights, would not function.
Ensuring judicial independence is maintained is therefore imperative for
democracies at all stage of development.
D. The Value of Judicial Independence
Judicial independence does not exist for the benefit of judges, nor is it a
remote standard which plays a minor role in the functioning of state
machinery. Rather, it is an integral facet of the common good, vital to the
Court’s role as adjudicator of rights and interpreter of the law.
28
This
collective element is something which is regularly misconstrued; the mass
media often focuses more on scrutinising the independence of the judiciary
rather than realising its societal worth. The Consultative Council of
European Judges (CCJE) affirms that judicial independence “is not a
prerogative or privilege in their [judges’] own interests, but in the interests
of the rule of law and of those seeking and expecting justice”.
29
If Judges,
who are the guardians of that Constitution, are pressured to reach a
particular decision in fear of receiving a reduction in their incomes society
will bear the cost. As the American Bar Association declares; “[a]n
independent and honourable judiciary is indispensable to justice in our
society”.
30
More concretely, the erosion of judicial independence would
infringe the universally recognised fundamental right to be heard before an
independent and impartial tribunal when facing criminal or other charges.
31
27
Thomas Christiano, The Constitution of Authority (Oxford University Press, 2010), at 278.
28
Article 6: the Judiciary’s powers must be exercised “according to the requirements of the
common good”.
29
The Consultative Council of European Judges, On Standards Concerning the Independence
of the Judiciary and the Irremovability of Judges, (2001) Opinion N°1, para. 10.
30
American Bar Association, Code of judicial Conduct, Canon 1 (1976). Quoted in Enid
Campbell and H.P. Lee eds., The Australian Judiciary (Cambridge University Press, 2001), at
159.
31
European Convention of Human Rights 1953, Article 6(1):
23 Trinity College Law Review [vol 18
Irving Kaufmant explains that equal justice demands impartiality and
impartiality demands freedom from political pressure.
32
It is the role of the
Courts to ensure decisions made by the legislative and executive branches
are compatible with the Constitution and do not encroach on citizens’ rights.
In order for justice, properly construed, to be administered, the judiciary
must be protected from the whims of state politics.
The upholding of the rule of law inherently relies on the existence of
a truly independent judiciary.
33
The World Justice Project, when devising
its rule of law index, identified the rule of law as being a system in which
four universal principles are upheld: first, the government and its officials
and agents as well as individuals and private entities are accountable under
the law; secondly, the laws are clear, publicised, stable and just, are applied
evenly, and protect fundamental rights, including the security of persons and
property; thirdly, the process by which the laws are enacted, administered
and enforced is accessible, fair and efficient; fourthly, justice is delivered
timely by competent, ethical, and independent representatives and neutrals,
who are of sufficient number, have adequate resources, and reflect the
make-up of the communities they serve.
34
It is clear that all four of these
components are threatened when the independence of the judiciary is.
A judiciary under the manipulation of the executive and legislature
would erode the ability of the Court to act as the guarantor and protector of
fundamental rights. Gavan Duffy P’s strong and resonating defence of the
independence of the Courts in Buckley v Attorney General
35
stands out as a
shining example of the determination of our Courts to protect individuals
from an unscrupulous government, epitomised by his exclamation that the
“In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law.”
32
Irving Kaufmant, “Chilling Judicial Independence” (1979) 88 Yale Law Journal 681, at 684.
33
The Secretary-General of the United Nations defined the rule of law in the following terms:
A principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with international human
rights, norms and standards. It requires, as well, measures to ensure adherence to the principles
of supremacy of law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-making, legal certainty,
avoidance of arbitrariness and procedural and legal transparency.
Report of the Secretary-General of the United Nations, The Rule of Law and Transitional
Justice in Conflict and Post-conflict Societies S/2004/616, para. 6, 4.
34
The World Justice Project, Rule of Law Index 2014.
df> (visited 1 February 2015), at 4.
35
Buckley v Attorney General [1950] IR 67.
2015] Judicial (In)dependence 24
High Court “cannot, in defence to an act of the Oireachtas, abdicate its
proper jurisdiction to administer justice in a cause whereof it is duly
seized.”
36
Furthermore, the circumstances of this case demonstrate that it
not beyond an Irish government to act unscrupulously. While an action in
relation to funds lodged in the High Court by the former trustees of Sinn
Féin was pending, the legislature passed the Sinn Féin Funds Act, 1947. By
s. 10 of this Act it was provided, inter alia, that all further proceedings in
the action should be stayed, and that the High Court, if application were
made ex parte on behalf of the Attorney General, should make an order
dismissing the action and should also direct that the said funds should be
disposed of in the manner specifically laid down by the Act. In Ronan
Keane’s opinion, “the upholding by the Supreme Court of Gavan Duffy P’s
spirited defence of the separation of powers principle undoubtedly gave a
clear signal to future governments that they would trespass on the judicial
domain at their peril.”
37
E. Conceptualising Independence: Independence v Impartiality
In his judgment in the Provincial Judges Reference,
38
Lamer CJ provided a
comprehensive overview of the meaning of judicial independence as it
pertains to the democratic separation of powers. In doing so he provided two
useful lenses for conceiving judicial independence. On the one hand he
discussed what he referred to as “two dimensions of judicial
independence”.
