FREIBURG, GERMANY 6TH MAY 2010

CONTENTS

Subject Paragraph Number

1. The Rule of Law 1 – 5

2. The Independence of the Judiciary 6 – 11

3. The Constitutional Reform Act 2005 12

4. Article 6 ECHR 13 – 15

5. Judicial Remuneration 16 – 29

6. Supreme Court of Canada Decisions 18 – 23

7. Constitutional Protection: Other Countries 24 – 27

Conclusion 31

JUDICIAL INDEPENDENCE, THE RULE OF LAW AND JUDICIAL SALARIES

I THE RULE OF LAW

[1] The remuneration of judges in the modern world is, properly analysed, not a freestanding issue belonging to some unsavoury and unattractive economic vacuum. It belongs, rather, to the domain of the rule of law and is an aspect of the independence of the judiciary. It is also inextricably linked with the separation of powers and the doctrine of the rule of law.

[2] The primary meaning of the rule of law is that everything must be done according to law. Thus every Government Minister who, or Government agency which, purports to act in any given field must justify the action in question as authorised by law – which will normally (though not invariably) mean authorised by parliamentary legislation. Acts of governmental power routinely affect the legal rights, duties and liberties of the individual. All such acts must be shown to have a strict legal pedigree. The courts are the arbiters of whether the necessary legal pedigree exists. Thus the rule of law is founded on the principle of legality.

[3] The rule of law has an important secondary meaning in all well developed systems of administrative law: it is that government should be conducted within a framework of recognised rules and principles which restrict the exercise of discretionary power and are designed to prevent its abuse. Once again, it is the courts which are the arbiters of the legitimate use – and misuse– of governmental power.

[4] Thus the rule of law and the independence of the judiciary are inseparable elements of a modern constitutional democracy. Plainly, the rule of law cannot function properly and effectively unless adjudication upon the legality of governmental acts is carried out by judges who are independent of the executive. Judicial independence is, therefore, a cornerstone of the rule of law. Properly appreciated, it explains and illuminates the doctrine of the separation of powers. In the context of the United Kingdom, it has been observed that “… the British Constitution, though largely unwritten, is firmly based upon the separation of powers” [1]. This is also captured in the following statement:

“The right to carry a dispute with the Government before the ordinary courts, manned by judges of the highest independence, is an important element in the Anglo-American concept of the rule of law”. [2]

[5] The doctrine of the rule of law is also identifiable in the following profound words:

“[The court] has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power. While the court must properly defer to the expertise of responsible decision makers, it must not shrink from its fundamental duty to do right to all manner of people”. [3]

Furthermore, it is no coincidence that the rule of law occupies a prominent position in the EU Treaty. Article 6/1 provides:

“The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law , principles which are common to the Member States.”

[My emphasis].

As this cornerstone provision of the Treaty recognizes, the rule of law is one of the values which binds and unifies the diverse and disparate Member States of the European Union.

II THE INDEPENDENCE OF THE JUDICIARY

[6] Few would deny that the independence of the judiciary is a value of supreme importance throughout the developed world. Equally undeniable is the marriage of the rule of law and judicial independence: neither partner can survive without the other. At a recent conference, one of the most senior English judges offered the following formulation of judicial independence:

“In a democratic country all power, however exercised in the community, must be founded on the rule of law. Therefore each and every exercise of political power must be accountable not only to the electorate at the ballot box, when elections take place, but also and at all times to the rule of law. Independent professions protect it. Independent press and media protect it. Ultimately, however, it is the judges who are guardians of the rule of law. That is their prime responsibility. They have a particular responsibility to protect the constitutional rights of each citizen as well as the integrity of the constitution by which those rights exist. The judge therefore cannot be out for popularity. He – or she – cannot please everyone. He should never try to please anyone. That includes the judge himself. He should never use his office to confirm his predilections or to allow his prejudices to gain some kind of spurious judicial respectability ”. [4]

[7] Judicial responsibility, of course, goes hand in hand with judicial independence. No judge has any dispensing power – that is to say the power to set aside or disregard the law. Thus it was observed by Thomas Fuller in the mid 17th century:

“Be ye never so high the law is above you.”

