By Richard Gibson Sr.
Several key components must be present to determine whether a system is democratic: free and fair elections, the protection of individual rights and freedoms, the separation of powers, political pluralism, and the rule of law.
The rule of law provides a mechanism to check the abuse of power by political leaders and institutions. A democracy without rule of law would be vulnerable to corruption, unchecked authority, and the erosion of civil liberties.
Against this back drop a review of the “Fuel Clause” GEBE charges and collects from its customers cannot pass the “smell test” and is in fact undemocratic.
Ask yourself the following questions: “Can PJIA, because it decided to expand the airport, borrow money, and then approach GEBE to enter into an agreement, resulting in GEBE charging its customers an extra fee in their utility bills, under the pretext that it is a “Fuel clause” charge and subsequently pay out this fee to PJIA to satisfy its loan payments? Can this occur without the consent and knowledge of GEBE customers? If this is possible, then why can TELEM or SZV not use this same construct to alleviate their financial deficits or expansion desires? And…, if this is possible, where is the limit? Where is the protection of the individual rights and freedoms of the individual citizens/customers? Are they completely at the mercy of these institutions and their decisions to charge or not to charge whatever they desire? The obvious answer is that this is not the case and that something is terribly wrong with this construct!
Every customer signed a contract with GEBE for the delivery of water and electricity. This contract has two parties, and it cannot be changed without the consent of both parties or by a general law adopted by Parliament. That is the Rule of Law!
The Rule of Law also dictates that anyone who has an obligation to another and causes damages (material or otherwise) to the other by breach of contract or otherwise is liable for such damages. GEBE, under a concession issued to it by the government, has the obligation under the concession, as well as by virtue of the contract signed by its customers, to, at all times, provide citizens with electricity. A default on the part of GEBE on this obligation constitutes a breach of contract or an act of tort. The cause of GEBE’s inability to meet its obligation lies in gross neglect on the part of GEBE by not timely maintaining nor timely purchasing new generators to replace generators whose operational lifetimes have expired. As a result of this, the entire community of Sint Maarten suffered damages due to load shedding and depriving the community of electricity.
From the debate so far in Parliament on this topic, our representatives in government, like ballerinas in ballet, are pirouetting around the heart of the issue at hand instead of championing the best interest of our citizens, i.e., GEBE is responsible for the damages they caused! Yes, the managing- and supervisory boards have been replaced, but that does not relieve GEBE of its obligation to pay for the damages they caused, nor did it result in lower water and electricity bills. The FAKE fuel clause is ever present and continues to mercilessly burden citizens. Little or no mention is made of full compensation of GEBE customers for the damages suffered. Yes, mention is made that the public will not be charged for the new generators, and that that in itself that is a relief to the public, but in actual fact the public should not and cannot be charged for gross negligence on the part of GEBE. Moreover, even if the loans for the generators are carried by government in its budget, it means that tax payers (our citizens) are paying for it. That is not relief, nor compensation! GEBE has to bear the consequences of its actions and omissions and not pass it on to others. The generators have been depreciated and amortized and as such should be paid for 100% by GEBE and not again by its customers, nor by government.
If we live in a democracy it is up to our elected representatives to champion our cause!
Richard Gibson Sr.
A private citizen