39
These two dimensions are the individual independence of
a Judge and the “institutional” or “collective” independence of the judiciary.
On the other hand Lamer CJ identified “three core characteristics of judicial
independence”.
40
These three core characteristics are security of tenure,
financial security, and administrative independence. All three
characteristics must be present in order for judicial independence, individual
or institutional, to exist. Lamer CJ emphasised that the “two dimensions”
and “core characteristics” are two “very different concepts”, with the two
dimensions indicating which entity is under consideration and the three core
36
Ibid, at 70.
37
Ronan Keane, “Across the Cherokee Frontier of Irish Constitutional Jurisprudence: The Sinn
Féin Funds Case: Buckley v Attorney General (1950)” in Eoin O’Dell ed., Leading Cases of
the Twentieth Century (Round Hall Sweet and Maxwell, 2000) 185, 195.
38
39
[1997] 3 SCR 3, at 81.
40
[1997] 3 SCR 3, at 81.
25 Trinity College Law Review [vol 18
characteristics the distinct facets of the definition of judicial independence
which protect the two dimensions.
41
Of particular concern to the Canadian Supreme Court in this judgment
was the nature of the institutional or collective independence of the judiciary
and, more specifically, the collective or institutional financial security. It
was acknowledged in Valente v R (hereinafter Valente),
42
the first important
case on judicial independence in Canada, that independence belongs both to
a Judge and to a Court as a whole.
43
In the case of Beauregard v Canada
(hereinafter Beauregard),
44
which shortly followed, the Supreme Court
noted that the institutional independence of the judiciary arises out of the
position of the Courts as organs of and protectors “of the Constitution and
the fundamental values embodied in it — rule of law, justice, equality,
preservation of the democratic process, to name perhaps the most
important”.
45
The Court in Valente also drew a distinction, reiterated in the
Provincial Judges Reference, between impartiality and independence.
Whereas impartiality is "a state of mind", independence is the quality of the
relationship the Judge has with the executive.
46
Independence is to be
judged objectively.
III. The Relationship between Remuneration and Judicial
Independence
Financial security is deemed to be a core characteristic of judicial
independence as it avoids decisions of Judges being manipulated by
financial rewards or punishment, either by the government or private
parties. It further ensures a judiciary that exudes quality and integrity.
Where judges benefit from this guarantee that is merely incidental to the
much greater societal goals judicial independence is a means to achieving.
41
[1997] 3 SCR 3, at 119.
42
43
44
45
[1986] 2 SCR 56, at 70.
46
A similar distinction was recognised by Baroness Hale in Gillies V Secretary of State for
Work and Pensions [2006] 1 WLR 781 where she opined that whereas impartiality is the
tribunal’s approach to deciding cases before it, independence is the structural or institutional
framework which ensures this impartiality.
2015] Judicial (In)dependence 26
A. Level of Pay
Reduction in pay, per se, is not the prime concern of this article; rather the
focus is on the way in which this reduction is achieved. However, it is
becoming apparent that the reduction per se is having detrimental effects on
the desirability of a judicial role and thus potentially the quality of the
composition of the judiciary. The level of judicial pay has long been
recognised as being capable of undermining the integrity of the judiciary. In
1844, John Robert Godley stated in the American context:
The inadequacy, too, of the Judges' salaries is very prejudicial to the
composition of the bench: it is impossible to expect first-rate lawyers
to give up their business for such a paltry remuneration as is allowed
in almost all the States. A gentleman belonging to the Maryland bar
told me one or two curious anecdotes illustrative of this. One of the
Judges lately descended from the bench, and accepted the situation of
clerk in his own Court—a situation in the gift of himself and his
brother justices: his own salary had been 2500 dollars a-year; that of
the clerk, whom he succeeded, amounted, with fees, to 5000. The late
Chief Justice of New Hampshire, whose salary was 1300 dollars a-
year, has also left his post, to become superintendent of one of the
Lowell factories. When such is the emolument and dignity of the
judicial office, it is only astonishing that it has not fallen into utter
contempt, or become, as in Russia, a recognized system of bribery.
47
Mr. Justice Michael Peart of the High Court in Ireland recently expressed
concern over the unwillingness of many Senior Counsel to put their names
forward for election to judicial office.
48
The Irish Independent explained
“[m]any senior lawyers are not putting their names forward for selection
because of the cuts [to judicial pay and pensions].”
49
Furthermore, there are
murmurs that a number of High Court Judges are expected to retire from the
judiciary in order to avoid reductions to their remuneration.
50
It is difficult
to see what could be more damaging to the integrity of the judicial branch
47
John Robert Godley, Letter from America (Volume 2, Saville and Edwards, 1844), at 163.
48
Dearbhail McDonald, Lawyers shun judges' jobs due to pay and pension cuts, 2 October
2014. to-pay-
and-pension-cuts-30631440.html> (visited 29 January 2015).
49
Ibid.
50
See for example, Dearbhail McDonald, Blow to Judiciary as senior judge opts to retire early,
25 January 2014. to -judiciary-as-senior-judge-
opts-to-retire-early-29949080.html> (visited 30 January 2015).
