Cutting Cabinet? NOT Symbolism! (Or Optics!)

Photo by Grant Cocrane
http://www.freedigitalphotos.net

The discussion about whether the Cabinet should be cut has focused – wrongly – on whether such a move would save the government money. This has allowed government spokespersons to wriggle out of the real discussion, which is one about good governance and leadership.

The 2011 Public Sector Master Rationalisation Plan states that:

“The Public Sector Transformation Unit (PSTU) was established in November 2009 with the mandate to “lead, monitor, evaluate and facilitate the implementation of the restructuring of the Public Sector for efficient, effective and economical government” to realise the vision of ‘a transformed cohesive Public Sector that is performance-based, efficient, cost effective and service oriented.’”

How can we have a transformed cohesive Public Sector without a close examination of the Ministers who lead the process?

Back to the Plan:

“This exercise focused on the entire Public Sector to include the sixteen (16) Ministries and over two hundred (200) Entities including Departments, Statutory Bodies, Executive Agencies and Limited Liability Companies. The reasons for rationalisation are obvious, chief among them are the following:

1. Overlapping and duplication of mandates and functions

2. Organizations and structures that are no longer relevant

3. Shifts in mandate and core functions

4. Archaic systems and structures

5. Outdated Statutes

6. High wage bill relative to GDP

7. Lack of appropriate technology

8. Lack of inter and intra-Ministry collaboration

9. Limited financial and material resources.”

How can it be “just optics” as Transport Minister Dr. Omar Davies colourfully insisted in Parliament, to ask whether the employment of 20 Cabinet Ministers is justified?

Let us be clear. The Plan did say that:

“…after extensive consideration, the decision was taken to retain all Ministries at this time, with modification in some instances to their respective core functions. It is anticipated, that with the efficiency gains over time, specific consideration will be given to the reduction of Ministries.”

However, one of the problems we have is that each Prime Minister has the flexibility to re-structure the Cabinet as she/he sees fit once the constitutional requirement of at least eleven Cabinet Ministers is observed.  So although Prime Minister Portia Simpson Miller had criticized former Prime Minister Bruce Golding for the size of  his 18-member Cabinet, on winning the December 2012 election, she promptly named two additional Cabinet Ministers, for a total of 20.

How can it then be “symbolism” to call for an examination of whether we are getting value for money from our Cabinet Ministers?

Let me be clear. I am not calling either for a cut in the Cabinet, or for a retention of the status quo.

What I AM calling for, unequivocally, is an understanding that we cannot call for prudent expenditure of taxpayers’

Photo by posterize
http://www.freedigitalphotos.net

money at one level and not at the other.

We cannot declare that we want to eliminate “overlapping and duplication of functions” at the civil servant level but not determine whether we have the same problem in the Cabinet.

We cannot, as the Plan does, state that we will see “mergers (that) will result in economies of scale and overall cost savings in areas to include staffing,” and not expect the Cabinet to be an integral part of that discussion.

Most of all, what I am calling for is a respectful response from the administration to the calls from civil society and a considered and thoughtful approach to the discussion.

That Burning (Jamaican) Flag

Does anybody but me think the excessive excitement we created over the VW ad, which I wrote about here,  led to the Saturn commercial featuring the burning of a Jamaican flag which is now being reviled? After all, the VW ad to date has received over 13 million views on Youtube, and was a talking point in the United States and Jamaica.

To digress a bit, have we gone a little, just a tad, overboard though? I mean the actor is now a VIP?  The red carpet is being rolled out, and it’s got him a trip to Jamaica and more work – so this white actor with the fake Jamaican accent is going to be promoting Jamaica now. Maybe we are trying too hard. Just a thought.

Anyway, is it any wonder that the Saturn people thought, “Let’s jump on board the Jamaica train. But we have to up the shock value. What will get people talking again? I got it! Let’s burn their flag!” Maybe to go from getting people talking, to burning our flag wasn’t a leap that most people would have made. But here we are again…ironically, discussing another German ad featuring Jamaica.

According to Wikipedia – sorry, couldn’t find another reference right now – it is illegal in Germany to burn the German flag. In relation to flags of foreign countries:

“…it is illegal to damage or revile them, if they are shown publicly by tradition, event or routinely by representatives of the foreign entity (§104 StGB –{ Criminal Code}). On the other hand it is not illegal to desecrate such flags that serve no official purpose (especially including any (that) the one willing to desecrate them brings by himself for that purpose).”

