Can chairman of FTC still chair the OUR?

Letters to the Editor

Can chairman of FTC still chair the OUR?

Thursday, June 25, 2020

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Dear Editor,

The appointment of statutory and other government boards in general, and the chairmanship of these entities in particular, by the Andrew Holness-led Administration become more curious with each appointment.

The recent case of the appointment of the chairman of the Office of Utilities Regulation (OUR), occasioned by the resignation of Joseph Matalon, is the latest scenario.

Cabinet being the main organ of government policy, it therefore stands to reason that board appointments are an unquestionable indication of government policy; hence, “The minister (the Cabinet) shall give to the board such directions as to policy...”

So in our Westminster model, or its bastard version, observers are to take as government policy appointments to the boards and the baggage the appointments bring with them.

The recent appointment of Dr Derrick McCoy as chairman of the OUR suggests that the Andrew Holness Cabinet is anti-competition — even if this is denied by the minister. But it's not what a Government says; rather, it what the Cabinet does.

Malice may drive one to conclude that the appointment is in keeping with the recognition of the impotence of this organisation since its creation. Just look at its track record in dealing with the telecommunications industry and the regulation of electricity.

Dr McCoy is also the chairman of the Fair Trading Commission (FTC), the competition watchdog whose role and function includes ensuring that there isn't a lessening of fair competition in the market. By contrast, the OUR is the body that has statutory responsibility for making recommendations to the minister on matters relating to the granting, revocation, and amendments of telecommunications licences. Where this issue involves competition matters the Telecommunications Act expressly grants the FTC jurisdiction.

There need not be any conflict here. But the way competition law is practised and enforced in Jamaica, for particular sectors like telecommunications, shows the reality of conflict. It's either going to be addressed as a competition law matter or as a regulatory matter.

Having the chairman of the FTC being the chairman of the OUR means that the FTC can decline jurisdiction to investigate a matter and send it over to the OUR, where there is no semblance of a comprehensive regime to deal with competition issues. Or, the OUR can decline to refer the matter to the FTC for investigation of competition issues and treat the matter as exclusively regulatory. It's not conjecture; it can happen.

Independent assessment by either body is effectively compromised. This would be wrong both in principle and policy.

It is incumbent on the Government to reconsider this appointment if its assertions of a commitment to competition law and policy are to be taken seriously.

No one person should be chairman of both organisations.

Shanique Henriques

Barbican, St Andrew

c/o damac@yahoo.com


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