Land Expropriation: Rights Defense and Law by Chr Lawyers

Land Expropriation: Rights Defense and Law Published by China Human Rights Lawyers Concern Group

book print.indd 1

22/04/2014 3:45 PM

Land Expropriation: Rights Defense and Law Published by China Human Rights Lawyers Concern Group

book print.indd 2-3

22/04/2014 3:45 PM

Contents Preface 4 Promote Adequate Housing Rights by International Standards

Chong Yiu-kwong, Executive Member of the China Human Rights Lawyers Concern Group

Mainland China

Issues with Rural Land Expropriation in Mainland China

Professor Gong Ren-ren, Peking University School of Law

Land Expropriation cases encountered by farmers in Heilongjiang

Chi Susheng, human rights lawyer from Heilongjiang

Taiwan

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Lee Ming Chih, human rights lawyer from Taiwan

Hong Kong

Unjust Acquisition of Hong Kong Lands

Chu Hoi-dick, member of Land Justice League Executive Committee

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Authority

The Honourable Mr. James To Kun-sun, Hong Kong Legislative Council Member

Epilogue

book print.indd 4-5

22/04/2014 3:45 PM

Promote Adequate Housing Rights by International Standards

Promote Adequate Housing Rights by International Standards Chong Yiu-kwong, Executive Member of the China Human Rights Lawyers Concern Group On June 9, 2012, the China Human Rights Lawyers Concern Group convened a seminar entitled “Land Expropriation Rights,” at which scholars, legislators, and social movement activists from China, Hong Kong and Taiwan presented. The common feature refrained among participants was that the governments have the power to expropriate land easily. The Chinese and Taiwanese governments, for instance, can confiscate land for public interest. The Hong Kong government uses the term ‘public use’ as a basis for its decisions to requisite land. This means that it is very easy for governments to abuse power, and indeed, compensation is frequently far below the market value of land. The primary focus of this piece is to investigate international human rights standards regarding forced evictions, hence to safeguard adequate housing rights.

Adequate Housing is a Human Right The United Nations Special Rapporteur on Adequate Housing stated that the right to land is a human right.1 Furthermore, various human rights bodies of the United Nations have already declared that forced evictions constitute a serious violation of human rights,2 and that they have caused grave and disastrous harm to the basic civil, political, economic, social, and cultural rights of individuals and collectivities.3 The International Covenant on Economic, Social, and Cultural Rights” (ICESCR) applied to Hong Kong and Mainland China in 1976 and 2001 respectively. Taiwan implemented the ICESCR on December 12, 2009, as well as the International Covenant on Civil and Political Rights (ICCPR). Article 11 of the ICESCR states: “the right of everyone to an adequate 1 2 3

4 book print.indd 4-5

Report of the Special Rapporteur on adequate housing (A/HRC/4/18): February 5, 2007; p. 12 Paragraph 33(e) United Nations Office of the High Commissioner for Human Rights Human Settlements Program (HABITAT), “Human Rights Fact Sheet No.25,” Geneva, United Nations Office of the High Commissioner for Human Rights, February 1997, pp. 4-5. Ibid., (E/CN; 4/Sub. 2/1993/8; Paragraph 21)

standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” The Committee on Economic, Social and Cultural Rights’ “General Comment No. 4 (1992), paragraph 8(a) regarding the right to adequate housing reads, “all persons should possess a degree of security tenure which guarantees legal protection against forced eviction, harassment and other threats.”4Paragraph 18 states, “instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.” “Forced eviction” (or forced expulsion) is defined as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”5 It is directly or indirectly attributable to the State.6

Forced Eviction Can Only Be Justified in the Most Exceptional Circumstances The types of activities that constituting “exceptional circumstances” include the following: “(a) racist or other discriminatory statements, attacks or treatment by one tenant or resident against a neighboring tenant; (b) unjustifiable destruction of rented property; (c) the persistent non-payment of rent despite a proven ability to pay, and in the absence of unfulfilled duties of the landlord to ensure dwelling habitability; (d) persistent antisocial behavior which threatens, harasses or intimidates neighbors, or persistent behavior which threatens public health or safety; (e) manifestly criminal behavior, as defined by law, which threatens the rights of others; (f) the illegal occupation of property which is inhabited at the time of occupation; (g) the occupation of land or homes of occupied populations by citizens of an occupying power.”7 4 5

6 7

Ibid., p. 6; 12 E/1992/23; Appendix 3 United Nati ons Office of the High Commissioner for Human Rights Human Settle ments Program, “Human Rights Fact Sheet No.21 (1st Revised Edition), Geneva, United Nations Office of the High Commissioner for Human Rights, Nov 2009, p. 5. See note 2, p. 5. See note 2, p. 6.

5 22/04/2014 3:45 PM

Promote Adequate Housing Rights by International Standards

According to the UN’s “Basic Principles and Guidelines on DevelopmentBased Evictions and Displacement,”8 evictions can only take place under the following circumstances, and only with ample justification and procedural safeguards.9 Paragraph 21 of these standards states: “Any eviction must be (a) authorized by law; (b) carried out in accordance with international human rights law; (c) undertaken solely for the purpose of promoting the general welfare; (d) reasonable and proportional; (e) regulated so as to ensure full and fair compensation and rehabilitation; and (f) carried out in accordance with the present guidelines. The protection provided by these procedural requirements applies to all vulnerable persons and affected groups, irrespective of whether they hold title to home and property under domestic law.” Although the UN does not define “public interest”, “public use”, or other such vague terms, the above principles say that forced evictions must be “undertaken solely for the purpose of promoting the general welfare” (Paragraph 21 (c)). “General welfare,” by contrast, is defined as “steps taken by States consistent with their international human rights obligations, in particular the need to ensure the human rights of the most vulnerable.”10 The UN also put procedural safeguard in place to reduce the number of forced evictions that violating human rights.

cratic and the rule of law, by “communicative rationality”, public discussion can be employed to define public interest,).12 However, society in reality lacks effective checks and balances. Thus, international human rights standards do not simply provide defence against forced evictions without cause, but also provide detailed standards that help affected persons to make specific and comprehensive demands. The UN’s “Basic Principles and Guidelines on Development-Based Evictions and Displacements” also lay out in detail the government’s responsibilities before, during, and after eviction, as well as information that residents must know.13 The UN also designed a questionnaire containing 84 questions in order to grasp the living situation of residents, assess the violation of rights, suggest meaningful proposals to various parts and assist in monitoring human rights situations.14

The Six International Principles of Eviction With regard to international human rights standards, the six basic international principles of eviction are: “(1) consultation and participation of affected people and communities; (2) adequate notification; (3) effective administrative and legal resource; (4) prohibition on actions resulting in homelessness; (5) prohibition of actions resulting in deterioration of quality of housing and living conditions; and (6) the provision of adequate alternative relocation and/or adequate compensation before evictions are carried out.11 Admittedly, whether it is “public interest” or “general welfare,” these terms are both too unspecific, and in particular the former. In a country with demo8 9 10 11

6 book print.indd 6-7

See note 1, Appendix 1 See note 5, p. 9. See note 1, Appendix 1, Footnote d United Nations, Office of the High Commissioner for Human Rights, “Forced Evic tions Assessment Questionnaire,” Revised December 2011, p. 2.

Unlike Taiwan, Mainland China and Hong Kong do not incorporate ICESCR into their domestic law. Hence, it fails to offer substantive legal protection.15 However, through the UN mechanism, Mainland China and Hong Kong can invite the UN Special Rapporteur on Adequate Housing to compile a report. Alternatively, when the UN human rights bodies consider state reports, civil society can submit shadow reports, and when the UN has contemplated the suggestions of both government and civilian actors, the UN can issue concluding observations to state parties and suggest measures to improve the human rights situation after consideration of the state and shadow reports.

