Friday, November 20, 2015

"The law is an ass"

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This phrase originated in the Charles Dickens novel, Oliver Twist, when Mr Bumble, the unhappy spouse of a domineering wife, is told in court that "...the law supposes that your wife acts under your direction".

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is an ass -- an idiot."

On Saturday morning at around 1:00 am I arrived in the Customs Hall at the airport. On reaching the Nothing to Declare line, a customs officer looked at my form and saw that I had declared souvenirs in the amount of US$80. He asked if I had any clothes and I said that I only had the clothes I went away with, at which point he said I should declare them. I didn't think it made sense to declare the clothes I left Jamaica with as they were not acquired abroad.

He insisted that I do so. At that point I refused as it was not practical. He insisted that I was ignorant of the rules.

I still refused to write it down and another officer who was there told me that if I refused to do so then he would send me to the room to check my luggage, even before my luggage went through the x-ray machine. I told him to come and do so, but he ignored me. He did not have the decency to acknowledge. Apparently he wanted me to just stand there and wait.

On Monday I called the Customs Office, and it was verified that the officer was the one who was not aware of the rules. In fairness to the Customs Office they addressed the matter swiftly. I should also point out that every other time I have interacted with customs officers they have always been very pleasant and have never taken that attitude, so it is a matter of two bad eggs giving the department a bad rap.

Even one incident, however, is too much, and what was of greater concern was that the customs officer was trying to intimidate me even though I was telling him the right thing. It is unacceptable for anyone in authority to deal with a citizen of Jamaica, who helps to pay their salary through taxes, in that manner.

This was not a matter of the law being "an ass". Rather it was a case of someone in a position of authority "making up" rules and trying to intimidate a citizen. I shudder to think of how they deal with people who don't have a voice. Accountability demands that those people be removed from front-line duty, and I hope the Customs Office will deal with it in this way.

What this reminds us though, is that the law must be practical and must not be an inhibition to (i) democracy, (ii) market efficiency, or (iii) personal privacy. The law also must not be discriminatory to any group. And the persons charged with enforcing the law should do so fairly and with sensitivity for the rights of the citizen.

This seems to be one of the challenges we have had with the application of laws in Jamaica, where those given authority have sought to use it to abuse the rights of our citizens. Apart from this customs incident, members of the police force have also been known to use their authority to abuse the rights of Jamaicans. We also have the situation where procurement rules may be resulting in more costs to Jamaicans, rather than reducing them -- as in my view the bureaucracy caused by these rules in fact may end up facilitating the same corruption they are trying to prevent.

Law vs its application

So the law, and its application, must also play the important role of facilitating market development and competitiveness,. But also very importantly, it must make everyone feel safe and that they have the same opportunities.

So it is not only about what laws are on the books. Their application is even more important.

A similar situation has to do with what is recognised by the Global Competitiveness Report (GCR) 2015-16, as the most problematic factor for doing business in Jamaica. Inefficient government bureaucracy is seen as causing 16.4 per cent of all the problematic factors in doing business. As a result of the challenges, the GCR actually showed an effective decline for Jamaica in 2014-15 over 2013-14. Jamaica ranked 86 for both reports, but the number of countries included this year was 140 versus 144 the year before.

Contrast this with the Doing Business Report (DBR) 2016, which shows that Jamaica moved up 7 places from 71 to 64 of 189.

The reason for the difference in the reports is that while the DBR focuses on the legislative and policy framework, the GCR looks at the implementation of the laws and policies, or how it is felt on the ground. The challenge we have, therefore, is not that the policy makers (politicians) have not been putting the framework in place -- but that the operatives, at the institutional level, are not implementing the framework in a way that impacts doing business properly.

So while it is clear that we have been driving the legislative and policy framework in a positive direction, the main challenge we have is how to ensure that the implementation is also done in a way that positively impacts the social and economic components.

This is why public sector transformation is critical to moving the needle on our development. The fact is that unless we have a structure that will allow us to efficiently implement laws and policy, then "the law will be nothing but an ass".

So for me, public sector transformation is not primarily about saving money, but rather delivering efficiency. In this regard we must ensure that those in authority do not have the ability to abuse any citizen or make up rules as they go along, and there should be accountability when things go wrong.

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