Rule of law refers to a principle of governance in which all people, institutions, and entities, including the State itself, are accountable to laws that are equally enforced and independently adjudicated, and which are consistent with international human rights, norms and standards. Effective rule of law reduces corruption, combats poverty, and protects people from injustices, large and small. It is the foundation for communities of peace, opportunity, and equity underpinning development, accountable government, and respect for fundamental human rights.

The rule of law is not just the rule of lawyers and judges, but all members of society are stakeholders. It can be easily shaken when the justice sector is unable to deliver services, when criminal groups wield political influence, when citizen security is threatened, or when corruption undermines governments.

The World Justice Project (WJP) measured the following eight areas of good governance to determine the compliance rate of 113 countries on the rule of law, as follows:

1) Constraints on Government powers: This measures the extent to which those who govern are bound by law. It comprises the means, both constitutional and institutional, by which the powers of the Government and its officials and agents are limited and held accountable under the law. It also includes non-governmental checks on the Government’s power, such as a freedom of the press.

2) Absence of corruption: This measures the absence of corruption in governance. The factor considers three forms of corruption — bribery, improper influence by public or private interests, and misappropriation of public funds or other resources. These forms of corruption are examined with respect to officers in the executive branch, the judiciary, the military, police, and the legislature.

3) Open government: This area of measurement deals with the openness of government defined by the extent to which a Government shares information, empowers people with tools to hold the Government accountable, and fosters citizen participation in public policy deliberations. This factor measures whether basic laws and information about legal rights are publicised, and evaluates the quality of information published by the Government.

4) Fundamental rights: This area recognises that a system of positive law that fails to respect core human rights established under international law is at best “rule by law”, and does not deserve to be called a rule of law system. Since there are many other indices that address human rights, and as it would be impossible for the index to assess adherence to the full range of rights, this factor focuses on a relatively modest menu of rights that are firmly established under the Universal Declaration of Human Rights and are most closely related to rule of law concerns.

5) Order and security: Measures how well a society assures the security of individuals and property. Security is one of the defining aspects of any rule of law in society and is a fundamental function of the State. It is also a precondition for the realisation of the rights and freedoms that the rule of law seeks to advance.

6) Regulatory enforcement: Measures the extent to which regulations are fairly and effectively implemented and enforced. It includes regulations, both legal and administrative, and structure behaviours within and outside of the Government. This factor does not assess which activities a Government chooses to regulate, nor does it consider how much regulation of a particular activity is appropriate. Rather, it examines how regulations are implemented and enforced.

7) Civil justice: Measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system. It measures whether civil justice systems are accessible; affordable; and free of discrimination, corruption, and improper influence by public officials. It examines whether court proceedings are conducted without unreasonable delays, and if decisions are enforced effectively. It also measures the accessibility, impartiality, and effectiveness of alternative dispute resolution.

8) Criminal justice: An effective criminal justice system is a key aspect of the rule of law, as it constitutes the conventional mechanism to redress grievances and bring action against individuals for offences against society. An assessment of the delivery of criminal justice should take into consideration the entire system, including the police, lawyers, prosecutors, judges, and prison officers.

The factors across which Latin American and Caribbean countries struggle most include order and security, criminal justice, and civil justice. See the table for the ranking of 15 Caribbean countries.

Notably, Jamaica’s ranking report on the WJP 2017-2018 is 47/113 countries globally, and 13/30 regionally. This is the same position it occupied in the 2016 assessment, the report stated. The 2019 WJP report highlighted that Jamaica’s ranked 50/126 countries globally and 13/30 countries regionally. Therefore, regionally, Jamaica’s ranking has not improved.

Strengthening the rule of law is a major goal of citizens, governments, donors, businesses, and civil society organisations around the world. To be effective, rule of law development requires clarity about the fundamental features that define it, as well as an adequate basis for its evaluation and measurement, the report noted. Civil society must, therefore, make conscious efforts towards ensuring the emergence of think tanks that will not only act as a check on the Government, but will make informed contributions that can shape and refine the public policy and perception process.