Concluding observations of the UN Regarding Mainland China and Hong Kong In 2001, the UN Committee on Economic, Social and Cultural Rights stated in its report regarding Hong Kong,16 12 Debate concerning “general welfare” and “communicative rationality”, see 詹順貴、李明芝「台灣土地徵收浮濫的原因探討」載2011／10生態台灣第33期［06-07］ 13 See note 1, Appendix 1, pp. 20-25, paragraphs 37-68. 14 See note 11, p. 1. 15 According to Article 27 of the Vienna Convention, signatory states cannot use domestic laws as an excuse not to fulfill international obligations. See Rajindar Sachar, Special Rapporteur of the Sub-Commission on Prevention of Discrimina tion and Protection of Minorities, The Rights to Adequate Housing UN: New York and Geneva, 1996, p. 25, paragraph 176. 16 E/C.12/1/Add.58, May 11, 2011; paragraph 25

7 22/04/2014 3:45 PM

Promote Adequate Housing Rights by International Standards

“In the Committee’s view, bed-space apartments, or cage homes, are an affront to human dignity17 and roof-top structures constitute a grave risk to the life and health of their inhabitants.” With regard to Mainland China, the UN provided in its 2005 Concluding Observations: “The Committee is concerned about the reports of forced evictions and insufficient measures to provide compensation or alternative housing to those who have been removed from their homes in the context of urban development projects as well as of rural development projects such as the Three Gorges Project. The Committee is concerned about the number of forced evictions and demolitions that have occurred in anticipation of the 2008 Olympic Games to be hosted by the State party. The Committee further expresses concern about the lack of effective consultations and legal redress for persons affected by forced evictions and demolitions, including those of historic structures, buildings and homes in Lhasa, Tibet. The Committee also regrets that insufficient information was provided on the extent and causes of homelessness in the State party.” (Paragraph 31) “The Committee recommends that the State party take immediate measures to enforce laws and regulations prohibiting forced evictions and ensure that persons evicted from their homes to be provided with adequate compensation or offered alternative accommodation, in accordance with the guidelines adopted by the Committee in its general comment No. 7 (1997) on forced evictions. The Committee also recommends that, prior to implementing development projects, the State party should undertake open, effective and meaningful consultations with affected residents. In this connection, the Committee wishes to draw the attention of the State party to its general comment No. 4 (1991) on the right to adequate housing and requests it to provide information in its next periodic report on 17

8 book print.indd 8-9

Cage homes are made up of multiple beds, and the four sides of each bed are covered with wire netting. For a definition, see Hong Kong Housing Policy Council “Hot Place: Hong Kong Housing Rights Report,” (in Chinese) Step Forward Multi Media Co. Ltd., July 2000, p. 23.

progress achieved in this regard. The Committee further requests the State party to provide, in its next periodic report, detailed information on the number and nature of forced evictions and on the extent of homelessness in the State part, disaggregated by gender, age, urban/rural residence.” (Paragraph 61)

Good State Practice as Valuable Reference Are the UN’s standards too highbrow and no use? Besides the UN, there are actually a few countries whose examples are worth pondering and whose actions are above international norms, such as the Philippine’s 1986 democratic constitution. Article 13 (10) stipulates that “Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be resettled.”.18 Article 26 (3) of South Africa’s 1997 constitution contains a similar stipulation, stating that arbitrary evictions are not permitted, even by legislation. All kinds of demolition or eviction require authorization of court order.19 All the European Union Members have laws to protect tenants from arbitrary eviction. The United Kingdom enacted the law to stipulate penalties for those responsible for carrying out illegal evictions or harassment against tenants, and a person responsible for punishing illegal relocation or disturbance of tenants.20 Kenya National Commission on Human Rights monitors the country’s forced evictions and informal settlements, works with the ministers and organizations responsible for housing to develop national guidelines for prevention, correction, and compensation.21 With reference to the UN’s Special Rapporteur mechanism, the Brazilian government, specifically regarding the right to adequate housing, set up a national rapporteur who has the authority to investigate individuals or communities’ complaints of the violation of housing rights. The national rapporteur can make specific recom18 19 20 21

Centre on Housing Rights and Evictions (COHRE) Sources: No. 4 Legal Resources for Housing Rights: International and National Standards. Geneva: COHRE, 2000, p. 55. Ibid., p. 58; See note 2, p. 15. See note 2, pp. 15-16. See note 5, p. 44.

9 22/04/2014 3:45 PM

Promote Adequate Housing Rights by International Standards

mendations to the government too.22

International Mechanisms for the Protection of Housing Rights In the face of the violation of housing rights, appeals from international standards to the good practices of some foreign countries have a positive effect on the defence of rights. Hong Kong and Mainland China can use the UN mechanism – for example, in 2004, UN HABITAT established the Advisory Group on Forced Evictions, to monitor unlawful evictions and identify and promote resettlement and improving living conditions.23 As for the United Nations Special Rapporteur on Adequate Housing, he or she can receive information from individuals or groups, conduct country missions to different countries and investigate issues of concern, review accusations of violations of housing rights submitted by individuals or groups, and can even intervene, as well as submit reports to the UN General Assembly and the Human Rights Council.24 Additionally, civil society can use the UN human rights convention monitoring mechanisms, submit shadow reports to the UN, expose instances of rights violations, and make recommendations for improvement. However, it is common that people do not know these UN mechanisms, let alone the concluding observations by these human rights bodies. UN repeatedly recommended various state parties should actively promote conventions, and widely disseminate concluding observations. The above essay touched upon an important UN document: “Basic Principles and Guidelines on Development-Based Evictions and Displacments,” and all states should disseminate it widely.25 After all, the UN mechanisms are complicated and are not necessarily effective, especially within a short period of time. Seeking assistance from nongovernmental organizations and interchange of ideas may also help to defend rights. The attachment provides some housing rights organizations for reference. * Chong Yiu-kwong, Solicitor, Teaching Fellow of the Hong Kong Institute of Education and Secretary of China Human Rights Lawyers Concern Group. 22 23 24 25

See note 5, p. 44. See note 5, p. 46. See note 5, p. 45. See note 1, p. 11, paragraph 33(c)

10 book print.indd 10-11

Promote Adequate Housing Rights by International Standards

Appendix 1: Selected International Organizations’ Websites Intergovernmental Organizations Office of the United Nations High Commissioner for Human Rights: http://www.ohchr.org

United Nations Human Settlements Programme (UN-Habitat): http://www.unhabitat.org

United Nations Housing Rights Programme: http://www.unhabitat.org/unhrp

Housing the Urban Poor: http://www.housing-the-urban-poor.net

International Non-Governmental Organizations Asian Coalition for Housing Rights (ACHR): http://www.achr.net

Center on Housing Rights and Evictions (COHRE): http://www.cohre.org

Homeless International: http://www.homeless-international.org

Housing and land Rights Networks (HLRM): http://www.hlrm.org/english/home/asp

International Union of Tenants (IUT): http://www.iut.nu

Shack/Slum Dwellers International (SDI): http://sdinet.org

11 22/04/2014 3:45 PM

Promote Adequate Housing Rights by International Standards

Appendix 2: Concluding observations of the Committee on Economic, Social and Cultural Rights (Hong Kong): China. 05/21/2001. E/C.12/1/Add.58.

31. The Committee is concerned about the reports of forced evictions and insufficient measures to provide compensation or alternative housing to those who have been removed from their homes in the context of urban development projects as well as of rural development projects such as the Three Gorges Project. The Committee is concerned about the number of forced evictions and demolitions that have occurred in anticipation of the 2008 Olympic Games to be hosted by the State party. The Committee further expresses concern about the lack of effective consultations and legal redress for persons affected by forced evictions and demolitions, including those of historic structures, buildings and homes in Lhasa, Tibet. The Committee also regrets that insufficient information was provided on the extent and causes of homelessness in the State party.

25. While acknowledging that the HKSAR has made progress in relation to housing, the Committee remains deeply concerned that the right to housing of many people in Hong Kong remains unfulfilled. In the Committeeâ&#x20AC;&#x2122;s view, bed-space apartments, or cage homes, are an affront to human dignity and roof-top structures constitute a grave risk to the life and health of their inhabitants. 44. The Committee calls on the HKSAR to give urgent attention to the housing rights of all Hong Kong residents, including squatters and those living in roof-top structures and bed-space apartments or cage homes. In its next periodic report, the HKSAR is requested to give special attention to the impact of current policies on squatters, roof-top structures and bed-space apartments or cage homes. In particular, the Committee would like HKSAR to comment on the operation and efficacy of the Bed-space Apartments Ordinance (Chapter 447).

May 13, 2005: E/C.12/1/Add.107.

78(g): The persistence of inadequate housing in the form of cage-homes and bed-space apartments, despite measures taken by HKSAR to provide alternative housing to residents who choose to remain in such homes.

Appendix 3: Concluding observations of the Committee on Economic, Social and Cultural Rights: China. 05/13/2005. E/C.12/1/ Add.107. C. Factors and difficulties impeding the implementation of the Covenant 15. The Committee notes with deep concern the de facto discrimination against internal migrants in the fields of employment, social security, health services, housing and education that indirectly result from inter alia, the restrictive national household registration system (hukou) which continues to be in place despite official announcements regarding reforms. 12 book print.indd 12-13

E. Suggestions and Recommendations 40. The Committee requests the State party in its next periodic report to submit updated annually collected comparative data disaggregated by sex, age and rural/urban regions in the fields of all the provisions in the Covenant, paying particular attention to the disadvantaged and marginalized groups. The Committee also requests the State party in its next periodic report to include annual comparative data, disaggregated by rural/urban regions, the percentage of gross domestic product allotted for education, health and housing programmes, in particular in the ethnic minority regions. 46. The Committee calls upon the State party to implement its decision to dismantle the hukou system of national household registration and to ensure that in any system that replaces it, internal migrants will be able to enjoy the same work, social security, housing, health and education benefits enjoyed by those in the urban areas. 59. The Committee strongly recommends that the State party take immediate measures, inter alia by increasing allocations, for the protection of economic, social and cultural rights of persons living in disadvantaged areas, in particular with regard to adequate housing, food and water, health services and sanitation. The Committee calls upon the State party to develop a mechanism for measuring the poverty level and to monitor it closely, and refers the State party to the Committeeâ&#x20AC;&#x2122;s statement on poverty adopted in May 2001. 13 22/04/2014 3:45 PM

Promote Adequate Housing Rights by International Standards

61. The Committee recommends that the State party take immediate measures to enforce laws and regulations prohibiting forced evictions and ensure that persons evicted from their homes be provided with adequate compensation or offered alternative accommodation, in accordance with the guidelines adopted by the Committee in its general comment No. 7 (1997) on forced evictions. The Committee also recommends that, prior to implementing development projects, the State party should undertake open, effective and meaningful consultations with affected residents. In this connection, the Committee wishes to draw the attention of the State party to its general comment No. 4 (1991) on the right to adequate housing and requests it to provide information in its next periodic report on progress achieved in this regard. The Committee further requests the State party to provide, in its next periodic report, detailed information on the number and nature of forced evictions and on the extent of homelessness in the State party, disaggregated by gender, age, urban/rural residence.