This followed the public trial, and ensuing execution, of a king who had proclaimed that “Rex is Lex”. This claim was exposed as fallacious because it was plainly inimical to the rule of law. Judges might do well to reflect on this heresy from time to time. The essence – and burden - of judicial responsibility has been described by Lord Judge CJ in these terms:

“Having been entrusted with huge power, judges have an ultimate responsibility to see that when exercising the power vested in them, they use it lawfully in precisely the same way asthey ensure that political and other powers vested in other institutions of the State are exercised lawfully.”

[My emphasis].

[8] It is well recognised that respect for and protection of judicial independence provides a bulwark for the citizens of every civilised society. In June 1998, the judges of the Commonwealth formulated the principle of judicial independence in these words:

“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects”.

In the United Kingdom context, Lord Bingham of Cornhill has stated:

“Independence of the judges (or, put negatively, the protection of judges from executive pressure or interference) is all but universally recognised as a necessary feature of the rule of law”. [5]

The doctrine of the separation of powers requires appropriate deference by Government and Parliament to the decisions of the court. Per Lord Bingham again:

“Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions whether they approve of them or not, unless and until they are set aside”. [6]

[9] Judicial independence is an internationally recognised value of longstanding. By its resolutions, the General Assembly of the United Nations has endorsed the “Basic Principles on the Independence of the Judiciary”, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders. [7]

The United Nations has also recognised the need for effective implementation of the principle of judicial independence. This is reiterated in a further resolution, of the UN Economic and Social Council which states, inter alia:

“All States shall adopt and implement in their justice systems the Basic Principles on the Independence of the Judiciary in accordance with their constitutional process and domestic practice …

No judge shall be appointed or elected for purposes, or be required to perform services, that are inconsistent with the Basic Principles. No judge shall accept judicial office on the basis of an appointment or election, or perform services, that are inconsistent with the Basic Principles …

The Basic Principles shall apply to all judges, including, as appropriate, lay judges, where they exist”. [8]

[10] In similar vein are the well known “Bangalore Principles of Judicial Conduct”. [9] As the recitals in the Preamble emphasize, a competent, independent and impartial judiciary is not only essential to ensure that the courts fulfil their role in “upholding constitutionalism and the rule of law” but also on account of the great importance in every modern democratic society of engendering public confidence in the judicial system and in the moral authority and integrity of the judiciary. “Value One” states:

“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects”.

“Value Two”, which is impartiality, is expressed in these terms:

“Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made”.

The remaining “values” are integrity; propriety; equality of treatment; and competence and diligence.

[11] Thus the independence of the judiciary derives from, and is an integral feature of, two seminal principles or doctrines: the first is the rule of law and the second is the separation of powers. The French philosopher, Montesquieu, writing in the 18th century about the British Constitution, identified as one of its cardinal features the separation of legislative, executive and judicial powers. Previously, certain despotic sovereigns had refused to recognise the independence of the judiciary and the removal of judges from office, without good reason, having been appointed “during his Majesty’s pleasure”, occurred frequently during the successive reigns of Charles II and James II. However, the day following the resolution of the House of Commons that the latter had abdicated, a parliamentary committee drew up “Heads of Grievances”, to be presented to the new king, William III. This document contained, amongst other things, proposals about the payment of judges’ salaries [about which more later].

The Constitutional Reform Act 2005

[12] In the United Kingdom, almost remarkably, the recognition of the independence of the judiciary in legislation did not occur until the enactment of the Constitutional Reform Act 2005. This begins with the following provision:

“(1) The Rule of Law

This Act does not adversely affect –

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor’s existing constitutional role in relation to that principle”.

In its wake, Section 3 makes provision for a guarantee of continued judicial independence. [10] In the specific context of Northern Ireland, the recognition of the independence of the judiciary also occupies a prominent position in a statute of undeniable importance in the recent history of that country: see Section 1 of the Justice (Northern Ireland) Act 2002. [11] It is also noteworthy that, in both statutes, a broad, inclusive definition of the words “the judiciary” is provided. [12]

Article 6 ECHR

[13] Article 6 of the European Convention on Human Rights and Fundamental Freedoms provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

[Emphasis added].

