NIDS ruling gives boost to Caricel

Company heading to Privy Council confident that minister's decision to revoke its licences will be overturned

BY ARTHUR HALL
Editor-at-Large
halla@jamaicaobserver.com

Sunday, May 12, 2019

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Buoyed by the recent Constitutional Court ruling in the National Identification System (NIDS) case, lawyers representing Symbiote Investments Limited are heading to the London-based Judicial Committee of the Privy Council, confident that they will manage to overturn the decision of the local courts to uphold the technology minister's decision to revoke its telecommunications licences.

Symbiote, which trades as Caricel, has applied to the Court of Appeal for permission to take its grievance to Jamaica's final court of appeal, and the company's secretary Minette Lawrence says if the leave is not granted it will go directly to the Privy Council.

“We filed our application to go to the Privy Council with the Court of Appeal and we are waiting on them to set a date for the hearing of that application,” Lawrence told the Jamaica Observer late last week.

According to Lawrence, Symbiote remains convinced that the Court of Appeal was wrong in its decision to refuse the company's request for permission to appeal the Supreme Court's decision to uphold the minister's decision to suspend their licences.

“There are several grounds of appeal but they all point to the same thing. We asked for leave to appeal the minister's decision to revoke the licences and in requesting leave, we argued that the minister was unreasonable, or wrong in law, when he revoked the licences acting on the recommendation of the OUR (Office of Utilities Regulation).

“We believe that the OUR's recommendation was premature in several respects because the OUR said it was relying on documents that we had challenged and there was an ongoing police investigation into those documents,” argued Lawrence.

She noted that Symbiote had also indicated to the OUR, and the then minister, Dr Andrew Wheatly, that revocation of a licence was an extreme and disproportionate punishment for the minister to impose on the company based on the size of its investment and the importance of the service that it provided.

Lawrence said Symbiote's argument was that the minister should have allowed it to correct any breach rather than revoke its licences which impacted on the constitutional right of its clients to freedom of expression.

She said Symbiote is convinced that the minister's decision to revoke the licences was not in proportion to any breach it might have committed.

“So when the OUR announced that they are going to shut down Caricel, they can't do that because shutting down Caricel would mean that 17,000 Jamaicans would lose something and you can't be punishing one person and creating a hazard for 17,000, that would be disproportionate.

“We will be saying to the Privy Council that it is a matter of national importance for any law, or legal ruling, affecting your constitutional right to freedom of expression in the form of a licence to guarantee access to communication, it is of national importance for the matter to be heard and settled by the court,” said Lawrence.

The Symbiote official further argued that the Court of Appeal failed to take on the issues of the proportionality of the minister's action in revoking the license, and proportionality was one of the reasons the Constitutional Court ruled that the legislation to establish the NIDS was null and void.

“In that case the chief justice said that when you are looking at the violation of constitutional rights the level of interference must be proportionate to the social good or the benefit that you are giving to the citizen,” argued Lawrence.

In the written judgement in the NIDS case Chief Justice Bryan Sykes stated:

“The time has now come for the Supreme Court to take a clear and unambiguous position on the matter. It is my view that the contention of Mr (Michael) Hylton QC is correct that is, the wording of the new Charter (of Rights) requires a new approach and that new approach is the test of proportionality.

“What is proportionality? It is the legal doctrine of constitutional adjudication that states that all laws enacted by the legislature and all actions taken by any arm of the State, which impact a constitutional right, ought to go no further than is necessary to achieve the objective in view.

“Thus in a constitutional democracy where there is constitutionalism and not just the existence of a constitution, the exercise of power, whether executive, legislative or judicial, is no longer based simply on the idea of having the power to do what one is authorised to do but is also accompanied by justification for decisions and actions.”

In June 2018, acting on the recommendation of the OUR, Wheatley indicated that six telecommunications licences issued to Symbiote Investments Limited, under the Telecommunications Act were revoked.

The company took the matter to court but failed to convince that judges who agreed that the minister had the power and acted correctly. This left Symbiote not authorised to own, or operate a facility, nor is it permitted to provide telecommunications, or other specified services, as defined in the Telecommunications Act, to the public.

Symbiote has since entered into an agreement with wireless provider Xtrinet to service its customers.


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