14 book print.indd 14-15

22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

Issues with Rural Land Expropriation in Mainland China

Professor Gong Ren-ren, Peking University School of Law 1. Issues with Rural Land Expropriation in Mainland China

Mainland China

According to Peking University, Landesa (Rural Development Institute) and other academic organizations, research on land rights in China’s 17 big agricultural provinces and autonomous regions from 1991 to 2011 shows that in the 1990s, 43.1% of Chinese farmers experienced at least one instance of land expropriation. In 17.8% of those cases, farmers who had had their land expropriated recalled that the local government forcibly expropriated their land and demolished buildings. Of farmers who had lost land due to forcible expropriation, 12.7% never received any form of compensation. Despite promises of appropriate compensation, 9.8% of land-expropriated farmers still did not end up receiving any compensation. This research shows that land expropriation in rural China is a serious social issue affecting the rights of millions and millions of Chinese farmers.

1. Guarantees to the Right to Private Property in the Chinese Constitution and Farmers’ Property Rights On March 14, 2004, the Second Session of the Tenth National People’s Congress passed a constitutional amendment bill, enumerates explicitly the right to private property ownership in the constitution for the first time. Article 10, Section 3 of the amended constitution states, “Citizens’ lawful private property is inviolable.” “The State shall protect the right of citizens to own property and the right of inheritance.” At the same time, the thirteenth article also states, “The State may, in the public interest and in accordance with the provisions of law, expropriate or requisition land for its use and shall make compensation for the land expropriated or requisitioned.” Does article thirteen of the constitution have anything to do with the expropriation of agricultural land? Mainland China does not have a system of private land ownership, therefore the expropriation of collectively-owned farmland is not directly related to article thirteen. Land Contractual Management Law and Property Law only stipulate compensation for land-use 17

book print.indd 16-17

22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

rights, which is again not related to article thirteen, as it states “compensations shall be provided with regard to the houses and other real property built on the land” that is expropriated. In fact, farmers’ land contract rights as land-use rights is also not complete. First, according to present law, the application of farmers’ land contract rights are severely restricted. It is limited to agricultural use, and does not allow any non-agricultural use of land. On farmers’ contracted arable land, they may only plant crops and are not permitted to build houses or graves, excavate sand, collect stones, mine, borrow pit... etc. Furthermore, farmers are not permitted to start fruit industry, dig ponds to raise fish, and even let arable land lie fallow and become overgrown. According to Chinese government policy, foreign investment companies, Taiwanese and Hong Kong businessmen can engage in real estate development on expropriated land, as they enjoy basic “national treatment”. Chinese farmers on the other hand do not enjoy “national treatment” on their currently (or previously) owned land. Secondly, farmers do not enjoy land-use rights indefinitely, as contracted land has an explicit time constraint. In reality, the land contract statuses are very unstable, as village cadres would at times arbitrarily rescind agreements or refuse to renew contracts before they expire. Contracted land may also be arbitrarily expropriated by the local government. Farmers maybe considered to enjoy private property rights, but that would just be limited to only housing. However, house foundation is not included, according to Article 10, Section 2 of the constitution, farmers do not have the right to private ownership of house site, private plot, or private hill. Current law does not have special compensation regulations concerning farmers who have been forced to leave their houses or dwellings due to expropriation of land. Within the scope of compensation in Land Management Law, vague manipulations are adopted to deal with house plots, houses are merely included in “floor fixture.” As a result, at least with regard to expropriation of rural land, the constitution’s inclusion of private property rights has not translated into concrete protection of farmer’s property rights.

18 book print.indd 18-19

Issues with Rural Land Expropriation in Mainland China

Mainland China

(2) Expropriation of Rural Land Lacks Explicit Restrictions Article thirteen of the 2004 constitutional amendment states, “The State may, in the public interest and in accordance with the provisions of law, expropriate or requisition land for its use and shall make compensation for the land expropriated or requisitioned.” Despite this provision, the constitution still lacks explicit limitations regarding the expropriation of rural land. Thus, in practice, the constitution and relevant laws have the following problems:

1. Lack of Definition of “Public Interest” With regard to what constitutes “public interest,” the Chinese constitution and other relevant laws do not have a clear definition. In fact it is the central government that holds the power to interpret the meaning of “public interest.” Article 43 of the Land Management Law states, “All units and individuals that need land for construction purposes must, in accordance with law, apply for the use of State-owned land”. Here, the so-called “land for construction purposes” does not even require public interest as a precondition. In fact, mainland China does not have any investigation procedures to determine whether construction projects meet the requirements of public interest or not. In practice, actions regarding the expropriation of rural land are left to the leadership of local governments, no matter how notable a proposed project. The speeding up of urbanization, development of regional economy, promotion of the tourism industry, attracting foreign investments or improvements on the investment climate, increasing financial income... etc., may all be generalized in the name of “public interest.” Thus, after local governments have expropriated land, they will often let companies that have very close ties with the government or officials to engage in extremely profitable real estate development. These development plans may even be construction of golf courses or luxury villas, all in the name of “public interest.” For example, by 2011 Mainland China already had more than 600 golf courses, 327 of which, according to reports by Sina and Sohu, used up over 640,000 mu of land. Right on the periphery of Beijing there are 132 golf courses, which take up more than 130,000 mu of land. I don’t know of any other country in the 19 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

Issues with Rural Land Expropriation in Mainland China

world that considers golf courses and high-end villas to be construction projects out of “public interest”. Due to the lack of clear definition in what constitutes “public interest”, there will inevitably be officials abusing their power.

The constitutionality in expropriation is a question that has not attracted much attention within Mainland China. Article 10, Section 3 of the constitution says that the subject of expropriation is the State. Article 2, Section 2 of the constitution states, “The organs through which the people exercise state power are the National People’s Congress and the local people’s congresses at different levels.” But in reality it is really the local people’s governments that are implementing the expropriations of rural land. Besides the goals of national defense, foreign relations, and important projects planned by the central government (such as transportation, irrigation projects, and environmental protection), it is very difficult to define the local governments’ land expropriation activities as acts of State. In most of the cases, local governments’ motives in expropriating land is for business development or to increase the government’s financial income. Thus, without considering motives and use of land, viewing all local governments’ land expropriations as acts of state does not go in line with the constitutional provisions.

20 book print.indd 20-21

With regard to compensation for land expropriation, the constitution only stipulates compensation in principal, but does not specify the standards for it. Currently, Mainland China’s standards for compensation of expropriated land are based mainly on the “Land Management Law”. Section 47 of the law states that compensation for expropriated land is given according to the original purpose of land. Compensation for expropriated arable land includes compensation for the land, relocation allowance, and compensation for fixtures and vegetation on the land. Compensation for expropriated arable land is based on the average output value of land for the past three years multiplied by a factor of six to ten. Relocation allowance is based on a calculation of the farming population that requires relocation.

Mainland China

However, compensation for expropriated arable land and relocation costs are made according to the average yearly output value of the land. This is neither certain nor reasonable. This is because the compensation standard does not consider the economic losses or future livelihoods of the land-expropriated farmers,1 nor the actual market value of the land. In Mainland China, apart from farmers who live in city suburbs, it is widely recognized that the compensation standard for expropriated land is far too low.

2. The Problem Related to the Constitutionality in Expropriation

3. Land Expropriation Compensation Standards are not Reasonable

To take Jiangsu Province as an example of an area with higher compensation standards, according to the “Jiangsu Province Land Requisition Compensation and Landless Farmers Basic Livelihood Guarantee Approach”, land type one, the highest compensation standard, has a minimum compensation of 1,800 RMB per mu. On the other hand, land type four, the lowest compensation standard, it is 1,200 RMB per mu. Based on the current price level, the amount of compensation received by land-expropriated farmers may merely maintain their basic conditions of living for about two years. Once the land-expropriated farmers use up their compensation, they have no other source of income, and thus struggle in life. Farmers’ lives would be made harder with them losing the land they rely upon for survival and life after retirement, as well as the insufficient amount of compensation.

