EDITORIAL
“…[N] or shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use without just compensation ” – Fifth Amendment to the US Constitution
Most readers, we assume, would be aware of the Fifth Amendment of the US Constitution or, at least, part of it from that notorious line so frequently encountered in American television or movie dramas of an accused person “pleading the fifth” or invoking his or her constitutional right against self incrimination. However, there is a less well-known aspect of the same amendment to be found in its last sentence. This is popularly known as the “takings” clause, which is a positive rendering of the text of the clause itself that proscribes as follows – “…nor shall private property be taken for public use, without just compensation”. As popularly understood, this entitles the state authorities to take any privately owned property for public use, subject only to the payment of “just” compensation.
A similar enactment is to be found in the local supreme law that provides in part – “No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the authority of a written law…”
This negatively framed proscription, though cast in ostensibly mandatory terms at the beginning, is weakened however by the word “except” which serves to permit the taking so long as the stipulated conditions of that exceptional case are fulfilled. These are that (i) the written law under which the taking is done prescribes “the principles on which and the manner in which compensation therefor is to be determined and given” and (ii) it gives “to any person claiming such compensation a right of access, either directly or by way of appeal, for the determination of his interest in or right over the property and the amount of compensation, to the High Court”.
Remarkably, the Barbados provision contains no requirement of the taking being for a public purpose or use as does its US counterpart, even though this seems to be the gist of the recent complaint against the proposed compulsory acquisition by the state of certain property on behalf of a private sector concern.
However, even if a similar requirement were to be implied from the provisions of other legislation regulating the acquisition of land, a decision of the Eastern Caribbean Court of Appeal from Antigua and Barbuda appears to dampen the rigour of such a condition by its holding that on the facts of that case, the development of tourism in Antigua and Barbuda was indeed a public purpose, and quoting from an Indian authority ruled, “if the acquisition is for a public purpose, the consideration that the State has undertaken the task at the instance of a private entrepreneur or agency or a private institution is not germane. It is well settled that even though the acquisition of land is for a private concern whose sole aim may be to make profit, if the acquisition of land could materially help the national economy or the promotion of public health or the furtherance of the general welfare of the community or something of the like, the acquisition will be for a public purpose”.
We too, would have wished, in accordance with traditional principles of private enterprise that the two private parties were allowed to negotiate the transfer of the property on their mutually agreed terms. The interposition of the state as a player in the bargain lends a semblance of inequality of bargaining power in favour of one of the parties. The law appears to say
otherwise.