That is, it would be illegal to burn the flag at the Jamaican embassy, for example, but it would not be illegal to burn a random Jamaican flag – as in the coffee shop ad.

Should they have burned the Jamaican flag? Well, what were they aiming for? Controversy? Well, they’ve got that. Attention? They have ours. As of today, they have received nearly half a million views on Youtube. A far cry from the VW ad but we’ll see if that number climbs dramatically in the next week.

Flag burning is usually seen as an act of political protest, against a government’s policies.

Just this month alone, a political activist in Hong Kong was sentenced to nine months in jail for burning the flags of China and Hong Kong to protest government policies and positions. In Belgrade, criminal proceedings are being taken against deputy leader of the Serb radical party for allegedly “setting flags of the United States, the EU and NATO on fire” to protest against the Hague Tribunal’s decision to acquit someone accused of war crimes against Serbs.

Last September, thousands of people in Lahore participated in protests where the American flag was burnt to protest against a movie trailer said to insult Islam (in an ironic twist, one protestor died from inhaling the fumes from the burning flag, according to reports.)

But in the United States, that bastion of patriotic red, white and blueness – the flag can legally be burned, as it was in protests during the Vietnam

United States flag being burnt in protest, in New Hampshire on the eve of the 2008 election. (Photo credit: Wikipedia)

War. That’s not to say everybody is happy with the state of the law. Congress has tried to pass laws banning desecration of the flag but these have been struck down by the court. The Supreme Court in 1989 in the case of Texas v Johnson ruled that flag burning is an expression of free speech protected by the constitution.

So the legal treatment of flag burning varies from country to country. But everywhere, it is recognised that  flags are usually burned to protest important, political issues in a dramatic (and offensive) statement of contempt. It is the very fact that the act is one which most people find deeply offensive that makes it such an effective form of protest.

You can’t convince me that this was a misguided attempt to praise Jamaica. Not with the political context and significance world-wide of flag burning. They knew exactly what they were doing.

Be offended. Don’t be offended. That is up to you. But don’t be fooled by assertions that the intention was good and it is actually a compliment to Jamaica. This was a cynical attempt to use a controversial device to get attention, while cloaking it in pseudo-respect for the Jamaican flag and people.

That the makers of the Saturn ad understood the political issues is clear from the storyline of the ad. I assume they thought the attention to the commercial would override the very real risk of offence it would cause. The motive was clearly to get attention. And we are certainly giving it to them.

Parliament Called Upon (Again!) to Work Harder

 

Gordon House
Photo by DJ Miller

Speaking in Parliament this week, Leader of Opposition Business in the Jamaican House of Representatives Delroy Chuck yesterday echoed a sentiment that many non-Parliamentarians have long expressed – that not enough business is being done in the Houses of Parliament.

At the end of a sitting which lasted less than an hour, Chuck said “enough business is not being done in The House, but let us hope that next week will be a full session. Apart from next week, let us make sure that we deal with these Private Members Motions and utilize the sittings of The House in a more fulsome way.”

The Gleaner’s parliamentary affairs column The Gavel also drew attention this week to what it called

“the lacklustre manner in which the Parliament has been attending to the people’s business.”

This came a year after the Gleaner’s editorial which called for an end to the “doziness” in Parliament and expressed the optimistic wish that “with its members having taken their oaths, the legislature will immediately get down to serious work, eschewing its laziness of the past. That is, we expect the House and Senate will sit more often, for longer hours and pass more laws than they did during the life of the last Parliament.”

The editorial writer’s expectations have surely been dashed!

CARIMAC lecturer Fae Ellington and Douglas Orane, former Senator and the chairman of Grace Kennedy, are among those calling for Parliament to sit more frequently, with Orane noting that there is a “direct correlation between the number of times that Parliament meets and the number of bills it is able to pass.”

Parliamentarians argue that they need more resources, including better research facilities . There have also been calls for a new Parliament building which I wrote about in an earlier post here.

We need more sittings of Parliament, better facilities and expanding physical facilities. Maybe even constitutional reform. There are a lot of possibilities and a lot to discuss.

Before all that, however, I would like to see us make better use of the time we have now. Sure, better research facilities would? should? result in more informed debates (assuming they are used).  But can our Parliamentarians, particularly those in the Lower House, really say they are doing all they can at the moment? Can they really say they read the Bills properly (or at all), try to digest and understand them? Reading the Bills and doing some basic research on the Internet would be a good start. The laws and policies of many other jurisdictions can be found online. That can be done from their living rooms and that alone would allow for more informed interventions in the House.

