This is Part 2 of a call for Jamaica to support the inclusion of Access to Justice and the Rule of Law on the post-2015 UN’s development agenda and as a goal. Part 1 appeared in the Daily Observer of Tuesday, October 29, 2013 .

Rule of law as source of cross-sectoral development

The rule of law is a major source of sustainable economic development. It guarantees accountability, predictability and transparency in governance. Thus, adherence to these principles protects business confidence, attracts investments and ensures respect for and enforcement of property rights and freedoms. The World Development Report 1997, The State in a Changing World, outlined their findings that unpredictability and inconsistent changes in law and policy affect negatively on the feeling of security of investment, property and environment. The lack of credibility also reduces investments, growth and the return on development projects. The report also illustrated that, “investment suffers because entrepreneurs choose not to commit resources in highly uncertain and volatile environments… in a low-credibility environment, growth suffers… the credibility of rules affect not only the business environment, but also the environment for implementation of development projects”. Likewise, governments’ credibility can undermine private investment, as private investors are more inclined to invest in countries where there are sound, rational rules of the game.

Recently, Professor Tommy Koh, ambassador-at-large in Singapore’s Ministry of Foreign Affairs, in applying the Singapore development model, highlighted that a strong rule of law, zero tolerance for corruption, human capacity development and a business-friendly economy, are crucial strategies to achieve economic growth and sustainable development in Jamaica. While I do not embrace the one-size-fit-all approach, I concur with Professor Koh’s strategies. I further advocate, however, for endogenous development of the law, its processes and reform, which are more effective when demanded locally, law being viewed as a cognitive institution. The demand of citizens for performance from their “duty-bearers” in government drives effectiveness and accountability. It follows also that policymakers prioritise and invest in human capacity development. Rule of law development expertise should be encouraged and utilised at all instances, while reliance on external experts should gradually fade. This is especially necessary in light of the current IMF deal and the conditional reforms it facilitates.

Economic development, interconnectedness and hybrid agenda

There is a great connection between economic growth and pro-poor or poverty reduction. Economic growth tends to reduce poverty. Openness and outward trade help reduce poverty through their effect on growth of institutions, capacities and communications. Research has shown that an increase in the rate of per capita GDP growth will translate into 1-for-1 increase in the average income of the poorest 40 per cent. In other words, GDP growth is forceful in reducing poverty, especially for the poorest of the population. There is also recognition that poverty is not only the lack of material goods and opportunities, such as employment and ownership of assets, but also involves lack of social goods, such as health care, social benefits and democratic freedoms.

Likewise, there is a high correlation between the wealth of a country and the rule of law, as illustrated from East Asian and China’s success. As a country develops economically, there are increased demands for a stronger legal system, which results in reforms. This creates a push and pull factor, facilitates a stronger legal system and results in economic development and growth. I support a hybrid agenda, which is a mixture of pro-poor (building democratic freedoms) and pro-growth (economic and institutional capacity building) approaches, capacity-building programmes and policies, both of which are mutually reinforcing. Development is freedom and democratic governance is an independent causal factor that improves economic performance. Likewise, market-based economic growth, facilitated by increased private sector trade and investment, through creation of a market friendly environment, is likely to lead to greater democracy. This agenda aims at reinforcing the importance of and need to strengthen the link between economic growth and democratic governance. Thus, while the government focuses on economic development, other policies should concurrently be created to legally empower the poor and strengthen freedoms.

Institutional capacity development and rule of law

Professor Dani Rodrik and IMF advisor Arvind Subramanian, in their article, The Primacy of Institutions (and what this does and does not mean), noted that institutions play a central role in dealing with property rights and the rule of law. The quality institutions that guarantee economic development and stability, as they argued, are not only those that create markets, but those that sustain their growth, through regulation, stabilisation and legitimisation. Likewise, regarding the rule of law, the institutions of focus are institutions that provide for and are involved in the administration, planning, co-ordination, training, monitoring, and evaluation of the justice sector and legal services, inclusive of legal aid for the poor. These institutions should be equipped and their capacity built to operate with a great level of transparency, rationality, accountability and predictability, to ensure national development. Bureaucracy should be kept as minimal as possible and, where possible, discretion fettered to prevent the underlying governance failure called corruption. Clear rules, law reform, processes and application should reduce discretion, thus, distorting the public officials’ cost-benefit assessment and lowering the opportunities for gain, while increasing the likelihood of sanctions. The cumulative effect of these measures is likely to reduce corruption and/or its perception.

To secure sustainable economic development and growth, through embracing, promoting and adhering to the rule of law, the Jamaican Government could consider establishing a Rule of Law Sustainability and Development Unit, possibly, in the Attorney General’s Chambers, the hub of rule of law promotion in the nation, or create it as a division in an existing unit in the Ministry of Justice.

Time for action

As James A Goldston, executive director of the Open Society Justice Initiative, in Arguments: New Rules for the Rule of Law, profoundly noted, the time has come where the concept of the rule of law is “…capable of commanding consensus in a divided world”. He also posited, “…the recent…turn to the rule of law is an unparalleled opportunity to strengthen human rights, advance human development, and help bridge the often yawning gap between the rights and development worlds”. He advocates that a holistic vision of the rule of law will reject the false perception of the existence of different rule of laws. By this, it would dispel the commonly held, yet incorrect perception of a different rule of law promotion “abroad” by donors, from the search for it “at home”. Furthermore, a united stance on the rule of law should mitigate or remove any perceived “double standards in the application of the rule of law”.

The aftermath of the recent signing of the Social Partnership Agreement of Jamaica warrants action to bring to fruition this symbolic and significant commitment. Specifically, adherence to the rule of law (and timely justice outcomes) is one of the priority areas. Actions, such as those I have recommended, are crucial moves toward the country’s sustained development. It is opportune time for Jamaica to lead in the cause to promote, develop and enforce the rule of law, as our Caricom neighbours join in this move. The major players and stakeholders in the socio-economic and justice sectors, “duty-bearers” and “rights-holders” alike can begin deliberately thinking about this cross-cutting issue.

The time is right, let us step up to the cause before it is too late. Accept it or not, what happens at the UN General Assembly leading up to 2015, will definitely affect the development, plans and priorities of all Caricom, with lasting effect on all citizens, inclusive of the poor, vulnerable and marginalised. A united Caricom can be a great voice in this cause for the Americas, when the UN General Assembly considers including the rule of law in the post 2015-development agenda.

Nigel B Gayle is an attorney-at-Law, rule of law and development advisor. ruleoflawja@hotmail.com