IN THE SUPREME COURT OF BELIZE A.D AND

IN THE SUPREME COURT OF BELIZE A.D. 2008 Claim No. 336 of 2008 IN 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 of Mile 2 ½ Northern Highway Belize City CLAIMANT AND MINISTER OF PUBLIC UTILITIES of Belmopan, Cayo District Belize ATTORNEY GENERAL PUBLIC UTILITIES COMMISSION RESPONDENT INTERESTED PARTY INTERESTED PARTY 1

BEFORE: HAFIZ J. Mr. Michael Young S.C. along with Mr. Darrel Bradley for Claimant Ms. Priscilla Banner for Respondent and 1 st Interested Party Mr. 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. 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 the 2

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) (ii) (iii) (iv) 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. 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. That the failure to consult with the Claimant as licensee was unlawful in that it was unreasonable in the Wednesbury sense. That the Minister acted ultra vires the Electricity Act in making the 2008 Amendment Byelaws. 3

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. 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 Electricity 4

(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. 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. 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 regime. 5

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. 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. 6

12.In 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. No alteration was made to Section 13 which is the provision which required consultation with any interested person. 13.On 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. 15.On 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. 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 Courts. 7

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. Young SC submitted that the BEL was not even informed. See the affidavit of Juliet Estell sworn on the 16 th of October 2008 at paragraphs 3 to 8. 17. Learned Counsel submitted that contrary to paragraph 16 of the Affidavit of Col. George Lovell, the Claimant does not seek to impeach the Electricity (Amendment) Act. That its claim rests on what it contends is a proper interpretation of the Act after the amendment and that in any event it is unreasonable to make changes to the byelaws without first consulting the Claimant as licensee. 18. Mr. Young SC referred the Court to several authorities on the principles of interpretation. On the discovery of the intent of Parliament, Learned Counsel referred to Halsbury Vol 44(1) at Paragraph 1372 which state: The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore the object in construing the Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole and in its context and acting on behalf of the people. 8

19. Learned Counsel submitted that Statute must be Interpreted in a Purposive Manner and referred to Cross on Statutory Interpretation [3 rd Edition] p. 22 which states: Words are always to be understood as having regard to the subject matter of legislation: But lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it 20. Mr. Young further referred to Pepper v Hart [1993].AC. 593 and quoted from the judgment of Lord Griffith: The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The Courts now adopt a purposive approach which seeks to give effect to the true purpose of the legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. 21. Learned Counsel then referred to Maunsell v Olins 1975 AC 373 [extract from Lord Simon of Glaisdale s Judgement ] as follows : in statutes dealing with ordinary people in their everyday lives, the language is presumed to be used in its primary ordinary sense, unless this stultifies the purpose of the statute or otherwise produces some injustice, absurdity, anomaly or contradiction, in which case some secondary ordinary sense may be preferred so as to obviate the injustice, absurdity anomaly or contradiction or fulfill the purpose of the statute 9

He then referred to Western Bank Ltd. V Schindler 1977 Ch 1 which is a case in which a literal interpretation would produce a manifestly unfair result. 22. On implying of words into a statutory provision, Learned Counsel referred to Halsburys Laws Vol. 44(1) [4 th Edition] at para 1369 which states: It is usually said that in the making of law, as opposed to its interpretation, is a matter for the legislature and not for the courts, but, in so far as Parliament does not convey its intention clearly, expressly and completely, it is taken to require the court to spell out that intention where necessary. This may be done either by finding and declaring implications in the words used by the legislator, 23. Mr. Young then referred to an extract from Cross on Statutory Interpretation at page 49 which states: It is submitted that the following is a reasonably brief and accurate statement of the rules of English statutory interpretation: 1. The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute; he must also determine the extent of the general words with reference to that context 2. If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in a secondary meaning which they are capable of bearing 3. The judge may read in words which he considers to be necessarily implied by words which are already in the statute; and he has a limited power to add to, alter or ignore the statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable 10