Why can’t they sit longer? Why can’t they have more debates on issues of national importance? Why can’t more of the Private Members’ motions be taken?

More sittings that last less than an hour won’t help solve that problem. I do think we need more sittings. But until we have a commitment from the Parliamentarians to sit longer and work harder, I am not sure that additional sittings will help.

The problem with Prime Minister Simpson Miller and that Chicago Tribune editorial

 

One of the primary problems facing Jamaica’s Prime Minister Portia Simpson Miller is the cult of fanatical followers she has inspired. While this is understandable given her tremendous popular appeal, the negative side is that every criticism is perceived as a personal attack on Jamaica’s first woman Prime Minister by elitists who turn up their noses at her humble background and are determined to bring her down. As a result, many of her followers seem incapable of objective analysis of her pros and cons.

One can only hope that there is at least one person in the room with her who will stick up a hand to say when she is going wrong, but I’m starting to seriously doubt it.

A perfect example is the Prime Minister’s recent national broadcast. At a time of great uncertainty for the Jamaican economy, at a time when the whispers in the corridors of finance and business are that the year ahead will be very difficult for the country, at a time when Jamaicans are unsure what to expect from an IMF agreement, or what to expect if there is no agreement, the Prime Minister steered clear of actually talking about any of the real problems facing the country.

Sometimes it takes an outsider to point out what should be obvious to us all, and the Chicago Tribune for some reason, has now chosen to hold up Jamaica to the world as an example of failed policies and a dismal economic outlook, saying Jamaica provides an object lesson in

“the catastrophic effects of borrowing way too much, and the painful choices that follow. This saga, less familiar than Greece’s, is a lesson for lawmakers in the U.S. and elsewhere.”

“The Caribbean nation actually is in worse financial shape than Greece: Jamaica has more debt in relation to the size of its economy than any other

Christine Lagarde, Managing Director, International Monetary Fund (Photo credit: Wikipedia)

country. It pays more in interest than any other country. It has tried to restructure its loans to stretch them out over more years, at lower interest rates, with no success. Such a move would be risky for its already nervous lenders. So Jamaica is trying to wangle a bailout from a skeptical International Monetary Fund. Another deadline for a potential deal just came and went last week, though negotiations continue,” it goes on.

That’s the reality the Prime Minister seems determined to ignore. What Jamaica needs is not Pollyanna-type platitudes, and an exhortation that

“Our ancestors did not fight so gallantly; did not shed their blood for us to now capitulate to gloom and doom. No. We know, as Jimmy Cliff assured us, that we can get it if we really want. All we have to do is to try, try and try, and we will succeed at last.”

No, what Jamaica needs now is a hard, realistic look at our current situation, and a courageous start to the necessary conversation the country needs to have.

Maybe someone in the room could point that out to the Prime Minister the next time she and her people are crafting a national broadcast.

Five Wishes for Better Political Leadership for Jamaica in 2013

Gordon House – seat of Jamaica’s Parliament
Photo by DJ Miller

Here are some qualities I would love to see to a greater extent in our political leaders.

1. Leaders who can see through their orange and green coloured glasses that not everybody criticizing them belongs to a rival political party. Some of us just disagree with your policies or direction. Full stop.  Hell, with barely 50% voter turn-out in the last election, there’s a 50-50 chance that whoever is criticizing you isn’t voting for any of you, anyway.

2. Leaders who take the time to understand the criticism aimed at them. When Jamaicans complain about your pay or perks, it is coming from years of disillusionment at what politicians have done to our beloved country.  You may not have been personally involved, but don’t ever forget that for the sake of power, politicians have torn Jamaica apart with political tribalism and killed our children, our brothers, sisters, mothers, fathers and friends with political violence. Whatever you have or have not done individually, memories of the havoc wreaked by your fellows are still fresh.

In addition, you have failed to deliver even moderate sustained prosperity to our nation and you have spectacularly failed to deliver an equitable education system.  When people complain about what seems to you to be a measly sum of, say $4 million, it is coming from Jamaicans, many of whom are struggling to find lunch money or bus fare, who have no option but to use the under-resourced and over-crowded hospitals you have given us while you fly off to Miami for treatment. Some of your critics have to send  children to the ill-equipped schools which is your legacy to us, and many of our children leave school as illiterate and innumerate as the day they started. So instead of responding with arrogance and disdain, how about listening carefully to what people are really saying, and answering in a tone of respect and understanding with a real and empathetic attempt to explain your (sometimes reasonable) position.