27 Trinity College Law Review [vol 18
of government than a lack of eagerness for top lawyers to enter the ranks of
the judiciary compounded with a desire by those currently members of the
judiciary to leave their posts. Another risk this poses is that those who put
themselves forward for nomination to the Bench are those who are
independently wealthy – something clearly undesirable in a modern
democracy.
51
In 1954 Winston Churchill argued “[t]he Bench must be the
dominant attraction to the legal profession" and “heavily will our society
pay if it cannot command the finest characters and the best legal brains
which we can produce.”
52
It is becoming clear that the Bench is no longer
the dominant attraction in the legal profession in Ireland and this gives rise
to a risk that Chief Justice Roberts identified that judicial appointment
simply “becomes a stepping stone to a lucrative position in private
practice”.
53
Traditionally, this has not been the Irish experience.
Empirical studies analysing the causal effect of the level of judicial
pay on the quality of Judges and the administration of justice are rare.
Relatively recently Anderson and Helland conducted one such study.
54
They analysed the impact of the level of judicial salaries on the composition
of the State appellate bench in the United States by estimating the impact of
salary on the background of entering Judges and the likelihood that currently
serving Judges will exit the bench. Overall, their findings indicated that de
facto decreases in judicial pay, arising from external economic factors such
as deflation, change the composition of the Bench and increase the
likelihood that appellate Judges will leave the Bench, although noting the
effects are relatively small.
55
Unfortunately for the purposes of this article,
they were unable to offer any conclusion about the effect of an actual pay-
cut, which, they noted, may have a very different effect from the failure to
raise salaries, explaining that an “anonymous Judge” with whom they
51
It should also be borne in mind that due to their obligation to be, and be perceived to be,
independent, there are certain costs associated with being a Judge, particularly in terms of
opportunities foregone. Judges, for example, are prohibited from taking up other employment
during their time in office and restricted from expressing political opinions.
52
Robert Rhodes James ed., Winston S. Churchill: His Complete Speeches, 1897-1963 (Vol. 8,
Chelsea House Publishers, 1974), at 8548.
53
John Roberts, 2006 Year-End Report on the Federal Judiciary, Third Branch (Admin. Office
of the U.S. Courts, Washington, D.C), January 2007, at 6. Available at <
http://www.supremecourt.gov/publicinfo/year-end/2006year-endreport.pdf> (visited 31
January 2015).
54
James Anderson and Eric Helland, “How Much Should Judges be Paid? An Empirical Study
on the Effect of Judicial Pay on the State Bench” (2012) 64(5) Stanford Law Review 1277.
55
Ibid., at 1281.
2015] Judicial (In)dependence 28
discussed their findings “emphasized that a pay cut would have very
different psychological consequences.”
56
B. Assessing and Evaluating Levels of Judicial Pay Comparatively
In public debate preceding the referendum, the purely financial aspect, that
judicial remuneration was disproportionally high and should not be exempt
from reduction, appeared to be of central concern for most citizens.
Comparisons were drawn between judicial pay in Ireland and that of other
European countries which portrayed the remuneration of the Irish judiciary
as being excessive. These comparisons failed to communicate the very
distinct roles Judges play in various European countries and how this
distinction merits differentiations in remuneration.
A 2014 European Commission for the Efficiency of Justice (CEPEJ)
report compares European judicial systems in relation to the efficiency and
quality of justice.
57
It was emphasised in this report that in order to compare
the various states and their systems, “the particularities of the systems,
which might explain differences from one country to another must be borne
in mind (different judicial structures, organisation of Courts and the use of
statistical tools to evaluate the systems, etc.).”
58
These differences are
commonly overlooked, underestimated or more cynically misconstrued
when financial figures are reported in the mass media. In many countries
judicial office is a progressive career and, correspondingly, judicial salaries
progress through that career lifetime. In Ireland and other common law
jurisdictions appointment to judicial office is something that comes at the
end of a career as a practising lawyer. Thus, a salary attaches to a particular
judicial office rather than to the length of a particular Judge’s career. Simply
taking average figures provided by CEPEJ for net annual salaries of Judges
at the beginning and end of their judicial careers can demonstrate the
importance in appreciating the decisive influence on the level of
remuneration of Judges this distinction has: the average gross annual salary
at the beginning of their career for Judges across European countries is
€47,789
59
and at the end of their career is €90,188.
60
That average judicial
pay in Ireland and other common law countries is comparatively higher
56
Ibid., at 1282.
57
European Commission for the Efficiency of Justice, Report on European Judicial Systems
(2014)
(visited 16 December 2014). (Based on 2012 figures.)
58
Ibid., at 10.
59
Ibid., at 302, table 11.9.
60
Ibid., at 310, table 11.13.
29 Trinity College Law Review [vol 18
simply reflects the fact that members of the judiciary are senior lawyers
upon accession to the Bench. Furthermore, in many of these countries where
judicial salary progressively increases, judges are entitled to additional
benefits such as special pensions, housing or other financial benefits, none
of which are enjoyed by members of the Irish judiciary.
