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1 1 IN THE SUPREME COURT OF BELIZE 2008 Claim No. 336 of 2008IN THE MATTER of the Electricity (Tariffs, Charges, and Quality of Service Standards) (Amendment) Byelaws, 2008 comprised in Statutory Instrument No. 58 of 2008 made by the Minister of Public Utilities in pursuance of Section 7 of the Electricity Act Chapter 221 of the Laws of Belize Revised Edition 2000 2003 AND IN THE MATTER of an application by way of Judicial Review by Belize Electricity Limited in respect of the said Byelaws BETWEEN BELIZE ELECTRICITY LIMITED CLAIMANT of Mile 2 Northern Highway Belize City AND MINISTER OF PUBLIC UTILITIES RESPONDENT of Belmopan, Cayo District Belize ATTORNEY GENERAL INTERESTED PARTY PUBLIC UTILITIES COMMISSION INTERESTED PARTY2 BEFORE: HAFIZ J. Mr. Michael Young along with Mr. Darrel Bradley for Claimant Ms. Priscilla Banner for Respondent and 1 st Interested Party Mr.

2 Andrew Marshalleck along with Ms. Shaae Ann Keddo for 2 nd Interested Party J U D G M E N T Introduction 1. On 3 rd October, 2008, this Court granted permission to the Claimant to seek Judicial Review by way of Certiorari to quash the Electricity (Tariffs, Charges, and Quality of Service Standards) (Amendment) Byelaws, 2008 comprised in Statutory Instrument No. 58 of 2008 made by the Minister of Public Utilities on 29 th of March, 2008 in pursuance of Section 7 of the Electricity Act, Chapter 221 of the Laws of Belize. On 17 th October, 2008 the Application for Judicial Review was filed. 2. The Claimant, Belize Electricity Limited is the sole supplier of electricity to the general public in Belize. It is a public company formed and registered under the Companies Act of Belize. The Respondent is the Minister responsible for Public Utilities. The first interested party is the Attorney General and the second interested party is the Public Utilities Commission, a statutory body created and empowered by the Public Utilities Commission Act, Chapter 223 of the Laws of Belize.

3 3. In support of the Claimant s application for Judicial Review to quash the 2008 Amendment Byelaws a number of Affidavits were filed along with Exhibits. For the Claimant there are three affidavits sworn to by Mr. Lynn Young, Business Manager and one affidavit from Juliet Estell, Corporate Secretary and Business Manager of the Claimant. In Response to the3 application, the Respondent filed several affidavits. An affidavit was sworn by Col. George Lovell, Chief Executive Officer, Ministry of Public Utilities, Transport, Communications and National Emergency Management and one affidavit from John Avery, Chairman of the Public Utilities Commission. Grounds of the Claim 4. The grounds of the claim are as follows: (i) That the 2008 Amendment Byelaws related to and determined the methodology and process for the determination of tariffs, charges and fees to be charged for the provision of electrical services by licensees for the transmission and supply of electricity and was formulated, made and promulgated without any consultation with the Claimant Belize Electricity Limited.

4 (ii) That by the scope and scheme of the Electricity Act it is necessarily implied that the Minister of Public Utilities has an obligation to consult with a Licensee under the Act prior to the finalization and making of any Byelaws determining or changing the methodology and process for the determination of tariffs, charges and fees for the transmission and supply of electricity. (iii) That the failure to consult with the Claimant as licensee was unlawful in that it was unreasonable in the Wednesbury sense. (iv) That the Minister acted ultra vires the Electricity Act in making the 2008 Amendment Statutory Instrument sought to be impugned 5. The Statutory Instrument which will be reproduced in its entirety states as follows: BELIZE STATUTORY INSTRUMENT No. 58 of 2008 BYELAWS made by the Minister responsible for Electricity, After consultation with the Public Utilities Commission, Pursuant to the powers conferred upon him by section 7 of the Electricity Act, Chapter 221 of the Laws of Belize, Revised Edition 2000 2003 (as amended by Act No.)

5 12 of 2007), and all other powers thereunto him Enabling. (Gazetted 29 th March, 2008) 1. These Byelaws may be cited as the Short title ELECTRICITY (TARIFFS, CHARGES, AND QUALITY OF SERVICE STANDARDS) (AMENDMENT) BYELAWS, 2008 And shall be read and construed as one with the Electricity (Tariffs, Charges and Quality of Service Standards) Bye Laws, which, as amended, are hereinafter referred to as the Principal Byelaws. 2. (1) The principal Byelaws are hereby further amended by the repeal in toto of the Electricity (Tariffs, Charges, and Quality of Service Standards) (Amendment) Byelaws, 2007. (2) In consequence of the said repeal, the principal Byelaws will revert to the position set out in the Electricity5 (Tariffs, Charges, and Quality of Services Standards) Bye Laws, 2005. 3. These Byelaws shall come into force on signature. MADE by the Minister responsible for Electricity this 28 th day of March, 2008.

