Paulwell's Brazen Coup

Gordon Robinson

It's now clear to me Jamaican citizens are held in utter contempt by their political leaders.

It's as if they feel they can say or do anything anytime, no matter how foolish or contrary, and we'll be sure to swallow it without question. Here's what Phillip 'Baby P' Paulwell told Jamaica regarding the EWI fiasco on May 6 in Parliament:

"... The Government of Jamaica received a proposal from EWI which was recommended to the OUR. The OUR then decided to accept the recommendation of Cabinet and ... requested that EWI, and other bidders ... submit their bids by limited tender. It's critical to understand that the procurement process is entirely managed by the OUR; and as an independent regulator, they guard that independence fiercely (my emphasis)."

Yet, on Sunday, June 1, RJR News reported the setting up of the previously announced Enterprise Team as follows:

"... The negotiating body is chaired by Dr Vincent Lawrence ... along with two private-sector representatives, Joseph M. Matalon and William Mahfood.

"They've now been joined by Winston Hay, a former director general of the OUR, Professor Alvin Wint ... and trade unionist Helene Davis Whyte."

The news report continued:

"The Enterprise Team was set up last month ... .

According to a statement from the Office of the Prime Minister (OPM), the terms of reference include the management of the procurement process, in consultation with the Office of Utilities Regulation, the Jamaica Public Service Company and the energy minister (my emphasis), for the development of new electricity-generation capacity."

No law has been amended. Nothing has changed.

Under the law, as Paulwell conceded, "The procurement process is entirely managed by the OUR." Is the Government planning to ignore the law? Certainly, if, as the OPM announced, the Enterprise Team's terms of reference "include the management of the procurement process, in consultation with the Office of Utilities Regulation, the Jamaica Public Service Company and the energy minister", then, by the stroke of a prime ministerial pen, the OUR Act has been repealed; OUR has been reduced from sole manager to a sideman who may be consulted by the new manager; and the energy minister, Phillip Paulwell, far from being relieved of duty, has had his influence, powers and authority expanded. Previously, he was excluded, by statute, from the procurement process.

My, how the mighty have risen!

PM ABOVE LAW?

The statute remains, but the PM, obviously above the law, has ordered that Paulwell can be consulted during the procurement process. That process, once managed, controlled and regulated by an independent statutory body, is now deliberately politicised by the prime minister despite statute providing for the exact opposite.

On May 6, Paulwell addressed Parliament thusly:

"... Having received the recommendation from the OUR, the minister becomes responsible for the terms and conditions of the licence, in keeping with the Electric Lighting Act. This role is also reflected in the OUR Act, which states that no entity shall provide a utility service without a licence issued by the minister. As the terms of the licence are the purview of the minister, it may be amended as he thinks expedient (Section 3(a) Electric Lighting Act)."

Do you believe the nerve of this guy? Despite the flaw in this absurd averment being repeatedly exposed, he continues to propagate utter rubbish in support of his persistent excess of authority.

The Electric Lighting Act is the statute under which "undertakers" to distribute electricity to the general public are licensed. It's under this statute that the JPS received its licence.

Section 3 of the Electric Lighting Act:

"The minister may from time to time license any local authority ... or any company or person to supply electricity under this act for any public or private purposes within any area ... ."

This is what that act is about. It's about distributing light to areas across Jamaica. It's this sort of licence (like the one JPS holds) that the minister may amend as he thinks expedient. The OUR has no role to play. No recommendation is made to the minister under the Electric Lighting Act. When it comes to distributing light to the villages, towns and cities of Jamaica, he's in charge.

UNWARRANTED INTERFERENCE

The licence issued to EWI was issued under the OUR Act for the construction of a power-generating plant from which power will be sold "to the national grid". That process is completely outside the contemplation of the Electric Lighting Act and involves two stages: one, a procurement process which, in Paulwell's own words, "is entirely managed by the OUR ..."; and, two, a recommendation by OUR to the minister after which the minister's sole discretion is whether or not to issue the recommended licence. This process is governed by the OUR Act and has nothing to do with the Electric Lighting Act.

The OUR Act excludes the minister from the due-diligence process, which he admits "is entirely managed by the OUR", so he has no basis for altering the results of that process which are the terms of the licence. The law gives him no right to do so.

Apparently, not even the Attorney General's Department does Baby P respect. What Baby P decides should be done, must be done. He reported on May 6:

"I reviewed the recommended terms and sought the advice of the attorney general on the deviations identified."

Hopefully, the attorney general would've advised Baby P that he had no authority to make any "deviations". But, it seems, not even the attorney general matters. Paulwell presses on:

"While awaiting the advice of the attorney general, I was advised by the OUR ... [clearly that was superior legal advice to any the AG could have rendered] that the bid bond of US$7 million, posted by EWI, would've expired on April 15, 2014 ... . Although not in receipt of the advice of the attorney general and convinced of the urgency, I signed and issued the licence as recommended by the OUR."

NO, YOU DID NOT. The licence you signed and issued was materially different from the one recommended by the OUR and excluded many terms inserted by the OUR for the protection of the Jamaican people. As if to ensure that EWI had the licence it wanted before the AG could advise Baby P he was wrong to amend, he hurried and signed because, he says, he was "convinced of the urgency". Urgency of WHAT?

Also on May 6, Baby P announced the procurement process would be taken over by an Enterprise Team who would report to Cabinet through the prime minister. No mention was made of any involvement by him, leading The Gleaner to report on May 7 under the headline 'Power plan gets reboot' as follows: "Energy Minister Phillip Paulwell, from whose portfolio the project has been yanked, announced yesterday ... that Cabinet has decided to designate the project a large-scale one ... ."

POWERS INCREASED

Nobody demurred. After Jamaica presumed out loud for one month that Paulwell was removed from the project, the PM announces Baby P's power has been increased. He's now to participate openly in the procurement process (as a consultant) despite the OUR Act strictly forbidding this. The Gleaner reports the Enterprise Team "... will report to, and advise, the prime minister and Cabinet ... ".

The release made it clear, however, that Energy Minister Phillip Paulwell "has responsibility for the energy sector and will continue to discharge his statutory duties".

The nine-day wonder has passed. Baby P is more in charge of the power plant project than before he messed it up. A politically appointed committee for whom nobody voted; not created by any act of Parliament; and nobody can hold accountable will join together with Baby P to wrest the process from the arms of the independent, lawfully constituted authority.

Will no parliamentarian act to protect us from this brazen coup? Will no level-headed Cabinet member revolt and resign on principle? What'll we do?

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.