Friday, December 06, 2013
Justice Sykes and the significance of the CURE rulingRAULSTON NEMBHARD
Citizens United for the Reduction of Electricity (CURE) has scored a decisive victory in their court challenge of the JPS exclusive licence to generate electricity. The members of the group are to be congratulated for taking the issue on in the first place and to stay doggedly with it until they were able to secure this significant victory. Attorney Hugh Wildman must be singled out for special mention, for he bent his skills as a lawyer to the process and did the necessary research, even going back to obscure colonial legislation to ensure that he had all his ducks properly lined up. This, no doubt, was a lot of work for which, to the best of my knowledge, he was not compensated. He took it on as a service to the people of Jamaica and having won, he and his coalition deserve our highest praises.
The eminent Justice Bryan Sykes' ruling in this matter was important for a number of reasons. First, there is the triumph of the Rule of Law. Because the justice system is so broken in Jamaica we often forget how important the Rule of Law is in the protection of the citizens in matters of commerce and social engagement. CURE was convinced that the JPS exclusive monopoly was illegal; that they should not have been granted this monopoly by any government. The place to test this contention was in the courts and to do this there had to be more than a fair assumption that justice would be done, that the parameters of Jamaican jurisprudence, however creaky and ramshackle, could be depended on to render the right verdict. And Justice Sykes did not disappoint. We score one for the Jamaican justice system, even as the JPS appeals his ruling which is its right again in tandem with our creaky jurisprudence.
It is safe to say that the justice system is among the most important institutions that survived our Independence experience. Apart from the obvious hiccups as can be seen in people being sentenced to prison for stealing a few dozen ackees, our justice system has served us well. Our lawyers and judges are among the brightest you can find anywhere. They can match their counterparts anywhere in the world with erudition and sagacity in a courtroom. This is one of the reasons that I oppose the CCJ as our final appellate court. We have the talent in Jamaica that, with refinement and improvement of our justice infrastructure, should make our Supreme Court a viable final appellate jurisdiction. If we are to repatriate our appellate jurisdiction from colonialist Britain, why should we end up in a half-way house in Trinidad or Tobago and not in Kingston? Why don't we think that we can go this on our own? The people should be the final arbiter of this decision and I hope that a government that trumpets "people power" does not discard them in this most important matter concerning their lives.
Apart from the triumph of the Rule of Law, Justice Sykes' ruling is important for the freeing up of competition in the energy sector. For years the JPS has been one of the most vilified companies in Jamaica and for good reason. The company has not always treated its customers with respect. You have to wait interminably in lines to get any attention paid to problems with the company. Customer service has improved marginally, but there is still a great deal of lethargy in the way customers' needs are attended to. This treatment of the public is no doubt due to the disdain that comes, wittingly or unwittingly, from the monopolistic psychology of dominance that the company has been allowed to exercise - an activity which we now understand from Justice Sykes has been illegal all this time. The Cable and Wireless monopoly over telecommunications is a case study of what can happen to a monopoly when it becomes too smug in its own comfort zone until it starts to listen to its own voice. I predict a similar discomfort for the JPS when new players are introduced into the system.
It is ironic or perhaps fortuitous that the minister who last signed the JPS exclusive contract in a previous government is the same person who has now been given a free hand to revisit that contract and truly democratise the energy sector. People should not think that Justice Sykes' ruling gives minister Paulwell a carte blanche approach that can ride roughshod over the sensibilities of the JPS. The matter still has to be approached with great caution so that there is fairness to all concerned and there is no disruption of electricity services to the people. But this is a great day. The minister must realise that he has been given a second chance at redemption. He should use it wisely.
Perhaps the most exciting and significant thing arising out of Justice Sykes' ruling is the fact that civil society groups can mount successful challenges to governmental action in the courts. Had it not been for the doggedness of CURE, we may very well not have reached this significant milestone in citizen advocacy. This and future governments are being served a warning that as citizens we are not prepared to sit on the sidelines while they do as they please with the people's future. The lesson is that we can challenge them in the courts - and win! This for me is true emancipation and the ruling could not have come at a better time in the nation's history. Long live citizens' advocacy for a new Jamaica!
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