With the greatest respect, M. les Regles' proposed Nationalisation Amendment operates from an incorrect premise at law. The nationalisation of an industry does not involve the seizure of property, that is the denial of possession of property the rights of ownership of which remain in law with the original holder. Instead nationalisation is a form of acquisition, albeit on a compulsory basis, such that the title in law passes to the State. The original holder ceases to have any rights of ownership in law upon the completion of the acquisition.
It is an inherent power of the State as a body corporate to acquire and sell property, including negotiating the terms of sale. The proposed amendment would act to inhibit that power by requiring a 2/3rd majority in circumstances where the acquisition is by way of compulsory acquisition, such a land corridors which are required to lay pipes and wires for the utilities to be installed. Such acquisitions are not constitutional in nature but rather are part of the day to day power of government.
The better course of action would be to acknowledge that any compulsory acquisition, by nationalisation or otherwise, is to be on terms on fair compensation to be determined by the State having regard to the current market value of the asset to be acquired with right of appeal to the Courts should an aggrieved party wish to challenge the valuation. This can be done either as a constitutional amendment or as ordinary legislation.
Al Oyer
Advocat
The chosen verb (in actuality the verb "to seize" converted to a noun) in the explanatory comment was chosen to give the connotation of a forceful transfer of the right of ownership to an item (physical or otherwise) through the extinction of the previous owner's right as well as the the transfer of the physical good (when such a thing is present). That transfer does of course not have to be a physical movement from one place to another, but simply taking the nationalised property into the possession of the state. As an example, let us say that there is a factory producing a lucrative good, which the sitting Parliament for one reason or another wants. It decides to nationalise the good, thereby transferring the right to ownership of it. Thereafter, the government sends in an employee to inform the previous owner, to make him move away, thereby physically transferring the factory to the ownership of the state. That said, it might have been an unfortunate choice of words, and I might go back and review it.
That said, with all due respect, it is not an inherent power of the State as a body to acquire and sell the property of others—property which they want to keep. As can be seen through reading the proposed text with the comment, the act of nationalisation is a forceful—i.e. involuntary—transfer of property. The proposal does not in any way hit voluntary buying and selling. Interpreting in such a way ignores the motives behind it, its background, and its wording. Currently, nationalisation—as in, an involuntary process of transfer of property—is actually illegal. Chapter 2, Article 6 of the Constitution has only two exceptions, none of which are nationalisation. The fact that the Parliament has through the Utilities Act ignored this by overruling the Constitution with a Constitutional Majority (a two-thirds majority) is most unfortunate. The proposal recognises this reality, and simply legalises it, hence the two-thirds majority required to pass an act of nationalisation. The proposal does not restrict the power of the state; instead it extends it by adding a third exception to the right to property.
The fact that nationalisation can also include compensation for the former owner is a matter that could be included as a requirement, but it could also be added in on a per case basis. On this I am ambivalent, but the current wording is more flexible as it opens for the possibility of nationalisation acts with or without compensation.
—Suive Opiniâtrement les Régles
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