For months now the Novelo family have been bucking heads with the Ministry of Transport and the Transport Board over road service permits. But following proceedings in the Supreme Court this afternoon, the Novelos appear to have won the first round, as Justice Samuel Awich today granted them leave to have the zoning policy and related decisions judicially reviewed. The judge simultaneously placed an interim injunction on the Transport Board which bars them from issuing permits in the Northern Zone, which includes portions of Ladyville.
Since taking over in February, Minister Melvin Hulse had devised a policy where the country would be divided into three zones: South, West and North. Permits under the new system in the Western and Southern zones were issued on October 18, but the Novelo companies immediately complained that runs that they had been operating since 2001 were taken away from them and given to incompetent competitors; that the meeting at which runs were issued was unlawful because no notice was printed in the Government Gazette; that the board had denied them the right to be heard before the runs were refused; that the board took into account irrelevant facts in reaching their final decision; that they were issued runs that they didn’t even apply for and didn’t want; that the board was unlawfully constituted because Major John Flowers and Leo Batty were biased against them; and lastly, that the zoning was unlawful because it granted concessions which were not approved by the National Assembly.
Through their attorney, Lisa Shoman, the four complaining companies: National Transport, Guinea Grass Transport, Ladyville Transport and Hattieville Transport, took their beef with Belmopan to court on November 14th. In the claim, David Novelo, who identified himself as Chief Executive Officer of all four entities, pitted their objections against the Transport Board, chaired by Major John Flowers and the Chief Transport Officer, Candelaria Zaldivar.
In addition to the requested judicial review, the companies also asked the court for separate injunctions to one, revert the industry to the status quo before the October 18th permits were issued, two, an order to quash the implementation of the zones and three, an order to stop the issuance of permits in the Northern Zone.
Shoman presented a lengthy submission to bolster the Novelos’ claim, which also included the “social impact” of the new zones; that is, the laying off of workers and the overall quality of transportation services.
In rebutting the long list of claims, the Transport Board’s senior counsel, Lois Young, pointed out to the court that there is a statutory remedy to the proceedings, that is, an appeal to the Minister. Moreover, Young disputed the claim that Novelo’s had not been given a chance to be heard, as she contended several meetings had taken place between the parties.
In handing down his decision this afternoon, Justice Awich declared that the claim has raised serious questions which have “very good prospects of succeeding.” Awich refused several of the grounds presented by the Novelos, saying that even though they may have an arguable case, they would find no relief even if it succeeded. For example, the judge found that if the Novelos were in fact granted runs they didn’t apply for and didn’t want, all they had to do was not take up the run. But he did go on to find that the ground presented wherein if concessions are granted to operators, they should be approved by the House, should be judicially reviewed.
However, he was also quick to mention that even though the Novelos had used this point in their defense, the concessions previously awarded to them were never approved by the National Assembly. The issue of procedural irregularities (no notice in the Gazette, and no hearings with company officials, etc.) will also be heard at the substantive hearing.
Interestingly, the judge also found what he called “a borderline case of bias” against Transport Board members Major John Flowers and Leo Batty. Awich maintained that it is an arguable case that both men should have recused themselves when the Novelos’ permits came up.
Awich went on to refuse to grant injunctions against the zoning policy and to have operators revert to the status quo before the October 18th permits. But since no new permits have been issued in the North, the judge was comfortable delaying those runs until further orders are made or until there is a final determination the case.
David Novelo and his attorney took the decision as a victory and told reporters it should send a message that no one is above the law. Lisa Shoman, “One of the things that the judge was very clear on is that yes, Ministers have the power to make policies but that policy has to fall within the four corners of the law and so one of the grounds on which we’ve been granted leave for judicial review will be to see whether by following this policy and by granting certain concessions to bus owners, the law that a limited concession or an exclusive concession on the other hand has to be taken to the National Assembly, that will be argued in court. I think any responsible government needs to always take account of the acts that are carried out by its authorities. I think one of the reasons that the law is stated the way that it is and the jurisprudence has grown up is that as you know there is always an imbalance between the citizens and the government. The government is seen to be all powerful but the rule of law means that even the government is subject to the law and to the courts and that the court will absolutely review the actions of a government through its authorities to see whether that was done lawfully or unlawfully.”
Immediately following the hearing, Lois Young asked Justice Awich to delay signing his orders paper pending the submission of new evidence. Young is alleging that because permits left the Novelo companies with more buses than runs in the West and the South, they have been putting those vehicles in the north, “flooding” the highways with the extra buses.
Young is now asking the judge to amend his orders to include a restraint on the Novelo companies to stick to the runs they had permits for. In speaking with Amandala, Novelo’s attorney, Lisa Shoman, told us that her clients dispute the allegation that they are doing additional runs and maintain that they “continue to operate runs that they have permits for,” permits which she admits expired in May.
If the judge decides to amend his decision, it would be handed down during a special hearing.
Readers should note that at today’s hearing Justice Awich declared, “this problem is easy to solve. Ministers, after coming up with policies, can consult with the Attorney General and his staff, who are always available, to ensure that the policy is within the law and can also seek advice on how to implement that policy. If that were done, there would be no or very few cases of this nature coming to court.”
The Novelos’ legal team has until December 19th to file their claim in the substantive case.