3. Leaders with a vision for Jamaica. Vision 2030 or not, very few of us have a sense that there is a targeted vision for Jamaica, that a clear direction has been charted and that we are moving with steady determination towards a real goal. We have no real hope that in our lifetimes, Jamaica will see an economic turnaround that will bring real benefits to all society, not just your friends the rich businessmen. Have you ever really, really listened to I-Octane’s “My Story?”

“Respect to all who sell bag juice
Who sell it to help dem youth
A whole heap a hell dem go through…

Man a suffer too long
Yeh man a suffer too long
Live in a di ghetto too long
Man a suffer too long.”

Listen to it again. One more time. That’s why we need a vision and visionary leaders.

Inside the Parliament of Jamaica (Photo credit: Wikipedia)

4. Leaders who do real work in Parliament. Our Parliaments have been singularly unimpressive. Many in the Lower House are efficient only at warming benches. There is scant attention given to careful scrutiny of the Bills that are brought to the House. Debates are stunningly superficial and often lacking  much evidence of research and thought (save for a very few speakers), and the desk-thumping that passes for participation apparently serves only to wake up the somnolent. I must note that the Upper House has traditionally been light years ahead of the Lower House in this regard. This is why it has been so disappointing to have seen over the years Senate appointments made on the basis of party loyalty only, resulting in Senators who bring little in the way of intellectual rigour to the Upper House. Which brings me to Number 5.

5. Leaders who put Jamaica before party. No, we don’t think all of you do this. In fact, we are sure you don’t put Jamaica first when we see ill-advised appointments, clueless Cabinet ministers, the constant and costly re-invention of the wheel just so that you can say such and such a programme was all yours, the dithering on matters of national importance, the refusal to make hard decisions that will cost you at the polls. So while you spend decades and generations thumping desks in Gordon House, our beloved Jamaica becomes choked with garbage, squatter communities mired in poverty abound, stray dogs roam the streets and our beautiful, bright children lose their way permanently.

There are some politicians whom I think have some or all of these qualities. However, they are usually not the ones in the most senior positions of leadership. But there is some hope.  What do you think? What kind of political leaders do you want to see? Who gives you hope? 

No More Impossible Dreams – Obama Wins Again

Barack Obama (Photo credit: jamesomalley)

As US President Barack Obama prepares to face everything that comes with a second term in the White House, and even as the “Why Obama Won” and “Why Romney Lost” analyses are in high gear, I think I’ll just pause and savour my own take-away from all this.

I have a memory years ago of Jesse Jackson saying that the day a black man became President of the United States there would be no more impossible dreams.

The political career of Barack Hussein Obama is the embodiment of the impossible dream.  Ten years ago, no one had heard of Barack Obama. His 2004 keynote address at the Democratic National Convention marked him as one to watch, but even then, he was only a state senator and a candidate for the US Senate.

He became one of only a handful of black people ever elected to the US Senate in 2004, and went from a barely noticed entrant

With his family by his side, Barack Obama is sworn in as the 44th president of the United States by Chief Justice of the United States John G. Roberts, Jr. in Washington, D.C., Jan. 20, 2009. More than 5,000 men and women in uniform are providing military ceremonial support to the presidential inauguration, a tradition dating back to George Washington’s 1789 inauguration. VIRIN: 090120-F-3961R-919 (Photo credit: Wikipedia)

into the 2008 Presidential race to being sworn in as the first black president of the United States, in a ceremony that we all watched, in awe, around the  world.

And he has survived! Survived rank racism,  the forces of the conservative and extreme right, withstood the millions of dollars mustered to defeat him, a terrible economy which he and his administration have struggled  to mend, and endured vicious attacks on the health care reform that will forever bear his name. He fought back after a disastrous first debate which I wrote about here, which had supporters and donors worried. And after all that, he has come out on top. Again!

At this moment I am not debating his policies, successes and failures, political strategies,  or the uphill task that faces all second term Presidents ready to think about their legacies.

I’m just taking a minute to look at him and say “Wow! Really?” Maybe what we’re all trying to accomplish on much smaller stages can be done as well. It’s certainly worth a try. After all, it’s not like we’re trying to do anything hard like, you know, become elected or re-elected as the first black US President!

Romney 1, Obama nil!!