61
C. How Reductions are to be Achieved
The judiciary, both prior to and following the referendum, sought to make
clear that their position was not one of opposition to any reduction in judicial
pay. Rather, they were concerned as to how that reduction should be
achieved, whilst effecting the least interference with the principle of
independence of the Judiciary, which Article 35.5 originally played an
important role in protecting. Mr. Justice Clarke, inter alia, has suggested
that a debate be started as to whether an independent commission should be
established which could preside over alteration to judicial pay:
So far as the judiciary is concerned, it may at least be worth
considering whether there is some merit in seeking to establish,
perhaps, for the avoidance of complications, at a Constitutional level,
a form of judicial commission which would be given the power to deal
with all three pillars of the interaction between the Executive and the
Oireachtas, on the one hand, and the judiciary, on the other.
62
It is rather unfortunate that the government were not more responsive to
such an unusual public expression of concern by the judiciary. The Minister
for Justice at the time, Alan Shatter, ruled these suggestions out, claiming
that establishing such a commission was undesirable because doing so
would be to treat Judges differently to other members of the public service.
63
He thus 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 role in our democratic system,
61
Ibid., at 320, table 11.19.
62
Ruadhan Mac Cormaic “New Body could Handle Judicial Nominations and Pay Judge
Suggests” The Irish Times, 11 April 2013
law/new-body-could-handle-judicial-nominations-and-pay-Judge-suggests-1.1356431>
(visited 12 November 2014).
63
Paul Cullen, “Government Rejects Judiciary's Call for independent Par Review”, The Irish
Times, 4 July 2011, at 1.
2015] Judicial (In)dependence 30
they should be treated accordingly.
64
Minister Shatter, as he then was,
showed a fundamental misunderstanding of judicial independence, the
judicial power and its role in the Constitutional order of this country.
In The Provincial Judges Reference
65
case in Canada, submissions
were made which posited that, far from securing a perception of
independence, salary reductions that treat superior Court Judges in the same
manner as civil servants undermine judicial independence precisely because
they create the impression that Judges are merely public employees and are
not independent of the government. While Lamer CJ accepted that the
argument did have “a kernel of truth to it”, he did not see it necessary to
evaluate that argument in full in his judgment.
66
IV. Foreign Precedent
In other common law jurisdictions the matter of judges’ remuneration has
been a contentious issue and, in many instances, has been dealt with by the
Courts. In the 2010 case of Maron v Silver,
67
the New York Court of Appeals
held that the legislature's failure to raise salaries violated the separation of
powers doctrine in the New York Constitution. The judgment was passed in
response to litigation initiated by New York's Chief Judge, Judith Kaye, who
sued the State governor and legislature for denying Judges, what was framed
as, their Constitutional right to an ‘adequate’ salary. An “adequate salary”,
it was argued, is necessary for the defence of the constitutional principles of
separation of powers and judicial independence.
68
In New York, judicial pay
had effectively become a pawn in a political bargaining game whereby it
was tied to the pay of the legislative and executive branches. For nearly ten
years the legislature had refused to raise judicial salaries. Compounded with
inflation, this resulted in a de facto decrease in Judges’ income of twenty-
seven percent. Judge Kaye claimed that by their refusal to act the legislature
threatened to seriously impair the functioning of the judiciary as a separate,
64
Lamer CJ in the Provincial Judges Reference opined: “the fact remains that judges, although
they must ultimately be paid from public monies, are not civil servants. Civil servants are part
of the executive; judges, by definition, are independent of the executive.” [1997] 3 SCR 3, at
92, para. 143.
65
[1992] 3 SCR 3.
66
[1997] 3 SCR 3, at 99, para. 157.
67
925 NE 2d 899, 903, 917 (NY 2010).
68
The Constitution of the State of New York, 1938, Article VI Section 25(a): “The
compensation of a Judge [...] shall be established by law and shall not be diminished during
the term of office for which he or she was elected or appointed.”
31 Trinity College Law Review [vol 18
independent, co-equal branch of government.
69
Accepting these arguments,
the Court ordered the legislature to adjust, in good faith, the compensation
payable to members of the judiciary. Following this, an independent
commission tasked with establishing judicial pay was established.
In Canada, the reduction of judicial salaries by Provincial
governments led the Supreme Court, for reasons to be presently explored,
to mandate the establishment of an independent judicial pay commission for
the setting of judicial salaries. The present situation in Ireland is decidedly
similar to that which the Canadian Supreme Court was confronted. In light
of this, an examination of this ruling is imperative.
A. The Canadian Experience
A number of cases arose in Canada concerning the independence of
provincial judiciaries. Four of these were jointly heard on appeal before the
Canadian Supreme Court in the Provincial Judges’ Reference.
70
The appeals
concerned a range of issues relating to the independence of provincial
Courts, but were united on the single issue of whether and how the guarantee
of independence in section 11(d) of the Canadian Charter of Rights and
Freedoms restricts the manner by and the extent to which provincial
governments and legislatures could reduce the salaries of provincial Court
Judges. Section 11 deals with the protection of individuals’ legal rights in
criminal and penal matters. Sub-section (d) provides:
11. Any person charged with an offence has the right [...]
(d) to be presumed innocent until proven guilty according to law in a
fair and public hearing by an independent and impartial tribunal;”
71
The relevant facts of the appeals were as follows. The province of Prince
Edward Island, as part of its budget deficit reduction plan, enacted the Public
69
925 NE 2d 899, 903, 917 (NY 2010).
70
Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (No.
