Barring reversals at appeals, for which the administration is likely to lack great enthusiasm, Justice Bryan Sykes may have played a fortuitous hand in favour of Phillip Paulwell, the energy minister.
For Justice Sykes, in his ruling on Monday, broke, at least for now, the electricity supply and distribution monopoly of the Jamaica Public Service Company (JPS) – a matter seemed set to be a battle of attrition, if not a noisy war, between Mr Paulwell and the light and power company.
Whatever may be the Government‘s strategy going forward, JPS, as has been indicated by its lawyers, is not about to meekly acquiesce to Justice Sykes’ decision. But it is a signal for both sides to recalibrate their conversation and settle on a new, serious and mature discourse on Jamaica’s energy future.
The background to these developments is the 20-year (subsequently extended by seven years) licence that was granted to JPS in 2001 by the Patterson administration, of which Mr Paulwell was a Cabinet member, for the exclusive distribution of power.
Breaking that monopoly has been a mantra of Mr Paulwell since January, following the People’s National Party‘s return to office after a four-year hiatus on the opposition benches. At upwards of US$0.40 per kilowatt-hour, Jamaican consumers face among this region’s highest electricity rates. It is conventional wisdom that the cost of power is a major drag on the competitiveness of the island’s economy. Mr Paulwell feels competition would drive down costs.
He has support among Jamaican consumers who largely blame JPS directly for this state of affairs. They see JPS as neither customer-friendly nor efficient, but able to leverage its monopoly to remain profitable.
Two consumer groups and an individual manufacturer brought a class-action suit challenging the minister’s authority (Bobby Pickersgill at the time) under the Electric Lighting Act to have granted JPS an exclusive licence for the transmission and distribution of power.
Justice Sykes rejected the claimants’ argument that under Section 3 of the law, there was no provision for a single supplier of electricity, and that the minister, therefore, had no power to issue an all-island licence. What was wrong, the judge argued, was the pre-emption of the opportunity of other potential licensees.
The problem of the current licence
Said Justice Sykes: “The statute does not give the power to the minister to grant a licence on terms which effectively bar any other applicants from being considered. This, in the opinion of the court, is the problem of the current licence to JPS. The minister has committed himself and his successors to a situation in which there is no possibility of change for the required 20 years (which has been extended), even if new technology or a new company has a better and cheaper way of doing what JPS is doing.”
That, effectively, is the argument of the anti-JPS lobby – and Mr Paulwell.
This week’s ruling does not immediately affect the JPS’s ability to operate, as its licence, but for its exclusivity, remains valid. Further, Mr Paulwell has no other application on his desk. Nor are there protocols for interconnection on the JPS grid. Clearly, other potential players will be emboldened by the ruling. They will receive encouragement from consumers.
It is time for constructive engagement.
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