In the United Kingdom, Article 6 is one of the Convention rights implemented by the Human Rights Act 1998. Section 6 of this statute makes it unlawful for a court (and for any public authority) to act in a way which is incompatible with any of the protected Convention rights.

[14] There are no wasted or superfluous words in Article 6 ECHR. The stipulation is that courts and tribunals must be both independent and impartial. These are separate, cumulative requirements. As regards independence, the European Court of Human Rights has stated:

“In order to establish whether a body can be considered ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence”. [13]

In its earliest jurisprudence, the European Court emphasized that a “court” is a body which –

“… must possess a judicial character, that is to say be independent both of the executive and of the parties to the case”. [14]

In another case, the European Court, referring to Articles 5 and 6 of the Convention, stated that where the word “court” (or “tribunal”, in French) is used, this –

“denotes bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case , but also the guarantees of judicial procedure”. [15]

In another landmark Belgian case, the European Court stated:

“While the Court of Cassation, notwithstanding the limits on its jurisdiction, obviously has the characteristics of a tribunal, it has to be ascertained whether the same may be said of the Appeals Council. The fact that it exercises judicial functions does not suffice. According to the Court’s case law, use of the term ‘tribunal’ is warranted only from an organ which satisfies a series of further requirements – independence of the executive and of the parties to the case, duration of its members’ terms of office, guarantees afforded by its procedure –several of which appear in the text of Article 6(1) itself”. [16]

Thus, while the European Court has frequently spelled out the essential characteristics of a “court” as required by Articles 5 and 6 ECHR, it has, characteristically, refrained from expressing itself in unduly prescriptive terms. From the perspective of the remuneration of judges, the repeated emphasis on “the existence of guarantees against outside pressures” is noteworthy. [17] It is within the contours of such linguistic formulations that reflections on the remuneration of judges can begin.

[15] As regards impartiality, the European Court has habitually expressed itself in notably different terms, emphasizing the distinction between this value and that of independence. This is illuminated in the following passage:

“Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6(1) of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect”. [18]

In a more recent case, the European Court has expressed itself in comparable terms. [19] The emphasis throughout the European Court’s jurisprudence is on appearances and the objective nature of the applicable test. In the United Kingdom, this has given rise to a development of the common law, in a landmark judgment of the House of Lords, where it was stated:

“The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. [20]

Where any debate about impartiality arises, it is necessary to identify the circumstances which are said to give rise to bias:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased …

The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances …

The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced”. [21]

Later, the House of Lords emphasized:

“The small but important shift approved in Porter’s case has at its core a need for the confidence which must be inspired by the courts in a democratic society …

Public perception of the possibility of unconscious bias is the key …

The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago”. [22]

The emphasis on the interaction between the public and the judiciary is noteworthy. The link between judges and other members of society is an inextricable one. Also to be noted is the influence of the ECHR, a European Treaty, in developing the common law.

III JUDICIAL REMUNERATION

[16] Where does judicial remuneration fit into the jigsaw whose principal pieces are the rule of law, the independence of the judiciary and judicial impartiality? How does the apparently unattractive concept of financial reward coexist with these lofty ideals and exalted values? In truth, the link is not unduly difficult to establish.

[17] In the Basic Principles of the Independence of the Judiciary adopted by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders and endorsed by General Assembly Resolutions 40/31 of 29 November 1985 and 40/146 of 13 December 1985 paragraph 1 provides:

“The terms of offices of judges, their independence, security, adequate remuneration , conditions of service pensions and the age of retirement shall be adequately secured by law.”

[Emphasis added].

Article 31 of The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia region 1995 [23] is even more explicit:

“The remuneration and conditions of service of judges should not be altered to their disadvantage during their term of office except as a part of a uniform public economic measure to which judges of the relevant court or a majority of them have agreed.”