with the rest of the statute 4. In applying the above rules the judge may resort to aids in construction and presumptions. 24. Learned Counsel then referred to Halsbury s Laws at Paragraph 1234 which states: Since legislation includes what is implied as well as what is expressed, the term enactment, in the sense of a statutory proposition, includes an implied proposition 25. Mr. Young SC also referred to Relaxion Group PLC v Rhs Harper D, Souza (2003) UKHL 33 which dealt with the issue of whether protection under Sex Discrimination Act, Race Relations Act and Disability Discrimination Act based on employment relationship ceased immediately upon termination of employment. It was held not to be the case by House of Lords on a proper interpretation of the Act. The HL effectively added words to the statute and overruled previous Court of Appeal case Adkey. 26. Learned Counsel further submitted that where it is found that there is an error in the legislation the Courts are prepared to rectify it. Learned Counsel relied on Deria General Council of British Shipping (1986) 1 WLR 1207 in which there was a rectification of a provision by the court of the Race Relations Act. The expression employee does his work outside Great Britain was rectified to include or is to do his work Interpretation of Race Relations Act. 27. Mr. Young also referred to R v Moore 1994 Times, 26 December summarized at p. 104 in Cross where s. 1 c(1)(a) was treated as ending with the words under the preceding provisions of this act 11

instead of the words under the following provisions of this Act. He also referred to Cross p. 95 Some allowance must be made for obvious drafting errors. 28. Mr. Young SC further submitted that the state of the Law at time of amendment is of importance and referred to Paragraph 1415 of Halsbury Laws, Volume 44(1) which states: The Court cannot judge soundly what mischief an enactment is intended to remedy unless it knows the previous state of the law, the defects found to exist in that law and the facts that caused the legislator to pass the Act in question. It follows that the court should take into account the state of the law at the time the enactment was passed. Where a subject has been dealt with a developing series of Acts, the courts often find it necessary, in construing the latest Act, to trace the course of this development. By seeing what changes have been made in the relevant provision, and why they have been made, the court can better assess the meaning of the current Act. 29. On this point Learned Counsel further referred to Paragraph 1435 Halsbury s Laws Volume 44(1) Law should be coherent and self consistent. He then referred to paragraph 1442 which states: It is a principle of legal policy that law should be just and fair, and that court decisions should further the ends of justice. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction that leads to injustice or unfairness. Learned Counsel also referred to Cross at page 113, 167 and 177 in support of his argument. 12

30.Mr. Young in applying the principles of interpretation to this case submitted that the intent of the Legislature is clear. He submitted that it must be implied that consultation with a licensee under the Act was a prerequirement for the proper creation, passing and promulgation of byelaws or any regulation changing or removing byelaws. Learned Counsel submitted that this must particularly be the case where such byelaws relate to the methodology for the setting of tariffs and quality standards. 31. He further submitted that the statutes include as a primary objective that the licensee must be able to finance its operations, recover its reasonable costs and secure a reasonable rate of return. Therefore, it must be a fundamental requirement that the licensee be consulted when the bylaws and methodology for the determination of its tariffs are being formulated or changed. For the maker of the byelaws and methodology to be able to formulate or change such methodology without consulting the licensee must be manifestly unfair and indeed irrational. Therefore, Counsel submitted that it was then only natural that section 13 was introduced to secure such consultation when the regulatory regime was being established. He submitted that section 13 ties in with the definition of interested persons at Section 2. That this reflects the intent for consultation whether or not it is the Commission or the Minister that makes the byelaws. Further, Learned Counsel submitted that previously it was the law that the Commission had the power to make the all important byelaws which determined how and through what process tariffs were set. Thus Section 13 was intended to entrench (a) the right of the licensee to be consulted and (b) the obligation to consult with the licensee as a pre condition in such cases. Counsel submitted that there is nothing to suggest that the intent of the legislature changed or that the amendment included an intent to remove the right and obligation. 13