The report also warned that the impact of regional economic arrangements (think Caribbean Single Market and Economy) that will permit freer movements of Caribbean nationals will introduce new challenges. The growth of free trade and the dynamics of information technology have made it easier for organised criminal networks to extend their reach across borders. Communication links for the movement of commerce will facilitate the movement of contraband and money laundering. The report concluded that to prevent the collapse of the rule of law, Jamaica needs sufficient capacity to monitor, regulate, investigate, prosecute, and penalise criminal activities, with special focus on the area of financial crime, particularly money laundering and corruption.

Notably, Don Chisholm, director of the Justice and Citizen Security Office of the US Agency for International Development (USAID) Mexico, argued that the rule of law can be easily shaken when the justice sector is unable to deliver services. Many countries, he argued, struggle when issues compound and feed into one another causing an overall deterioration in the rule of law. For example, facing low marks in criminal justice, constraints on government powers, corruption, and other factors.

Accordingly, former executive director of the United Nations Office of Drugs and Crime (UNODC) Yuri Fedotov advised that investments in justice systems and the rule of law were pre-requisites for long-term prosperity. He made his comments in his keynote speech at the inaugural Bangkok Dialogue on the rule of law, organised by Thailand’s Institute of Justice: “Weak rule of law and lack of good governance pose a major threat to social and economic development the world over, and they have hindered progress in attaining the UN Millennium Development Goals,” he said. He also advised that effective and humane justice systems and institutions are fundamental to building societies that facilitate growth and development.

Jamaica’s formal and informal social control and social community cohesion have deteriorated to such an extent that some communities have turned to dons and street gangs for help. USAID found that in Jamaica some citizens do not believe that the police can effectively address crime, so they seek justice from local dons through kangaroo courts. When crimes are carried out within the community dons enforce discipline, including beatings or executions, to an extent considered commensurate with the level of the crime. Dons also provide housing, food, medical assistance, policing services, early childhood education, and other assistance to loyal citizens, as well as greater opportunities for political advancement to people with political aspirations, the USAID discovered.

Ironically, the Jamaica National Crime Victimization Survey, conducted by Dr Scott Wortley et al, in 2012-2013 revealed that respondents who reported that corner crews, gangs, or area dons existed in their community said they are doing positive as well as negative things for their local area. Four out of 10 respondents (43 per cent) felt that area dons did positive things for their community. A third of respondents (31.2 per cent) also felt that corner crews did positive things in their community. According to the respondents, the positive contributions of area dons include employment opportunities, assistance with health care needs, food and financial assistance for disadvantaged community members, educational and recreational opportunities for community youth, and increased community safety. The identified benefits of corner crews included community beautification and cleanliness, public safety, and assistance to the elderly.

Only 18.9 per cent of respondents felt that area dons harmed their community. By contrast, 78 per cent felt that criminal gangs had a negative impact. More than a third of respondents (39.8 per cent) also felt that corner crews harmed their community.

The United Nations Development Programme (UNDP), in 2010, had reported that there were 268 gangs with an accumulated membership of 3,900 members in Jamaica. Forty-one per cent of Jamaicans surveyed then believed that gangs were a major problem in their neighbourhoods, while 14.9 per cent believed that gangs made their communities safer.

One of the foremost responsibilities for any Government is to provide a safe environment conducive to the well-being of the citizens and the development of the country’s infrastructure. Therefore, with the culture of our citizenry, especially in some communities, operating with the aid of area dons and gangs one has to be concerned as to how will the rule of law prevail?

However, in the 2018/19 Throne Speech, delivered by Governor General Sir Patrick Allen, some assurance was given regarding the overall direction of the rule of law. Allen highlighted that the legislative and constitutional reform agenda is among the seven priority programmes and projects set out in the Justice Ministry’s Strategic Business Plan 2018-2021 and Operational Plan 2018/19. Additionally, the governor general also stated that the Administration’s programmes aimed at the achievement of a modernised justice system, which Jamaicans well deserve.

Christopher Bryan has read for master’s degrees in government and national security and strategic studies. Send comments to the Jamaica Observer or christopher.bryan1000@gmail.com.