Sunday, 21 March 2010

Eminent domain

“Eminent domain” is a legal term referring to the ‘power governments have to confiscate, or take, private property.’

Over the years civilization has come to agree that such ‘taking’ of property happen only for legitimate “public use” and property owners receive “just compensation.”

Much case law, legal thinking and commentary is available on this subject. It is perhaps a cornerstone concept defining state/citizen relationships and the limits of state power. Kings and rulers have always attempted to usurp all resources for personal use and citizenry has had to fight to establish checks on this greed. One cornerstone of the famous Magna Carta was to check the King’s ability to take over private property.

Over the years, the concept has evolved and remains a subject of considerable debate. Unfortunately in Pakistan it receives no attention. We have the famous Land Acquisition Act which has been used to build housing colonies, public sector projects, leisure clubs, and for any purpose that the government of the time deems fit. Is that appropriate?

To begin with let us clarify concepts

  • · All property is considered to be owned by the public not the public sector or the government or the state. The government is merely the manager of public property.
  • · An evolving society needs public goods such as roads, railways, utilities, etc. In many cases the state may have to step in to provide these for the public good.
  • · “Eminent domain” is exercised to take over private property for any project that is clearly demonstrable to be for the good of the public.
  • · Compensation must be transparently on market terms (it should be financial compensation only).

A good legal mind could keep us awake for nights reflecting on the many difficult interpretations of the 4 concepts outlined above. For example,

  • · Who determines what “public good” is. Most civilized places have evolved a process of consultation and court involvement before eminent domain can be exercised.
  • · Can Eminent Domain (Land Acquisition act) be used for providing land to a housing cooperative such as DHA? Legal commentators would balk at this abuse of eminent domain. Housing is always a private good and must remain in the private sector. The state has nothing to do with it.
  • · How should we view “building and zoning regulations” which restrict the use of a property and hence determine its value? Commentators have argued that this too is in the domain of eminent domain and must be carefully analyzed. Indeed zoning and building regulations are required for the public good—environment, health etc—but they can and have been frequently abused and impose a huge tax on the public. For example, buildings that look into the Coup Commander’s house or the Governor’s House are not permitted. This is clearly a tax on the owners but also on society as it prevents development. Clearly building and zoning laws need to be carefully evaluated to ensure that the public good component is operating at a limited tax on property.
  • · Can the state change the character of public usage without going through consultation? The conversion of the Naval War College on Mall Road, Lahore –recently the subject of an attack--was converted of a residential property with no due process. Can the state convert civil service academy to State Guest House without clearly showing public purpose and due process? Can the state even take over an abandoned property (FreeMason Hall) and use it as it wishes? Can a state build an office (CM office) wherever it likes? The answer in all these cases is a clear “no”!

Eminent domain is perhaps the most abused law in most countries and Pakistan is no exception. Large developers, influential people, and government officials often conspire to use this powerful law quietly to confer benefits on each other. This is especially easy to do with evolving zoning laws and building regulations. An extremely vigilant (indeed competent and continuously well trained) court system, legal community and civil society including a powerful and keenly sensitized media are necessary to prevent abuse of eminent domain.

Even in the US a Reason Foundation study found that “An estimated 10,000 cases between 1998 and 2002 involved projects where private parties benefit substantially from government seizures of property under the banner of economic development or urban redevelopment.” I leave you to think of the myriads of cases where eminent domain is being misused every day in Pakistan.

In Pakistan what amazes me is that eminent domain abuse is received with quiet calm often even with applause. Walling off GOR for example and closing off frequented streets is a clear abuse of eminent domain in recent days. Yet it has caused no more than a gentle raising of eyebrows. Security for VIPs is not cause enough for the exercise of eminent domain. Security is supposed to secure everyone not just a segment of government employees.

History can be seen as a process of freedom from oppression from poor governance for the mass of humanity. Reining in and controlling Eminent Domain may be a large part of that history.

We in Pakistan are lagging behind in that process of history. State abuse of Eminent Domain is rampant. The media and intellectual debate must keep “Eminent Domain” under constant purview and not take state abuse and encroachment as acceptable. A free people do not accept state encroachment in any form. The state is only for their good and not to encroach into their space.