The judiciary doth protest too much, methinks

Judges should reflect on whether their row with the Government over independence are in the public interest, writes Dan Buckley

THE constitution is not a panacea for every blot upon the public welfare; nor should this court, ordained as a judicial body, be thought of as a general haven for reform movements.”

Those are the words of John Marshall Harlan II, an American jurist who served on the US supreme court from 1955 to 1971.

It might be no harm if certain members of the Irish judiciary took those words to heart before they escalate their unseemly row with the Government.

They might also consult another eminent jurist, known to tens of millions of TV viewers around the world as Judge Judy. Her style is direct, often confrontational, but she is good at knocking heads together to achieve a just and equitable solution. Judge Judy was in Dublin last week and was given a guided tour of the Four Courts.

“My sense of the Irish people is that they are direct, no nonsense, and not a lot of BS,” she said in her own inimitable way.

Clearly, she is not as familiar as the rest of us with the vagaries of the Irish judiciary.

Many people were shocked when it emerged in 2009 that judges would be excluded from the Government’s public service pension levy on constitutional grounds.

Feelers were put out to see if most or all of the judges would be willing to take a reduction voluntarily. While they now insist that “at all stages, judges accepted that they had to bear their fair share of salary cuts”, the facts do not bear this out.

Fewer than 20% of judges agreed to take a voluntary cut. It totalled a mere €60,000, amounting to an average of €405 per judge of the 148 members of the judiciary.

There was only one thing the Government could do. Unlike constitutional monarchies, in Ireland the people are sovereign and when they speak in a referendum, that becomes the supreme law of the land.

Given judicial shyness about taking a pay cut, it was hardly a surprise that the people voted for them to share their pain and overwhelmingly endorsed the decision to amend the Constitution to allow a cut in judges’ salaries.

That was in Oct 2011. Within a month, the response of most members of the judiciary was to form what is, in effect, a trade union, the Association of Judges of Ireland, which has become very vocal about perceived slights to their independence.

Concerns were outlined in a speech by Judge Peter Kelly, head of the association, at a private lunch for business executives last week when he accused the Government of demolishing judicial independence “brick by brick”.

In support, the association criticised the Government for dismissing its concerns about independence “out of hand”.

A dam-burst followed. Supreme Court judge Adrian Hardiman supported the association. “The notion that judicial appointments should continue to be entirely political while there is a zero protection, from a financial point of view, for the judges against the executive, is one not consistent with the maintenance of an independent judiciary as it’s understood in the common law world,” he said.

A more restrained view was expressed by Supreme Court Justice Frank Clarke in a lecture at Griffith College in Dublin.

“No one could argue that judicial independence requires that judges write their own terms and conditions,” he said, noting that tensions can arise between independence and accountability.

“Lawyers [and in this context I include judges] are sometimes accused of using the cry of independence as a means of subtly seeking to prevent proper accountability.”

In response to the broadside from the AJI, Justice Minister Alan Shatter stressed supremacy of the people. He said it was “unfortunate” that pay cuts “were presented as an attack on judicial independence — because we had a referendum on the issue”.

“The overwhelming majority were of the view that whilst judges undertake important and onerous duties, this shouldn’t render them immune from the consequences of the State’s enormous fiscal difficulties,” he said.

Support for the Government’s position came from a surprising quarter yesterday when Edmund Honohan, master of the High Court, entered the fray, saying that he feels the row has erupted out of a sense of entitlement that judges should be consulted over any proposed new legislation.

“It seems to me that, in this instance, the minister has the better grasp of constitutional proprieties,” he said.

Mr Honohan drew the wrath of High Court president Nicholas Kearns, who said: “He has no authority to speak on behalf of the High Court or its judges. ”

Judge Kearns said that the concerns raised by the AJI “are well-founded”.

A statement from the Bar Council of Ireland described as “unfair” any attempt “to characterise the judges’ concerns about these issues as arising from a sense of entitlement or concern about their status in society. It is clear that the judges are acting in the public interest and are seeking to uphold the Constitution and the rule of law on behalf of the citizen. Any comments which can be interpreted as an attempt to demonise them for doing so are to be greatly regretted.”

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