In similar vein, Principle 1(2)(a)(ii) of the Council of Europe Recommendation No. R(94)12 of the Committee of Ministers to Member States on independence, efficiency and the role of judges (13 October 1994) provides that:

“The terms of office of judges and their remuneration should be guaranteed by law.”

[18] Perhaps the fullest and clearest exposition of the concept of judicial independence in the Commonwealth, particularly in the context of the financial requirements necessary to secure the independence of judges, is to be found in a decision of the Canadian Supreme Court. [24] A series of cases came before the Supreme Court of Canada arising out of a constitutional crisis brought about by the decision of various Provincial Governments to reduce judges’ remuneration (together with the pay of other public servants). While the appeals raised a range of issues relating to the independence of Provincial Courts, they were united by a single issue, namely whether and how the guarantee of judicial independence in Section 11(d) of the Canadian Charter of Rights and Freedoms restricted the manner by and the extent to which provincial Governments and legislatures could reduce the salaries of Provincial Court judges.

[19] The content of the collective and institutional dimension of financial security for judges of the Provincial Courts was the main issue. Lamer CJ, delivering the main judgment of the Court, highlighted the unprecedented nature of the appeals. The independence of Provincial Court judges had become a live issue in four of the ten provinces in the Canadian Federation. The appeals had arisen in three different ways. In Alberta, three accused persons challenged the constitutionality of their trials before a judge in the Provincial Court. In Manitoba, the Provincial Judges’ Association proceeded by way of civil action. In Prince Edward Island, the Provincial Cabinet brought two references. The task of the Canadian Supreme Court was to define and delimit the proper constitutional relationship between the judges and the Provincial Executives. Central to the deliberations of the court was Section 11(d) of the Canadian Charter which guaranteed to accused persons the right of trial before an independent tribunal. [25]

[20] Although the Appellants relied exclusively on Section 11(d) of the Canadian Constitution Act as the foundation for their arguments about judicial independence, the Supreme Court was concerned with the larger question of where the constitutional home of judicial independence lay. The court concluded that judicial independence was one of the unwritten foundational norms or principles belonging and traceable to the preamble to the Constitution Act 1867 [26]. In forming it’s view of the requirements of judicial independence, the court was particularly influenced by the consideration that the Constitution Act and its preamble drew on the norms that had been inspired by the guiding principles of the United Kingdom constitution. Thus the express provisions of the Constitution Act 1867 and the Charter were not considered to constitute an exhaustive code for the protection of judicial independence in Canada: rather, these were complemented by vital unwritten constitutional rules [27].

[21] The Canadian Supreme Court held that judicial independence has three core characteristics: security of tenure; financial security; and administrative independence. These were to be contrasted with the two dimensions of judicial independence viz. the individual independence of a judge and the institutional, or collective, independence of the court or tribunal to which the judge belongs. [28] Lamer CJ continues:

“However, the core characteristics of judicial independence and the dimensions of judicial independence are two very different concepts. The core characteristics of judicial independence are distinct facets of the definition of judicial independence. Security of tenure, financial security and administrative independence come together to constitute judicial independence. By contrast, the dimensions of judicial independence indicate which entity – the individual judge or the court or tribunal to which he or she belongs – is protected by a particular core characteristic.” [29]

Financial security has therefore two dimensions, individual and institutional. It was the latter dimension that was affected by the provincial economic measures.

[22] The Supreme Court was of the opinion that financial security for the courts as an institution has three components, all of which flow from the constitutional imperative that, to the greatest extent possible, the relationship between the judiciary and the other branches of government is depoliticised. This imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by other branches of government and that they are excluded from and insulated against the politics of remuneration from the public purse [30]. The three components of financial security for the courts as an institution were, in the court’s view, the following:

(a) Any changes or freezes in judicial remuneration (which in the court’s view clearly included pensions and other benefits) require prior recourse to a special process which is independent, effective and objective to avoid the possibility, or the appearance, of political interference through economic manipulation [31];

(b) Under no circumstances should it be permissible for the judiciary, either collectively or individually, to engage in negotiations about remuneration with the Executive or representatives of the legislature, as this would be fundamentally in conflict with traditional independence. Salary negotiations are indelibly political. Negotiations would undermine the appearance of judicial independence because the Crown is almost always a party to criminal proceedings and because salary negotiations engender a set of expectations about the behaviour of parties to those negotiations which are inimical to judicial independence. However, this would not preclude chief justices or chief judges, or organisations representing them, from making representations or expressing concerns about the adequacy of judicial remuneration to the executive [32].

