Judicial salary cuts - Government must lead by example

For more than a year the Government has been talking about cutting back on expenditure, because the country is clearly living beyond its means.

The Government has been promising to lead by example.

Obviously those who earn most from the public purse are going to be hit. Members of the judiciary benefited handsomely from a series of substantial pay increases during the boom years, but there seems to be a great deal of confusion about whether they will have to make any contribution now, because the Government feels constrained by article 35.5 of the Constitution, which stipulates that: “The remuneration of a judge shall not be reduced during his continuance in office.”

Instead of leading, ministers have been shirking their responsibility. They have repeatedly talked about taking stern action, but they have done little.

The Government introduced the pension levy, but the Attorney General recommended that this should not apply to the judiciary, because it could be seen as a pay cut. Mr Justice Donal Barrington, a former Supreme Court judge, has argued, however, that the levy could apply to the judiciary under a 1959 ruling.

The levy really amounts to a tax, and the courts have ruled that requiring judges to pay tax does not constitute a pay cut. Rather than require the judges to pay the levy, however, the Government backed off. The chief justice asked for voluntary contributions from judges, but only 72 of the 144 judges have volunteered.

Ministers are paid to lead, but they have been giving pathetic leadership by facilitating the payment of outrageous bonuses and golden parachutes. Nobody should really be surprised that so many judges have been slow to act. In effect, the ministers are suggesting that the judges should lead by taking voluntary cuts.

Finance Minister Brian Lenihan has stated that he has not ruled out an attempt to cut judges’ pay, but the Taoiseach has indicated that judicial salaries will remain untouched, because of the constitutional difficulties.

“While we want to ensure that everyone participates in any effort we are making to show the wider public that we are all of the one mind in terms of our preparedness to reduce people’s remuneration,” the Taoiseach said, “it is important that we respect the constitutional provision regarding the independence of the judiciary.”

The constitutional provision was to protect the independence of judiciary by ensuring that a hostile government would not be able to cut the pay of judges in retaliation for judicial decisions. But asking the judge to play their part in helping to resolve the present financial crisis does not amount to victimisation.

The Government should, therefore, provide the leadership by announcing that it will, if necessary, submit the issue to the people in the form of a constitutional referendum. If members of the Government expect to be taken seriously when they say that the cuts will have to apply to everybody, they must demonstrate that everybody means everybody – especially themselves and others in the most privileged positions.