Mitt Romney at one of his presidential campaign rallies. (Photo credit: Wikipedia)

I don’t think anybody could seriously disagree that Mitt Romney won the first, highly anticipated presidential debate in the US 2012 election campaign. He was sharp, on point, and seemed super prepared.

Obama had many good points, but failed to hammer them home and claim the advantage he should have had. The long rambling story telling style he adopted was a bad move and cost him time. The responses couched in that format were a terribly inefficient way of answering questions. Even the good points he did make were often lost because of his failure to make them concisely, consistently and sharply.

Think of George Bush hammering away at Al Gore with the phrase “fuzzy math.” That is certainly what viewers came away with in 2000. Al Gore had fuzzy math. Obama had a similar opportunity to nail Romney on two of his weakest points – a refusal to go into detail about his plans, and his constantly shifting positions.

He did make those points –but never capitalized on them effectively and never drove them home repeatedly. He should have had one or two catch phrases that would have stuck with the viewers, or else found concise ways to repeatedly highlight the same themes.  That never happened.

The 47%

Unlike many people, I had no problem with Obama not bringing up the 47% issue. This has been covered to death.

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

Romney has been crucified in the media, and is still being hammered in the ads. The damage has been done. He damaged himself. Why now give him an opportunity to recover? He certainly would have had a million prepared answers to try to make up ground he lost, both from the disastrous comments themselves, and also from his ineffectual responses in the wake of the video’s release. This is especially so with the release of a new poll with nearly half of respondents saying the issue received too much coverage. No, I think Obama played that exactly right.

What he didn’t play right was the style of his responses.  Short, precise statements of his position, why those positions would be better for the country, and a vivid contrast immediately with Romney’s position, along with frequent reminders of Romney’s position shifts and lack of detail could have been devastating.

Whoever thought the long-winded story telling was the way to win a debate needs to be put out to pasture. If it was Obama’s idea, he needs to acknowledge that he is out of practice and needs guidance. And speaking of retirement, it is more than sad to see the (well-deserved) flak the much-respected Jim Lehrer has been getting. At 78, he should have been home with popcorn watching the debate, in preparation for a thoughtful column or commentary the following day. The debate needed a younger, more aggressive moderator to take control of the proceedings.

Supporters are claiming that Lehrer did exactly the right thing by staying out of the way entirely. If that was the aim, why bother have a moderator at all if he’s not going to keep to time, not going to keep the debate on track, not going to ask follow up questions? Why not just send the candidates out there by themselves to play bat up and catch? Viewers were not well served by Lehrer’s ineffectual approach.

Jim Lehrer (Photo credit: wfuv)

The free-wheeling format was interesting to watch, given the rigidity of our own debates here in Jamaica. If the format is going to be more relaxed, however, with more latitude given to the moderator, it seems a shame not to use it. Sure, he would then be open to charges of excessive interference, but would it really be such a bad thing to have someone who can say “You haven’t answered the question” or “Your answer doesn’t tell the public how you will do such and such, or where the money will come from?”

Without anyone to at least ASK follow-up questions, or point out that questions have not been answered, you get the candidates talking at each other all night, without any further clarity on the issues being debated.

CNN reported that “tight” rules had been set for the debate. The moderator was to ask a question, followed by two minute answers from each candidates. The moderator would have the rest of the 15-minute segment for follow-up and discussion. That’s funny. They have no idea what “tight” rules are.

Debate Format

I actually like the format, though, which comes across much more like a debate than the tightly scripted structure we have in Jamaica with rigid time limits, and a format that severely limits the follow-ups which are essential to at least try to press the candidates on the issues.

I don’t think there’s a chance in hell however, of this kind of format ever being accepted by our local politicians. In particular the ability to ask follow-up questions (although not effectively utilized by Lehrer) would be very valuable. Each journalist asking a question in our political debates is currently allowed ONE follow up question per candidate for the entire debate. I don’t see the parties agreeing to any significant changes there.  Pin the debaters down? Point out (more than once) that they aren’t answering the questions? Real cut and thrust? Not gonna happen, although I wish it would.