24508), Reference re Independence and Impartiality of Judges of the Provincial Court of
Prince Edward (No. 24778), R. v. Campbell, R. v. Ekmecic and R. v. Wickman (No. 24831),
71
One might note the similarity between this and Article 6(1) of the European Convention on
“In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law.” Emphasis added.
2015] Judicial (In)dependence 32
Sector Pay Reduction Act 1994 and reduced the salaries of Judges of
the Provincial Court of Prince Edward Island and others paid from the public
purse in the province. Following the pay reduction, numerous affected
persons challenged the constitutionality of their proceedings in the Court,
alleging that as a result of the salary reductions, the Court had lost its status
as an independent and impartial tribunal under s.11(d) of the Charter. In
Alberta, three such persons, in separate and unrelated criminal proceedings
challenged the Constitutionality of their trials in the Provincial
Court of Alberta. They each brought a motion before the Court of Queen’s
Bench, arguing that, as a result of salary reduction of the Court’s judges, the
Court was not an independent and impartial tribunal. In Manitoba, the
salaries of judges of the Provincial Court of Manitoba and of a large number
of public sector employees were reduced as part of a plan to cut the
province’s deficit. In response, the Manitoba Provincial Court Judges,
through their Association, launched a Constitutional challenge, alleging that
the reduction infringed their judicial independence and was unconstitutional
because the manner in which the reduction was achieved effectively
suspended operation of the Judicial Compensation Committee, a body
tasked with issuing reports on Judges’ salaries to the legislature.
The main question to be decided by the Court was whether it could be
said that by reason of the government’s ability to effect a reduction in
Judges’ salaries that the provincial courts could not be considered as
“independent and impartial” tribunals in accordance with the section.
B. The Majority Judgment
Lamer CJ identified that the ultimate task of the Court in these appeals was
“to explain the proper constitutional relationship between provincial court
judges and provincial executives, and thereby assist in removing the strain
on this relationship.”
72
The majority accepted judicial independence as an
“unwritten norm” implied in the preamble of the Constitution Act 1867.
73
In doing so they followed the Court in Beauregard which, in a unanimous
decision, held that the reference to “a Constitution similar in Principle to
that of the United Kingdom,” was “textual recognition” of the principle of
judicial independence.
74
This independence constitutes part of the “basic
72
[1997] 3 SCR 3, at 33, para. 8.
73
[1997] 3 SCR 3, at 77, para 109.
74
[1986] 2 SCR 56, at 74.
33 Trinity College Law Review [vol 18
structure of the Canadian Constitution,”
75
is protected beyond that explicitly
stated Constitution and subsequent Charter, and is threatened when the
government has the ability to reduce judicial remuneration.
76
In order to
ensure the protection of this norm, the Court ordered that an independent,
effective, and objective judicial pay commission must be created in each
province concerned.
i. The Majority’s Understanding of Independence
In his judgment, Lamer CJ provided a comprehensive overview of the
meaning of judicial independence and explained its indispensability to the
democratic separation of powers.
77
He emphasised that judicial
independence exists for the protection of all citizens and any benefit which
happens to accrue to members of the courts is purely secondary.
78
He further
explained that financial security is an integral part of judicial independence,
for it avoids the possibility that the judiciary will be manipulated by
financial rewards or punishments from either governmental or private
actors.
79
Of particular concern in this judgment was the nature of the
institutional or collective (as opposed to individual) independence of the
judiciary, specifically the collective or institutional financial security. The
protection of the financial security of the institution of the Court, in the
Chief Justice’s learned opinion, can be guaranteed by “depoliticising” the
relationship between the judiciary and the other branches of government.
80
This is not merely desirable, but rather a “constitutional imperative,” and
this imperative “demands that the Courts both be free and appear to be free
from political interference through economic manipulation by the other
branches of government, and that they not become entangled in the politics
of remuneration from the public purse.”
81
75
[1997] 3 SCR 3, at 77, para. 108.
76
It is interesting to note that as these cases concerned state Courts, rather than Federal Courts,
one of the main issues for decision was whether the former were conferred with the same level
of independence as the latter. The Supreme Court here appear to have taken it as a given that
such a direct relationship should not exist between the executive of a country and the highest
Courts in the land.
77
Supra, at 10.
78
[1997] 3 SCR 3, at 34, para. 9.
79
Supra, at 11.
80
[1997] 3 SCR 3, at 94, para. 170.
81
[1997] 3 SCR 3, at 88, para. 131. Emphasis added.
2015] Judicial (In)dependence 34
Building upon dicta in Valente, Lamer CJ emphasised the importance
of the perception of the Courts in the eyes of the public.
Although judicial independence is a status or relationship resting on
objective conditions or guarantees, as well as a state of mind or
attitude in the actual exercise of judicial functions, it is sound, I think,
that the test for independence for purposes of s.11(d) of the Charter
should be, as for impartiality, whether the tribunal may be reasonably
perceived as independent. Both independence and impartiality are
fundamental not only to the capacity to do justice in a particular case
but also to individual and public confidence in the administration of
justice.
