NO NEED TO CHANGE THE LAW
February 9, 2013, By KNews, Filed Under Features / Columnists, Peeping Tom, Source
There is nothing wrong with the Amerindian Act in so far as mining rights are concerned. The Act itself is quite explicit regarding mining on lands designated as Amerindian land.
It is therefore misplaced for the Amerindian Act to be deemed defective simply because the Courts have ruled in favour of an individual who it is said acquired rights to land and a permit to mine on lands within an Amerindian community prior to the passage of the Amerindian Act.
Where there is a dispute and a ruling by the Courts on the dispute, those who wish to challenge the ruling of the Courts have to prosecute their case in the Courts and not seek amendments to the law in order to overcome an unfavourable decision.
There is no political remedy. Amending the Amerindian Act will not help. Any amendment which has the objective of depriving individuals of property rights is more than likely to be struck down by our Courts.
Guyana comes from a common law tradition and the common law is vigorous in defending property rights. In fact, it can be argued that the very development of the common law was allied to the need to defend the right to private property. If there is a conflict between public rights and private property rights, it is not difficult to predict where the common law will stand.
For all its non-justiciable principles, the Constitution of Guyana strongly defends private property to the extent of saying that no one can be deprived of his property without compensation.
Once someone had property rights prior to the passage of the Amerindian Act, that person cannot be deprived of such rights even if the law is subsequently changed. Any change that tramples upon the property rights of an individual whether by law or administrative edict is challengeable on the grounds that it is in violation of the Constitution of Guyana.
The passage of the Amerindian Act cannot take away property rights without compensation unless it explicitly states so and if it so states it would be in defiance of the Constitution and therefore likely to be vitiated.
Further, an Act of parliament cannot be applied retroactively unless this is made explicitly clear in the legislation. But as argued before, even if the Amerindian Act had explicitly provided for retroactivity, such a provision could not be used to deprive an individual of property rights unless compensation was offered.
This problem over mining rights could have been avoided and all the protests rendered unnecessary if the Guyana Human Rights Association (GHRA) had not hastily jumped to criticize a ruling of the Courts.
Of course, the GHRA is free to criticize a decision of the Courts as long as it does not impute sinister and nefarious motives to the courts.
But if there is a problem with a court ruling that ruling decision should be challenged. So long as there are interested parties who feel that there are grounds for appeal, they should pursue recourse using the appellate process.
Instead, however, it seems as if there is an attempt to ask the government to circumvent the ruling of the Courts by passing legislation that would nullify the general effect of that ruling.
It would be setting a bad precedent for any government to be doing this. To change the law because of a ruling in the High Court would be both premature and unnecessary.
Persons who acquired property rights prior to the passage of a law cannot be retroactively deprived of such rights unless this expressly stated in the law, and any such provision would collide with the supreme law of the land.
As such even if the government is disposed towards changing the laws, any changes cannot deprive individuals of their property rights, unless of course compensation is offered.