Related articles

• Romney goes on offensive against Obama in first debate – Reuters (reuters.com)
• Media piles on moderator Lehrer (politico.com)
• In first half, Lehrer stays on sidelines (politico.com)
• Tough reviews for moderator Jim Lehrer (kshb.com)
• Lehrer gets ‘scathing’ debate reviews (abc15.com)
• Winners and losers from the first presidential debate (washingtonpost.com)

Five Things We Can Learn From the US Presidential Campaign

Official photographic portrait of US President Barack Obama (born 4 August 1961; assumed office 20 January 2009) (Photo credit: Wikipedia)

It’s campaign season in the United States and US President Barack Obama and his opponent Mitt Romney are edging closer to election day. Many Jamaicans are following the campaign and enjoying the spectacle. While we do so, there are some things we can take from the Americans.

1. “Democracy doesn’t have to be a blood sport.” – This was said by former US President Bill Clinton at the Democratic National Convention. Well, the truth is that US politics is often vicious, and campaigns can leave blood in the water. Given how close this election could be, it will be interesting to see if the Obama campaign can stick to the high ideal expressed by Clinton. The thing is though, he was speaking figuratively. Too often for us in Jamaica, those words could be taken literally. Yes, we’ve come a far way in curbing political violence, but we’re not there yet.

2. Lay it all out there. The candidates are subjected to a thorough vetting process. Between debates, media interviews, town hall meetings, it’s hard for candidates to dodge the issues and the tough questions. Too often our politicians manage to do just that. Between releasing manifestos on the very eve of the election, and restricting media interviews, too many politicians are able to slide into office without us having any clear idea of their positions on major issues, or without having those positions subjected to rigorous analysis and scrutiny.

3. Debates are good. The US Presidential candidates debate extensively at the primary stage and there are debates between the presidential nominees and even a vice-presidential debate. In fact, some people were complaining that the Republicans debated too much! Part of that of course, is

Mitt Romney & The Republican Team Event (Photo credit: mnassal)

due to their wanting to make an impact in the different states. We don’t have that issue, and we are a whole lot smaller. Still, we could do more. It’s good that we do have political debates, but it would be nice to see us step it up. Three leadership debates, for example, would be a good start, with different formats for each. Also, the public should be able to see the candidates for party leadership debate. The argument that party leadership elections are an internal matter is clearly nonsense, as the parties then use the parliamentary structure to catapult the new leader into the position of Prime Minister, as we saw with both the PNP’s Portia Simpson-Miller and the JLP’s Andrew Holness.

4. Country first. Whatever  problems you may have with the Americans (and the list is probably endless) one does get a deep sense of commitment to country from their candidates. Love of country and patriotism is one of the  things the Americans do best. Too often, from our politicians, I get a clear sense of party first.

5. Campaign reform is hard. Big money has always wielded a heavy influence in politics, and the US’s efforts to limit that influence have had very mixed results. That’s not to say we shouldn’t try. But we should study their history closely. At the very least, we may be able to get an understanding of what doesn’t work.

PNP’s Posturing on the CCJ Unhelpful

Caribbean Court of Justice logo (Photo credit: Mark Morgan Trinidad B)

Today I’m blogging over at http://www.rjrnewsonline.com. I did a follow-up to my first piece on Jamaica and the Caribbean Court of Justice, where I had said that Jamaica is in limbo on the issue.

Today I’m saying that the PNP’s posturing on the CCJ matter  has been unnecessarily antagonistic and is unlikely to be at all helpful in fulfilling what they say is their goal, replacing the Judicial Committee of the Privy Council with the Caribbean Court of Justice as Jamaica’s final court of appeal. Check out my post here.

Related articles

• Sitting in Limbo – Jamaica and the CCJ – Part 1 (newsandviewsbydjmillerja.wordpress.com)

The JPS Case – Summary and Analysis

 

photo by DJ Miller

Dennis Meadows et al v Attorney General of Jamaica, Jamaica Public Service and Office of Utilities Regulation  (before Sykes J.)

Summary: The Court ruled that whereas the license granted to the Jamaica Public Service Company (JPS) is valid, the term of the license which grants it exclusive rights to transmit electricity is not valid. The Office of Utilities Regulation (OUR) did not act unlawfully in the matter.

Issues: statutory interpretation,  Pepper v Hart, exclusive license,  ”always speaking” statutes

Analysis

There has been much jubilation over the Supreme Court decision in this case. In my view, such celebration is premature. My conclusion is entirely apart from the fact that this case is almost certainly going to be appealed,

What the court said was that as the statute now stands, the Minister does not have the power to grant an exclusive license which will prevent other applications from being considered.

The court specifically points out two ways in which this problem (if it is seen as such) can be overcome.