32. Mr. Young SC further applied the principles of interpretation of statutes on error of omission to the case at hand and submitted that when the Electricity Act was amended in 2007 to provide that the Minister would exercise the power to make byelaws relating to, inter alia, the methodology for the determination of tariffs, no consequential amendment was made to or in the likeness of Section 13. He submitted that this was undoubtedly and manifestly an error of omission because section 13 was not deleted, or altered, nor was the issue of consultation with the licensee addressed at all in such amendments. 33. Learned Counsel used the language of Lord Simon of Glaisdale and submitted that this is a case where if the meaning of the Electricity Amendment Act was such as to exclude the obligation of the rule making body to consult the licensee, it would stultify the purpose of the statute and produce injustice, absurdity, anomaly and contradiction. It would stultify the objective of seeking to ensure that the licensee can finance its obligations; it would produce an injustice in removing from the licensee the right to have some input or register some objection or reaction to proposals which determine the regulatory regime and affects its bottom line; it would contradict the stated obligation to consult where the PUC makes Byelaws. It would produce an absurd result in that the Licensee had to be consulted about some matters whilst there is no obligation to consult the licensee in relation to the tariff setting regime and regulations. 34.Further, Counsel submitted that interpreting the Act so as to continue the obligation to consult with the licensee in making the byelaws would also make the Act coherent and self consistent. That interpreting the Act so as to remove the right on the part of the licensee to be consulted would not merely limit but extinguish vested rights. Further, it would also be absurd 14

for the reason that the licensee could be exposed to penalties in consequence of regulations about which it was not consulted. He submitted that it would also be inconceivable that a licensee would agree to undertake or acquire a utility enterprise in a regulatory regime where it has no right to be consulted when byelaws are being made which determine how it will earn its revenue. 35. On the issue of rectification and implication of words, Mr. Young SC submitted that to carry out the manifest intent of the legislature it is necessary to imply words into the provisions of the Act. Learned Counsel submitted that having regard to the existence of Section 13, the insertion of the necessary provision below would be straightforward as it is the same as section 13 except that Minister is substituted for Commissioner. Where powers are conferred upon the Minister under this Act to make regulations or any other form of subsidiary legislation, and where provision is made that such regulations or subsidiary legislation shall, after signature by the Minister, come into force upon publication in the Gazette, the Minister shall not cause such regulations or subsidiary legislation to be published in the Gazette without first circulating for comments the final draft copies thereof to any interested person, and without genuinely consulting with such persons and taking such person s views and comments into account. Provided that the Minister, after consulting any interested person under this subsection shall not be obliged to follow the views or comments of that person. 15

36. Learned Counsel submitted that the provision could be added as Section 13A or as a subsection of Section 13 but as is readily apparent the addition of the provision presents no difficulty. 37. Mr. Young SC further submitted that once effect is given to the manifest intent of the legislature in the interpretation of the Act, then the discretion of the Court as to the appropriate remedy does not arise since the manifest intent of the legislature was and is that such regulations or subsidiary legislation would be of no legal force or effect unless and until they had (a) first been referred to the licence holder (as the interested person) by way of consultation and (b) published in the Gazette. This would have been the case if the PUC had retained the power to make or change the regulatory byelaws and this would be the case with the new byelaw making authority. He submitted that on the ground of interpretation alone the Court should grant the Order for Certiorari. 38. The Claimant also put forward an alternative position to the Court. Mr. Young submitted that for completeness he would proceed further. He submitted that there are two scenarios in this regard: (a) The Claimant establishes its claim that there was a duty imposed by statute but on the interpretation of the statute the absence of such consultation is not a pre condition to its validity. That is, the non consultation is not necessarily fatal to amendment regulations. (b) Secondly, the Court does not accept that any duty is imposed by statute that no such duty is implied as a matter of interpretation. 39. Mr. Young SC submitted that in both of these scenarios the question arises whether or not Certiorari is the appropriate form of relief. He said that it is clear from a review of the case law that an unlawful failure to 16

