The move by the Government to compulsorily acquire a piece of private property at the corner of Middle and Carmichael Streets, in the heart of Georgetown, under the Acquisition of Land for Public Purposes Act, “have sent chills down the spine of right-thinking Guyanese, especially, property owners”. According to former Attorney General and Legal Affairs Minister, Anil Nandlall, many persons have called him “expressing understandable fears and well-grounded apprehensions”.
“If anyone was in doubt about it before now, those doubts should now disappear: Burnhamism is back,” Nandlall declared in a missive to the media.
He said the power of the state to compulsorily acquire private property for a public purpose is rooted in the concept of “Eminent Domain”, an American concept imported into our British inherited jurisprudence and legal system.
“In a nutshell, it is a power used to compulsorily acquire private property upon the payment of compensation for the public good. However, because of the obvious draconian nature of this power and the sanctity accorded to private property, it is a power that is used on the rarest of occasions and in the most exceptional of circumstances. It is always an option of last resort.”
Nandlall recalled that, “during the height of the Burnham dictatorship, it was a power that was widely abused and misused”. Dozens of private property throughout the length and breadth of this country were compulsorily acquired by the Burnham Administration and the rubric “for a public purpose”, was conveniently invoked to clothe those transactions with legitimacy and to disguise the real reasons for the expropriations, he argued.
“Many of these property owners with whom I have spoken over the years, have proffered political and personal differences between themselves and Mr. Burnham himself, or his Government, as the real reason why their properties were seized. This is borne out by the fact that under the PPP/C Administration, the courts struck down many of these compulsorily acquired property transactions as unconstitutional and ordered the return of these properties, many times on the grounds that they were not used for the purpose for which they were acquired,” Nandlall asserted.
“I recall as Attorney General, I consented in Court, with the authority of the Cabinet, to the re-conveyance from the State to the owners of several dwelling properties in West Ruimveldt and North Ruimveldt, that were compulsorily acquired during the Burnham regime. These are poor ordinary people who never even know why their homes were compulsorily acquired.”
Nandlall said when these properties were acquired by the Forbes Burnham regime, the law as it then was, pegged the compensation to be paid to these property owners at a 1939 market value of the property seized. Even this pepper-corn value, the Burnham Government refused to pay. In the 1999/2001 Constitutional Reform process, this anachronistic and anomalous calculation of the value of the property was expunged from the law and replaced with an obligation upon the State to pay current market value for the land compulsorily acquired. “The truth of the matter is, however, the current day market value that will be used by this Administration will be one generated by the Government’s Chief Valuation Officer, which everyone knows is not the real market value of the property,” Nandlall said.
“But the significant issue remains. Why resort to this draconian measure in the first place? As I said before, this power is invoked in the most exceptional circumstances for example, if a highway is being constructed and it is found somewhere along the line, that it will encroach on upon some private property,” Nandlall said.
In those circumstances where it is clear that the public good of having a highway far outweighs the interest of one person whose property is blocking that highway, the power should be exercised, Nandlall contended.
“The purpose for which this particular land is acquired according to the Official Gazette is for the construction of Government Buildings. I recall as Attorney General, I made enquiries from the relevant persons whether that the said land and the plot adjacent to it was available for sale. Were they available, my intentions were to persuade the Government to purchase the same for the purpose of accommodating proposed expansions of the building which houses the Attorney General Chambers and Ministry of Legal Affairs. My plans were brought to an abrupt end when I learnt the properties were not for sale. My concept of democracy and my innate respect for private property and the rule of law prevented me from even conceiving the option of compulsory acquisition.”
According to Nandlall, it is clear that these considerations do not occupy the minds of those who are in Government today. There are numerous Government buildings and empty plots of State lands scattered all across this city for the Government to utilize. Nandlall said if the intention is to expand the AG Chambers, then immediately north of the building is a huge property owned by the State which houses the Integrity Commission and the National Trust which can be used. “In short, there are many options to utilize rather than covet private property. I now recognize how genuine the President was, when, while addressing the 19th Biennial Congress of the PNC, a few weeks ago, he embraced the philosophy and politics of Forbes Burnham. The international community should now be clear on where this Government stands. The signal that this move will send to investors will certainly be a negative one: private property and by extension, investments are no longer safe in Guyana. Another nail has been driven in the coffin of the local economy.”
Nandlall continued: “To my mind, it is now clear that the 1919 Local Government Elections and the 2020 Regional and General Elections are going to be massively rigged unless we begin now to put into place measures, mechanisms and facilities to prevent that from happening.”