• The court says that although the government may indeed have a policy of preferring single licensees, the Minister must still consider other applications, and then make a decision on those applications in accordance with policy. The court says that since the Act allows the Minister to grant more than one license, other applicants have a legitimate expectation that their applications will be genuinely considered. In other words, the Minister can grant a license to one applicant, and may have a policy that only single licenses will be granted. However, the Minister must still genuinely consider any other applications that may be submitted.
• The other solution for the government would be to amend the relevant statute, that is the Electric Lighting Act, to give the Minister the power to implement the government policy of having single licensees, that is, give him the power in law to grant exclusive licenses.

Therefore, I would argue, no matter what the higher courts may decide that the law states, the critical issue here is going to be whether the government decides to stick with its current policy or whether it wishes to change tack. If it does wish to maintain its policy of a single licensee, then it simply has to make the changes alluded to in the judgment and proceed.

It may indeed be that the government decides to use this case as an opportunity to change its policy, but we should await that decision before breaking out the champagne.

 

Photo by DJ Miller

Facts:

The claimants sought the following declarations from the Supreme Court:

1. That the 20-year all-island exclusive electricity license granted by the Mining and Energy Minister to JPS under section 3 of the Electric Lighting Act on 30^th March 2001 is illegal, null and void and of no effect. The license was extended for an additional seven years.

2. That the JPS is therefore operating without a license as required by law;

3. Alternatively, that section 3 of the Act does not empower the Minister to disenfranchise the prospective right of any person to apply for a license to transmit electricity whether for personal, public or commercial purposes;

4. That the grant of an exclusive right to JPS on the recommendation of the OUR constitutes an unlawful fetter on the discretion of the Minister and subsequent Ministers in granting a license to transmit electricity under section 3 of the Act and/or conduct the business of the transmission of electricity;

5. That the OUR acted unlawfully in recommending the grant of an exclusive license by the Minister;

6. That the all-island license is contrary to the provisions and spirit of the Fair Competition Act.

Decision

The Court refused the 1^st, 2^nd, 4th and 5th declarations, and the 6th was not pursued. The significance of the judgment lies in the Court’s decision to grant the 3^rd  declaration, that the Minister did not have the power to grant an exclusive license.

The License

The license gave JPS an exclusive right for the first three years of the license to develop new generating capacity,  and the exclusive right for the duration of the license to transmit, distribute and supply electricity. The license was granted on 30^th March 2001 for a 20-year period and extended for an additional seven years.

Statutory Interpretation

The case hinged on the interpretation of the relevant provisions of the Electric Lighting Act, an 1890 statute.

Sykes J. summarised the principles of statutory interpretation, that is the rules which govern how legislation is interpreted, which have been known as the literal rule, golden rule and mischief rule.

He stated that context has become an important aspect of statutory interpretation.

“…as time has gone on it has come to be recognized that the process of interpretation of statutes is more nuanced than previously acknowledged. Language, we now know, only becomes better understood if the context is known.

“It used to be that before the court could look at the context to interpret a statute, there had to be some ambiguity. This has now gone by the way.”

Another principle is that a statute is “always speaking” meaning that courts must interpret and apply a statute to the world as it exists today, and that it must be interpreted in the light of the legal system as it exists today. Sykes J. stated that the court expressly adopted the “always speaking” principle, although admitting to some potential problems.

“Admittedly the always-speaking principle is open to the accusation that it is a surreptitious method of judicial updating of legislation which has not been amended by the legislature. This court will acknowledge that there is always that danger but that should not deter the courts from applying old statutes to new circumstances that were not in the minds of the legislators provided that words can reasonably accommodate the new circumstances. Where this can be done without altering the substance of the legislation then the courts should do this even at the risk of being accused of amending the statute.”

 “This court expressly adopts the always-speaking principle. This court sees no reason why in the twenty first century we should be shackled by what the legislators in 1890 thought. Social and economic considerations have changed considerably. Jamaica was a colony at that time but is now an independent country with a growing population which means an increasing demand for the supply of electricity. The priority of a colonial government in the nineteenth century may not be the priority of a democratically elected government under universal adult suffrage in the 21^st century.  In 1890 the Governor was obliged to govern in the interest of the United Kingdom. In 2012, the government is elected by Jamaicans to govern in the interest of Jamaicans.”

The Electric Lighting Act

The judge said that it is important to say what section 3 of the Electric Lighting Act does not say.

