In spite of Her Majesty's Privy Council's decision in February of this year to reduce the award established by the Eastern Caribbean Supreme Court of Appeal as compensation due to HMB Holdings for the Antiguan Government's exercise of eminent domain "for the public good" and its "forced acquisition" of the Half Moon Bay Resort, nothing has changed in the real world.
There has been no benefit to the people of Antigua from the Government's seizure of the property. Once known as the destination of the rich and famous, the property is now 110 acres of desolation, overgrown, trashed and neglected, with its vandalized and semi-demolished buildings serving as shelter for vagrants and drug users.
The Government continues to assure potential investors that "no foreign property has ever been nationalized by the Government of Antigua and Barbuda." The facts, however, easily discovered by the most superficial due diligence, speak loudly and carry a different message.
For over 19 years, the Government has assured the people of Antigua that multiple buyesr for the property is standing by, able and willing to undertake the redevelopment of the property. The truth is that there was only one, R. Allen Stanford, who is currently serving a sentence of over 100 years in a US jail, for fraud committed with the complicity of the Antiguan Government. Since he stepped out of the picture, no one, legitimate or otherwise, has stepped up in his place.
And no wonder! It is a fatally flawed premise that anyone would be willing to become embroiled in a purchase, let alone the development, of a private property, taken by eminent domain from its previous owners, before compensation to those owners has been paid in full.
It does not advance the process that the US Embassy in Barbados has issued a warning for potential investors in Antiguan real estate.
It does not advance the process that the Antiguan Government has shown total disregard for the rule of law and its own Constitution in dealing with the rights of foreign investors..
It does not advance the process that the Antiguan Government has defied multiple Court Orders for payment of compensation for the property.
It does not advance the process that alternating administrations from opposing parties elected to govern the nation over these years have acted in accord on the issue of the Government’s ability to take private property without paying for it.
As evidence of this seamless transition, one needs only to look at the latest case currently adjourned yet again in the High Court of Antigua:
A proposal of payment by investment was first brought into legal discussion by the Government in October 2013. It was never heard. It was, however re-filed on three separate occasions since, with each previous instance either dismissed or adjourned indefinitely. While the first three filings were made under the UPP administration, the latest filing was submitted by the ALP government, with the proposed payment plan identical to that of its predecessor.
The terms of the proposed payment are such that, even after the Privy Council decimated the amount due by 45% of the award found appropriate by the Eastern Caribbean Court of Appeal, it would take 346 years of regular payments by the Government merely to pay off the accumulated interest on the value established by the highest legal entity in the jurisdiction, at a cost to the people of Antigua of over 3.8 Billion US dollars.
The fiscal hooliganism embodied in the absurdity of this proposal supports the premise of an intended perpetual postponement of payment.
The legal hooliganism embodied in presenting this “solution” to the Court does not appear to embarrass its proponents.
Undoubtedly, there will come a time for a resolution of the issue. What is still unclear is when and at what cost this matter is finally settled. What is quite clear is that this behaviour by the Government of Antigua and Barbuda will carry long-term ramifications and consequences, both at home and abroad.
Especially so, as this particular issue of expropriation without compensation appears to roll on with no change of approach or direction.