consult imposed either by statute or by common law can give rise to an order quashing secondary legislation, but it is a matter for the discretion of the court to be determined from a consideration of the relevant circumstances of each case. That the discretion to grant Certiorari is not limited to cases involving an express statutory duty to consult. He referred to the case of Regina (Bancoult) vs. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (2008) EWCH 171. 40. He then referred to R(C) vs. Secretary of State for Justice (2008) EWCH 171 (Admin), UK CA where Maurice Kay LJ states: We are satisfied that, in principle, once a public law infraction has been established, the court has a discretion to quash secondary legislation which has been enacted on the back of that infraction, whether it was substantive or procedural. It nevertheless calls for a careful examination of the circumstances of each case before deciding to make a quashing order. 41. Learned Counsel further submitted that R(C) vs. Secretary of State for Justice supra is a case concerning the permissible physical restraints that can be imposed on persons detained in Secure Training Centers under the Secure Training Centre (Amendment) Rules 2007. Until the amendment, the rules restricted the use of physical restraint to cases where it was necessary for the prevention of escape, damage to property, and injury either to the person restrained or to another. The amendment added the permissible uses of restraint to cases where restraint is thought necessary for the purpose of ensuring good order and discipline. The court determined that the amendment breached the various rules of law relating to prior consultation and to the making of a Race Equality Impact Assessment, but declined to quash the amendment. The Applicant appealed the Divisional Court s decision not to grant Certiorari. The Court 17

of Appeal allowed the appeal because of the failure to do a Race Equality Impact Assessment. 42.Mr. Young further referred to R vs. Secretary of State for Health, ex parte United States Tobacco International Inc (1992) 1 Q.B. 353 which illustrates circumstances wherein the court felt it appropriate to grant Certiorari. This is a case involving a statutory duty to consult, but the case deals specifically with a failure on the part of the Secretary of State for Health to disclose to the Applicant expert advice, which formed the basis for the Secretary of State s decision to enact regulations to ban oral snuff in the United Kingdom. The Applicant, an American company, imported oral snuff into the United Kingdom. Following inducement and encouragement from the Government, the Applicant invested heavily in a factory in Scotland, which became the center of its European operations. The Applicant also cooperated fully with the Government in undertaking not to market its oral snuff to persons under the age of 18 and to include in its product packaging a warning of the inherent risk to health from the use of oral snuff. Thereafter, in reliance on expert advice, the Secretary of State announced that he proposed to enact regulations to ban oral snuff and he invited the Applicant to make representations. The proposed regulations were enacted. Counsel submitted that in deciding to quash the regulations, the court considered: (1) the history of the Government s dealings with the Applicant and, in particular, that the Applicant was induced and encouraged to invest heavily in its British operations and was fully cooperative with the Government; and (2) the serious effect the regulations would have on the Applicant s commercial undertakings. 18

43. Mr. Young in further submission on circumstances for exercise of discretion submitted that it is inconceivable that the regulatory regime including particularly the methodology for determination of tariffs can be changed and promulgated without consultation with the licensee. He submitted that this would be unreasonable to the point of absurdity and it would be unreasonable in the Wednesbury sense. He submitted that any change to the rate setting byelaws violates the fundamental principle that there should first be consultation with the licensee. That there was undoubtedly a substantial change involving a revocation of the methodology and an adjustment to the timing of the full tariff period which was compounded by the timing of the change in the byelaws at the beginning of an Annual Review Proceeding 2008 when the licensee had prepared its application on the basis of the same byelaws which were repealed. Therefore, Learned Counsel submitted that the circumstances for the quashing of the repeal of the 2007 Amendment Byelaws are compelling. 44. Learned Counsel further submitted that by Section 32 of the PUC Act the PUC has powers to review, vary and rescind any decision or Order made by it. The PUC has powers to review the Final Decision of the 2008 ARP in consequence of the quashing of the repeal of the 2007 Amendment byelaws and subject to such directions and orders as the Court may deem proper. Submissions by the Respondent 45. Ms. Banner for the Respondent, Minister of Public Utilities and the first Interested Party, the Attorney General submitted that the function of the Courts is not to make law as the making of law is for the Legislature. That the Courts are the interpreters of the law and may not base the 19

