Conservation

Conservation:  The twelfth, and final, exception to our fundamental right to own and hold property deals with the public interest issues of conservation and improvement.  The Constitution makes it legal for a law to be passed that takes away our property for so long only as may be necessary for the purpose of any examination, investigation, trial or inquiry. 

So, if the police find my gun stolen from my house being used in a crime, they can confiscate it for so long as is necessary for it to be used as an exhibit in the trial of the offender, but they cannot keep it after the trial.  They have to give it back to me after the trial. 

It is this exception that makes it legal for a planning law to provide for private land to be temporarily taken for the purpose of doing soil conservation on it.  If government sees that I am allowing my land to be eroded by water and I am not doing something to prevent the erosion, they can come in and construct a wall or other safety feature to stop the erosion, and I cannot complain, so long as it is done under a law that gives this power.  Of course, water erosion is not such a big problem in Anguilla, but you get the point. 

If the Agricultural Department has a law passed giving it the right to go into people's agricultural land and temporarily to take possession of it for the purpose of eradicating the hibiscus mealy bug if the owner refuses to do so himself, that would be legal under this exception.

Limitation

Limitation:  I hope that you have not lost track of our concern with section 7 of the Constitution, the fundamental right to own property.  We return to it now.  The eleventh exception to our right to hold our property relates to a law providing for limitation of actions.  As we all know, the Limitation Act says that if we are owed a debt, and we allow 7 years to pass without suing in court for it, the debt is extinguished.  If our neighbour encroaches on our land, and fences it in and claims it as his own, and we do not sue him, then after 12 years we lose the ownership of that land.  The Registered Land Act says so.  It says that in this way our neighbour acquires our land by “prescription”.  It is even worse in the case of a claim for damages for personal injury.  If I am injured by the careless driving of someone, and have to spend $100,000.00 in medical bills, then I have only 3 years from the date of the accident to sue.  If I wait until the 3 years have passed, then I have lost my right to claim compensation.

       There are two reasons advanced by lawyers justifying the concept of limitation of actions and acquisition of the property of another by prescription.  One is that there must be a time when disputes over ownership are brought to an end.  People are entitled to quietly enjoy their possession of property that they have held as their own for a number of years.  If I am claiming that my neighbour has wrongfully trespassed on my land and fenced a part of it off, then I must back up my claim by taking the matter to court promptly, or forever hold my peace.  Otherwise, quarrels might last for generations.  The second reason is that the matter must come to court while the witnesses to the facts are still alive and memories are fresh.  After 3 years have passed, who can accurately remember what exactly happened that day on the road when the car accident took place?

This exception to the constitutional right guaranteed by section 7 of the Constitution preserves the Limitation Act and makes it legal to extinguish our right to our property.  It could otherwise be argued that the whole idea of placing a time limit to our right to claim our property breaches our fundamental right to own property.  

Public health

Public health:  We are learning that our right to own property is not an absolute one.  The Constitution of Anguilla sets out a number of exceptions when it is permissible for a law to provide for our property to be taken away from us.  The tenth exception is when the property is in a dangerous state or injurious to health. 

We don't use asbestos in Anguilla in building, but it used to be common in some parts of the world.  If the Anguilla House of Assembly were to pass a planning law which outlawed the use of asbestos and provided that if we were ordered to take down an asbestos polluted house, and that, if we refused to do so, the Government could demolish the house and dispose of the waste, we would not be able to say that law was unconstitutional. 

We can appeal the decision, or we can get judicial review of the decision, if we say that it was not a fair or reasonable decision.  But, we cannot say that the law is unconstitutional, nor that the taking of the property was unconstitutional because it would have been passed for the protection of the health of ourselves and of the public.  The Constitution permits such a law as a public health exception to our fundamental right to own property.

Court orders

Court orders:  You may recall we are looking at our section 7 fundamental right to the enjoyment of personal property.  Government is prohibited from taking away our property except under a law which pays us prompt and adequate compensation.  We are now looking at the several exceptions listed in the section.

       Some of them were quite obscure to us.  The ninth exception is more familiar.  It says that it is not an unlawful deprivation of property if it is as a result of an order of the court.  That seems a little obvious.

           The court is there to settle disputes between citizen and citizen, and between citizens and the State.  If the court orders our property to be taken away from us, and we do not agree with that decision, then it is for us to appeal to the higher court, the Court of Appeal.  We cannot be heard to protest that the order of the court is unconstitutional.

Property rights

Trust property:  Before we broke on 27 June to take a look at the ethics and sustainability of government borrowing from the Social Security Fund to pay bills, we were looking at the constitutional exceptions to our fundamental right to own property.  We now turn back to the subject.  The eighth exception to our section 7 fundamental right is even more obscure than some of the earlier ones we looked at previously. 

The section says that I cannot complain if property is taken away from my possession when it is trust property being given to the person who has the better right to it.  Or, I may be an enemy alien in time of war, and my property is being confiscated.  Or, the administrator of persons or companies adjudged bankrupt, or insolvent, or of unsound mind, or deceased may be vesting the property in the name of the administrator. 

In none of these cases can I complain if what I consider my property is being taken away.  We all hope that we shall never meet someone with a better right to our property than we ourselves have.

Contracts

Contracts:  We are looking at our constitutional right to protection of property.  There are exceptions.  The seventh exception found in the 1982 Constitution of Anguilla has to deal with property being confiscated in contracts.   