82
“Without that confidence” Lamer CJ, quoting Le Dain J in Valente,
explained, “the system cannot command the respect and acceptance that are
essential to its effective operation.”
83
The need for public belief in the fair administration of justice is
essential. John Farrar and Anthony Dugdale highlight that, throughout the
centuries, the legitimacy and authority of legal systems has relied in a large
part on the peoples’ acceptance of same.
84
The oft-quoted dictum of Lord
Hewart CJ that “justice must not only be done, but should manifestly and
undoubtedly be seen to be done” captures the essence of this concern.
85
ii. The Need for an ‘Institutional Sieve’ between the
Governmental and Judicial Organs
Of particular interest for the purposes of this article is the Supreme Court’s
finding that financial security cannot be guaranteed for the institution of the
judiciary in the absence of “prior recourse to a special process, which is
independent, effective, and objective, for determining judicial
remuneration”.
86
This process acts as an independent intermediary – an
“institutional sieve” – between these two organs of state so as to ensure that
the powers remain “separate” in a meaningful way.
87
82
[1997] 3 SCR 3, at 79, para. 112.
83
[1997] 3 SCR 3, at 79, para. 112.
84
Anthony Dugdale and John Farrar, Introduction to Legal Method, (3rd ed, Sweet and
Maxwell, 1990).
85
R v Sussex JJ ex p McCarthy [1924] 1 KB 256, at 259.
86
[1997] 3 SCR 3, at 88, para. 133.
87
[1997] 3 SCR 3, at 94, para. 147.
35 Trinity College Law Review [vol 18
The Court held that although the executive are not to be bound by the
recommendations of the proposed commission, “they should not be set aside
lightly, and, if the executive or the legislature chooses to depart from them,
it has to justify its decision.”
88
The establishment of such a commission both
blocks the executive from setting judicial salaries in an arbitrary manner and
restrains the judiciary from individually or collectively engaging in direct
negotiations over remuneration with the executive or legislature. The
preclusion of such negotiations is necessary in ensuring judicial abstinence
from engagement in activity of a political nature and is thereby instrumental
in protecting the institution’s integrity.
Lamer CJ did not dictate the precise shape and powers of the required
judicial compensation committee (himself demonstrating a concern not to
encroach on the functions of the other two branches of government under
whose powers this committee should be initially established). He did,
however, set out three general criteria any such committee must meet: First,
the commission must be objective, in the sense that it makes
recommendations by reference to objective criteria, not political
expediencies. Secondly, the commission must be effective, ensured by the
inability of the government to impose a freeze or reduction without a
commission report. Thirdly, and most importantly, the commission must be
independent. This independence is vital if it is to serve as the “institutional
sieve” it is created to be. The court concluded that the absence of such a
commission in the provinces concerned – or, in the case of Manitoba, the
failure to use such a commission where it did exist – rendered the reduction
of judicial salaries unconstitutional.
It is submitted that this position strikes a correct balance between the
three democratic powers. It recognises that judicial remuneration is a
delicate issue and, under the separation of powers, properly construed,
cannot be within the control of the executive and legislature. The
establishment of an independent commission to oversee judicial
remuneration is thus the most plausible way in which judicial salaries may
be reduced while contemporaneously ensuring that judicial independence is
not infringed and the separation of powers is upheld. At the other end of
the scale, this judgment avoided the controversy that could potentially have
arisen from a finding that any reductions in judicial salaries were wholly
prohibited by the Constitution. It is also worth noting that malice on the part
of the respective governments in reducing judicial salaries was not at issue,
nor was it a motivating factor in the Court’s decision. This is clear from the
88
[1997] 3 SCR 3, at 88, para. 133.
2015] Judicial (In)dependence 36
facts of the Manitoba appeal where judicial salaries were reduced as part of
a wider plan to cut the province’s deficit and the reductions equally applied
to a large number of public sector employees. This confirms that judicial
independence is, as explained previously in this article, something which
must be protected against the possibility an unscrupulous government would
seek to undermine it, or that people may believe that to be the case.
C. Sole Dissent
La Forest J was alone in his dissent. His judgment demonstrates a clear
unwillingness to engage with the issues to which these cases give rise. He
is troubled by that “the question involves the proper relationship between
the political branches of government and the judicial branch, an issue on
which judges can hardly be seen to be indifferent, especially as it concerns
their own remuneration.”
89
It is submitted that this position advocates an
excessive and unjustified exercise of judicial deference towards the other
branches of government. This position fails to properly recognise that, even
in the face of controversial situations, it is the Constitutional duty of the
Courts to rule on matters such as these, involving Constitutional and
statutory interpretation which come before them. In the reluctance to
trespass on the domain of other branches, La Forest J’s position constitutes
an abdication of the Court’s own constitutional duty. Gemma O’Farrell
suggests that this dissent is “perhaps indicative of what may be regarded as
the public perception on the issue.”
90
If so, this perception is misguided.
Refusal on the part of the Court to rule on a matter which involves the
correct relationship between the judicial organ and the other organs of
government, would be an abdication of its own primary duty of interpreting
the Constitution and ensuring the fair administration of justice.
