Judicial independence is at the core of the proper judicial role in any free society. This very independence is guaranteed by Article 35.2 of the Constitution which provides that judges are to be “independent in the exercise of their judicial functions and subject only to this Constitution and the law.” Upon appointment judges make a solemn declaration in the manner required by Article 34.5.1 of the Constitution that they will adjudicate impartially “without fear or favour” or “affection or ill-will.” This means that every judge is called upon to make a decision according to law, without regard to the identity of the litigants before them or the consequences for those litigants of that decision. These guarantees also mean that judge may arrive at a decision which is unpopular or which is adverse to the interests of the Government of the day or other powerful interests safe in the knowledge that his or her freedom to make that decision is protected.
Security of tenure is also a key aspect of judicial independence. Subject to a retirement age (which is currently 70 years of age in most instances), a judge holds office on good behaviour. This means that a judge of the High Court or Supreme Court cannot be removed save for “stated misbehaviour or incapacity” and then only on resolutions passed by both Houses of the Oireachtas: see Article 35.4.1 of the Constitution. Similar guarantees for judges of the Circuit Court and District Court are provided for by statute law.
A judge must be independent of the political process, since Article 35.3 of the Constitution provides that no judge is eligible to be a member of either House of the Oireachtas. This independence is further buttressed by the stipulation also contained in Article 35.3 that no judge can “hold any other office or position of emolument.”
Security of remuneration was also traditionally regarded as a key feature of judicial independence. Article 35.5 of the Constitution as originally enacted prohibited the reduction of such remuneration while the judge continued in office. The object of this clause was to prevent judicial pay being reduced as a retaliatory measure in respect of adverse judicial decisions. In 1959 the Supreme Court held that judges were subjected to the same obligation to pay tax as other citizens and that laws of this kind did not contravene Article 35.5.
Following the economic crash of 2008, this matter became one of some controversy, as judges were initially exempted from legislation providing for the compulsory reduction of public service pay. Although the vast majority of judges paid an equivalent pension levy on a voluntary basis, the existing constitutional guarantee was seen as anomalous in an era of enforced austerity. At all events, a constitutional amendment was passed (29th Amendment of the Constitution Act 2011) following a referendum in November 2011 and the new Article 35.5 provides:
- The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section.
- The remuneration of judges is subject to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class.
- Where, before or after the enactment of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make proportionate reductions to the remuneration of judges.
The remuneration of judges was accordingly reduced following the enactment of the Financial Emergency Measures in the Public Interest Act 2011. But even as amended, Article 35.5 still contains a bulwark against future arbitrary reductions designed to stultify judicial independence. The remuneration can only be reduced when the remuneration of other public servants has been reduced by a law which is stated to be in the public interest and even then any cuts to judicial pay must be proportionate to the reductions imposed on the public service generally.Back to the Judicial Role