Together with colleagues Rónán Kennedy (NUI Galway), Paul MacMahon (Cambridge), Séan Ó Conaill (UCC) and former Chief Justice Ronan Keane, I have been involved in putting together a special issue of the Irish Law Times on the Judicial Pay Amendment. The issue is now on sale and available to those with a subscription on Westlaw IE. People can also email me (fiona.delondras[at]ucd.ie) and I can send a pdf version of the entire special issue to them. The short introduction to the special issue offers a flavour of the arguments advanced:
INTRODUCTION: THE JUDGES’ REMUNERATION REFERENDUM
Dr Fiona de Londras, UCD School of Law
On October 27, 2011 the Irish electorate will be asked to vote not only for a new President and to expand the powers of parliamentary inquiries in this jurisdiction, but also to amend Art.35.5 of Bunreacht na hÉireann. That provision currently prohibits the reduction of judicial remuneration. That prohibition exists, of course, for very sound reasons connected largely to judicial independence but connected also to an implicit recognition of the broader constitutionalist power of control over the public purse. Debate on the proposed amendment is taking place in a fraught and difficult climate in which most claims relating to the payment of public servants are articulated and responded to from either an offensive or defensive position but rarely from a position of balance. In this special issue we attempt, inasmuch as anyone can, to remove the discussion from its immediate economic context and instead to relocate it in the larger constitutional context to which it belongs. If approved, of course, the proposed new wording will exist within our constitutional text long beyond this economic crisis. Constitutions are presumptively permanent (although not unchanging or unchangeable) and outlast crises that can dominate contemporary debates
Allowing for reductions in judicial remuneration, where such reductions are (or are said to be) in the public interest, is not per se an objectionable proposition. Indeed, none of the contributions to this special issue argue that judicial pay ought to be entirely immune from reduction. In addition, we are generally approving of the addition to the originally proposed wording of the term “proportionate”, so that reductions to judicial remuneration could only be done if those reductions were “proportionate” to reductions imposed on another class (whatever that might mean) paid from the public purse. However, to accept and perhaps even to approve of a general proposition (‘judicial pay ought to be capable of reduction in the public interest’) is not to preclude disapproval of the means by which the general proposition is to be put into action or, indeed, of the nature of the drafting and debating processes surrounding the referendum itself.
The articles in this special issue identify a number of areas of concern with the proposed wording, the nature of the debate, and the broader trajectory of constitutional and political developments in Ireland at the centre of which judicial remuneration can now be found. In their contributions both Paul MacMahon and former Chief Justice Ronan Keane identify very well the potential difficulties with the wording of the proposed amendment, illustrating how—even in a good faith interpretation of the proposed wording—it allows for considerably more compromising and worrisome conduct than the government and much of the opposition seem to apprehend. The Irish language version, which as Séan Ó Conaill rightly notes is the authoritative version of the constitutional text, does not close those gaps but rather opens them wider in some cases. Ó Conaill’s contribution is an important one, especially when one bears in mind that the text of a proposed amendment as Gaeilge is rarely given any sustained attention in the conduct of a referendum campaign.
Although this collection benefits from the contribution of a retired member of the Supreme Court, the judiciary more broadly does not—and arguably cannot—contribute effectively to the referendum debate. This is notwithstanding the fact that as a group of professionals, and as representatives of the future Bench, our sitting judges are major stakeholders in the issues under consideration. In his contribution, Rónán Kennedy problematises the exclusion of sitting judges from this referendum debate, and rightly identifies the impoverishing impact such self-restraint is likely to have on the debate itself. Widening the lens more broadly, Fiona de Londras’ contribution argues that we ought to see this referendum as being not only about the wording of Article 35.5 but also about a broader shift in political and constitutionalist structures by which our lower house of parliament, the Dáil, is being empowered potentially to the point of aggrandisement. Taken from that perspective, she argues, this referendum might be identifiable as part of a broader shift in the inter-institutional balance that underpins our constitutional bargain.
Although it was not commissioned for this special issue, the contribution of Desmond Clarke to this volume of the Irish Law Times places the judges’ remuneration referendum into a broader context, in which the need for some kind of system to manage of the relationship between the judiciary and the government becomes manifest. That observation can be said to ring-fence the varied but connected concerns expressed in the commissioned articles. To that extent we can and should acknowledge that, although they are the final guardians of constitutional integrity in Ireland and frequently act as the final arbiters of disputes between people, institutions, companies and government agencies, our judges hold relatively little power in the broader context within which their capacity to effectively carry out their work is constitutionally protected. Rather, it is the political branches that propose referenda and the People who decide on whether or not to amend the Constitution.
The intention in putting together this special issue is to try to encourage voters to look beyond the immediate, and understandable, sentiment (that judges ought not to be protected from the economic crisis) and to see instead the bigger, and considerably more complex, constitutional picture.