Furthermore, La Forest J took issue with the recognition of judicial
independence as an “unwritten norm” which could be implied from the
preambular commitment to a Constitution shaped by British influence. He
opined that the legitimacy of Courts to engage in judicial review “is
imperilled... when Courts attempt to limit the power of legislatures without
recourse to express textual authority.”
91
It is submitted that this renders his
dissent inapplicable as authority in Ireland, as judicial independence is
clearly expressed in the Irish Constitution; Article 35.2 prescribes all judges
89
[1997] 3 SCR 3, at 181, para. 302.
90
Gemma O’Farrell, “An Independent Judicial Commission: Lessons to be Learned from
Canada” (2013) 4 The Bar Review 71, at 73.
91
[1997] 3 SCR 3, at 181, para. 316.
37 Trinity College Law Review [vol 18
“shall be independent in the exercise of their judicial functions”.
92
In this
jurisdiction it is beyond debate that the independence of the judiciary is a
Constitutional imperative. Therefore, the majority’s analysis of democratic
norms and the role of an independent judiciary better aligns with the Irish
Constitutional order.
V. Applicability to Ireland
The possible effects of a reduction in Judges’ remuneration featured in the
Irish Supreme Court case of O’Byrne v Minister for Finance.
93
Here,
however, the contentious issue was whether one could say that the paying
of taxes by members of the judiciary, in common with all citizens, is indeed
a ‘reduction’ in judicial remuneration. The three-judge majority concluded
that in the case of taxes, equally applied to all citizens, any reduction in
judicial salaries was merely incidental and could be viewed neither as a
reduction to the remuneration of judges as envisaged by the Constitution,
94
nor, therefore, as an attack on judicial independence or impartiality. The
Twenty-Ninth Amendment gives Constitutional recognition to the judgment
in O’Byrne, clarifying that the “remuneration of judges is subject to the
imposition of taxes, levies or other charges.”
95
However, the Constitutional
provision has a much wider ambit than that envisaged by the Supreme Court
in O’Byrne, enabling taxes, levies or other charges which are imposed to
simply be ones which are similarly imposed upon a “particular class” of
persons. The majority in O’Byrne recognised as Constitutional, the
imposition of taxes on Judges on the basis that the taxes in question were
applied widely to all citizens. It should be noted that the breadth of
applicability of such taxes was the chief motivating factor for the majority
92
Constitution of Ireland 1937, Article 34.5.1°. The judicial oath reads:
"In the presence of Almighty God I,… do solemnly and sincerely promise and declare that I
will duly and faithfully and to the best of my knowledge and power execute the office of Chief
Justice (or as the case may be) without fear or favour, affection or ill-will towards any man,
and that I will uphold the Constitution and the laws. May God direct and sustain me." Emphasis
added.
93
[1959] IR 1. Hereinafter O’Byrne.
94
The case was concerned with Article 68 of the Constitution of Saorstát Éireann, 1922
which provided (similarly to Article 35.5 of the 1937 Constitution), inter alia, that the
remuneration of the judges of the Supreme Court and of the High Court and of all other Courts
established in pursuance of that Constitution should not be diminished during their continuance
in office.
95
Article 35.5. 2°.
2015] Judicial (In)dependence 38
in recognising them as Constitutional.
96
Kingsmill-Moore J referred to the
income tax under consideration as a ’general’ tax or a ‘non-discriminatory’
tax, in essence taxes that all other men have to pay.
97
The vagueness in the
wording of Article 35.5.2° leaves open the possibility that an unscrupulous
government could take advantage of the provision to undermine the
independence and impartiality of the Irish judiciary: a particular class of
persons could, for example, be said to be those presiding over hearings,
judicial or not, against the government, or the class could be those people
who act unfavourably towards the government. In relation to taxation or
charges, unlike the provision in relation to outright reductions in judicial
remuneration, it is not stipulated that same has to be in the “public interest”
nor that same has to be applied to other classes “paid out of public monies.”
There is nothing in Article 35.5.2° to stop such taxes, levies or other charges
being used in a discriminatory fashion.
Moreover, there is a material difference between the possible adverse
consequences to judicial independence caused by the requirement that a
judge pay taxes on his/her income on the same basis as other citizens, as
was the concern dealt with O’Byrne, and the possible adverse consequences
to judicial independence caused by the government’s ability to effect an
outright reduction of judicial salaries. Although the court did not have to
address the issue of reductions in judicial salaries, and accepting that the
dicta in O’Byrne now have to be read in the light of the Twenty-Ninth
Amendment, rather than the other way around, the judgments in O’Byrne
would suggest that there was a concern over the impact of such a provision
on democratic principles. This would suggest application of the new
provision should be approached cautiously and balanced against the
importance of separation of powers to Irish constitutional democracy, which
has not been completely displaced by the Twenty-Nonth Amendment. A
major concern for the protection of judicial independence is evident in all
of the judgments. Kingsmill-Moore J, in the majority, reiterated the point
that a Judge “who was subject to removal or to have his salary reduced
would be under temptation to be subservient to the wishes of those in whose
power it was to ensure his removal or reduce his salary” Lavery J, in dissent,
quoted extensively from the Federalist Papers, to clarify the importance of
judicial independence in the Irish Constitutional setting, ultimately finding
that without it all the reservations of particular rights or privileges “would
96
Kingsmill-Moore J, at 68, for example, quoting the American case of Evans v Gore 253 US
245, stated: “To require a man to pay the taxes that all other men have to pay cannot possibly
be made an instrument to attack his independence as a Judge.” Emphasis added.
