Judiciary, promotions and differentiation

By Ravi Perera

According to the newspapers some of the judges of our Court of Appeal are unhappy at the prospect of an "outsider" being considered for the post of President of the Court of Appeal. This outsider is presumably from either the private bar or is a State Law Officer.

This hierarchy bound attitude to making appointments to public office, not uncommon in traditional societies, brings in to focus an approach, which demands closer examination. The manner in which a given society evolves is partly determined by its manner of selecting high officials and leaders. Although the motivation for this article was provided by the happenings in judicial circles our analysis is by no means restricted to this event. In almost every sphere of our social activity the approach taken in filling the leading positions will eventually influence the success of that enterprise.

Seniority as the sole criteria for appointment/promotion is prevalent in many social organisations. In the ancient times the crown generally passed on to the eldest, particularly if that person happened to be a male. In the event of the eldest being of infirm mind or body the next in line stood a chance of ascending the throne. This system generally prevailed until challenged by an external threat when the kingdom naturally looked for the most competent defender. However, in those unhurried times, when every thing else was equal, the argument for appointing the most senior carried.

Modern management theory looks at the issue of promotion and appointments differently. They are now most inclined to consider merit as the main criteria for promotion. Jack Welch the famed CEO of General Electric described the difference this way. "A merit-free system eventually destroys itself. It collapses from its own weight or has to change. The results just won't be good enough to sustain the enterprise."

In the common law system we inherited from the British there is an established tradition of appointing judges from outside the service, particularly eminent lawyers, to the bench. A strong judiciary being a cornerstone of a democratic civilization, ideally the system should strive to get the best in that society as their judges.

The average layman will not easily comprehend some of the time hallowed practices and traditions of temples of justice. Most of these were developed in far away Britain, which of course had a very different historical evolution to us. Even there, pressures of a rapidly changing society are bringing about radical changes to practices followed unchanged for years. Having created a defining legal heritage they are justifiably proud of the English are unlikely to let hidebound traditions weigh them down in mediocrity.

Our John Doe will find it even more difficult to determine the merits of a judicial officer, who has to measure up to many sided and complex expectations of the public. But if a system is to work effectively those expectations must be met. This is another reason why automatic promotions may not be in the best interest of a service such as the judiciary.

This brings us to the value of differentiation, another very important modern management concept that challenges the idea of automatic promotion on seniority.

This concept is based on the simple truth that no two individuals are the same. To prevent otherwise is to violate a very basic tenet of all successful human enterprises. When we want a table made we go to the best carpenter our money can get. If we think anybody can do it and order a table from a tailor the result certainly will not be satisfactory. This also holds true for an organisation, which treats all its employees in the same manner regardless of their vastly different value and contribution.

It is therefore argued by proponents of differentiation that any organisational set up stands to gain by promoting the best. As to what constitute the best in a given situation can vary. Every job is not the same. In the case of a judge an amalgam of qualities like intelligence, learning, independence, fair-mindedness and a certain personality are generally looked for. In the situation of managing an estate we would like to see qualities like leadership, energy and a feel for planting in the manager.

The strongest criticism of the idea of differentiation comes from those who challenge the impartiality/judgement of the appointing authority. How do we discount the possibility that the appointing authority is not motivated by cronyism and favouritism? Although there is no clear remedy for this possibility, it is argued by the supporters of the concept that a system which embraces the idea of differentiation, however flawed, is yet superior to one which does not even attempt to evaluate the contribution of individuals.

They point out that a merit-based system of promotion/appointment will be more productive and will ultimately contribute more towards a prosperous and stable society.

There are reasons to consider this proposition. Although our society seems to instinctively opt for seniority as the sole criteria for promotions this attitude does not seem to filter down to other activity. It is most common to observe our total disregard for queues in almost every situation in this country.

Why do persons who have such scant regard for the idea of a queue insist on it when it comes to their career promotions? Could it be that they find it an easy way to enjoy a career without really having to perform?

We do not recommend that all situations must be opened for free bidding. The ideal situation would of course be a harmonious blend of experience and ability, bearing in mind that the former does not always enhance the latter proportionately. It is also important that we should not consider public office as a mere career prospect.

There is a lot more at stake when we consider filling a public office.