Tue, Sep 06, 2011 - Page 8 News List

Change the Land Expropriation Act

By Hsu Shih-jung 徐世榮

Following forced land expropriations in Dapu Township (大埔), Miaoli County, earlier this year, farmers took to the streets and called on the government to amend the Land Expropriation Act (土地徵收條例). The issue became controversial and a few days ago the government finally made an official response. For one, it promised compensation at market prices, subject to twice-yearly reviews.

However, is this going to solve the problem? Is this what the farmers were thinking about when they asked for changes? I fear the government has come up with a seriously flawed solution for the simple reason that it has failed to understand the nature of the problem.

First, forced land expropriation involves human rights and is not a simple matter of how much compensation is offered. Forced expropriations are uncommon in constitutional democracies — unlike in Taiwan. This is because these nations view the issue as one involving human rights and one that needs to be strictly observed.

The 1793 Declaration of the Rights of Man and Citizen that emerged from the French Revolution specified that property “is an inviolable and sacred right.” This became one of the most important propositions of the time and was later adopted by constitutional democracies. The second chapter of the Republic of China Constitution — the Rights and Duties of the People — was also influenced by this idea and has similar stipulations.

What is so important about property rights? Aside from involving the balance of wealth, they are also intimately related, and inseparable from, the right to life and liberty. In other words, there is an absolute relationship between individuals’ right to life and liberty and their right to own property and to use it, or dispose of it, as they see fit.

It follows, then, that in violating people’s property rights, those responsible for forcibly stripping them of their land are also denying them their rights to life and liberty. This concept has been repeatedly emphasized in the Council of Grand Justices’ constitutional interpretations on the matter — Interpretations 400 and 596 being cases in point.

The issue of how much compensation is to be paid is, of course, important, but whether these forced expropriations violate human rights guarantees are even more so.

Second, land expropriation is a structural issue and not merely a matter of technical evaluation. Because land expropriation robs people of the constitutionally guaranteed rights mentioned above, expropriation must meet very strict conditions — it must serve the community, be necessarily proportional, a last resort and fully compensated. Not one of these conditions should be ignored.

The latest draft amendment has a special clause which states that when someone applies to have land expropriated, the service to the community and the necessity of the purpose for their application must be evaluated based on social, economic, cultural, ecological, sustainability and other aspects specific to the expropriation plan. How are services to the community and necessity to be determined, and by whom?

This involves the imbalance of power between the party applying to use the land and the landowner and cannot be solved merely by technical evaluations. The amendment proposes giving this right to the party applying to use the land, which is precisely what current public hearings have done.

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