construction of a statute on its own view of what the Legislature should have done in enacting the law. Ms. Banner in support of her argument referred to the case of Universal Caribbean Establishment v. James Harrison (Civil Appeal, No 21 of 1993, Antigua and Barbuda) where it was stated that: The first principle to affirm is to recognize the separation of power between the Legislature and the Judiciary. It is the province of Parliament to make the law and for the Court to interpret, without basing its construction of the Statute on a perception of its wisdom or propriety or a view of what Parliament ought to have done. The dominant purpose in construing a Statute is to ascertain the intention of the legislature as expressed in the Statute, considering it as a whole and in its context. It is only where the words of the Statute are not clear and unambiguous that it is necessary to enlist aids for interpretation. 46.Learned Counsel submitted that when the Electricity (Amendment) Act, 2007 was enacted, section 7 conferring power to make by laws for specified purposes was amended to take that power away from the Commission and give it to the Minister only. Ms. Banner further submitted that sections 53 and 58 both maintained that both the Minister and the Commission with the approval of the Minister may make regulations for specified purposes. Further, that section 13 providing generally for consultations by the Commission where regulations are made was not amended to include Minister so that that provision for consultation is only applicable to sections 53 and 58. 47. Counsel in response to the submission of the Claimant that there was an error of omission based on the fact that section 13 was not amended submitted that the following principles on omissions should apply: 20

Halsbury s Laws of England (4 th Edition) Volume 44, at Paragraph 862 states: 862. There is a strong presumption that Parliament does not make mistakes. If blunders are found in legislation, they must be corrected by the legislature, and it is not the function of the court to repair them. Thus, while terms can be introduced into a statute to give effect to its clear intention by remedying mere defects of language and to rectify obvious misprints or misnomers or obvious mistranslations of an international convention, no provision which is not in the statute can otherwise be implied to remedy an omission, even if it is evidently unintentional. However, if particular words of a statute are so obscure or doubtful in their meaning that they are not capable of a grammatical construction, but the intention of the legislature is plain on the construction of the statute as a whole, it is permissible, in order to give effect to the statute and avoid manifest absurdity or injustice, (1) to reject words or phrases as surplusage, if no sensible meaning can be given to them, (2) to supply omitted words or expression; (3) to transpose, interpolate or otherwise alter words; (4) to read negative words as affirmative, or affirmative as negative; disjunctive as conjunctive, or conjunctive as disjunctive; (5) to put upon words a sense possible but not usually attributable to them; (6) to expand their literal meaning. 48.Learned Counsel, Ms. Banner further submitted that in Belize, the aforementioned presumption may be rebutted by the Constitution which is the supreme law. That in the instant matter, section 13 is being challenged for error on its face, and if the Court were to insert a word into that provision which is not there, the section would be altered and would have the effect of quashing subsidiary legislation made pursuant to the Electricity Act. That it is trite law that an Act of the National Assembly is the authentic and true expression of the will of the people through the representatives which they elect and as a consequence there is necessarily a strong presumption of the constitutionality and validity of every Act. Counsel relied on the Privy Council case Shell Co. of Australia Ltd v. FC of T (1930) 44 CLR 530 at 545 where the following 21

pronouncement of the High Court of Australia, per Mr. Justice Isaacs in FC of T v. Munro (1926) 38 CLR at 180 was approved: Nullification of enactments and confusion of public business are not lightly to be introduced. Unless, therefore, it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will. Ms. Banner submitted that in the case at bar no such provision is being impugned by the Claimant. 49. Learned Counsel further submitted that where the statute is unambiguous the guiding principle is as stated in Halsbury s Laws of England, (4 th Edition) Volume 44, Para. 857: if the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning. Counsel submitted that this principle underlines the maxim that an implication cannot properly be found which goes against an express statement: expressum facit cessare tacitum. The provision upon which the doubt of error is cast must be reviewed to determine whether the provision makes sense grammatically taking into account the statute as a whole. 50. Learned Counsel then referred to Halsbury s Laws of England, (4 th Edition) Volume 44, Para. 858 and submitted that where there is determination by the Court there is some grammatical ambiguity or absurdity with the provision being interpreted, then the intention of 22