(3) Social Problems Caused by Rural Land Requisitioning Since the reform and opening up of China, local governments have initiated three large-scale land requisitioning initiatives, namely “Enclosure Movement”. Because of the flaws in China’s rural land requisitioning system, the two “Enclosure Movements” initiated since the 1990s have brought along a series of societal problems in Mainland China.

In rural areas of Mainland China, levels of social security are extremely low. During a seminar at the University of Hong Kong, I saw another piece of information: On July 10, 2012, the China National Committee on Aging published the “China’s Urban and Rural Elderly Population 2010 Tracking Study Report,” which revealed that old-age so cial security coverage rates in rural areas was only 34.6%. The monthly average old-age social security benefit was 74 RMB, merely 5% of the yearly monthly retirement benefit of urban residents. “Beijing News,” July 11, 2012.

21 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

1. Serious Large-scale Violations of Farmers’ Rights

Currently, the number of landless farmers in Mainland China is expected to exceed sixty million. Due to the universally inadequate land requisition compensation, most landless farmers’ standard of living has experienced a notable decline. Whether due to culture, labor skills, age or other factors, landless farmers often find it difficult to seek jobs, causing them to become one of the three types of “non-farmers”: farmers without land, workers without jobs, and those with no social security. On one hand, they have lost their land, and so they no longer fall into what it is traditionally understood as farmers. On the other hand, landless farmers do not have the means to become actual urban residents because they don’t have stable jobs after they have lost their land. This means that they would not be protected by the social security system. Due to the urban-rural social structure in Mainland China, landless farmers living in cities are still the victims of all kinds of unequal treatment, even discrimination, and so become a special fringe and impoverished group.

2. Social Polarization Worsening In stark contrast to the poverty facing landless farmers, the land expropriation-based growth in the Chinese real state market has led to the sudden appearance of a group of millionaires and billionaires. For the past few years, the real estate market has been the main cause behind the country’s rich and powerful. The real estate market was faced with a series of strict policies limiting the industry in 2011. According to Forbes’ list of richest people in China in 2011, those involved in the real estate industry had an eye-grabbing performance just like before. People involved in the real estate industry composed half of the thirty people at the top of List. Due to the government’s monopoly status over requisitioned and government land, land requisitioning and real estate development are the important hotbeds of official corruption and governmentbusiness collusion in Mainland China. Local governments and real estate businesses have thus created their own special interest communities. The Chinese style of rural land requisitioning and real estate developments have effectively revealed the nature of crony capitalism . 22 book print.indd 22-23

Issues with Rural Land Expropriation in Mainland China

Mainland China

3. The Major Causes of Mass Incidents and Farmers Petitioning With regard to “mass incidents,” sociologist Yu Jianrong (于建嶸 believes that these are “incidents with a certain number of participants, involving actions with no legal basis and in a way effect societal order”. In the past couple of years, mass incidents have increased noticeably – from the 10,000 recorded incidents in 1997, to 90,000 mass incidents in 2009. Of these mass incidents, the ones involving farmers make up the bulk of cases. Regarding the defense of farmers’ rights, land issues constituted more than 65% of incidents. According to official statistics, land requisition and forced relocation disputes constitute 33.1% of all petitions. In 2010, there were more than 53,000 cases involving the illegal use of land in Mainland China, involving 418,000 mu of land, in which 16,400 mu was of arable use.

4. The Amount of Arable Land Has Significantly Diminished According to statistics, the amount of land taken up by city and urban areas increased by 25,000 square kilometers in between 1990 and 2010, representing a 20% reduction in arable land. From 2001 to 2010, the total amount of arable land lost amounted to 159 million mu. Currently, the average amount of arable land per person in Mainland China is only 1.3 mu. One-third of provinces and cities have a per capita average of less than one mu, and 666 counties have less than the United Nations-established warning level of 0.8 mu per person. 463 counties have less than the dangerous level of 0.5 mu per capita. Currently, Mainland China is experiencing a steep decline in arable land, at a speed of close to 7 million mu per year. Local Chinese governments’ lack of foresight in initiating land requisitioning (or the “Enclosure Movement”) has already threatened Mainland China’s food security. With a population of 1.3 billion, relying on foreign aid is not by any means going to meet the peopple’s needs if China is hit by famines.

23 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

5. The Requisitioned Land Based Real Estate Market Has Created an Economic Bubble Since Reform and Opening, Mainland China’s real estate industry, with requisitioned land as its basis, has become the country’s mainstay industry. Perhaps as a result of influence from Hong Kong, a real estate craze has appeared in Mainland China since the 1990s. The real estate industry has made exorbitant profits for local government agencies, businesses, and speculative investors. This has led to the formation of an extremely obvious economic bubble: home prices have increased several times over, or even up to ten times as much as previous prices. Currently, home prices have risen to the point where a whole life’s salary in most middle to largesized cities could not afford buying a property. At the same time, there has been a long-term high 30%-40% vacancy rate in properties. According to a report published by the Beijing Public security bureau on March 31, 2012, there are 3,812,000 vacant units in Beijing alone. At present, housing prices in Beijing, Shanghai, and other areas are already higher than those of the capitals of developed countries. Mainland China’s gross national income (GNI) on the other hand is only about one-tenth that of the developed countries. In 2011, the average house price in Mainland China was equivalent to eight times the wage of an urban resident, a level which already far exceeded the housing prices of Japan, Europe, and the United States during the economic bubble. In 2012, economist Mao Yushi (茅于軾) said during a news interview that there was nothing could be done about the housing market bubble, and it ultimately would burst.

2. Institutional Causes of the Plight of Rural Land Expropriation With regard to the institutional causes of the plight of rural land expropriation, the are mainly analyzed in terms of Mainland China’s economic and judicial systems. The economic system is mainly reflected in the system of collective land ownership, while the judicial system is primarily reflected in the lack of rule of law. 24 book print.indd 24-25

Issues with Rural Land Expropriation in Mainland China

Mainland China

(1) The Flaws of Rural Collective Land Ownership: (1) The Subject of Rural Land Collective Ownership Rights is Unclear According to Article 10 of the “Land Management Law” and Article 60 of Mainland China’s “Property Law,” rural collective ownership of land is exercised by the following three organizations: the first type are village collective economic organizations or villagers’ committees; the second type are small villagers’ organizations; and the third type are township collective economic organizations. However, because township collective economic organizations have almost all been disintegrated, having these three types of organizations serve as the subject of rural collective ownership is not appropriate. Firstly, villagers’ committees, being grassroots self-governing organizations of the people, are not economic organizations but are rather made up of only a few people. Secondly, villagers’ organizations themselves are not independent organizations either – with regard to the processes regarding the make-up and dissolution of the organizations, there are no clear guidelines within the law. Additionally, if townships, being the basic level of government organs, are taken as the subject of rural collective land ownership rights, it would constitute a violation of the principle established during Reform and Opening that government and society should be separated. It is equivalent to turning collectively-owned land into government land without going through the process of expropriation. Thus, the three organizations mentioned above do not have the necessary qualifications to be considered as the subject of rural land collective ownership rights. Although the law assigns rural land collective ownership rights to the farmers’ collective, they do not have suitable representatives to exercise this right and so the subject of this right becomes nominal.

25 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

(2) Rural Land Collective Ownership Rights is Incomplete According to Mainland China’s “Property Rights Law” Article 59, so-called rural land collective ownership rights are primarily restricted to the operation and management of land, not complete ownership. Because the core of property rights is the power of disposal, “Property Rights Law” does not have any stipulations with regard to farmers’ right to dispose of their land. Under the current conditions imposed by Mainland China’s system in controlling the use of land, collective land ownership rights merely include the collective right to tenure and to use it for agricultural purposes. It is not by any means complete ownership rights, but functions more like farmers’ land use rights. Collective ownership rights are nominally collective, but the process of exercising these rights will be limited by the government. Thus, rural land collective ownership rights are in reality another form of right to occupy and use .

(3) Difficulties for Rural Land Collective Ownership Rights Under the “Dual-Track System”

Since Reform and Opening, as Mainland China initiated market economic reforms, it has at the same time attempted to maintain the original command economics system to a certain extent, which has resulted in the “dual-track system.” With respect to rural land expropriation, this system has led to the inequalities in the rural collective land ownership rights more prominent. On one hand, the government follows the principles of a command economic system when it expropriates land. Based on this system, orders to expropriate land are sent down from leaders at the top. The person from the collective whose land has been expropriated can only obey, and does not have the position to negotiate or bargain over price. At the same time, law currently in place regarding land expropriation also mandates specific and inappropriately-low compensation without regard to the land’s manner of use or its market value. On the other hand, after local governments have expropriated land, the market economic system is adopted wherein they use market methods to cash out the expropriated land. Currently, the most common methods to cash out the expropriated land are to invite bids on the 26 book print.indd 26-27

Issues with Rural Land Expropriation in Mainland China

Mainland China

land, auction it, or to list it on the stock market. In doing so, they also earn enormous sums of money and other benefits. Exactly because under the dual-track system rural land collective ownership rights occupy an unequal status, the institution of land expropriation has brought along its own unbalancing consequences for society. According to relevant statistics, the current distribution of profits gained from the expropriation of land is as follows: local governments account for 20% to 30%; businesses account for 40% to 50%; village-level organizations account for 25% to 30%; farmers account for only 5% to 10%. Local governments account for 60% to 70%; collectives 25% to 30%; and farmers account for only 5% to 10%. The greatest beneficiaries of rural land expropriation are thus local governments and businesses, while it hurt the farmers who have lost massive amounts of land the most.