97
[1959] IR 1, at 68.
39 Trinity College Law Review [vol 18
amount to nothing”.
98
That Article 35 of the Constitution now explicitly
provides judicial salaries may be reduced by the government is not quite to
realise the fears of the judiciary in O’Byrne. Judicial independence, remains
to be protected under Article 35.2, as a vital component of our democratic
constitutional order. Although the government’s ability to reduce judicial
salaries appears to be a prima facie threat to that independence, it would
appear that Article 35.2 and Article 35.5 must in some way be reconciled.
It is suggested that a harmonious approach to the interpretation of
Article 35.5 is adopted so that it is read in light of other provisions of the
Constitution, including in particular those which recognise the democratic
nature of the State,
99
the tripartite separation of powers
100
and the
requirement that judges are independent in the performance of their
functions.
101
Henchy J has explained that the principle of harmonious
interpretation “requires, where possible, the relevant Constitutional
provisions to be construed and applied so that each will be given due weight
in the circumstances of the case.”
102
In accordance with this interpretive
principle, it is desirable that each provision be read in a manner which
enables its purpose be realised that is least at variance with the objectives of
other Articles of the Constitution. In relation to Article 35.5, this can easily
be done by implying into its edifice that an independent judicial salaries
commission must be established to oversee the reduction of Judges’
remuneration.
103
Such an interpretation cannot be said to undermine the
objective of Article 35.5 which surely has to be that judicial salaries can be
reduced, and not that this reduction must be done by the government alone
nor, on a more extreme note, that judicial independence is to be diminished.
This interpretation would ensure the importance of other, pre-existing,
Articles is upheld and, as the principle of harmonious interpretation
envisages, due weight is given to all Constitutional provisions concerned.
98
[1959] IR 1, at 41.
99
Article 5.
100
Article 6.1.
101
Article 35.2 and the Judicial Oath in Article 34.5.1°.
102
Dillane v Attorney General [1980] ILRM 167, at 170.
103
In People (DPP) v O’Shea [1982] IR 384 the majority in the Supreme Court, who took a
stricter approach than the minority in their use of the principle of harmonious interpretation,
held that where the meaning of words “is plain and unambiguous” the words must be given
their “literal meaning” but that “the Constitution must be looked at as a whole and not merely
in parts and, where doubt or ambiguity exists, regard may be had to other provisions of the
Constitution”. Per O’Higgins CJ, at 397.
2015] Judicial (In)dependence 40
Conclusion
It ought to be ensured that judicial independence, and thus the protection of
citizens’ fundamental rights, is not sacrificed for the relatively meagre
saving of €5.5 million to the exchequer per annum.
104
The strength of
judicial independence should not be as good or as bad as the economic or
social circumstances prevailing at that particular time. Over a year after the
passing of the Amendment, Mr. Justice Peter Kelly of the High Court
claimed that the government is demolishing judicial independence “brick by
brick;” a claim which his colleagues subsequently supported.
105
Comments
such as this from members of the Irish judiciary should not be lightly
overlooked.
The Twenty-Ninth Amendment to the Irish Constitution is certainly
unprecedented, threatening a principle that has existed in Ireland since the
Act of Settlement in 1701. The primary source of concern is Article 35.5.3°
as it allows the governmental powers to effect a change in judicial
remuneration, without adequate safeguards as to how they do. It is for this
reason that controversy arose amongst those well-versed on the separation
of powers when this Amendment was proposed. Article 35.5.2° must not be
forgotten in this regard either, as there is nothing in it to stop such taxes,
levies or other charges being used in a discriminatory fashion. As it stands,
there is the potential of future repercussions. As Lord Lane once
emphatically declared:
One asks whether we are now seeing tools being fashioned which by
some future, perhaps less scrupulous, Government may be used to
weaken the independent administration of justice and so undermine
the rule of law.
106
These threats can be mitigated and all potential detriments to judicial
independence, and thus to the social values for which it exists to protect,
could largely be avoided should the step be taken of establishing an
objective, effective and independent judicial pay commission to set judicial
salaries in Ireland. In addition this is necessary on a harmonious reading of
the Constitution. It is in the collective interest of all those seeking justice to
104
210 Seanad Debates col. 4 (21 September 2011).
105
Quoted in “Honohan accused Judge of going over top in warning”, The Irish Independent,
17 April 2013.
top-in-warning-29201608.html> (visited 12 January 2015).
106
HL Deb. (1989) Vol. 505 Col. 1307-1480, at 1989.
41 Trinity College Law Review [vol 18
ensure that an independent judiciary remains strong and undeterred in
upholding the rule of law and fundamental rights even in the face of adverse
political pressure. The setting up of an independent judicial pay commission
is thus an obvious and necessary step.
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