Parliament must be sought first in the statute itself, then in other legislation and contemporaneous circumstances 51 Learned Counsel further referred to Pinner v. Everett [1969] 3 All E.R. 257 at 258, where Lord Reid stated the principle as follows: In determining the meaning of any word or phrase in a statute the first question is what is the natural and ordinary meaning of that word or phrase in its context in the statute. It is only when the meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other permissible meaning of the word or phrase. 52. Ms. Banner submitted that it is undoubted that the plain and ordinary meaning of the words must be regarded in construing the statute. Further that it is also recognized that a Court may interpret a provision when the grammatical meaning of that word or phrase leads to some absurdity. Further, Counsel submitted that the notion that it is competent for a Court to modify an Act of the Legislature in order to bring it in accordance with his views as to what is right and reasonable in the concept of the legislation is wholly objectionable and such a notion should be repudiated. 53. Learned Counsel in applying the principles of interpretation of statute rejects the Claimant s submission that the Minister was legally obligated to consult the Claimants by virtue of the scope and scheme of the Electricity Act. She further rejects the Claimant s submission that such failure to consult was unlawful in that it was unreasonable in the Wednesbury sense and that it was ultra vires the Electricity Act. 23

54. Ms. Banner further submitted that section 7 of the Electricity Act plainly and unambiguously uses the term Minister by amending the provision which read the Commission may, with the approval of the Minister, make by laws to now read the Minister may, after consultation with the Commission, make by laws. She submitted that grammatically speaking there is no ambiguity. Neither is there any ambiguity with section 13 of the Electricity Act where Commission is used instead of Minister. That in other areas of the Electricity Act the Legislature expressly conferred, as in sections 53 and 58, the power on the Commission and the Minister in the making of regulations. Further, Counsel submitted that an implication of Minister in section 13 can therefore not be found where it would unfairly and harshly contradicts an expressed provision. 55.Ms Banner further submitted that section 7 clearly states that the Minister may make regulations after consultation with the Commission. Further, that in the first Affidavit of Col. Lovell, it is clear that such consultations between the Minister and the Commission were in fact effected. 56. Counsel then submitted that the clear intent from a reading of the statute as a whole is that both the Commission and the Minister are contemplated as in sections 7, 53 and 58 as entities which may make regulations under the Electricity Act. But it is also clear that each entity has its own specific guidelines for the enacting of regulations which must be presumed to be validly enacted by the Legislature. She further submitted that it is clear that section 13 maintained its operational purpose as it relates to sections 53 and 58 in ensuring that the PUC was obligated in exercising its powers under those sections to consult with interested persons. 57. Ms. Banner further submitted that there is no error of omission in the Electricity Act. That it must be presumed that statutes of parliament are 24

shrouded in validity and in this case the presumption that the Legislature does not make mistakes must hold true. That the only law to which such a presumption does not apply is the Constitution as the supreme law of Belize. She submitted that if particular words of the statute are so obscure or doubtful in their meaning that they are not capable of a grammatical construction, but the intention of the legislature is plain on the construction of the statute as a whole, it is permissible for the Court to cautiously do things such as rejecting words or phrases as surplusage or supply omitted words or expressions, among others. 58.Learned Counsel submitted that in the instant case, in normal circumstances, the question might have well been whether the court should delete the word Minister in the definition of Interested Person or add the word Minister to section 13. She submitted that the Court should do neither as not only would comparable evils to different parties be caused by such an interpretation but such interpretation is not necessary in view of the presumption of validity. Further, section 13 does tie in with the definition of interested person at section 2, but it is abundantly clear that section 2 is applicable only to the PUC which must be taken as the manifest intent of the Legislature. In light of this, she submitted that the 2008 Amendment By laws made pursuant to the Electricity Act were both reasonably made by the Minister who was guided by the clear words of the statute and were made intra vires the Electricity Act. 59. Learned Counsel in oral submissions also referred to Halsbury s Law of England at paragraph 1521 and submitted that there are specific grounds for challenging subordinate legislation. Further, that what is being impugned is the Electricity Act. 25