“It does not say that one person cannot be granted an all-island license. Neither does the Act say that the Minister must grant multiple licenses to a multiplicity of persons. Also the Minister is not prevented from granting more than one all-island license. Indeed the Act could hardly have said any of these things because the Minister cannot know how many applicants there will be.

“The section permits the Minister to grant licenses to a person to supply electricity within any area. On the face of it, persons and companies can receive licenses for any area. There is nothing to say that the areas cannot be contiguous to each other.”

The Meaning of “Area”

There were submissions as to whether the Minister had the power to grant an all-island license as the Act speaks to the Minister being able to grant a license “within any area.” The claimants argued that area meant something less than the whole and therefore an island-wide license could not be granted. But Sykes J. did not accept this submission and ruled that:

“…section 3 gives the Minister a discretion to grant to one person an all-island license for generating distributing and supply electricity. The section also permits the Minister to grant more than one all-island license to generate, transmit and supply electricity. The Minister may also grant more than one license for a part of the island. In the 21^st century there is no compelling reason to interpret area to mean only something less than the whole.”

Can the Minister grant an exclusive license?

The Act allows the Minister to grant licenses, and to impose regulations on the license. The court said that since the statute allows for multiple providers of electricity, anyone who wishes to do so should be able to apply for a license.

“If this is so, then it means the Minister needs to hear and consider that application even if he has a stated policy on the matter. He is free to declare the application in accordance with the policy but that policy should not be so inflexible that it prevents applicants from having their applications genuinely considered.

“It is one thing to say that a decision will be made in accordance with a policy but it is quite another to grant a license to a previous applicant in terms which effectively guarantee that no other application will be considered regardless of its merits.

“The statute does not give the power to the Minister to grant a license on terms which effectively bar any other applicant from being considered. This, in the opinion of this court, is the problem with the current license to JPS. The Minister has committed himself and his successors to a situation in which there is no possibility of change for the required twenty years (which has been extended) even if technology or a new company has a better and cheaper way of of doing some of what JPS is now doing.”

The judge noted that the sequence of events demonstrates the “dangers of the Minister’s approach” noting that an initial 20-year license was extended for another seven years. If that approach was correct, the court asked, what would prevent the Minister from granting a 100-year or 200-year exclusive license?

The court said that since the Act contemplated that applicants have a legitimate expectation that their applications would be genuinely considered

“The legitimate expectation arises from the words of the statute. They have the right to apply. To have the right to apply without a further right to have it genuinely considered would be meaningless.”

The court said, therefore, that while the Minister may have a policy regarding granting licenses, and then after hearing an applicant,  declines to grant a license in light of the policy, this will not be wrong once the Minister has exercised an “honest and bona fide exercise of discretion.”

What is not permissible, is adopting a position which would result in other applicants not being considered at all.

The court noted that JPS stressed the significance of its investment in the provisions of electricity but said that:

 “…as important as economic considerations are, the rule of law is even more important. Since we are developing a society based on the rule of law then the law must be followed. The Minister cannot exercise a power that in law he does not have.

The way out of the problem (if it is seen as a problem) is to amend the law to give the Minister the powers he needs to implement the policy of the government.”

 

The Role of the Office of Utilities Regulation (OUR)

The claimants argued that the OUR had recommended an exclusive license and had therefore acted contrary to section 4 (3) (a) the OUR Act which states that the OUR “shall undertake such measures as it considers necessary or desirable to (a) encourage competition in the provision of prescribed utility services.”

The opening words of the license stated that the Minister was granting the license “having regard to recommendations of the OUR” but did not specify what the recommendations were.

In fact, a letter dated March 15, 2001 the OUR expressed its opposition to the Minister’s proposal to exempt JPS from the Fair Competition Act, but the Minister ignored the recommendation. The Court therefore held that the OUR had done nothing unlawful.

The Use of Parliamentary Records and Pepper v Hart

The claimants attempted to rely on Pepper v Hart, a House of Lords case which dealt with using statements in Parliament to help interpret statute. Sykes J. indicated his discomfort with that case, and with the concept of using a statement made by one Minister in Parliament to try to interpret what the Parliament as a whole intended in passing a statute.

“Pepper v Hart is not a case which should be followed without extreme care and caution…It is well known that ministerial, assignments are often the product of political considerations rather than  the person’s actual expertise in a particular area. The Minister may not know much about his portfolio prior to his assignment. His statements to Parliament are often prepared by advisors and senior civil servants, Sometimes the legislation comes after extensive public discussion. All this shows that Pepper v Hart is not without difficulties and should be avoided.”