IN FAVOUR OF PROPERTY RIGHTS

18.SEP.09
by Dr.  Ralph Gonsalves, Prime Minister of SVG

The proposed Constitution of St. Vincent and the Grenadines to replace the existing one consolidates and strengthens the protection of the property rights of individuals. Indeed, the protection of these rights is enhanced meaningfully in the new Constitution compared to the existing one.{{more}}

Currently, the protection of property rights is governed by a bundle of laws: (1) the existing Constitution, especially section 6 under the rubric “Protection from deprivation of property”; (ii) the Land Acquisition Act, Chapter 241 of the Revised Edition of the Laws of St. Vincent and the Grenadines; (iii) Judge-made laws through legal interpretation and precedents of the judiciary in relation to “compulsory acquisition”; and (iv) the statute law and common law generally governing property rights.

Broadly, the existing Constitution and laws have been reasonably protective of property rights. For example, legal concepts such as “adequate compensation” to be paid in a “reasonable time” in the existing Constitution, applicable to circumstances when the State compulsorily acquires the property, have been applied, by and large, satisfactorily. In our country, there is no “expropriation” of property without compensation; there is no state-sponsored trespass on individual’s properties; and man’s house, however humble, is truly his castle.

Under the proposed Constitution all the pre-existing property rights have been consolidated and strengthened. Not one single right in this regard has been lessened or diminished. Indeed, under the new Constitution there is a bolstering of the property rights of the individual in two significant ways: (i) in the assessment of the value of any property which is compulsorily acquired by the Government; and (ii) the time period within which the Government must pay the compensation for the property which it compulsory acquires.

ASSESSMENT OF VALUE

The existing Constitution (Section 6) permits the Government to acquire property compulsorily for a public purpose. It further stipulates that the individual from whom the property is taken or acquired by government must be paid “adequate compensation” within “a reasonable time”.

The existing Constitution provides for the making of “an applicable law” to govern the taking of possession or acquisition. The statutory foundation of this “applicable law” is the Land Acquisition Act, passed in 1946, and amended several times subsequently, up to as late as 1988. Of special interest here on the matter of the “assessment of value” is Section 19 of the Land Acquisition Act. Section 19 of this Act is complex; it covers five sub-sections listed (a) to (e); Section 19 subsection (e) further enumerates six additional circumstances of which account is not to be taken in “assessment of value”. Those who assert glibly that this is a simple or straightforward matter have obviously not read the law properly or reflected seriously on the issue.

Section 19(a) of the Act speaks of the value for acquired land at the open market value of the land “by a willing seller” that might have been expected to have been realised at a date twelve months prior to the date of the second publication in the Gazette’s of the declaration by the Government to acquire. Section 19 proceeds to attach a proviso and a set of circumstances which must be taken account of, or not taken account of, as the case may be, in the assessment of compensatory value. These circumstances are of a supremely practical nature which may affect reasonably or otherwise, to the advantage or disadvantage, the Government or the individual whose property is to be acquired.

These practical circumstances may include the following, among considerations: The sustaining of damage by reason of a severing of the land or affecting his other property or earnings or for disturbance, or any other matter not directly based on the value of the land; the absence of a market value for the land apart from the special needs or requirements of the Government; where the value of the land is increased by reason of the use thereof, or of any premises thereon, in a manner which could be restrained by any court or is contrary to law or is detrimental to public health, the amount of the increase shall not be taken into account; any increase in the value of the land acquired likely to accrue from the use to which the land acquired will be put; any outlay or improvement of such land affected within 12 months before the acquisition with the intention of enhancing the compensation to the detriment of the Government; and improvements made to the land by the Government within 12 months prior to the acquisition.

From these practical circumstances, and more, it is evident that the call by some for a constitutional provision for “current open market value” would in some circumstances be unfair and unreasonable to the owner of the land or to the Government. It may be a superficially attractive position, but in many circumstances it would be disadvantageous to the individual. All the experts in this field of law agree on this.

Thus, the proposed Constitution makes a change on the “assessment of value” which is a far superior formulation. So, in Clause 30 it defines “adequate compensation” as “compensation which in all the circumstances is fair and reasonable to the persons entitled to compensation and also to the State, without limitation as to the date which compensation should be assessed”.

In short “adequate” now means, in the new Constitution, that which is “fair and reasonable” to all. And the compensation does not go back to the value of 12 months before. It takes account of all the circumstances, and more, in Section 19 of the Act, which amount to “fair and reasonable”.

The Leader of the Opposition accepts that the new Constitution is better than the existing one on the issue of “assessment of value” of land acquired by the State, but quite wrongly insists on “open market value today” which can often act to the detriment of the persons whose property is acquired or to the Government. On this matter we must be fair and reasonable to everyone.

TIME FOR PAYMENT

Over the years, Governments have used the existing constitutional provision of payment of compensation within “a reasonable time” to mean many, many years. In fact between 2001 and 2005, the ULP government paid for lands which the NDP government acquired up to 10 years or more, before.

In the new Constitution, in the proviso to Clause 30, this “reasonable time” provision gives way to compensation to be paid within 12 months of the compulsory taking of possession of acquisition.

SUMMATION

The new Constitution in effect becomes a “Property-Owners Charter” because it strengthens property rights of the individual. Do not be fooled on this by persons who do not understand the issues or who have agendas not grounded in the individuals’ or nation’s interest.

SVG: DON’T SETTLE FOR LESS, VOTE “YES”!

FOR LOVE OF COUNTRY,

VOTE “YES”!