(2) The Judicial System Lacks Rule of Law 1. Legislative Aspect The primary meaning of the rule of law is the limiting of the powers of state and government and guaranteeing the rights and freedoms of every citizen. The principle of the rule of law has not become the guiding principle of Mainland Chinese lawmaking. The starting point of many laws is to strengthen the scope of the government’s authority. Thus the obligations for the government are very general and broad, while the obligations of citizens are very precise. There are some laws that are meant to protect the rights of citizens on the surface, but actually serve to limit them in reality. For example, the “Assemblies, Processions and Demonstrations Law” of 1989 has 36 articles in total. Except for the first three articles, which broadly protect the rights to assembly, procession and demonstration. The remaining 30 or so very specifically limit these rights and strengthen the limits of the government’s authority. As a result, since the twenty or so years since the law was established, there has not yet been a collective assembly, procession, or demonstration event that has been sanctioned by the Public Security Bureau. The “Land Management Law” which has a direct bearing on rural land ex27 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

propriation has a similar situation. The law only cursorily mandates a process of examination, approval, and announcement for land expropriation. For example, Article 46 states, “Where land is to be expropriated by the State, the expropriation shall, after approval is obtained through legal procedure, be announced by any people’s governments at or above the county level, which shall help execute the requisition.” Article 48 states, “Units and individuals that own or have the right to the use of land under expropriation shall, after the announcement of plan, be able to reflect their opinions to the related government officials.” Throughout the entire course of the land expropriation process, the rights of obligees are actually excluded, and they do not have the right to participate in the process. Laws regarding the expropriation of land seriously lack detailed regulations concerning the procedure, methods, and consequences of illegal actions that occur during the expropriation process. As such, the expropriation actions of local governments are not restricted by any meaningful limitations. Because there are no transparent and fair procedures with regard to the creation of land expropriation laws, there is a lack of at least the following mechanisms (procedures): a mechanism to determine whether or not a proposed land expropriation is in accordance with public benefit; a mechanism for determining the price of land; mechanisms for people to participate in decisions regarding expropriation, compensation and resettlement; a mechanism for the supervision of the expropriation process; mechanisms to curb illegal actions taken by local governments; mechanisms to provide effective emergency relief for obligees; mechanisms to monitor the money acquired from the transfer of land by local governments, etc.

2. Law Enforcement Aspect Regarding local governments’ involvement in rural land expropriation, willful disregard of law and abuse of power are all common phenomena. For example, although the constitution and relevant laws have not defined precisely the meaning of “public benefit”, one may see private commercial purposes being the foremost goal of local governments in land expropriation plans with our common sense. According to data published by the Ministry of Land and Resources’ in its “Bulletin of Chinese Land and Resources of 2001”, the total amount of government land that was transferred 28 book print.indd 28-29

Issues with Rural Land Expropriation in Mainland China

Mainland China

for construction purpose was 333,900 hectares, and the value of these contracts was 3.15 trillion yuan. Although Mainland China’s real estate market in 2011 was in the midst of a deep depression, the money acquired from government transfers of expropriated land was at an all-time high. If the expropriated land was not designated for commercial use, and in particular for real estate, then the money gained from such transfers could not have been that high. According to data revealed by Han Jun, the deputy director of the State Council’s Development Research Center, of the 3.15 trillion yuan made from government transfers of expropriated land in 2011, earnings from transfers for the purpose of real estate development account for 2.7 trillion yuan. As can be seen here, the gains made from the transfer of land titles for real estate development account for the majority of land transfer income – about 86%. The “Land Management Law” has special stipulations concerning the use of profits from land transfer. For example, Article 55 states, “…30 percent of the compensation paid for the use of additional land for construction shall go to the Central Government and 70 percent to the concerned local people’s governments, both of which shall exclusively be used for developing cultivated land.” But in reality, it is very rare that local governments abide by this article. For example, up to October in 2011, profits enjoyed by rural farmers from the transfer of expropriated land only accounted for 123.4 billion yuan. This was not even 0.1%, 0.0672% to be more precise. (Calculation method: 3.15 trillion divided by 12 multiplied by 10 equals 2.625 trillion (amount of money earned from land transfer during the previous ten months of that year), then divided by 0.70 equals 1.8375 trillion (money earned from local land transfers). In 1994, the system of tax distribution was initiated, money from the transfer of property served as a concrete source of income for local finances and all of it may stay at the local-level. Profits from requisitioned land transfers are both enjoyed and controlled by the local governments, meaning that they do not have to go through the budget controls of the local People’s Congress. In sum, with regard to the requisitioning of land and its transfer and use, local governments have clearly and severely broken the law, but are rarely held liable. In reality, local governments retain a status where they are not subjected to legal barriers or supervision. 29 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

3. Judicial Aspect With regard to the requisitioning of rural land, after farmers’ collectives and individual farmers’ rights are violated, they often have trouble seeking effective judicial assistance primarily because of the legislative and judicial systems. On the legislative side, a few laws and regulations serve to exclude judicial relief. For instance, Article 25 of the “Regulations for the Implementation of the Land Management Law” says that administrative organs are wholly responsible for coordinating and arbitrating disputes arising from land requisition compensation. Furthermore, Article 30 Section 2 of the “Administrative Reconsideration Law” states, “The owner or user of land may request an administrative reconsideration regarding the land requisition decisions made by the people’s governments of provinces, autonomous regions and municipalities. However, the administrative reconsideration is the final ruling related to this issue.” An independent judiciary is one of the basic marks of the rule of law in modern age. Due to the personnel and financial issues of all courts are restricted by governments of the same level of that of the courts, hence the courts share the same mutual interests with governments when dealing with land requisitioning issues. Thus, as a result of the local governments’ interference, courts often refuse to hear cases involving land requisition disputes. If they were to hear the case, it would still be difficult to obtain a fair judgment. Exactly because of the deficiencies in the judicial relief systems, landless farmers have no other choice but to seek other means of redress, such as petitioning and besieging, etc.

4. Lack of Farmers’ Rights The lack of farmers’ rights is one of the deeper causes of the problems regarding rural land expropriation. Since the 1950s, Chinese society has become a dual-society consist of cities and rural areas. Under Hukou status, farmers, in comparison with their urban counterparts, enjoy worse treatment in residence, education, medical care, employment, old-age insurance, etc. Farmers, under the Hukou system, suffer from rampant institutional dis30 book print.indd 30-31

Issues with Rural Land Expropriation in Mainland China

Mainland China

crimination, including suffrage, the right of association, basic labor rights, social security rights, educational rights, property rights, and even the right to life. It is exactly because farmers have suffered institutional discrimination under this dual social structure that the requisitioning of rural land has led to such unfair results. For example, not only do farmers not have land or property rights, their right to use land is also subjected to severe restrictions. It is because farmers do not have access to the unemployment and social security enjoyed by urban residence that there is the “non-farmers” phenomenon. Farmers do not have their own farmer rights’ organizations, i.e.: a farmer’s cooperative, so they do not have any normal and effective means of expression to their needs and desires heard. What is worth noting is that with regard to land expropriation and compensation, it is not just the local governments that are violating farmers’ rights, but also village committees as well. Why have village committees, as rural villagers’ self-governing organizations, become violators of farmers’ rights and interests themselves? This question involves both legislative and law enforcement elements. On the legislative side, the “Organization Law of Villagers’ Committees” says on one hand that villagers’ committees are the self-governing organizations of rural areas (Article 2), and on the other hand says that the village Party branch should lead and support the work of the villagers’ committees (Article 4). But village Party branches aren’t organizations that are selected by the villagers themselves. This naturally means that there will be contradictions between the functionary roles of villagers’ committees and village Party branches. To take another example, the “Organization Law of Villagers’ Committees” at once says that villagers’ committees are the selfgoverning organizations of the villagers (Article 2), while also saying that village governments “provide guidance, support, and help to the work of the villagers’ committees” (Article 5). “Guidance” is in itself semantically unclear and has in reality evolved into “lead”. The whole system has thus turned into a top-down model between villagers’ committees and village governments. In result, villagers’ committees have turned into lower-level organizations that execute the orders of village governments. What remains is merely the image of being self-governed, but nothing beyond it. This kind of top-down relationship may explain why local governments can requisite land without considering farmers’ basic rights; as well as villagers’ commit31 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

