One Fell Swoop - Practice Policy or Law

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Rawlston Pompey

Thursday, 29 March 2012 02:31

By Rawlston Pompey

Antigua St John's - The caption chosen for this commentary was considered as a result of a declaration made by APUA Board Chairman CLARVIS JOSEPH. Such declaration affected the financial constraints placed upon the Authority by consumer indebtedness.

He had disclosed that the Authority was owed some $682M for providing “…ESSENTIAL SERVICES” of Water, Electricity and Telephone. Clearly, such sum may not necessarily reflect in any significant way, the delinquency of a combined indigent community.

Notwithstanding, it was the Chairman’s view that the state of indebtedness, necessitated suppression of all services of delinquent customers irrespective of status, in “…ONE FELL SWOOP.” The, Public Utilities Act that governs the Corporation, appeared not to have supported such view or reposed such power in its Board.

TRUST AND PAY
While the song that implored those who may have come short of the glory of GOD to “…TRUST AND OBEY" in the APUA Board Chairman’s view, in business there was no such thing as “…TRUST AND DON’T PAY.”  Recently, the Chairman had exposed on the “…BIG ISSUES” as many anomalies within the Authority. He had also revealed disadvantages to the ordinary citizen, yet these seemed not to have brought comfort to those who may still be placed under the Authority’s radar for suppression of services.

LIGHT OF DAY
In true perspective, the APUA chairman came from a business background. Thus, the only knowledge he knew was “…business”. He also knew how to manage and operate a business, therefore, the only philosophical principle he knew was “…TRUST AND PAY”. Consequently, if there was any other way, then delinquent consumers may find themselves enjoying only the “…LIGHT OF DAY.” After all, that was what he knows-“…BUSINESS.” Demonstrating both his “…mind and financial independence,” seemingly if “…push comes to shove,” he was prepared for any “…disappointment” to gladly return from whence he came.

SERVICE METHODS
Parliament understood that some situations may develop over those sensitive issues. Hence, it had decided that “…METHODS” had to be found in assisting the board in working towards achieving the Corporation’s goals and objectives, particularly, as it affects that which was legitimately due and payable for its services to customers. It also knew that through circumstances over which some customers may have had no control, “…HELPFUL WAYS” were to be considered in ensuring that extreme hardship and inconvenience were not brought to bear on the citizenry.

LIGHT OVER DARKNESS
For these reasons, the APUA ACT provides for a customer’s essential services to be suppressed, “…ONLY” by methods to be determined by the Minister. The Chairman’s declared position appeared to have reflected no flexibility or compassion, confirming that his intentions were as real as the visitation of the leader of a movement “…Nation of Islam” (NOI), LOUIS FARRAKHAN MUHAMMAD.” Interestingly, though, he had spoken in a context that may have been interpreted as “…evil". In a snippet of his speech, he suggested that “…Light shall prevail over darkness.” Clearly, unconnected to recent domestic developments, he could not have been associating the declaration by APUA Board chairman as such an act.

TOTAL DARKNESS
Coincidentally, except for the “…LIGHT” that nature provides for approximately 12 hours of the day, and that which shines down periodically from the heavens at night upon the earth, should twilight appear on any given day and APUA’s objectives were not achieved, Chairman CLARVIS JOSEPH’S position was that “…TOTAL DARKNESS” were to be descended upon the delinquent and financially-challenged customers. Hence, likened to a noose firmly placed around the neck of a murder-convict intended for the removal of the breath of life, the utility services provided were to be suppressed without further notice. Thus, defaulters were to be left without power-operated light and dangling high, dry, thirsty and grumpy.

DUTY OF THE MINISTER
In most legitimate private business operations, management principles dictate what policies may be formulated for its control. APUA, as a statutory corporation, has a more formal structure as provided by law. The principles of management never change and so too may be its business operations, since it may either be supply or sale of goods or services for money. These were quite true for APUA. Hence, it was specifically for obvious reasons that Section 41 (A&C) of the ACT, respectively empowers the “…APUA MINISTER” to, inter alia, make certain “…REGULATIONS” affecting “…METHODS” to determine the charges payable by customers for the consumption or use of public utilities; …the conditions under which a supply of public utilities may be …DISCONTINUED; …DISCONNECTED or …STOPPED.”

DUTY OF THE AUTHORITY
The APUA Board appeared not to have been aware of these provisions. Conversely, legal luminaries have argued that if the Board knew or did not know, yet calculatedly acted contrary to law, such may have constituted recklessness in its conduct or gross negligence not to have sensitized customers of the requisite regulations, that they may be so guided. Such regulations shall be published in the nation’s Official Gazette or through other medium for public information and awareness.

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PRACTICES/RULES/ASSUMPTIONS
On a recent radio talk show programme “…FACE TO FACE,” host attorney-at-law LEON "CHAKU" SYMISTER, and former APUA chairman, appeared to have feigned ignorance that the Authority may have been operating by “…practices, rules, assumptions, beliefs, and/or customs” not specified in the APUA Act or authorized by law.

This may have been reasonably inferred when a caller queried the proposed actions of the Authority. The query focused on the suppression services that were not delinquent. Nonetheless, he had responded that such actions were legally challengeable.

Such, legal luminaries have concluded, had been borne out in the Chairman’s recent declaration of intent. Consequent upon recent pronouncements by APUA Board Chairman CLARVIS JOSEPH, it was clear that “…PARLIAMENT NEVER INTENDED” that the Authority may act in ways that were likely to provoke public disquiet. Thus, Parliament expected that the Board may refrain from acting in a manner that may be likened to behaviours reportedly obtained and/or exhibited among primitive tribes in the wilds of AFRICA.