      The Constitution says that any taking of possession, or acquisition of someone's property as part the agreement for a lease, tenancy, licence, mortgage, charge, bill of sale, pledge, or contract, is legal.  Basically, this can be understood as saying that if I have agreed to lose my property if I break a contract, then I cannot complain when this happens. 

Impounding

Impounding:  We are looking at the exceptions to the constitutional provision protecting private property.  We have looked at five of them.  The sixth exception will be more familiar than some of the others.  It is the provision that says that it is not an unlawful deprivation of property for a law to provide for the impounding of an animal found straying or trespassing.  Without the Public Pounds Act, it would be unlawful for any officer of the Agricultural Department to pick up my goats, when they are roaming loose and doing damage, and impounding them.  It is only legal to impound people's private property because the Constitution says so, and it is done under a law which was passed for the purpose.

      Which I suppose brings me to the story of the shoats. I have been asked how we West Indians can tell the difference between goats and sheep. Apparently our sheep, living in the tropics as they do, have no wool and are indistinguishable from goats to those of our visitors who live in northern climes.  I have had pleasure in clearing up the confusion.  I could have told about the goat's tail which sticks out horizontal to the ground, or sometimes sticks straight up.  The sheep's tail hangs down.  Or, I could have given instructions about how to jump on the animal, wrestle it to the ground, and look for cloven hooves.  Instead, I have explained that we don't have to distinguish them.  The two have long hybridised and now we have only shoats.  This information has been known to leave a big impression.

Samples

Samples:  We are looking at the exceptions to our fundamental right to enjoyment of private property set out at section 7 of the Constitution of Anguilla.  We have looked at four so far.

The fifth exception is very insignificant at this time in Anguilla.  The section says that it is not unconstitutional for the Government to take a piece of our property away for the purpose of sampling it.  So long as there is a law setting out how it is to be done.

So, suppose that the Public Health Department was to go to one of our hydroponic farms and take away a head of lettuce to test it to see if it was hygienic.  The owner might be able to sue the Government, claiming this was an unconstitutional deprivation of property.  And, so it would be, if it were not done under a law providing that taking of a sample was permitted.

Antiquities

Ownership of antiquities:  We are looking at the fundamental right to ownership of personal property in Anguilla, and the exceptions recognised by the Anguilla Constitution.  The fourth exception to our fundamental right is a little more obscure.  It says that a law which makes provision for taking away property that is being removed from Anguilla in contravention of the law is legal.

So, if a law says that if you attempt to remove one of the old cannon from Anguilla, it can be confiscated, that would be a constitutional confiscation.  If we find an old Amerindian carving in the sand at Rendezvous Bay, and we try to take it out of Anguilla, and the law says that is illegal and the carving can be confiscated, that would not be an unconstitutional confiscation of our property.  It is an attempted removal from Anguilla in contravention of our law.  The law which makes provision for taking away property that is being removed from Anguilla is provided for.  Sorry!

Confiscation

Confiscation of property by the court.  We are looking at our fundamental right to own private property.  We have seen that there are exceptions when the right may be abrogated.  The first occurs when our property is acquired under a law that makes provision for compensation.  The second is when we are obliged to pay some of our money to government by way of taxes to cover the cost of public services. 

The third exception to the fundamental right set out in the Constitution is where a law provides a penalty for breach of the law.  If we commit an offence under the Criminal Code, and the judge or Magistrate fines us, we cannot complain that this is a confiscation of our property.  The Constitution clearly makes allowance for fines and penalties. 

The law can also impose a penalty which is collectible under civil process.  So, if we bring into Anguilla goods that are either prohibited or restricted under the Customs Act, such as imitation firearms or fireworks, we may find them being seized or forfeited in civil proceedings in the Magistrate’s Court.  We cannot then claim that our constitutional rights are being infringed.

Taxes

When our property rights cease to exist:  We are looking at our constitutionally protected property rights under the 1982 Anguilla Constitution.  We have seen that section 7 enshrines our fundamental right to the ownership of personal property.  The Constitution goes on to set out a number of exceptions to this protection of our property rights.  The first and most obvious one is where we are obliged by a law to satisfy any tax or rates.  If the House of Assembly passes a law that we must pay house tax, we cannot complain that this is a confiscation of our property.  In our case, we have the Valuation and Rating Act which sets out government's right to calculate our annual property tax.

So, in addition to the government’s right to have parliament pass a law to take away our property, with compensation, there is also a standing series of laws that impose taxes, licences, and rates on us.  We must pay them, or pay the penalty.  The Constitution says they are not an infringement of our rights.

Public purpose

When can our property be taken away from us without our consent?  We are looking at our section 7 constitutional guarantee of our property rights in Anguilla.  As usual with all these rights, there are exceptions.  The first exception that we have in Anguilla is where our land is taken away from us for a ‘public purpose’ under the provisions of the Land Acquisition Act.  Government can take away our property for any reason at all.  But, if they acquire our property under the Land Acquisition Act they must satisfy the conditions set out in that Act.  One of these conditions is that the land must be acquired for a public purpose.  There is nothing in principle stopping government passing a new law called The Acquisition of Property for Any Reason at all Act.  That would be in full compliance with our Constitution.

Property rights

Property rights:  The 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.