Martin Henry, Contributor

Five years into Independence, founding father and the country's greatest legal luminary, Norman Manley, delivered an important speech as guest of the Philadelphia Bar Association in 1967. The speech now appears in the collection of Manley's speeches which Rex Nettleford edited, 'Manley and the New Jamaica.'

Manley opened his address saying, "I will talk to you a little about the rule of law as it has contributed in my country to our emergence as a nation of stability with a great potential for preserving the forms and spirit of democratic society."

Manley went on to say: "Any country that can maintain by force of developed public opinion confidence in, and respect for, and a determination to maintain, the rule of law, is safe from the extremes of dictatorship - is safe from all those hysterical and unreal fears that lead to the distortions of prejudice which erupt in conduct that itself is a denial of any civilised maintenance of the rule of law."

The Supreme Court, with the judgement delivered by Chief Justice Zaila McCalla herself, has ruled unequivocally in favour of the Jamaican Constitution in the case brought by candidate in the West Portland constituency in the 2007 general election, Abraham Dabdoub against candidate Daryl Vaz on the grounds of the latter's allegiance to a foreign power. This is a victory for the rule of law.

The Constitution states at Section 40 (2) (a): "No person shall be qualified to be appointed as a senator or elected as a member of the House of Representatives who is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state." The court found elected member of parliament Vaz to be in breach of this provision of the Constitution by his voluntary actions to exploit the provisions of an inherited American citizenship and ordered him to vacate the seat making way for a by-election to give the people of West Portland a fair opportunity to elect a representative.

Obscure clause

Many people wish that the Jamaican Constitution did not have this obscure clause which had never been activated in law since Independence. Erudite arguers in the media argued in favour of ignoring an archaic law which nobody made an issue of before the Dabdoub/Vaz case. The court has simply upheld the law as it stands. There will be no riots, or political interference with the court decision, which could bring down a government. And we simply take all of this for granted.

Both political parties have filed appeals. But on the day when the judgement is set to be enforced, if Daryl Vaz is still answering "still here" in the chamber of Gordon House, any constable may arrest him for contempt of court and illegally sitting as a member of parliament. The prime minister, who constitutionally controls the army and indirectly the police, would not dare to intervene to thwart the arrest of the member whose retention of the seat he desperately needs to help maintain a slim governing majority. And should the prime minister intervene, he would be arrested forthright himself.

This is the rule of law at work which Norman Manley was so proud of when he addressed the Philadelphia Bar Association 41 years ago. We hardly stop to think how rare and shaky the rule of law has been throughout history and is across the globe today. On a colour map '2006 World Map of the Rule of Law Index', which appears in the Wikipedia article, 'Rule of Law', it is surprising to see how much red and orange is on it. Red marks the lowest, or fourth quartile [lowest 25 per cent] and orange the second-lowest quartile. Yellow, marking the middle high band or second quartile, is more scarce. And green, the top quartile, is confined largely to the so-called Western democracies.

But what exactly is 'the rule of law'? The Wikipedia article briefly states that the Rule of Law Index "measures the extent to which agents have confidence in and abide by the rules of society."

Supremacy of the law

I always like to go back to that great 19th-century classic by English jurist A.V. Dicey, The Law of the Constitution, when the rule of law comes up. The rule of law means considerably more than the popular usage of enforcing the law and controlling crime. At its core, the rule of law means the supremacy of the law and the presence of a general social respect for the legal code by which people widely feel bound.

According to Dicey, the rule of law "which forms a fundamental principle of the [English] constitution", which we inherited, has three meanings:

1. "The absolute supremacy or predominance of regular laws 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. [We] are ruled by the law, and by the law alone.

2. "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 any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.

3. "The law of the constitution [is] not the source but the consequence [or result] of the rights of individuals [like electors in West Portland], as defined and enforced by the courts."

A troubled citizen's concerns about the legitimacy of laws passed in the past with the participation of MPs who may have been in Daryl Vaz's dual-allegiance position was published as The Letter of the Day by The Gleaner last Wednesday [April 16]. Lawyer Dr Paul Ashley made a great deal out of the same issue when we both appeared on the TV programme Impact on that same day. The Constitution dissolves these fears in the wisely anticipatory provision of Section 51 (2): "The presence or participation of any person not entitled to be present or to participate in the proceedings of the House shall not invalidate those proceedings."

Martin Henry is a communications consultant.