Dear Editor,
Like most Guyanese, I read in the newspapers, earlier this week, that Mr. David Patterson, purporting to perform the functions of Minister of Public Works, is moving to acquire over 55 acres of land situate at Plantations Houston and Ruimveldt, on the East Bank of the Demerara River, approximately 43 acres at Plantation Versailles, on the West Bank of the Demerara River and another plot of approximately 24 acres, being portions of Plantation Goed Fortuin, Versailles, Malgre Tout and Klien Pouderoyen, also on the West Bank of the Demerara River. Naturally, this news item titillated my interest.
Based upon a publication in the Official Gazette, which I have examined, these lands appear to be privately-owned and they are being compulsorily acquired under the provisions of the Acquisition of Lands for Public Purposes Act Cap 62:05, Laws of Guyana. This Act facilitates a Government to legally acquire private lands for public works but on the terms, conditions and procedures set out in that Act. Since the supreme law, the Constitution, guarantees the protection of private property as a fundamental right and freedom of the citizenry, the rule of law, naturally, mandates that any law, which authorizes the confiscation of private property must enjoy strict and scrupulous compliance, whenever such a process is being embarked upon. Additionally, since the rule of law frowns upon any concept that facilitates the State compulsorily acquiring private property, such a process must only be embarked upon as a matter of last resort, and those affected, must be adequately consulted and compensated, in the end. These are the fundamental pillars, which necessarily underpin any exercise of compulsory acquisition of private property, or as the Americans call it, “the eminent domain”.
Against this background, certain elementary, but crucially vital questions, must inexorably be posed in relation to the actions of Mr. Patterson. Firstly, can a Government so currently constitutionally circumstanced, that is to say, which was defeated by a No-Confidence Motion in its National Assembly and mandated to go to the polls within three months; but has refused to do so; and whose life was not extended by the National Assembly as permitted by the Constitution; and whose constitutional tenure expired on the 18th September 2019, as pronounced upon by the apex of its Judiciary; lawfully perform such an act?
In my respectful opinion, the answer is a resounding “no”!
Professor Peter Hogg, in the text Constitutional Law of Canada Vol 1, at page 9.4B writes:
“For the caretaker period…in matters of policy, expenditure and appointments, the Government should restrict itself to activity that is: (a) routine or, (b) non-controversial or, (c) urgent and in the public interest or, (d) reversible by a new Government without undue cost or disruption or, (e) agreed upon by the Opposition.”
I must swiftly point out that these restrictions apply to a Caretaker Government of which this Government is not. This Government’s caretaker status expired on the 18th September 2019, at best. My views on this issue have been widely and repeatedly articulated. I see no reason to reiterate them here and now. Currently, therefore, they do not enjoy even that limited legitimacy with which a Caretaker Government is cloaked. This Government’s existence is utterly and absolutely extra-constitutional and unlawful. Consequently, every decision it makes, or action it takes, or contract it executes and public monies it spends, remain unlawful – ex nihilo nihil fit – out of nothing cometh nothing!
The second issue that must be addressed is the question of urgency that Professor Hogg imposes on the actions of a Caretaker Government, which this Government does not even qualify as. It is common knowledge that Guyana will be going to elections in just over two months. No designs have yet been finalized for the construction of the New Demerara River Crossing, in respect of which, these lands are being acquired. In fact, the very Mr. Patterson has been found guilty by the Public Procurement Commission (PPC) of spending nearly $200M in violation of the Procurement Act, to single-source a contractor to do a feasibility study in respect of this project, the whereabouts of which remain unknown. In short, this project is far away from even its embryonic stages. So, a case cannot be made out for “urgency”.
A related issue is why embark upon a course of action at this pre-emptive stage of an elections, which a new Government might find it impossible to lawfully reverse (as per Professor Hogg above). The legal machinery, once activated, is often difficult to halt, worse yet reverse. At this juncture, I can confirm that the Opposition has not been consulted, nor is it in agreement with this course of action by Mr. Patterson.
Fourthly, since the designs have not been settled and the feasibility study not available (at least not to the public and it should be, if it were available), how do we have an appreciation of the magnitude of land, which is required, having regard to the principle that the State’s power to compulsorily acquire must always be exercised in a de minimis manner? Again, an informed decision on this issue cannot be made at this premature stage.
Of course, the above is by no means exhaustive. Mr. Patterson has only commenced the legal process of compulsory acquisition. When juxtaposed to the long litany of procedures, which the Act mandates must be complied with, including, consulting with the land owners, negotiating appropriate monetary compensation, possible Court proceedings, approval by the National Assembly of the sum to be paid out and many more legal requirements, which must be satisfied before the acquisition can lawfully crystallizes, this decision by Mr. Patterson remains inexplicable on the grounds of logic, law, common sense and good governance.
The only rational explanation is that the move to acquire these lands is but yet another publicity gimmick to convey the false impression that a New Demerara River Crossing is on the electoral horizon.
Yours faithfully,
Anil Nandlall