Submissions by the Second Interested Party Public Utilities Commission 60.Mr. Marshalleck for the Public Utilities Commission very succinctly submitted that the issue before the court is the construction of sections 7 and 13 of the Electricity Act as amended. That section 7 provides and limits consultation with the Public Utilities Commission and section 13 imposes a very clear obligation on the Public Utilities Commission to consult but imposes no such obligation on the Minister. Also, that Section 13 by its language is expressly confined to those circumstances in which the Public Utilities Commission makes regulations. Further, Learned Counsel submitted that the Regulations in question were not made by the PUC so that section 13 on its face is not applicable. 61.Mr. Marshalleck then submitted that the effect of the Electricity Amendment Act 1999 was a sharing of the regulatory powers conferred by the previous Act. It removed the Director, put in the Commission, and shared powers between the Commission and the Minister. He submitted that there were three possibilities that were opened to the draftsman in respect of power, (1) to the Minister, (2) to the commission; or (3) Minister and Commission. He further submitted that all three types of those provisions exists in the amendment. He further submitted that the exercise that was embarked upon when the Amendment Act was passed was about sharing the regulatory powers between the Minister and the Commission. That the obligation to consult was confined to those instances where the Commission is conferred power to make regulations or subsidiary legislation. That there is no legal obligation on the Minister to consult prior to exercising any of 26

the powers conferred on the Minister. He further submitted that there is no mistake, no omission and there is certainly no absurdity. Reply 62.Mr. Young SC in response to the submissions by the Respondent and Interested Parties submitted that to carry out the manifest intent of the legislature it is necessary to imply words into the provisions of the Act. Further, the provision could be added as section 13(a) or as a subsection of section 13 but the addition of the provision presents no difficulty. Learned Counsel further submitted that the interpretation as put forward by both Ms. Banner and Mr. Marshalleck could not be intended when one looks at the Electricity Act which is, that the Commission consult with the Licensee in certain instances but where byelaws are being made having to do with the methodology and process for the determination of tariffs, charges and fees to be charged for the provision of electrical services by licensees for transmission or supply and the quality of service standards, no consultation with the licensee is required. Counsel further submitted that the methodology is the financial foundation of the electric company. If that methodology is flawed, ill advised, unfair, unjust, all the other items will not arise because it has to do with the continued capacity and existence of the licensee. Mr. Young submitted that the position taken by both Counsel is wrong. That looking properly at the history of the development of the Electricity Act, it is abundantly clear that any such startling dichotomy was not at all intended. 63.Mr. Young further submitted that it is clear from the language of the Electricity Act that this lack of consultation is not merely fatal to the 27

continued force of the subsidiary legislation but it is really saying that it was void ab initio, not properly done, never took on the force of law. He referred to the case of Tasker v Fullwood (1977) 1 NSWLR 20. Learned Counsel submitted that the obligation to consult is necessarily implied or at least it is proper to imply it and that the task of implying it is straightforward. Determination 64.Both Mr. Young SC and Ms. Banner in their submissions stated the law correctly on the legal principles relating to the interpretation of statutes which I find helpful. The Court must now apply those principles to the Electricity (Amendment) Act to determine whether the Minister acted ultra vires in making Statutory Instrument No. 58 of 2008. This Statutory Instrument is a subordinate legislation and there is no doubt that though it is legislation it is not immune from attack. See the case of Belize Telecommunications Ltd. v. The Minister of Budget Management Investment and Public Utilities, Action No. 47 & 261 of 2002 where there was an application to impugn the validity of Statutory Instrument No. 11 of 2002. The Chief Justice at paragraph 9 of his judgment said that Judicial Review is available against subordinate or delegated legislation. 65.The first ground by the Claimant, Belize Electricity Limited is that there was no consultation with them before the making of the 2008 Amendment By laws which was made by the Minister. See the case of R (on the application of Eisai Ltd) v National Institute for Health and Clinical Excellence (2008) EWCA Civ 438 for the general principle on 28