(c) Any reduction in judicial remuneration, including de facto reductions through the erosion of judicial salaries, cannot lower salaries below a basic minimum. “ Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation, as is witnessed in many countries ” [33].

The words emphasized above have a particular resonance during times of economic stringency. Moreover, it is possible that they resonate to a greater extent in some countries where the overarching theme of the rule of law and certain of its offshoots are of comparatively recent advent.

[23] Notably, the obligations in play were not considered to be purely unilateral. Rather, the Supreme Court was of the opinion that obligations of a mutual nature were imposed on the judiciary and the executive:

“… the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary and, conversely … members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate and which do not relate to the proper administration of justice” [34].

The Supreme Court further observed that judges, although they must legitimately be paid from public monies, are not civil servants. There is a marked distinction. Civil servants are part of the Executive. Judges, in contrast, are independent of the Executive. The three characteristics of judicial independence – security of tenure, financial security and administrative independence – are a reflection of that fundamental distinction because they provide a range of protections to members of the judiciary to which civil servants are not constitutionally entitled [35]. Lamer CJ pointed out:

“With respect to the judiciary, the determination of the level of remuneration from the public purse is political in another sense because it raises the spectre of political interference through economic manipulation. An unscrupulous government could utilise its authorities to set judges salaries as a vehicle to influence the course and outcome of adjudication. Admittedly this would be very different from the kind of political interference with the judiciary by the Stuart Monarchs in England which is the historical source of the constitutional concerns for judicial independence in the Anglo-American tradition. However the threat to judicial independence would be as significant. We were alive to this danger in Beauregard when we held that salary changes that were enacted for an ‘improper or colourable purpose’ were unconstitutional. Moreover… changes to judicial remuneration might create the reasonable perception of political interference, a danger which Section 11(d) must prevent…..” [36]]

It is suggested that the principles and philosophy contained in this landmark decision, whose importance is acknowledged throughout the common law world, are fully applicable to all aspects of judicial remuneration – salary, pensions and any other financial benefits. [37] Furthermore, it is difficult to conceive how any EU Member State could legitimately fail to subscribe to these values and principles.

[24] The Canadian Supreme Court has made a further significant contribution to this subject, in Valente –v- The Queen [38] . Once again, this featured Section 11(d) of the Canadian Charter. One of the main arguments advanced was that the Provincial Court (Criminal Division) was not an independent tribunal by virtue of the nature of the tenure of office of its judges (especially those holding office under a post-retirement reappointment), the manner in which their salaries and pensions were determined and the extent to which they were dependent on the discretion of the executive Government for certain advantages and benefits. In its decision, the Supreme Court highlighted the distinction between independence and impartiality. It considered that independence reflects the traditional constitutional value of judicial independence, connoting not merely a state of mind but also a status or relationship to others – particularly the executive branch of Government – which rests on objective conditions or guarantees. Objective perceptions were considered all important.

[25] The court concluded that the three essential conditions of judicial independence are security of tenure, financial security and institutional independence in matters of administration bearing directly on the exercise of the judicial function (assignment of judges, court sittings, the court lists and so forth). As regards remuneration, Le Dain J, delivering the judgment of the court, stated:

“The second essential condition of judicial independence … is, in my opinion, what may be referred to as financial security. That means security of salary or other remuneration and, where appropriate, security of pension. The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence . In the case of pension, the essential distinction is between a right to a pension and a pension that depends on the grace or favour of the Executive”. [39]

