(Originally published in Law Ireland, Volume 1, issue 5.)
The power of a judge is awesome, in the literal sense of the word.
In any society, somebody has to make the difficult decisions. When a couple separates, which parent should the children live with? When should a borrower who fails to keep up payments on his or her family home be forced to give it up? When somebody is guilty of a serious criminal offence, for how long should they be deprived of their liberty? When should life-saving treatment be withheld from a person suffering a serious illness? Under what circumstances under the Constitution is an abortion permissible?
In most free societies, monumental decisions over people’s lives and and property are kept away from the political sphere, and left to judges – subject, of course, to legislative and other rules and principles that guide their deliberations. It is clearly in the public interest that such decision makers should be persons of integrity, who are able to make their decisions independently. They should not fear ridicule or punishment for decisions that are unpopular with the public or that upset the government of the day.
In Ireland, judges have generally been accorded a high degree of respect by the political system. While there have been controversies (as recounted in Ruadhán Mac Cormaic’s excellent book on the Supreme Court), the government is generally respectful of the judiciary. This is evidenced in part by the number of public inquiries that judges are appointed to preside over.
Nevertheless, we should be aware of an increasing trend internationally to treat judges with disdain. In Pakistan in 2007, scores of judges were dismissed by the government, following which a mass movement, started by lawyers, campaigned successfully for their reinstatement. In Turkey, more recently, a number of judges have been imprisoned without trial.
In England and Wales, the offence of “scandalising the judiciary” was declared obsolete by the Crime and Courts Act 2013. Just three years later, a prominent publication declared on its front page that some judges were “enemies of the people”, after they had ruled that an act of Parliament was necessary before the United Kingdom could leave the European Union. The UK has not yet descended to mob rule but, in circumstances where a Member of Parliament had a short time previously been murdered for her views on EU membership, the declaration could be considered an incitement to acts of violence.
The current debate in Ireland concerns the manner in which judicial appointments are made. But it should not be forgotten that, in 2011, in the teeth of the worst recession the country has seen, the constitutional protection of judges’ remuneration was removed. There was virtually no public debate on the issue. An overwhelming majority, of nearly 80%, voted for its removal. It was replaced by a seemingly toothless provision that effectively treats the salaries of judges in the same manner as those of other public servants. Judges should not be immune from the effects of an economic climate that causes widespread hardship. But it is in the public interest that they should not fear that their individual or collective decisions will lead to a reduction in their pay or pensions. Perhaps the Constitution should include an explicit link between the pay of superior court judges and the pay of the Taoiseach, President or senior government ministers, so that the pay of a judge cannot be reduced without a proportional reduction in the pay of a minister.
The High Court and Court of Appeal have recently commented on whether the position of a judge is “a sacred office”. Whether it is or not, it is reasonable to say that the office is of a completely different nature to that of other public servants. If the system of appointing judges is to be reviewed, perhaps this more favourable economic climate is an appropriate time also to review the constitutional protection of their remuneration.
Mark Tottenham BL