Time for a fairer Compulsory Acquisition law

Introduction

As Guyana continues on its extensive infrastructural works to cope with a fast-growing economy, one area of law – compulsory acquisition of land - has been sidestepped and ignored, almost exclusively to the detriment of property owners. While the holding of property is a constitutionally protected right under the Guyana Constitution, this country, in common with countries around the world, allows the Government, under strict conditions, to acquire private property. Under US jurisprudence, the concept is called “eminent domain.”

The insertion of the term “public purposes” in the name of our law may be designed to take the sting out of the appropriating of citizens’ property, while seeming to promote national development and patriotism. In practice, the law invites and paves the way for a very imbalanced relationship between the Government and the citizen with the Government using the coercive force of the law against the timidity of all but the well-heeled in society. In fact, many people whose lands are acquired are sufficiently intimidated by an army of officials and their entourage on being told what they will be paid, they just say yes. This then allows the Government to boast that it has consulted, praising those who are intimidated as patriotic and those who want adequate compensation as anti-progress and anti-development.

Yet, the very essence of how the Act maintains some of the more obnoxious features from ancient times is not only disturbing but would be considered unacceptable and appalling in any open democratic society. For example, the principle of market value which assumes a willing seller is a non-starter since the property owner is at least reluctant, while the so-called buyer is using statutory powers to get a deal. The owner hardly ever wants to sell, while the Government obtains title whether there is agreement or not. All for a sum that the “seller” will soon spend and go broke.

Guyana

The fact is that the Guyana Act is woefully deficient, having come down from more than one hundred years ago, with minimal amendments – some of it for the worse.Ironically, the only amendment for this century was railroaded to facilitate the gas-to-shore project. And let us not believe that this is a West Demerara problem. Land on the East Bank of Demerara is also at risk of being compulsorily acquired under the same project. Because our law firm represents two persons whose land is being taken away under this project and because one of the persons has taken legal action, I am unwilling to say anything much at this stage. What I can say is that it is ironic that a government that boasts about its workingclass credentials is prepared to cheat many of its own supporters.

India

About ten years ago, India recognised the weaknesses in their similar legislation and passed a most progressive act – the Land Acquisition, Rehabilitation and Settlement Act. As a model, that Act is hard to beat and if the Guyana Government or the Opposition was truly alert, the Indian Act would be so useful as a model. Containing an extensive preamble as well as a statement of objects and reasons, the Act is designed to ensure a participative, informed and transparent process for land acquisition and appears to be a people-first enactment. Even as India anticipates industrialisation and the development of essential infrastructural facilities, the Act is intended to operate with the least disturbance to the owners of the land and affected families while providing just and fair compensation to affected families. In fact, the preamble regards those persons as partners in development, no worse off after the acquisition than they were before.

To start with, “public purpose” is comprehensively defined, so that government’s scope for intervention in acquisition is limited to defence and certain development projects only. The nonsense of running highways through residential communities as the Government is doing in Prashad Nagar just outside of Georgetown is hardly likely to be permitted under the India legislation.

Elaborate protection

The Act requires that the consent of at least 80% of the project affected families be obtained through a prior informing process while the urgency clause permitted under the Act is limited to projects for national defence, security purposes and rehabilitation and resettlement needs in the event of emergencies or national calamities only. The Act also provides a comprehensive compensation package for owners and affected persons, including a solatium and a scientific method for the calculation of the value of the property.

An important feature of the Act is the requirement for a Social Impact Assessment Study, its public hearing and appraisal by an Expert Group of independent persons. In a nod to the rural and agricultural communities, that value is augmented by a factor of two in rural areas. The Administrative machinery too is quite formidable with consultations and defined roles for the Panchayats, Municipalities and Districts involving the Collector, Administrator, Presiding Officer, Judges and of course the Courts. Despite or because of all these features, India has some of the most interesting cases on the subject that would be most helpful in any review of the law.

The problem for the people is that the Government seems happy with a loose, ancient and unfair framework that works against the people.