The court noted further that the two principal objections to the determination of the salaries of Provincial Court judges were that they were not fixed by the legislature and were not made a charge on the Consolidated Revenue Fund. [40] In this respect, while the domestic law distinguished between provincial judges and other members of the judiciary (Superior, District and County Court judges), the important consideration was that the payment of Provincial Court judges was established by law. [41]

Constitutional Protection : Other Countries

[26] Probably the strongest constitutional protection of judicial salaries is found in The Constitution of Ireland, which provides, in Article 35:

“…

2. All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law …

4. A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dail Eireann and by Seanad Eireann calling for his removal …

5. The remuneration of a judge shall not be reduced during his continuance in office ”. [42]

I have studied some of the constitutions of certain other EC Member States. These include The Basic Law for the Federal Republic of Germany (in operation since 23rd May 1949). [43]Chapter IX of the Basic Law is a self-contained code making elaborate provision for the judiciary and the courts. However, while it provides explicitly for judicial independence, in Article 97(1), it says nothing about the necessary guarantees of judicial independence, including remuneration. On 26th November 2009, the Association of German Administrative Judges (Bund Deutscher Verwaltungsrichter – BDVR -) adopted in the general assembly held on 26 November 2009 a resolution in the following terms:

“Revocation of the saving clause going back to a common remuneration. [This includes an amendment of the recently revised Article 74 para 1 No. 27 of the Fundamental Law (Grundgesetz = Constitution).]

New calculation of the salaries of judges according to the constitutional principle of adequate remuneration and in compliance with European standards.

Compensation of the long term underpayment in comparison with other legal professions outside the civil service in compliance with the ‘principle of distance’ (Abstandsgebot). It must be a difference to the income in other legal professions respecting the distinguished role of the jurisdiction.”

While the import of this resolution is tolerably clear, its impact remains to be seen.

[27] In the Constitution of the Netherlands [44], the subject matter of Chapter 6 is the “Administration of Justice”. A notable safeguard is that members of the judiciary are appointed for life (Article 117), with a retirement age of seventy years. Judicial remuneration is not mentioned. The Constitution of Portugal [45] addresses, in Title V, the judiciary and the courts, stating in Article 203:

“The courts shall be independent and subject only to the law”.

Article 216 states:

“Judges shall enjoy security of tenure and shall not be transferred, suspended, retired or removed from office except in the cases laid down by law”.

While provision is made for the establishment of the Supreme Judicial Council (in Article 217/1) whose responsibilities encompass the appointment, assignment, transfer and promotion of judges, [46] the Constitution is silent on the topic of judicial remuneration. Similar provisions are found in the Spanish Constitution [47], in Title VI and Article 117 particularly. Once again, however, there is silence with regard to judicial salaries and it is evident that this topic is regulated by parliamentary laws. Finally, the constitution of Latvia also contains a chapter concerned exclusively with judges and courts: see Chapter 6 (Articles 82-86). However, this too is silent on the topic of judicial remuneration and, as a general observation, the protections of judicial independence and the judiciary which it contains seem weaker than those of many other EU countries.

[28] Even constitutional protections do not provide rock solid guarantees. Constitutions can be revised from time to time, whether by referendum or otherwise. In the concrete case of Ireland, the guarantee contained in Article 35(5) has been the subject of much political debate and controversy since 2009, in the context of an economic recession, when the judiciary was excluded from a public service pension levy. This resulted in some of the State’s 148 judges making voluntary contributions. The judicial salary range in the Republic of Ireland is from €147,000 to €295,000. One leading newspaper was prompted to state [48]:

“Judicial independence is vital in a properly regulated and democratic society. And it must be preserved. Independence should not, however, obviate a related responsibility on members of the judiciary to contribute to the common good and to ensure that – as servants of the public – they do nothing that might bring their privileged positions into disrepute. Unfortunately, at this time of economic crisis, their initial response to an arrangement for voluntary contributions in lieu of a pension levy could have that effect.”

This is a reminder of the truism that well paid judges, whose salaries derive from public funds (i.e. taxpayers’ contributions), do not score highly in the popularity polls. Thus the topic of judicial remuneration is one which must always be approached with considerable sensitivity and appropriate delicacy.

