After the Democratic Progressive Party (DPP) came to power following January’s elections, many are hoping that the party will implement a fresh approach to how the nation is governed and move Taiwan toward being a true democratic country with genuine constitutional politics.
One of the major indicators of whether this might come to pass is the issue of land rights and expropriations. This practice involves a violation of citizens’ constitutionally guaranteed rights, and as such, its application necessitates compliance with certain very strict criteria.
Any expropriation must be in the public interest. It must also be absolutely necessary and proportionate, and should only be used as a last resort. If any of these criteria are not met, then there is reason to question whether such action is constitutional. Land expropriation is an important issue, and one that involves basic human rights.
The problem is that following many years of authoritarian rule, the power to define exactly what is meant by “in the public interest” or “necessary” remains in the hands of those who hold power. In addition, in the pursuit of economic growth and political expediency, land expropriations have actually become the preferred and indeed least expensive option. It is a measure government officials have been resorting to far too easily, and one that has become almost par for the course.
This has been especially true in recent years. With government finances being in such a precarious state, authorities have resorted to zone expropriation — wresting land from vulnerable farmers and putting it up for sale. This has forced many Taiwanese to move, and this is a serious infringement of their basic human rights. It is a problem that needs to be addressed.
There have been many important pronouncements by judicial bodies on the chaotic situation that surrounds forced land expropriations.
The Council of Grand Justices has been clear about the need for due process and that public hearings need to be held to ensure that any land expropriations are done only in the public interest and out of necessity.
The council’s Constitutional Interpretation No. 709, which rules on the provisions of the Urban Renewal Act (都市更新條例), states that the act “should require the competent authority to conduct hearings in public, allow interested parties to appear and present their statements and arguments orally during the proceedings and explain their rationale for adopting or declining the arguments after taking into consideration all the records of the hearings.
In this fashion the act can be made consistent with the meaning and purpose of the constitutional guarantee of the people’s rights to property and freedom of residence.”
The Supreme Administrative Court has also on several occasions warned that land expropriation should only be considered as a last resort. It did so explicitly in its 2012 Ruling No. 1067, in its 2010 Ruling No. 1276 — because of the implications for the state’s appropriation of citizens’ property rights — and in Ruling No. 355, which was issued that same year and which clearly states that it should only be used when there are no other options available.
Unfortunately, despite the frequency and clarity of such rulings, the relevant authorities have tended to turn a deaf ear.
Now that a DPP-led government is in power, the land expropriation controversy has been reignited by the Tainan City Government in a case that is attracting the most attention: the railway’s relocation underground and to the east.
On July 2, the Ministry of the Interior’s Construction and Planning Agency convened an Expanded Urban Renewal Task Force Review Committee. If the meeting is examined from the perspective of the issues raised here, there are subtle differences between the committee’s and the previous approach, but it is by no means certain that the committee is an adequate substitute for the public hearings that the Grand Justices say should be required.
Did the government provide groups opposed to the proposals with substantial information in advance? Have those in charge of the process isolated the crux of the problem and given the participants the opportunity to meet and present their various arguments for discussion? Questions remain about these issues.
In addition, the Tainan City Government and the Ministry of Transportation and Communications (MOTC) still need to explain exactly why relocating the railway to the east would be a last resort.
During a meeting, Tainan Urban and Rural Development Department Director Wu Hsin-hsiu (吳欣修) said: “Of course there are many different ways of proceeding, but the government cannot choose any one of these, it has to find the one that entails relatively little conflict.”
MOTC Railway Reconstruction Bureau (鐵工局) Secretary-General Wen Tai-hsin (溫代欣) also eventually conceded that the eastward relocation was “not the only blueprint on the table.”
Tainan Mayor William Lai (賴清德) said that there were many other options for the construction project, but that the eastward relocation had “many advantages” and that the construction was “highly viable.”
These recommendations for the option notwithstanding, does the eastward relocation actually fulfill the criteria of being a last resort, and therefore comply with the conditions required for land expropriation?
These requirements were originally slated for inclusion in proposed amendments to the Land Expropriation Act (土地徵收條例) in early 2012, but they never made it into the amended legislation due to objections by the then-Chinese Nationalist Party (KMT) government.
The DPP can still achieve these goals through the implementation of the Administrative Procedure Act (行政程序法) or other legislation.
Now that it has recognized the Aboriginal community’s right to informed consent, the government should have the courage to take Taiwan to the next stage.
Hsu Shih-jung is professor of land economics at National Chengchi University.
Translated by Paul Cooper
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