Martin Henry, Contributor

When I saw the news item in The Gleaner earlier this month, 'PSOJ to target the rule of law', my interest was immediately aroused. The Private Sector Organisation of Jamaica is composed of hard-nosed business people, not lawyers, and the news story reported that the PSOJ told an Editors' roundtable of the Press Association of Jamaica that the oganisation would be focusing on promoting the rule of law this year. Excellent.

But then the story goes on to report that the PSOJ would be improving the forensic capability of the police force and would be pushing for new laws to deal with corruption which the chairman of their crime committee argued was at the root of the country's crime problem.

This is crime fighting, and the multiplication of laws where perhaps we have too many already, not what jurists mean by the rule of law. The uncritical reportage of crime-fighting measures as the rule of law from a meeting involving the country's most senior journalists with leading business people is a cause of more than mild concern. So I have to dust off my Dicey.

Albert Venn Dicey [1835-1922] was one of the pre-eminent English jurists of the latter part of the nineteenth century and early 20th century.

Within a year of the publication of Dicey's monumental Introduction to the Study of the Law of the Constitution in 1885, which extensively expounds on the rule of law, British Prime Minister William Gladstone already was reading it aloud in Parliament, citing it as an authority. The book ran into eight editions in Dicey's lifetime up to 1914.

Half a century after first publication, these foundational principles as expounded by Dicey, who remains an authority until today, were still regarded as so essential and fundamental to British constitutional law that a special enquiry was set up to determine whether more recent constitutional changes did not infringe on them.

The rule of law

What do Dicey and hundreds of years of English constitutional law and common law, from which we have derived our laws, mean by 'the rule of law'? The rule of law, simply, is the supremacy of law, supremacy over arbitrary and capricious actions by powerful persons and institutions, most of all the Government.

Incidentally, for the PAJ editors, Dicey regarded liberty of the press as a cornerstone of the rule of law.

Dicey elucidated three components of the rule of law: "It means, in the first place," he said, "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government ... Ruled by the law, and by the law alone."

"It means again," Dicey continues, "equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. [It] excludes the idea of exemption of officials from the duty of obedience to the law ... "

Ordinary law

And, finally, constitutional law is "not the source, but the consequence of the rights of individuals, as defined and enforced by the courts, thus the constitution is the result of the ordinary law of the land."

Actually, Jamaica has not done too badly with the rule of law, as opposed to law enforcement. Unjust, arbitrary, differentiating laws can be very rigorously enforced.

Five years into Independence, one of our founding fathers, lawyer Norman Manley addressed the Philadelphia Bar Association on The Rule of Law in Jamaica. Manley told his audience: "Any country that can maintain by force of developed public opinion [a key role of the media] confidence in, and respect for, and determination to maintain, the rule of law, is safe from the extremes of dictatorship, be they of the left or the right ... " I think I can claim too," he said, "that this understanding of the rule of law as a living force made a major contribution to the fact that Jamaica is second to few, if any countries that are seeking to solve the problem of racial integration and harmony."

Law enforcement is another matter.

Martin Henry is a communication specialist.