Thursday, 2 August 2012

Top Mid-Week Talk: The CURE for Monopolization

Supreme Court Rules JPS Monopolistic License Illegal 

The Ruling

'Citizen United' might bring back -unlimited- memories of the Supreme Court of The United States (SCOTUS, sounds like a disease) ruling on the still controversial 'Citizen United' ruling that allowed unlimited  funds to political parties and candidates campaign through the use of groups, known as Super-PACs (Political Action Committee). The ruling has pumped more special interest money into politics more than ever with one contributor giving up to US $500,000 to a single candidate.


We won't be focusing on that right-wing triumph over people focused politics (formerly Socialism) but instead on a local 'Citizen United' ruling that actually may have been the correct decision and in the process bring competition to the Energy Sector and subsequently lower the cost of electricity for many residents and businesses (crude capitalist economics) as we make the more than mandatory shift to 'Green' energy in Jamaica. The July 30, 2012 Supreme Court (not Jamaica's final court of appeal) ruling had been the monkey on the back of the Jamaica Public Service for months as the challenge was brought to them by the "Citizen United for the Reduction of Electricity" (CURE) on the legality of their exclusive licences granted for Transmission across Jamaica.

After some reservations on his decision in June, Justice Bryan Sykes accepted the claimants' lawyers,  submission of  a 1913 case from the House of Lords in England which deals with exclusive licence under the Electric Lighting Act of 1882. Jamaica inherited that act in 1890. Sykes reconvened the court to hear submissions on that case. The claimants' lawyers also submitted a 1559 English case which dealt with the monopoly factor. 

Reasoning 

The judge, in explaining in the written judgment the reasons for his ruling, said section 3 of the Electric Lighting Act permitted the minister to impose conditions. "However, the minister does not have the power to grant a licence on terms which prevent other applicants from having their applications being considered genuinely. The minister does not have the power to grant a licence upon terms that bar the possibility of any other person entering the market for transmission of electricity. The terms of JPS's licence granting it exclusive right to transmit electricity is not valid," Sykes ruled.

The Justice seemed to take on the task of advocate in his reasoning as he mentioned the 
 the dangers of the minister's Pauwell approach. He said JPS already had a 20-year exclusive all-island licence. During the currency of that licence, the minister granted an extension of a further seven years.

"What is there to prevent the minister from granting a 100-year licence?" asked Sykes. This must be chilling to the spine of Jamaicans who have felt the injustice dealt by the hands of the Public Service Company with their extraordinary high billing at times, and only Tuesday the Office of the Utilities Regulation (OUR) ordered JPSCo to rebate customers for over charge on Fuel Cost, so the question does have merit.

He said section 3 of the act was not designed to permit the minister to shut out persons from the electricity supply market by continuous extension of an exclusive licence.


P.S.

Politically Speaking: 

Unfortunately the ruling had to be decided by a Law enacted in the 1890's, before we would realize Independence and there is no talk about reviewing the Constitution of Jamaica -Jamaican Governments are nefarious for creating committees for everything yet there isn't any Constitution Review Bi-partisan Committee to ensure that the laws of Jamaica are kept updated. There is no political advantage to be had for having an aged constitution with laws that have been made redundant through the passage of time. Vision 2030 (doomed road map to Developed country status) should have within its scared lamented leaves Constitutional Reform and Amendments.