[29] Notwithstanding, judges, particularly operating in a corporate fashion, can exert influence in this sphere. This is exemplified by the resolution adopted by the European Association of Judges [49] concerning the remuneration of judges in Sweden, following the introduction of a system of individualised judges’ salaries. By the terms of the resolution, the EAJ –

“… urges the Swedish Government to ensure that the system for determining the salaries of Swedish judges is entirely consistent with the well established international standards of judicial independence …”.

In the event, the new system was modified. [50] I would contend that any informed debate and decisions in the realm of judicial remuneration must always be linked to its true roots, which are the rule of law, the separation of powers and the independence of the judiciary. Judges must be remunerated in a way that is compatible with these core values.

[30] There is a further consideration of unquestionable importance. The remuneration must be sufficient to attract to the judiciary highly skilled and competent legal practitioners, as this is self-evidently in the public interest [51]. Furthermore, the level of remuneration must be sufficient to insulate judges from inappropriate pressures and inducements, with a view to preserving their integrity, impartiality and independence. The fragility of the rule of law even in mature democracies is exemplified in the recent “Fortisgate” affair in Belgium, where the Prime Minister admitted in public that an official of the Minister of Justice had contacted the husband of a Court of Appeal Judge on several occasions during the course of litigation relating to the legality of state intervention to protect the bankruptcy threatened largest financial service company in the country. This demonstrates that constant vigilance is required.

Conclusion

[31] The public relations battle will always, of course, be both difficult and challenging. An obvious difficulty is that of presentation and portrayal, particularly in times of economic hardship. However, the underlying justifications are of such overarching importance that all judges and their representative organizations must be both courageous and undeterred in this matter at all times. In short, the rule of law and its related core values must prevail in all conditions and under all circumstances.

APPENDIX

In Re a Reference regarding the remuneration of Judges in the Provincial Court of Prince Edward Island [1998] 1 SCR3, at the conclusion of his judgment, Lamer CJ provided the following helpful summary:

“287 Given the length and complexity of these reasons, I summarize the major principles governing the collective or institutional dimension of financial security:

1. It is obvious to us that governments are free to reduce, increase, or freeze the salaries of provincial court judges, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class.

2. Provinces are under a constitutional obligation to establish bodies which are independent, effective, and objective, according to the criteria that I have laid down in these reasons. Any changes to or freezes in judicial remuneration require prior recourse to the independent body, which will review the proposed reduction or increase to, or freeze in, judicial remuneration. Any changes to or freezes in judicial remuneration made without prior recourse to the independent body are unconstitutional.

3. As well, in order to guard against the possibility that government inaction could be used as a means of economic manipulation, by allowing judges’ real wages to fall because of inflation, and in order to protect against the possibility that judicial salaries will fall below the adequate minimum guaranteed by judicial independence, the commission must convene if a fixed period of time (e.g. three to five years) has elapsed since its last report, in order to consider the adequacy of judges’ salaries in light of the cost of living and other relevant factors.

4. The recommendations of the independent body are non-binding. However, if the executive or legislature chooses to depart from those recommendations, it has to justify its decision according to a standard of simple rationality — if need be, in a court of law.

5. Under no circumstances is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature. However, that does not preclude chief justices or judges, or bodies representing judges, from expressing concerns or making representations to governments regarding judicial remuneration.”

Also noteworthy is the following passage in the dissenting judgment of La Forest J:

“342 The threat to judicial independence that arises from the government’s power to set salaries consists in the prospect that judges will be influenced by the possibility that the government will punish or reward them financially for their decisions. Protection against this potentiality is the raison d’être of the financial security component of judicial independence. There is virtually no possibility that such economic manipulation will arise where the government makes equivalent changes to the remuneration of all persons paid from public funds. The fact that such a procedure might leave some members of the public with the impression that provincial court judges are public servants is thus irrelevant. A reasonable, informed person would not perceive any infringement of the judges’ financial security.”