tees representing the government, but no longer the villagers themselves. On the law enforcement side, many villagers’ committees disregard or abuse their powers. For example, Article 24 of the “Organization Law of Villagers’ Committees” says that matters involving the rights of villagers such as “the use of land expropriation compensation and distribution plans” should “be discussed and decided in village meetings.” Decisions on the use of compensation for land expropriation and its distribution are in reality rarely subject to the debates and decisions of village meetings. Otherwise, there is no other way to explain why land expropriation has led to the creation of countless “non-farmers” without land. Furthermore, villagers’ committees use the provisions of the “Regulations for the Implementation of the Land Management Law” that give landowners compensation to abuse power and confiscate most of the money. Villagers’ committees are also known to sell or rent expropriated land illegally. Although the 2010 revision of the “Organization Law of Villagers’ Committees” a system for monitoring the villagers’ committees (Article 23), in 2011 villagers’ committees were still illegally selling land, giving rise to events such as the Wukan Incident (烏坎村事件). Ironically, the Wukan Party branch was named a “nation’s advanced grassroots party branch” in 1996; a “civilized unit” for five consecutive times by the Guangdong provincial party committee and provincial government from 1993 to 2001, and an “advanced unit of the nation’s civilized towns” by the Central Guidance Committee in 1999. Former village Party branch secretary Xue Chang (薛昌) was himself also selected to the provincial party congress and was named a national model worker. However, in the past 41 years Wukan has never had a single open election. 13 years after the “Organization Law of Villagers’ Committees” was revised came the Wukan incident, resulted in the village residents finally understood that they have the power to elect cadres. In a “nation’s advanced grassroots party branch” and “advanced unit of the nation’s civilized towns” like Wukan, the situation is already as dark as this, the situation of villages that are not “advanced” or “civilized” are even harder to imagine. This incident clearly shows that village residents have not realized true self-governance.

32 book print.indd 32-33

Issues with Rural Land Expropriation in Mainland China

Mainland China

(3) Historical Causes of the Plight of Rural Land Expropriation 1. Soviet-Style Influence Since the 1950s, Mainland China began a process of “comprehensive Sovietization”. In China’s several thousand years of history, there has probably never been any other instance of adopting institutions of another country, including aspects regarding politics, economy, cultural education, etc. China has not been able to break away from many areas of Soviet influence. For example, deep Soviet influence can be seen in China’s system of rural land expropriation. Soviet-style agriculture is agricultural collectivization. At the end of 1929, the Soviet Communist Party led by Joseph Stalin decided to collect taxes from rural peasants in order to hasten industrialization. As a result, they completely abandoned the new economic policies adopted in 1921 in favor of a movement for complete agricultural collectivization. Under the orders of Stalin, the Soviet Communist Party made annihilating the rich peasant class its main tactic to force peasants into agricultural collectives. The adoption of a collective institution is forced labor in disguise. This agricultural collectivization was seen by Western scholars as a revival of serfdom. The most important and direct effect of the Soviet Union’s movement for comprehensive agricultural collectivization was the death of millions of people in a famine from 1932 to 1933. This was the most severe man-made famine in Russia’s history. Although the Soviet Union was able to achieve industrialization in a rather short period of time, it was at the expense of millions of farmers’ deaths. Moreover, agricultural collectivization led to long term agricultural stagnation; it could even be said that this was the primary economic reason for the Soviet Union’s collapse.

2. China from Agricultural Cooperatives to Collectivization From the establishment of the People’s Republic of China to 1952, Mainland used the violent methods of class struggle and mass movements to complete land reform and confiscated landowners’ land without compensation. As a result, landless or farmers owning very little amount of land received land, which then had their rights to private ownership of land rec33 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

ognized. However, the Chinese Communist Party started a movement to initiate agricultural cooperatives in rural areas. At first, agricultural cooperativization had two forms: mutual aid teams (temporary mutual aid teams and perennial mutual aid teams) and junior communes. During these two stages, one may see this as farmers’ cooperative business, given that it is solely based on people’s own will, with quitting an available option, and farmers’ right to privately owned land being unaffected. Until the second half of 1955, Mainland China basically completed the primary stages of agricultural cooperativization. Having the Soviet Cooperative Farm Model as the Goal of China’s Agricultural Collectivization Movement From the end of 1955, mainland China started an agricultural collectivization campaign with the goal of completing advanced socialization. When Mainland China’s agricultural cooperativization campaign reached the advanced stages, its quality underwent fundamental changes because the socalled “advanced communes” were reproductions of the Soviet collective farms (the collectives that appeared during Mainland China’s process of collectivization were at first called collective farms, then generally called advanced communes). Advanced communes used land for socialization, eliminated land remuneration, implemented unified management, and used the principle of “distribution according to work.” As a result, the cooperativization campaign that helped Mainland China progress from primary socialization to advanced socialization and became the collectivization campaign. It was mostly the same as the Soviet Union’s campaign, but the “Land Decree” issued after the October Revolution confirmed the State’s ownership of land. In China, however, land changed from privately owned to collectively owned. Advanced socialization or farm collectivization was basically realized at the end of November 1956. On October 1st, 1958, the People’s Daily declared that the entire country had realized rural collectivization of agriculture. The campaign to collectivize agriculture transferred commune members’ homesteads, private houses, livestock, and furniture to the ownership of the communes. Agricultural collectivization is the continuation and development of advanced communes, and is a more extreme form of the Soviet collectivi34 book print.indd 34-35

Issues with Rural Land Expropriation in Mainland China

Mainland China

zation campaign. The most direct effect of this agricultural collectivization campaign is the famine that caused millions of people to die from 1959 to 1961. With regard to the famine, when people analyze and reflect upon the incident they mostly concentrate on the Great Leap Forward, but I personally believe that there are deeper issues that are worth reflecting upon: one of the most important ones is agricultural collectivization. Imagine, if there had not been agricultural collectivization, then land would still be under the private ownership of farmers and there would have been no possible way for such a large-scale famine to occur.

3. Agricultural Collectivization’s Influence on Rural Land Expropriation

The agricultural collectivization campaign of 1955 to 1956 has a special influence on Chinese history; that is, it was unprecedented in depriving farmers of their land ownership rights and created a nationwide system of rural collective land ownership. At the same time it also created a dual urban-rural societal structure, which has sparked today’s discussion of the problem of rural land expropriation. After Reform and Opening, one of the most important changes done to Mainland China’s rural economic system was the widespread recognition of the change in the mode of operations of collective labor during the era of people’s communes triggered by agricultural output quotas. Secondly, with the 1985 dissolution of people’s communes, the original production brigades and production teams disappeared as well. However, this was primarily a change in the mode of rural land operation and thus changed the form of the former collective labor and collective operation. However, it did not by any means fundamentally change the system of collective ownership of land. Currently, Mainland China’s rural system is basically akin to the advanced communes (collective farms) of before 1958. Thus, the three types of organizations that hold collective land ownership rights mandated by law are in reality remnant of the “three levels, teambased” system of people’s communes established by the Communist Party Central Committee in 1961. This is why we are faced with the subject of collective ownership being unclear. At the same time, rural land is nominally collectively owned, but local governments control the final disposition in reality. Combined with the urban-rural division within Chinese society, we 35 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

end up with having a land expropriation institution that violates the farmers’ rights.

4. The Deprivation in the Process of Farmers’ Industrialization First Deprivation Since the People’s Republic of China was established, there were two deprivations against farmers. The first instance was between the mid 1950s and the 1970s, including the state monopoly of purchasing and marketing of 1953; the agricultural collectivization that saw farmers’ land confiscated without compensation (Advanced Communes of 1956, People’s Communes of 1958) and the late 1970s (the end of the Cultural Revolution). During this time, deprivation of farmers’ rights could mainly be seen in the mass differences in the production costs and selling prices of agricultural and industrial products (Price Scissors) . With price scissors in place, some economists estimated that the government gained around six to eight hundred billion yuan from farmers.

Issues with Rural Land Expropriation in Mainland China

Mainland China

Sequis voluptatur modis maion earum quia ipsam cum eariaerum velit erfero beri ullupta temporerum eatem et offictae. Pa sed quatibus, odiciet pelit elis apissim aximi, corernatus. Ga. Um videbitis de re none nimendipsum velendis nonse rehendiciis doles voluptaecus enistium quidebita voluptatis doluptature doluptate officiatur sinvelique coribusa nos estrum quosa volorendicit undae laceptint volore eatemporrum et vel iumendestius et lanto quam es repeliquiate cus. Nienis doluptum si veri consectium aspis et facia intinvellor apis modia con por sequo doloreiuri doluptat quo consequatius as quas videbit, venimpo rererum hariate que cus rem elendebis moluptaqui ulparibusdae volo cor sum repere non eum dolupidunt lab il estori volorer ibusci in cuptis esci adis etur, soluptas elenecto occat od ut pro invenis culpa santiatis volo berupta

This first instance of deprivation led to the following results: (1) establishment of an initial industrialization system in Mainland China; (2) establishment of a dual urban-rural division in society; (3) the death of millions of farmers during Great Famine of 1959 to 1961; (4) the extreme and rampant poverty of Mainland China’s rural areas.

