15 June, 2010

Property rights

Property rightsThe sixth of the fundamental rights enshrined in our 1982 Anguilla Constitution is the right to protection from deprivation of our property.  Section 7 of the Constitution provides that no interest in, or right that I may have, over any of my property, of any description, shall be compulsorily taken possession of, except by a law which says how I am going to get compensated for it. 
Under the Anguilla Constitution, there is no restriction that limits government to taking away our property only for a public purpose, as in the rest of the Caribbean.  In St Kitts or in Antigua, government can only compulsorily acquire private property if it is for a public purpose.  Not in Anguilla.  In St Kitts or in Antigua, government must declare so in the Resolution acquiring the property.  Here in Anguilla it is different.  Government can confiscate our property for any reason at all, eg, just because they do not like the way we look.  That is a little unusual in West Indian Constitutions.  Normally, government must have a public purpose in mind, and must say so in the Resolution introduced into the House of Assembly. 
As an example, in the now suspended Turks and Caicos Constitution, government could only take away private property where the acquisition “is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning, or the development or using of the property will promote the public benefit or the economic well-being of the community”.  There is no such limitation in the Anguilla Constitution.  Fortunately, this draconian power in the Anguilla Constitution has never, to my knowledge, been misused.
There are a couple of conditions under the Anguilla Constitution that government must satisfy before they can compulsorily acquire our property in Anguilla.  First, they must do it under a law.  Second, that law must require the prompt payment of adequate compensation.  The law must say how the compensation is to be given, and must prescribe the manner of enforcing the right to any such compensation.   
You may think that is quite a mouthful.  What it means is that Government can take away our property for any reason once they do it under a law, but Government must pay compensation for it.   
           And, when we are talking about property, it is important for you to realise that we are not just talking about land.  We are talking about all kinds of property.  I well remember one case a few years ago when an Anguillian teacher had deductions made from her salary that she had not agreed to be made.  She very bravely took government to Court.  The Court ruled that Government had to pay her back, because this amounted to a compulsory and illegal taking of her 'property' without her consent.


  1. In other four people can decide to take away all your stuff in a few minutes. It's what we do in Anguilla.

    "No man's life or property is safe while the legislature is in session" -- Mark Twain

  2. So the government can take people's property for any arbitrary reason and be able to stand and proclaim proudly, "We are within the law!" This means that if a chief minister, for example, doesn't like white people, he can compulsorily take possession of it, compensate these people for 1/10 of their value (or even less) by decreeing a reduction in land values across the board, and boot them off the island. There is nothing, NOTHING protecting investors in Anguilla from the potentiality of this very scenario happening. It happened in Zimbabwe, it happened in Jamaica, it can surely happen here.

  3. Come now how can that happen? Aren’t all investors so stupid and gullible as to not realize what they are doing? Don’t they just throw money around like throwing darts at a map?

    Or could it just happen that they are sophisticated and make investments only where the investment is stable, with predictable outcomes with (and especially in today’s markets) multiple opportunities worldwide? I mean would investors choose Anguilla for its uncertainty of contracted agreements with the government, or for its uncanny predictability to change fees and taxes on foreign investment, or because it corners the world market on low-cost high-yield opportunities?

    I wager investment will not return until agreements are binding on both signatories, until the economy is both stable and predicable and lastly when compared to other opportunity’s Anguilla shows the greatest promise for profit of the investor. Until those days arrive wave goodbye to investment.

  4. No, land value can't simply be decreed, not in Anguilla. The AG tried to do that with the land needed to extend Wallblake Airport to the east, by valuing it as agricultural land. Dame Bernice went to court and the court agreed with her that the value must be based on its highest and best use -- which was resort hotel and golf course development.

    If government and the land owner can't agree on what is fair value, they present expert appraisal evidence in court and the judge decides what's fair.

    And that's why we should value the fact that our high court judges don't work for Bunton or Hubert and can’t be fired on a whim.


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