By Lynford Simpson, News EditorTHE RECORD multibillion dollar decision handed down by an arbitration panel last week against the Government in favour of the Ezroy Millwood-led National Transport Co-operative Society (NTCS), proves once again the arrogance of the People's National Party (PNP) administration.
Arrogance because when the Govern-ment decided to buy back the bus franchises it had contracted to three independent operators for the provision of public transportation in the Kingston Metropolitan Transport Region, it did so in a rather high-handed manner, even suggesting that the operators had to take what they were being offered. The Government refused to listen when Mr. Millwood and his team of consultants led by Dr. Trevor Hamilton reminded them that more than five years were left on the contract and the amount being offered as compensation was inadequate.
Government was also reminded that it had failed to keep its end of the agreement by providing the infrastructure and, more importantly, the guaranteed 15 per cent return on investment similar to the 17 per cent that Cable and Wireless was guaranteed when it ran its monopoly operation. With the Government refusing to provide a fare table, Mr. Millwood and the others made the point repeatedly that they were unable to approach their bankers because they were unable to make proper projections for future earnings.
FRANCHISE AGREEMENTS
It was arrogance because the PNP has been blessed with at least half-a-dozen attorneys-at-law in every administration since it came back to office in 1989, between the House of Representatives and the Senate. At the time the franchise agreements were terminated in 1998, there were nine lawyers in the House alone. Apart from Prime Minister P.J. Patterson who is a Queen's Counsel, other lawyers were K.D. Knight Q.C., Robert Pickersgill, John Junor, Canute Brown, Anthony Hylton, Ronald Thwaites, Francis Tulloch, Ben Clare, and Phillip Paulwell.
In the Senate, the Government had at its disposal, Attorney-General A.J. Nicholson Q.C., the eminent Alfred Rattray, and the able Fred Hamaty Q.C. Now, did any of these guys look at the franchise agreement. Did anybody caution that it was a recipe for disaster, that you can't just go about breaching contracts because you are Government? What of the advice from the Attorney-General's Department? That department usually gives sound advice.
While I'm not suggesting that except for the Attorney-General any of the others had to look at the document, nothing is wrong with getting a second or even a third opinion, especially when so much was at stake.
In February, 2000, in a page one story published in this newspaper, both Mr. Millwood and Dr. Hamilton gave a detailed explanation of how they expected to recover the $7 billion they were suing for. It listed breach of contract, compensation to employees, compensation for number of bus seats, among others. We should bear in mind that the bus operators had entered into a 10-year contract with Government in 1995 and this was terminated three years later. For sure commuters were dissatisfied with the ramshackle bus service that was reminiscent of slaves being transported through the Middle Passage, the difference this time being at break-neck speed.
But, the operators of that system argued that while they provided the buses, the Government did not live up to its end of the bargain. With the guaranteed 15 per cent return on investment not materialising, they argued that there was no surplus to re-invest so the service could not be improved.
And what is the role today of Dr. Alton Fletcher, the supposed transport czar who was brought here in the mid 1990s to overhaul the public transportation sector? Is he still employed in the public sector? And then there is Dr. Peter Phillips who was Transport Minister at the time. What advice did he receive? For sure somebody must be held accountable for the $12 billion plus that the more than 300 members of the NTCS are now waiting to collect. After all it's taxpayers' money. Public management today dictates that governments be held accountable. They can't after all continue to manage the public's money in such reckless manner. It will now cost taxpayers more to pay Mr. Millwood than it cost to set up the Jamaica Urban Transit Bus Co. This would have been avoided if Government had gone about it the right way. Nothing's wrong with listening to people.
The only good thing in all of this is proof that the legal system works, sometimes. And the particular case was dispensed of in relatively quick time. For those who would want to question the credibility of the arbitrators I urge you to look again at their credentials. The three-member panel was made up of retired Court of Appeal judge, Justice Boyd Carey (chairman), retired President of the Court of Appeal, the Hon. Ira Rowe, and attorney-at-law Angela Hudson-Phillips, Q.C.
DEBACLE
If the money has to be paid, and Patrick Bailey, one of the attorneys-at-law representing Mr. Millwood sees no reason in law why it should not be paid, the Prime Minister must know that public management has moved in a direction that dictates that somebody or some persons must be held accountable for this debacle. My limited knowledge of the law tells me, after hearing both sides of the argument, that a million appeals would only delay the inevitable. The money, or at least a significant portion of it will have to be paid. And lest we forget, it is we the taxpayers, who are really the government, who will have to pay this money.
While Finance and Planning Minister Dr. Omar Davies is known to work magic at times, if this decision is upheld at a possible appeal, where will the money be found? The $12.5 billion that Mr. Millwood and his Co-op intend to collect is nearly as much as the $14 billion in new taxes that the Government will struggle to raise to help finance the 2003/04 Budget.
Email comments to lynford.simpson@gleanerjm.com