STATE - SUBJECT TO LAW
Even with a “…CIVIL DEBT” being owed to the Authority, in democratic societies, the contemplated courses of action might not only conflict with civility, but also with the available Judicial process that provides for legal remedies. Such necessarily requires respect for the “…RULE OF LAW.” In support of this contention one need only refer to another of the Constitutional founding principles (d) that states, “…Every citizen owes to it an undivided allegiance not to be limited by private views of justice or expediency and that the …STATE IS SUBJECT TO THE LAW.”

MINISTER’S RESPONSIBILITY
The APUA Act provides within its corporate structure and for its operations, “…a nine member board” to be headed by a Chairman and Deputy Chairman. While Board’s primary functions, include managing, producing and generating revenue on that which had been monopolized for such purposes, they are   subject to policies of governance to be delivered through the Minister with responsibility for the Corporation. Testament of this may be seen through the provisions of Section 40 (1) that states “…The Minister after Consultation with the Authority may make regulations generally for giving effect to the provisions of this ACT, Chapter 359.”

PARLIAMENTARY ANTICIPATION
Parliament anticipated that the APUA or persons in whom no power was vested, out of desperation and/or  expediency, may be inclined to display tendencies that they may be seen as “…ruthless and merciless.” It also anticipated that some may be emboldened to the extent of developing a propensity in acting erratically, irrationally and/or without justification. The original Section 37 of the APUA ACT before it was amended, states “…The Minister may give to the Authority (APUA) such directions as to ‘POLICY’ to be followed in the performance of its functions as appear to the Minister to be necessary in the …interest of ANTIGUA AND BARBUDA,” and the Authority shall give effect to such directions.”

CONSEQUENCES FOR DELINQUENCY
Recognizing that the services were to be provided to the citizenry, Section 37 of the APUA Act was subsequently amended [No 8 of 1973] to read “IN THE INTEREST OF THE PUBLIC.” For this and other reasons, Parliament could never have intended that the APUA should act against the public interest. Thus, the Authority was providing “…ESSENTIAL SERVICES” to the citizenry, consumption of which they were obliged to remit the approved or assessed charges. However, failing to settle indebtedness for particular service/s, consumers may risk “…SUPPRESSION” and possible “…LITIGATION” by the Creditor to recoup charges. It might be instructive to look at this scenario; “…If a financially-challenged parent had three children attending the Baptist Academy; paid fees only for two students, does the School Board take the position in denying entry to the two students whose fees were not defaulted?”

The simple answer is “…NO.” If it was not a chronic situation, that parent might be able to persuade or convince the School Board to allow for a late or delayed payment.

Consequent upon the APUA Board’s declaration to cut off of utility services “…left, right and center” if delinquency fell upon a “…SINGLE SERVICE” while others were not disputed, such appeared conflicting with the very Law that provides for its operations. This was based upon the premise that no such regulations had been made and/or “…DETERMINED BY THE MINISTER.” Such may have constituted a serious breach of contract and a grave “…TORTUOUS ACT.”



ISLAND UNTO THEMSELVES
APUA, as a state-owned asset, due to its corporate nature and service-oriented operations, had been removed completely from being operated as a department. Notwithstanding its corporate status and independence, neither the “…Board as a collective body; …Chairman; …Deputy Chairman, nor the other individual members," were to be “…islands” unto themselves. Parliament anticipated that the APUA Board may be composed of persons who might develop a propensity to be “…emotively inconsiderate or victimizingly cruel and inhuman.” Thus, provisions were made with a mischief aimed at controlling the Board. For instance, in ensuring that Cabinet maintained some degree of control, it had devolved a duty upon the minister with responsibility for APUA.

METHODOLOGIES
It may have been the declaration of intent that had propelled Public Utilities Minister Honourable DR BALDWIN SPENCER into making a brief intervention. Clearly not intended to ferment public discord with the services provider, he sought to lend clarity to the vexed issue. The APUA Act imposes a duty on the responsible Minister in formulating “…METHODOLOGIES” how suppression of services may be effected. Such was to ensure that the APUA Board conducted itself with “…civility, rationality, justifiability and in a business-like manner. While business transactions necessitated an environment in enhancing good Corporate/customer relations, more importantly, such transactions ought to be conducted with approved “…businesses principles; …in concordance with consumer rights protection; and …IN ACCORDANCE WITH LAW.”

BAD DEBTORS
Parliament also knew that with all business transactions, there may be delinquent consumers. These, for reasons of delinquency, may be categorized as “…Bad Debtors.” When the respective Finance and Economy Ministers Honourable Senator DR ERROL CORT and HAROLD LOVELL had previously travelled to Europe to hold “…CONSULTATIONS” with creditors, this nation may have been so categorized. When TAIWAN litigated against the GRENADIAN government in a US Court, seemingly it was not for the purposes of ensuring delivery of “Spices ordered.” Due to the court’s order and the financial institution that remittances were to be made to TAIWAN, that nation may have also been categorized as a “…BAD DEBTOR.”

FUNCTIONAL JUDICIARY
When, recently, the nation’s Attorney General Honorable JUSTIN SIMON announced an intention to appeal a recent High Court judgment of some $18M, this nation may have also been so categorized. Bad Debtors was also known as the ones who had “…KILLED CREDIT.” Thus, customers ought to understand that as in any other business transactions, “…indebtedness” was to be settled with promptitude. Delinquency may militate against further credit and may likely affect good customer service relations. Simple logic dictates how “…financial indebtedness” was to be settled. This was to be pursued through a “…FUNCTIONAL JUDICIARY” and prevailing Rule of Law.

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