Levying the judges: professor gets it is wrong

IN his letter (March 6), Prof David Gwynn Morgan states that the Government’s contention regarding the constitutionality of a public service levy on judicial salaries is “just plain wrong”. He cites the judgment of Kingsmill Moore in O’Byrne v Minister for Finance (1959) for this proposition.

I think Prof Gwynn Morgan is wrong on that count for the following reasons:

First, the O’Byrne case concerned a tax which applied equally to all members of the population — not simply those in the civil service.

This can be seen in the judgment of Chief Justice Maguire when he says:

“To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack upon his independence.”

Second, a levy on judges which did not apply to citizens, both public and private, treats the judicial branch of government as part of the executive — exactly the problem the judicial guarantee in Article 35.5 was designed to prevent.

Third, the constitution review committee in 1934 proposed an amendment to judicial tenure so that the Oireachtas could “regulate the salaries of judges by law,” which is exactly what Prof Gwynn Morgan suggests can be done, but this proposal was not enacted in the 1937 constitution. From a constitutional point of view, therefore, I think the Government is correct.

The moral case for a voluntary reduction in judicial salaries has, however, been made ably by Prof Gwynn Morgan, Brendan Cafferty (Letters, March 3) and the example of President McAleese.

Donal Coffey

21 College Gate

Townsend Street

Dublin 2