Op-Ed: It is simply unjustifiable

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Below in an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General Mohabir Anil Nandlall:

My contention that the seizure of the Berbice Bridge by Minister David Patterson amounts to the compulsory acquisition of private property without the payment of adequate compensation at current market value is in violation of Article 142 of the Constitution, excited a number of critical responses.

My critics appeared to have predicated their disagreement upon the fallacious assumption that I support the Berbice Bridge Corporation Inc.’s proposed increase in tolls. I wish to make it emphatically pellucid that I do not support the proposed toll increase.

Some accused me of not appreciating the American concept of “eminent domain”, which authorises the State to compulsory acquire private property for public purposes. Our Courts, in a series of cases dating back to the early 1930’s, have repeatedly ruled that this concept of eminent domain is akin to and captured by what is now Article 142 of the Constitution: Baird v Baird [1931-37] LRBG 14; Inland Revenue Commissioner v Lilleyman [1964] LRBG 221; Bata Shoe Company Guyana Limited v Commissioner of Inland Revenue (1976) 24 WIR 172; Attorney-General v Caterpillar Americas Co (2000) 62 WIR 135.

Therefore, whether it is described as eminent domain or compulsory acquisition, once invoked by the State, the payment of prompt and adequate compensation at market value, is an indispensable ingredient, if it is to be lawful. No amount of political discolouration nor prejudiced rhetoric can obfuscate this legal truth.

In my letter, I cited a number of historical and contemporary examples of PNC Governments’ confiscation of private properties without the payment of any compensation, or where compensation was paid, it was a mere pittance compared to the market value of the subject properties. Former Prime Minister of a PNC Government, Mr. Hamilton Green, came out to bat in their defence. He obdurately refused to admit that the examples which I gave, were real and factual and which can easily be verified by a most cursory examination of the public record, as there is a paper trail, even in the judicial system, where many of these transgressions ended up.

Try as he may, Mr. Green will not succeed in obliterating these historical and contemporary truths. Mr. Green pleads ignorance about the Government’s seizure of the building which housed Citizen Bank. To joggle his peculiar memory, the property to which I referred, is the one located at the corner of Charlotte and Camp Streets, which was seized from the Singh’s family and converted to the infamous Sijan Plaza, a Government-run store, where only a privileged few could have shopped because the only acceptable legal tender was United States dollars. The legal challenge by the Singh family to the State’s acquisition of their property without the payment of adequate compensation, recently concluded before the Caribbean Court of Justice where the family was awarded compensation against the current Attorney General to the tune of several million dollars.

As regards Echilibar Villas and Takuba Lodge, Mr. Green argues that these properties were acquired only after detailed negotiation with the owners. The owners are still around, and their version is radically different. I suggest that he speaks to them to refresh his memory. The remainder of Mr. Green’s letter consisted of ad hominem attacks and extraneous issues unworthy of my comment.

Another commentator argues that the Berbice Bridge is not private property as it is owned by the State. This overly-simplistic argument disregards the millions of United States dollars that were invested in the Bridge by private capital. If this gentleman is to have his way, then Governments and private investors will never converge on any given project using the model utilised for the construction of that bridge because after the foreign capital is injected, the Government can easily chase the investor out and reclaim the property since it belongs to the State.

Mildly put, this argument has no place in a serious discourse in a democratic society governed by the rule of law. The Minister’s invocation of “public safety” being in jeopardy as the basis for seizing physical control of the Berbice Bridge, is simply a clumsy contrivance. Proposed increase in tolls has absolutely nothing to do with public safety.

I therefore maintain that the Minister’s takeover of the Berbice Bridge is wholly unconstitutional. All the Minister had to do was to refuse to implement the increased tolls as only he, is authorised by law to implement tolls. This was made very clear to the company by me, as Attorney General, when the company approached the then Government for an increase in tolls in 2014.

Instead of his precipitous and unlawful act of acquisition, the Minister, from a position of strength, ought to have requested the company to justify the proposed increases. From my understanding, based upon the contract between the Government and the Company, the request for increased tolls is unjustifiable, having regard to the extant revenue stream, which does not sharply depart from what was projected.

Indeed, by now, the rates are expected to decrease, not increase. This raises the issue of whether the Bridge is being managed competently. The Minister’s political colleague, Dr. Surendra Persaud, is the Chairman of the Board appointed by the Government and the buck stops at him. The deluge of arguments regarding who the shareholders are and that they cannot hold the country at ransom, are political and emotional drivel intended to politicise the matter. It is beyond the scope of this article to address the anxieties expressed about the safety of the NIS investment in the Bridge.

But those who expressed those fears should take comfort in the fact that the Government has appointed Dr. Surendra Persaud as the Chairman of the National Insurance Scheme. At a minimum, as Chairman of the Bridge Company, he has a fiduciary duty to protect that shareholder’s interest of which he is also the Chairman.

Instead of pursuing the normal, established and reasonable courses of action, outlined above, the Minister chose the irrational, authoritarian and unconstitutional route of seizure. It is simply unjustifiable. Hence, I embrace the Leader of the Opposition’s contention that this entire episode is a staged artifice designed to excite political sympathises for electoral gains. That the date of implementation of the proposed increased tolls is the same date of the Local Government Elections simply corroborates this thesis.

 

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