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Our View: AG’s constitutional objection to pay reform for judiciary is absurd

Attorney-general Costas Clerides

WHENEVER the government takes a decision that is aimed at curtailing public sector privileges we are subjected to a cacophonous reaction from the affected interested parties claiming it is an attack on workers’ conquests, that it is unlawful or unconstitutional. Civil servants claimed it was unconstitutional for the bankrupt state to cut their wages and appealed against the decision to the Supreme Court. Retired state officials who had served in three different posts and, quite absurdly, were receiving three state pensions have also appealed against the decision to scrap the practice.

Whatever touches special privileges is labelled unconstitutional. We heard this dubious argument again at last Monday’s House finance committee meeting which was discussing the government’s reform bills for the public sector that are aimed at controlling the annual growth of the public payroll. This would be done by linking annual pay rises to the growth of GDP rather than existing regime of automatic annual pay rises of four to six per cent. Attorney-general Costas Clerides and president of the Supreme Court Myron Nikolatos, both agreed that the law limiting pay rises should not apply to judges, the attorney-general and the deputy attorney-general because in their case there would be issues of constitutionality.

In short, the reform must affect everyone in the public sector except the judges and AG because an article of the constitution stipulates that “the remuneration and other conditions of service” of a judge “shall not be altered to his disadvantage after his appointment”. The provision existed to prevent the executive from punishing a judge that might have caused it problems, but there is no such possibility nowadays making the provision not only obsolete, but an obstacle to the implementation of the government’s fiscal policies. Not to mention the fact that only an idiot would interpret a new, rational pay structure in the entire public sector as an attempt to exercise pressure on judges by the government or in any way threaten the independence of the judiciary.

Supreme Court judges are highly educated and experienced people, perfectly capable of distinguishing between an attempt by the executive to undermine the independence of the judiciary and an honest drive to rationalise the public payroll as part of its fiscal policy. In the context of the controlling the growth of the public payroll, changing the remuneration of judges is not a violation of the constitution because it does not threaten the principle the constitution set out to protect – the separation of powers and the independence of the judiciary. Are we mistaken in thinking that judges are obliged to interpret the laws?

Under the circumstances it was perfectly understandable that the Supreme Court president came in for strong criticism in the press and social media, the consensus being that, in effect, he was protecting the financial interests and earning power of judges. Stung by the perfectly legitimate criticism, the Supreme Court issued a statement on Thursday in an attempt to defend its position that it should be exempt from reduced pay rises.

It said: “The aim of the Supreme Court was to point out that certain provisions of the relevant bill could possibly cause constitutional problems. These provisions are linked directly with state issues of the highest importance such as the independence of the judicial authority, which is safeguarded by the Constitution of the Cyprus Republic and which the judicial authority has a duty to protect.”

If the Supreme Court judges feel so strongly about this matter and intend to rule the government’s reform law – if it is passed – relating to their pay, unconstitutional the government and the legislature should explore the possibility of amending the constitution and removing the provision about judges’ pay. The legislature can approve the amendment of outdated provisions of the constitution with a special majority, if the judges insist on citing them to preserve the big annual pay rises, which no other public official would be entitled to.

We doubt it would come to this because neither the government nor the political parties would want to openly confront the judges. But there can be no compromise after the Supreme Court turned the issue of fiscal consolidation into a constitutional issue “of the highest importance”. The government could yet decide to exempt them from the new pay structure because it is desperate to get the reform bills approved. It would be a victory for our judges’ claim to privileged treatment, in the name of the constitution.

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