Second Deprivation The second deprivation mainly dates from the 1990s until today. This instance of deprivation can primarily be seen through the expropriation of rural land. According to the research published by Renmin University, the Rural Development Institute and other academic organizations, the compensation for land-lost farmers is on average about 18,739 yuan per mu since 1999. On the other hand, the selling price for expropriated land is on average 778,000 yuan per mu, which is a 40 times difference in between the two. Much of this ultimately becomes local governments’ income for transferring the expropriated land. In just the thirteen years from 1999 to 2011, the national income for transferring expropriated land was 12.75 trillion yuan.

36 book print.indd 36-37

37 22/04/2014 3:45 PM

Issues with Rural Land Expropriation in Mainland China

Mainland China

This instance of deprivation has led to the following results: Mainland China’s economic growth maintained its brisk pace, in which China’s economy became the second largest in the world in 2011; but at the same time the issues mentioned above also appeared: 1. The widespread violation of farmers’ rights; 2. Governments and a few real estate companies benefited while the divisions between the two levels of Mainland Chinese society became ever so severe; 3. Mass incidents and farmers petitioning; 4. A large reduction in arable land; 5. The real estate industry created an economic bubble.

Concluding Remarks: In the 1950s, Mainland China realized “Complete Sovietization.” Although the plight of rural land expropriation is caused by the reasons mentioned above, we may see Soviet’s absence of rule of law is another cause as we analyse this further. Due to the complexity of this problem, as it touches upon political, economic and judicial systems, introduction of reforms would be difficult to realize. This is because local governments and special interest groups would come in the way of these reforms. Moreover, consensus has not been reached on many related issues, for example with regard to the system of collective ownership of rural land. Some, mostly economists, advocate privatization of land, whilst the others (Experts on Three Rural Issues, advocate the continuation of the collective ownership system. However, this debate on China’s collective ownership system is limited to the academic circles, as we have not heard much from the farmers themselves. Farmers who make up more than half of Mainland China’s population are still the country’s most vulnerable group, with land-lost farmers, especially the three types of “non-farmers”, being particularly infringed upon. China has already ratified the International Convention on Economic, Social, and Cultural Rights and signed the International Covenant on Civil and Political Rights. the government has often used the slogan “Put People First” in the past few years, but it really needs to be put into practice. It needs to protect the individual rights of farmers based on these treaties. With regard to the farmers whose rights have been violated, particularly the three types of “nonfarmers”, the government has a historical obligation to compensate them. * Professor Gong Ren-ren is the Director of Research Center for Human Rights and Humanitarian Law, Peking University Law School. His research areas are international law and human rights. 38 book print.indd 38-39

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

Land Expropriation cases encountered by farmers in Heilongjiang Chi Susheng, human rights lawyer from Heilongjiang I started to work as a lawyer in 1979. I was still a young woman at the beginning of my legal career. There was only a very limited amount of law by then, i.e. seven laws. At that time, I was eager to dedicate my life to the national legal profession. I felt proud as I felt that I was making progression to the great legal system whenever I was handling cases. Besides dealing with cases, I also did a great deal of promotional work, hoping that I might raise public’s awareness on the importance of law. I also worked as part time law lecturer at university; I had the most tiring times when teaching at night from Monday to Saturday. My voice was usually gone after the eighth class on Saturdays. Despite the physical exhaustion, my heart was overwhelmed with hope. Later, I began to experience the difficulties in the repetitive nature of work. My work was gradually getting tougher and the difficulties lasted for a long time. Instead of working at the capital of the province, I have been working as a lawyer at the bottommost level of Heilongjiang, Qiqihar. I handled a large number of cases each day. Very often, people could see on the internet or in media various kinds of petition made by farmers who had their land or houses expropriated. They eventually ended up with self-immolation, wound or imprisonment, which rarely brought victory in reality. This is happening in our everyday lives. I wish to draw people’s attention by sharing my doubts in this article. Below are a few cases that I am handling now. On 31st May 2012, I handled a case filed in Xunke County of Heilongjiang Province, which is now still waiting for a judgment. Xunke County is nearly the northernmost county in Heilongjiang, bordered on Russia. There was a land expropriation in Xunke County. Land in our country is being divided into two categories, one of which is state-owned. According to Article 10 of the Constitution of the People’s Republic of China, “Land in the cities is owned by the State. Land in the rural and suburban areas is owned by collectives except for those portions which belong to the State as prescribed by law”. 39 22/04/2014 3:45 PM

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

There were not many resistances regarding expropriation of state-owned land up until now. It is because Heilongjiang is a large territory with largescale state-owned farms. The reason why there are not many petitions regarding the expropriation of state-owned farmlands is that these farmlands make a contract agreement with the staff of the state-owned enterprise on an annual basis. If the land is being expropriated, the staff will be given a certain amount of endowment guarantee, mainly consists of the compensation for the seedling and plants on land. Since they can then make a living with the compensation, it is rare for them to make any petition. Resistance mainly exists due to the land expropriation on collectively-owned land. Then where does collective ownership of land originate from? During the civil war, the Chinese Communist Party had told the mass that they could obtain land after they defeated landlords, and the land can be inherited to their descendants. In the poor households that did not possess land or possess very little land, wives would send their husbands to forefront, fathers would send their sons to forefront, aiming to defeat the landlords and get land at the cost of their blood or even lives. Once they defeated the landlords, they would obtain the deed and thus ownership for the respective land. They perceived this method of obtaining land as worthy. Next, China had practiced land collectivization. People were being told by the state that it was not suitable for mechanized farming and large-scale development if the pieces of land were in the discrete mode separately owned by individual households. Cooperatives were then established for the sake of modernization, people could join their local cooperatives and their land would come into one. Many farmers were glad to hear that and thus gave up their land to the cooperatives. Some of them who were not willing to surrender finally gave up their land, possibly due to peer pressure. Eventually, everyone entered cooperatives, and their original deeds of land were no longer valid. Yet, the area of land stipulated on the deed was not state-owned land, instead, it was named collectively-owned land by the laboring masses. And this is the origin of my research on collective ownership of land. In result, every household had their authorized land jointed together and became villages’ collectively owned land. There were complex reasons behind why nobody was particularly fond of 40 book print.indd 40-41

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

this policy and why nobody intended to withdraw from the collective system. For instance, there were great differences between living standards of people living in the urban and rural areas. During the Great Famine, many of the rural died of starvation, while those in the urban did not. This was because they were provided with a fixed 27 or 32 kg of food. This made many people from these rural villages really eager in entering cities, giving up their own land, as farming no longer provided them any harvests or incomes. To put it the other way, farmers surrendered the land they obtained from defeating the original landlords, their descendants after subsequent decades had also forgotten about it. Practically, land collectively owned was land without owners. That is the reason why there is no problem in expropriating state-owned land but not collectively owned land. Thus it is more problematic in expropriating villagers’ collectively owned land than government-owned land. Land Expropriation Problems Originated from villagers’ collectivelyowned land After the Chinese Economic Reform, Zhao Zhiyang (趙紫陽) was aware that the lack of care for collectively-owned land might lead to food crisis. Xiaogang Village (小崗村) being a starting point, the household responsibility system was introduced. Land was distributed according to the population of each household. It was the first phase of land contracts in 1983, the time period of these contracts last for 15 years, up until 1998. When it was 1998, the second phase of land contract was amended and introduced based on the original population-based foundation. The specific way of distribution was based on statistics of the birth population in the village in 1998, which the entire village’s land were distributed evenly and accordingly. Village committees and schools were excluded from re-distribution as they were for public use. The yards where people store their harvested crops for further processing were being excluded as well. In order to prevent the growth of trees on land due to the sand blown by wind, the areas shadowed by these trees cannot be farmed. There would not be much efficiency in farming on these lands because of the lack of sunlight. The land used as roads would be excluded as well. There might also be abandoned land, no matter they were low-lying land where water would be accumulated after raining, or the degenerated land that was no longer 41 22/04/2014 3:45 PM

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

suitable for farming, or land that was previously used as factory would be excluded. After the deduction of no more than 5% of mobile land, the rest of the land would be regarded as basic farmland, and would be distributed to people according to population. Houses were not included in basic farmland as well, excluding shadowed land, public land, abandoned land and less than 5% of mobile land, the rest would be farmland. Land would be evenly divided into pieces, each piece forms a “paper ball” and the farmer will get their own “paper balls” accordingly. This was the second phase of land contracts in 1998. After that, the validity of contract was promised to remain unchanged for the coming thirty years. The current major problems regarding land expropriation are in fact related to the ‘villagers’ thirty years unchangeable right of contract’. Around 40% of the villagers’ land was expropriated according to Professor Gong Renren. The villagers mainly earn their living by farming, sometimes the land expropriated is not only farmland, but also their houses. If the land is expropriated, the farmers would become land-lost farmers without any income. The only way for them to earn a living would be going out to town and work. They would not have any income once they get sick and stop working. Thus there will be many problems facing land-lost farmers. In result, they try hard to resist land expropriation. The extremely low price for expropriated land is critical in this problem. The compensation made for land expropriation is commonly-known for being low. For example, if an acre of land is expropriated at ¥10,000, then the government will sell it at ¥100,000 at auction. The case I previously dealt with in Zhejiang had the expropriation price and resale price difference of a million yuan. This is why villagers are unwilling to give up their land. We believe the government has limited power over collectively owned land. The house that one constructs on his/ her own land is regarded as minor property rights housing. This type of housing cannot be sold and must be demolished, or there are no real rights for them. The purchase of constructed housing must undergo a process of government expropriation. In reality, this process is in itself robbery. High prices are charged for developers, and then villagers have to turn to developers for land and houses. This is the 42 book print.indd 42-43