6 Signed: (MELVIN HULSE) Minister of Public Utilities, Transport, Communications and National Emergency Management, Minister responsible for Electricity. Factual and Legislative Background 6. The Claimant was granted a licence for the sale and supply of electricity on the 1 st of July 2000. The licence was issued under the Electricity Act. Formerly, under the Belize Electricity Board Act, the sole supplier of electricity was the Belize Electricity Board, a statutory corporation owned exclusively by the Government of Belize. The Board fixed electricity rates with the approval of the Minister. In 1992 the Electricity Act, Chapter 221 was passed, repealing the Belize Electricity Board and vesting the undertaking and assets of the Belize Electricity Board in Belize Electricity Limited, the Claimant. 7. In 1999 the Public Utilities Commission Act, Chapter 223 was enacted, to provide for the establishment of a regulatory regime.

7 The Electricity Act was amended to provide for the establishment of the regulatory regime, that is the Public Utilities Commission. Both Acts reflect and declare the purposes of the regulatory 8. On 12 th April, 2001 the First Byelaws (The 2001 Byelaws) for the determination of electricity tariffs and quality of service standards were made by the Public Utilities Commission (PUC). The regime for the setting of tariffs was organized on the basis of four year tariff periods with the first four year period being 1 st July 2005 to 30 th June 2009. The period 1 st July 2001 to 30 th June 2005 was treated as a Transitional Period and the period 1 st July 2005 to 30 th June 2009 was designated as the first Full Tariff Period (FTP). 9. The 2001 Byelaws were repealed and replaced by a new set of byelaws on 20 th December, 2005 by Statutory Instrument No.

8 145 of 2005 ( the 2005 Byelaws). 10. In 2007, the 2005 Byelaws were repealed and replaced by Statutory Instrument No. 141 of 2007 (the 2007 Byelaws). The amendments included changing the first full tariff period from 1 st July 2005 to 30 th June 2009 to 1 st July 2007 to 30 th June 2011 . The 2007 Byelaws were made by the Minister of Public Utilities on 28 th March, 2008. 11. The Electricity Act before its amendment had provided that the PUC had the power to make byelaws as provided under sections 7 (1), 53 and 58. Section 7(1) (g) provided for the methodology and process for the determination of tariffs and quality of service standards. Section 13 of the Act which was not amended provides that where the Commission exercised its powers to make regulations or subsidiary legislation, it had first to consult any interested person .7 2007 the Electricity (Amendment) Act was passed and it provided that the power to make byelaws under section 7 (1) would be exercised by the Minister after consultation with the Commission.

9 No alteration was made to Section 13 which is the provision which required consultation with any interested person. the 28 th of March 2008 the Minister of Public Utilities signed a statutory instrument repealing the 2007 Byelaw. It was published in the Government Gazette on the 29 th of March 2008. 14. The Claimant had prepared and formulated its application for the Annual Review Proceedings covering the period 1 st July 2008 to 30 th June 2009 (ARP 2008) on the basis of the 2007 Amendment Byelaws. It submitted its application on the 2 nd of April 2008. the 21 st of April 2008 the Claimant gave notice of its intent to challenge the repeal of the 2007 Byelaws because there was no consultation with them by the Minister. On the 19 th of May 2008 the Claimant wrote the Minister of Public Utilities giving notice of the filing of the claim but also inviting consultation to resolve the issues.

10 The Claimant did not receive any response to these letters and the ARP 2008 was conducted on the basis that the 2007 Amendment Byelaws had been repealed. Failing to resolve the issues in dispute the application for Judicial Review was made to the Submissions by the Claimant 16. Mr. Young SC submitted that there was no consultation whatsoever with the Claimant, BEL before the Minister passed the 2008 Amendment Byelaws as is confirmed by the Affidavit of Mr. John Avery, Chairman of the PUC, sworn on the 12 th of November 2008 and filed in the Claim. Learned Counsel further submitted that the Minister s position as set out in the affidavit of the Ministry s Chief Executive Officer, Col. George Lovell, sworn on the 24 th of November 2008 shows that there was no consultation with the Claimant prior to the repeal of the 2007 Amendment Byelaws. Mr.