Former judge critical of pay referendum

THE former Supreme Court judge, Hugh O’Flaherty, has criticised the bringing in of “the heavy artillery” of a referendum on the Constitution to reduce judges’ pay.

He said he is puzzled as to why the matter cannot be dealt with in the ordinary way, by ordinary legislation if need be, and it puzzled him that it could not have been dealt with by way of the levy imposed on other sections of the public service.

Speaking on local radio the former justice, eminent legal scholar and Kerry native said he could not understand why judges were deemed exempt from the original levy that reduced the salaries of those “paid out of the public purse”.

“Now to bring in the heavy artillery of a constitutional referendum seems to be overreacting to the whole thing. I would have thought that this was a levy and it should have been applied to everyone,” he said.

The advice the Government received seemed to be that judges were not liable “but if it was a form of taxation judges were liable to it like everybody else”, the former justice said. “That is the thing that has puzzled me all along. The levy should have been imposed from the beginning.”

He said he was “out of the loop too long” to know what the present state of play was (between the judiciary and the Government with regard to a memorandum sent to the Government on the question of judicial independence), but the whole thing has got “bogged down” in the idea of a referendum.

Only in the most basic circumstances should the Irish Constitution, which was the oldest in Europe, and probably among the oldest in the world, be interfered with, said Mr O’Flaherty.

He firmly disagreed with “this thing of rushing off having referendums on every conceivable topic when the matter can be dealt with by ordinary legislation perfectly well”.

A mountain had been made out of a molehill and the whole thing should have been dealt with “in the ordinary way,” he stressed.

“The Constitution is really there to provide headlines for the speech and the small print is to be left to ordinary legislation,” Mr O’Flaherty, a former newspaper sub-editor, added.

The idea that people were better protected if it is in the Constitution is misplaced, he said. If it is the law, it is the law and in general it as going to be obeyed.

Asked for his opinion on judges’ pay, Mr O’Flaherty said pay rates and a guarantee of a certain level of pay for judges should ensure judicial independence.

He added that he knew from contributing to a study on judges pay previously, that in the 1960s, ’70s and ’80s the level had been very low and had fallen to a quarter of that when the state was first established.

Following that, various reviews bodies had brought the pay of judges “up to a proper level”, he said.