consultation where Lord Justice Richards at paragraph 25 of his judgment quoted from Lord Woolf s judgment in ex parte Coughlan. 66. On this issue it is not disputed by the Respondent that there was no consultation of the Claimant. From the evidence it can be seen that there was no consultation of the Claimant by the Minister. The Respondent say there was no obligation imposed on the Minister to consult with the Licensee. See paragraph 13 of the affidavit of Col. George Lovell. 67.The second ground is that by the scope of the Electricity (Amendment) 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 By laws. The issue is therefore one of interpretation of the relevant sections of the Electricity Act which is the primary legislation. Mr. Young S.C. made it clear in his submissions that in this case the Claimant is not seeking to impeach the Electricity (Amendment) Act and that its claim is on the Interpretation of the Act. The court s function is therefore to relate Statutory Instrument No. 58 of 2008 to the Electricity Act under which it is made in order to decide whether it is ultra vires with regard to the purported authority conferred by the wording of the said Act. The object in construing the Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole. See paragraph 1372 of Halsbury s Vol 44(1). 68.The Statutory Instrument, No. 58 of 2008 which is being challenged was made by the Minister responsible for Electricity, after consultation with the Public Utilities Commission, and pursuant to the powers conferred 29

on him by section 7 of the Electricity (Amendment) Act. Section 7 provides that: 7(1) The Minister may after consultation with the Commission make by laws relating to (a) (b) (c) the inspection of electrical installations; the fixing and testing of meters; the prevention of the misuse or waste of energy supplied; (d) (e) (f) the protection of electrical installations; conditions under which fixtures and fittings may be installed; matters generally connected with the electric light and power service which are not otherwise provided for, the generality of this provision not being limited by the preceding paragraphs; (g) the methodology and process for the determination of tariffs, charges and fees to be charged for the provision of electrical services by licensees for transmission or supply (emphasis mine) (h) the quality of service standards, including penalties for violations of such standards, and the methodology and process for establishing and enforcing quality of service standards, and the calculation and assessment of penalties for their violations (emphasis mine). (i) the entities that may be afforded open access to the transmission system and the terms of such access; (j) the use by licensees of a uniform system of accounts. 30

(2) Any person who contravenes or fails to comply with any by laws made under this section commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to a term of imprisonment not exceeding six months, or to both such fine and term of imprisonment. (3) By laws made under this section shall have no effect or force until they have been published in the Gazette. (4) By laws on tariffs, charges, fees and quality of service standards to be made by the Minister under subsection (1)(g) and (h) above shall be made in a manner (a) calculated to afford a licensee a reasonable opportunity to recover the reasonable costs of providing service and secure a reasonable rate of return on investment when operating in a manner compatible with international standards of an efficiently operated power system of similar characteristics to that of Belize (emphasis mine) (b) that reasonably allocates to particular customer classes the cost of serving such customers, subject to implementation of rates for the needy that assures their access to basic electric services at an affordable price in accordance with overall government s policy and objectives (5) Any final decision of the Commission made pursuant to the bylaws on tariffs, charges, fees and quality of service standards shall be published in the Gazette in the form of a statutory instrument and shall, upon such publication or from such date as may be specified therein, have the force of law. (new subsection added). (6) All by laws made by the Minister under this section shall be laid before the National Assembly as soon as may be after the making thereof and shall be subject to negative resolution. (new sub section added). 31