Sunday, November 6, 2011

Hanging Judges

I see President Aquino is on the verbal warpath again, his target being an outrageously underperforming Judiciary. President Aquino cited how cases frequently take six years or more to resolve, and some cases last decades. Judiciary has been a burr under the President's saddle ever since President's Arroyo's undiplomatic midnight appointment of a Chief Justice of the Supreme Court undercut the newly elected President's own preference for the position.

Well, I fear the President's intent in criticizing the horrid performance of the court system is in the right place, for overall performance of the courts is nothing short of horrid, but his method is useless.

To me it seems like a complaint unattached to any practical effort to impose accountability.

I won't belabor the damage done to democracy when justice is simply not available. When wrongs are never righted. When people who are hurt have no access to reparation. When money can buy a judgment. You can figure that out for yourself. It is enormous.

And I must confess that I don't wholly understand the mechanics of Philippine checks and balances when the Chief Justice of the Supreme Court is appointed by the President and is on the Cabinet and all courts roll up under the Supreme Court  . . . but the President can't impose an executive order on the Supreme Court. He must whine to have any influence.

Oops, on second thought. That's pretty much how the US works, too, except Congress has a chance to muddle to get their favorite ideologues appointed to the top courts. And Justice (the courts) stands alone, one of three legs of government, along with the Executive and Legislative branches.

So the question is, how do you get Filipino judges to stand accountable for performance, where performance is one part efficiency and one part precision in application of the law?

What single individual in the Philippines can step forward and say, "Yes, I am the guy who is accountable for the lousy results produced by our judicial system!"? I suspect it is the Chief Justice of the Supreme Court, but like any good attorney, he is arguing his defense (blaming budget cutbacks, mainly) rather than doing anything constructive. It is an echo of the Department of Education. And perhaps every other ineffective department of government.

If you underperform, blame the budget.

Don't blame your own inability to be innovative and precise and capable as a manager.

It is one huge structural problem if no one will accept accountability. Until you have such a person, every excuse in the book holds water. Blames abound. Solutions are absent.

Why is accountability is not a big feature of Philippine government or business enterprise? Anywhere? Because it goes against the grain, where the grain is a huge trade of favors in pursuit of self-gain. The Philippines is a society that thrives on granting and giving favors; on fudging, cheating, and outright stealing. From the bottom (fish vendor using scales that weigh in their favor) to the top (husbands of Presidents who sell used helicopters to the government as new and pocket the difference in price as cash). Self-advantage is the driver. Leveraging power. Giving favors and receiving them, like real money.

You know it. You see it. I don't have to explain it.

Accountability is the medicine that can cure the illness. Consideration, courtesy, sacrifice, kindness, helping others, are the salves. Respect for the well-being of others and fairness.

Alas, the obsession with favors is rather like an addiction to drugs. People don't WANT it to be cured. They enjoy the illness.

Imposing accountability on the courts is so easy that a smart ninth grader could do it.

If Joe Am were the guy who is accountable, here is what he would work to deploy:

Incentive Pay for Judges

Divide judge salaries into two parts, earned salary and incentive pay.  Divide it 80/20. Just take their current pay grade and amount and divide it into two parts.

Base the incentive pay on two criteria:

  1. For each judge, consider his case history and record the average length of time between filing of cases and their resolution. Develop a table of desired results for "average time to resolution". For example:

  • 3 months: Excellent
  • 6 months: Good
  • 9 months: Average
  • 12 months: Poor
  • More than one year : Rotten stinko

  1. Quality of judicial rendering based on: (a) number of cases handled, (b) percentage of appeals, and (c)  audits of case proceedings by an inter agency quality control team (like a financial auditor, but skilled in reviewing judicial process).

I won't belabor how the scoring would be put together. It would be more intricate than I suggest here.  Stale existing cases would have to be set aside. Also, different courts handle different types of cases, and they have different procedural timeframes. But that is not the point of this article. Suffice it to say that thousands of top-performing companies have their executives on an incentive pay scheme. They work out a scoring system that fits their situation.

They don't succumb to defeat at the first objection.

Monthly payout to each judge in Year 1 would be the same as what he makes now. But starting in Year 2, it would be adjusted according to his incentive score for the previous year. Here is an example:

  • Excellent: Double the prior year incentive payout (200%).
  • Good: Increase incentive payout 150%.
  • Average: Same incentive payout.
  • Poor: Reduce incentive payout by half.
  • Rotten stinko: No incentive payout.

Each year, this scale would be revised to keep total salaries within the overall budget.

Each judge has one year to get his act together and perform. Otherwise he personally bears a financial penalty. Plus scores would be reported publicly; the media would apply pressure in their wonderful ways of keeping democracy honest.

But the real problem is . . .

Leaders are addicted to the trade of favors.

Filipinos leaders are smart people. They are schooled in fine institutions. Most have traveled. They probably read now and then. They understand the real world. But the fact that accountability is NOT imposed on the courts is testimony of how deeply entrenched the culture of corruption is in the Philippines. It is a culture that trades favors like cash and is always on the lookout for self-gain, self-advantage.

Not community gain. Not sacrifice. Not even good job performance.

President Aquino and the Chief Justice talk, talk, talk. Argue. Complain. Whine. Bluster. Defend. Pontificate. Instruct. Procrastinate. Appoint study groups. Delay. Defer. Evade. Obfuscate.

It plays well in the newspapers.

But they do not DO anything to impose RESULTS on the courts.

And they DO anything to change the REAL motto of the Philippines.

"You scratch my back, I'll scratch yours."


  1. dude. u blew my mind.

  2. aiee, always happy to show a brain a good time

  3. Thanks for the article.

    The culture of scratching each other's back has made me think twice about giving and receiving favors from others on more than a few occasions.

    I think this came with our love for one-upping our neighbors by showing them our newest, most expensive new toy.

    If only we had learned that appreciating HOW we got that new toy is a lot more satisfying...

  4. AJ, yes indeed. Although I note in a wry way, it was this same envy that drove much of America's growth in the 50's and 60's. It was called "keeping up with the Jonses". Everyone was buying better things to keep up. There, however, the money to pay for them was earned.

    Good to have you visit and comment.


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