Constitutional Ammendments 29 & 30

Two amendments to our Constitution, Bunreacht na hÉireann have been included in the voting next Thursday, thefuture Initiative advocates a NO vote.

The following article was issued by Kathy Sinnott, we feel it explains the case:

For what it is worth, looking at the Irish Constitution (our rights and limits on government necessary to safeguard them) and the referenda on Oct 27  I would like to offer a few thoughts.

The potential impact of Amendments 29 and 30, if passed, can only be understood if one appreciates that an independent judiciary is a prerequisite to safeguarding the rights of the citizen and in maintaining the system of check and balances between the executive, legislative and judicial on which our freedoms relies. It is in the independence of the courts that even the most vulnerable citizen has a right to rely on the law especially the Constitution against the State, a powerful company, an accuser, or any other person or interest and to be able to trust that he or she will be heard by a judge who is relying solely on that same law and Constitution.

Referendum on Amendment 29

At present, Article 35.5 of the Constitution states:


“The remuneration of a judge shall not be reduced during his continuance in office.”

It is proposed to replace this with the following wording:

5 1° The remuneration of judges shall not be reduced during their continuance in office save in accordance with this section.

2° 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.

3° 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.

It is because judicial independence is essential to the rights of the citizen that there is a Constitutional protection of from financial interference by the State in the salary of judges once they have taken up their mandate.  Please note that the pay of new and incoming judges can be and has already been lowered in line with the pay scales of all those paid out of the public purse.  At any given time any adjustment in the public servant pay scale applies to new judges.

The important issue in not allowing the Oireachtas to reduce the pay of judges once they have begun their office is the absolute independence of the judiciary from interference. Judge are only supposed to be accessed through the courtroom. This immunity or separation of judges is what is designed to ensure that the judges are not under threat or influence of anyone so that everyone has an even playing field before the law.  The amendment talks about judges being dealt with like everyone else, but that misses the point, for our protection we don’t want judges who are subject to the cut and thrust of everyday life and politics, we need them to be learned in law and just and merciful in its application.

Also Consider

…. judges are well paid to guard against corruption.

…. judges are supposed to make judgments on the constitution and the law without consideration for the budget implications. Amendment 29 if passed establishes a new dynamic in which judges could potentially be penalized for a decision that has cost implications on the State. When citizens brings  constitutional cases, the State often argues that a decision in favour of the citizen would have budget implications. With this amendment this argument becomes more influential to the judge who is aware that his decision may have personal implications because the government could then decide that the extra money must be found somewhere and lower the pay scale.

…judges are also supposed to make decisions on the constitution and the law without consideration for the political implications or the prevailing attitudes and agendas of government, EU, etc. With
Amendment 29, government will have a means of retaliating against a judiciary that stands in their way. Whether this is used or threatened it potentially could bring  judges into line in the future.

…the unique features of the judges employment. Unlike the Taoiseach, TDs, Senators, other civil servants who can run farms, businesses, law firms and even retain part of their teachers salary, judges are supposed to only work one job and have one salary to avoid any conflict of interest. This unique feature of a judges financial situation leaves them vulnerable if government/oireachtas has the power to change the salary they agreed when they became a judge. Also once a man or woman leaves a law practice to become a judge they don’t go back. When a teacher, farmer, businessman, barrister or solicitor head to Dublin or Brussels to serve as a politician, they can at anytime go back.

Their teaching post can even be held for them.

These unique features of the terms of judges’ employment leaves them more vulnerable and thus enhances the power that government/oireachtas could weld over judges should the electorate approve Amendment 29.

….judges are also paid well so that we get the best judges.  Some barristers and solicitors earn high salaries, far higher than that of the judges they attend, what would induce them to give up their lucrative practices and, take a cut in income to become judges if the salary they agree when they make the decision can be even further reduced after.  It becomes financially safer to remain in front of the judge rather than be a judge.

I am Voting  NO to Amendment 29.

At present, Article 15.10 states:

“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

It is proposed to renumber this as 15.10.1° and to insert the following subsections:

2° Each House shall have the power to conduct an inquiry, or an inquiry with the other House, in a manner provided for by law, into any matter stated by the House or Houses concerned to be of general public importance.

3° In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.

4° It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2° applies.

Amendment 30 is an even more significant and extensive erosion of judicial independence. As such it is also an attack on the system of checks and balances and the separation of  powers that are so
important to our freedoms. If amendment 30 is passed, the judicial process can be usurped in any case that concerns an issue deemed by government, the Oireachtas  and (in its vagueness) even the media to be of “general public importance”.

Please consider

…the courts are the proper, independent place for decisions to be made under our Constitution and law. Rather than giving Oireachtas and its committees the right to confiscate judicial power in any case that they decide is of general public importance and to that extent eroding judicial independence and eroding a citizen’s right to a court decision, we should be safeguarding judicial independence while increasing the citizens access to the courts and the transparency of the courts.

Consider the right to education, a matter of “general public importance“. The High Court and Supreme Court found that the Constitution guarantees every child an appropriate education based on his or her needs. The government and the Department of Education fought against this decision pleading that it had financial implications. Since then it is the Oireachtas that has passed laws that have not respected these judgments.  With these laws in place, the government continues education cuts especially in the area of special education and the Department of Education pursues policies that result in many children not getting an appropriate education.  Our rights as citizens are guaranteed in the constitution and implemented in law. We are safer with an independent judiciary taking its direction solely from the constitution and law rather than with a government and Oireachtas that is trying to please the IMF, the EU, the ECB, the UN, multinationals, banks, their respective Irish and European political parties and many other interests.

….. this amendment creates a breach in the separation of powers. The courts exist to uphold the existing  laws. The Oireachtas exists to make new laws or change existing ones. Just as a judge is not supposed to make law (judicial activism) a lawmaker is not supposed to judge.

…… because the citizen goes to court to look for the protection of the constitution and law, he or she expects to find the courts served by a judge and others who have a competency in the law. Anyone who can get elected can be a TD and even those who are not electable can be appointed as a senator. The Oireachtas is not peopled by experts in law.

Warning.

Amendment 30, in giving the Oireachtas committees judicial powers is another step in the process of establishing EU style “consensus politics” in Ireland.

In consensus politics legislation and policy is moved forward in a way that is much less transparent, accessible and influence-able by the citizen than the system that was laid out in our Constitution. In
consensus politics, government departments have much more influence on decisions.  Oireachtas committees become increasingly if subtly more directed by government and government departments just as European parliament committees are heavily influenced/directed by the Commission DGs which presents proposed legislation and actively follows it through all stages of the  legislative process.

Consensus politics is faceless, when it results in unpopular decisions, the citizen finds it hard to know who to blame or even who to approach. This would be win/win for the TDs and Senators who can say an unpopular law or policy was not their fault because it was decided in committee by all parties. When constituents instructs their representative, the TD or senator can take the opinion to the committee and throw it into the mix confident that it will not get in the way of the agenda of his or her party, the government or of the watchful senior civil servants both Irish and European. The TDs who have to face the public don’t get the blame or at least all of it. and what blame they get they share with the whole committee rather than individually. In the method of legislating laid out by our constitution, we see who votes for what and can praise or hound our representative in the short term and vote for or against them in the next election. I was on more committees at any one time than any MEP in the European parliament, it was fascinating to watch how committees can be used to deliver the agendas of the most powerful.

I will vote No to amendment 30