29th March 2009
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 | Politics.ie Member | | Join Date: Aug 2007
Posts: 3,466
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Quote:
Originally Posted by TommyO'Brien  A salary of a judge cannot be reduced under the constitution. Offices like those of judges and the president cannot have their salaries cut, with good reason. They often have to do things (rule on the constitutionality of Acts, refer Bills, reach judgements, etc) that would seriously piiss off the government. The fear is that to intimidate them, the government would simply threaten any judge or president who annoyed them with a cut in salary.
There is ample evidence that that would happen if governments could get away with it. A past government tried to intimidate an independent-minded Ombudsman by reducing the staffing provided. It has recently done the same with the Equality Authority, imposing cuts that effectively prevented the authority from doing its job, because its job annoyed some ministers. (The excuse about the state finances was lame. A 43% cut was way over the top, and only designed to silence the body. Whether you agree with the body or not, if the government wants to axe it they should have the honesty to do it openly, not sneakily put in place cuts larger than experienced by any other body, purely as part of an act of political revenge.)
Judges and the president are given two protections:
- they can only be removed by the Oireachtas, not the government.
- their salaries cannot be cut.
They are vital protections that exist in most democracies. | The notion that judges' salaries cannot be reduced has been refuted, on many occasions, by UCC law professor David Gwynn Morgan . Quote:
It is just plain wrong to claim, as did Ms Mary Wallace, Minister of State at the Department of Health and Children, in the Seanad last week that it would be unconstitutional to apply the pensions levy to the judiciary.
The relevant provision of the Constitution is Article 35.5, which states: “The remuneration of a judge shall not be reduced during his continuance in office.” But this provision is not to be read literally.
We know this from the Supreme Court case of O’Byrne v Minister for Finance (1959) IR 1. In this case, which was brought by a judge’s widow, it was contended that this provision meant it would be unconstitutional to levy income tax from a judge’s salary.
Rejecting this argument, Judge Kingsmill Moore stated (at 64): “The object was to secure the independence of the judges and the impartial administration of justice. The legislation was for the protection of the people, not for the interests of the judges. A judge who was subject to removal or to have his salary reduced would be under temptation to be subservient to the wishes of those in whose power it was to ensure his removal or reduce his salary. Any discrimination by tax or otherwise. . .would be equally objectionable. But I fail to see how a tax which is non-discriminatory against judges can assail the judicial independence. . .”
The reasoning in this judgment would be broad enough to cover an increased pension levy against a judge’s salary, since such an increase would not amount to a discrimination against judges.
| The government is within its rights to introduce a pension levy on the salaries of the judiciary. After all, which one of them, in their right mind, would object - or mount a legal challenge? Pensions levy and the judiciary - The Irish Times - Wed, Mar 18, 2009  |