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

reason why people are using different means to resist land expropriation. The cost for land expropriation is neither calculated by negotiation between the government and original landowners, nor the “Selling Issue“ as in Taiwan. It is not a land sale matter as people do not possess land, but act as subcontractors of land. Villagers either refuse to vacate their properties or conduct self-immolation. The price of land is determined by each provincial government according to its location. Whether 1m² of land worth ¥50 or ¥100 is determined by the government. Next, the original landowner may sell the piece of land in accordance to the government’s set price. If not, the government would obtain a compulsory expropriation order. Villagers may apply for an administrative review if they are not satisfied with the order. However, since the administrative review is conducted by the government, the odds of succeeding are very slim for villagers. Therefore, the only way remains is litigation. Of course there are people like me who attempt to resolve the problem through administrative litigation, but there are a considerable amount of problems. The piece of land may for example not be legally permitted to expropriate, or the government has no permission to occupy the farmland. Even though it is a matter of the government’s operation, which is litigable, these cases may be selectively filed or even not being filed at all. The voice of villagers therefore may never be heard.

Two land expropriation cases where villagers were sentenced I handled a case in Yiwu county of Zhejiang province on 8th May, 2012. Da San Li Tang Village is located in Yiwu County, its chief and some villagers were charged with the criminal offence of ‘intentionally destroys public or private property’ and were detained. The minimum sentence of this crime is five years of imprisonment according to the Criminal Law of the People’s Republic of China. A piece of adjacent land was expropriated when the government was expropriating another piece of land. After that, the land was directly sold to a developer, and the developer decided to build a skyscraper on that piece 43 22/04/2014 3:45 PM

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

of land. Theoretically, the developer should dig deeper to construct a sound foundation. However, there was a multi-storey car park designated below the floor, in accordance with the neighboring pieces of land. In fact, the developer had dug near the edge of the permitted land. The adjoining land is a simple farmland with crops as well as ancestral graves on it. While the developer kept constructing and digging along the ground, the adjoining land collapsed. When the villagers had discovered this incident, they asked the village committee to deal with it as soon as possible. Jin Jianfu, the village chef, immediately went to the scene and spotted that the collapse was quite severe. If the villagers sued for infringement of rights, the courts would not take their case as it was common for the court to selectively enforce laws. It would also be useless for the villagers to confront the developer on this issue. Jin Jianfu, the chef villager, ran out of ideas and asked the developer to negotiate, suggesting that they could compensate the villagers, stop the construction, or move to another direction for the skyscraper’s foundation work. However, the developer refused to communicate as the government was there to back them up. While nothing could be done to resolve the dispute, Jin Jianfu reached a conclusion with the villagers and came up with this method of using an excavator to compress the remaining soil in the village. He said they also pushed some soil into the foundation of the developer’s land, aiming to force the developer out for confrontation. As expected, the public security organ, the procuratorial organ and the assessment division had all arrived. The loss caused by the pushing of the soil into the developer’s land was around $60,000, and thus, a criminal case based on ‘intentionally destroys public or private property’. Under this basis of offence, all participants including the employed workers who pushed the soil in were all detained in the prison. Jin Jianfu and another two villagers were sentenced to 3.5 and 3 years of fixed-term imprisonment respectively after a series of petition in the first trial. Another two villagers were scared at the trial and therefore pleaded guilty, and given a suspended sentence. In short, five of them had all become criminals. The second trial was held in Intermediate People’s Court in Jinhua City, where I myself defended for Jin Jianfu. Judgment has not been rendered until now. It is regarded as a typical case of selective legal enforcement that frequently 44 book print.indd 44-45

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

occurred, in result, it is very difficult to uphold one’s right over land in reality. The second case is one that I have acted for on 31st May, 2012. This case is about the difference between the face value received for land expropriation per square meter and the value received in reality. The first class is concerning the compensation for basic farmland according to the population on the permit for contract of the villagers. The case that I am acting for is concerning a square meter of land, which the permit for contract of the villagers has stipulated a compensation of ¥35 per square meter. After this compensation of ¥35 per square meter, the villagers have to leave the land. Then, there will be a compensation of ¥6 per square meter for the village collectively, which is a requirement set by the Xunke County (遜河縣) government. If the land contract is on a piece of mobile land, not exceeding 5%, then the village would be compensated ¥6 per square meter, and the villager can be compensated for the crops and objects covering the land. The origin of abandoned land is relatively complicated. Before the abolition of agricultural tax in 2003, the government levied agricultural tax based on the farming area owned by farmers. Farmers are also levied further for farming on land that had been distributed according to deeds. Besides land use tax, there are also many different kinds of fees for overall township planning and village reserve or for rural coordination etc. Therefore, farmers may have already incurred a lot of cost before the time for harvest. And no matter how hard one works in the year, still, the income one earns may not be able to cover one’s costs. Under this situation, the farmers learnt to make false reports to the government, reporting a smaller area of land one owns or farms on. For instance if there is ten acres, the farmer may claim that there is only seven and a half acres. Because the ones who measure the area of land are also villagers of the same village, thus farmers may claim that the area is smaller than in reality if they wish. In this case, the land being expropriated in reality was ten acres, but the information previously reported was only seven and a half acres. The two and a half acres of remaining land was regarded as ‘abandoned land’. In fact, 45 22/04/2014 3:45 PM

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

it was not really abandoned. In the past, the abandoned land resulted from policy amendments would not be compensated. After a series of petitions by the farmers, they were now compensated for the ‘abandoned land’. The government did the sum at the request of farmers, and came up with the result of ten acre. The actual measurement was ten acres. The government had compensated the farmers in a high-sounding and active manner for the ten acres. Once the villagers had moved out, things became very straightforward. The source of compensation was government’s money for national land expropriation. Leaders of villages were responsible for the measurement of land, which was previously agreed by both the leader and the villager. The two and a half acres of abandoned land was originally with no compensation to be given out. Now the villagers are compensated after petitioning, and the government was also willing to compensate them. Afterwards, the farmers were charged with corruption as a result of the compensation for these abandoned lands.

Land Expropriation cases encountered by farmers in Heilongjiang

Mainland China

more than ten years of imprisonment. There was also a neighbor assisted in the measuring process, who was regarded as the secondary party to the crime. His sentence has not been given yet. When I was at the village, I witnessed the arrests of these villagers. After that, the remaining villagers were all too afraid and anxious. In result, about 80 households had voluntarily returned the money that they received for compensation to the procuratorate, the investigation organ responsible for corruption crime. This is exactly what happened at our place. When I was defending for my client, my last part of speech was as follow, “It will be a joke if all the villagers of a village are masterminds of corruption, with the total amount of money involved in such a small village exceeding the amount corrupted by Liu Zhijun in the Railway Department”. This is exactly what happened at our place.

* Chi Susheng is a lawyer based in Heilongjiang. She had handled many

land expropriation and land rights cases.

Each square meter cost $35, subsequently, the government had decided that “the village should not get a penny, leaders of villages are to obey the Party’s leadership. Taking into account the general situation, the six dollars per square meter originally paid to the village should also be given to the farmers”. As a result, the farmers could get ¥41 for each square meter. After paying to the villagers, the sum of money would be further calculated in accordance with the chengbao permit (承包證) of farmers. Thus, the two and a half acres in excess had been regarded as corruption committed by farmers. The ¥130,000 received by the three farmers as a result of the four acres of extra land had exceeded ¥100,000. According to the Criminal Law of the People’s Republic of China, more than ten years of fixed-term imprisonment should be sentenced. As there must be state officials in a corruption case, the representative sent to the village did not refer to the vice-chief villager, but merely a bookkeeper of the village. This bookkeeper assisted in the measurement of land, thus being regarded as the principal. The villager who obtained compensation for the extra two and a half acres of land was also regarded as the principal. Both of the principals were sentenced to 46 book print.indd 46-47

47 22/04/2014 3:45 PM

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

A Study on the Current Situation and Problems of Land Expropriation in Taiwan Lee Ming Chih, human rights lawyer from Taiwan 2010 has been an important turning point for the issue of land expropriation in Taiwan. This essay attempts to look at the current situation and problems of land expropriation in Taiwan from the legal, executive and judicial perspectives, as well as the experiences in academic research.

The Dapu, Miaoli Incident

Taiwan

The Dapu, Miaoli expropriation incident of 2010 (苗栗縣大埔徵收案) was of great significance to the development of land expropriation in Taiwan. On 9th and 24th June, 2010, there were photos and videos showing the destruction and removal of paddy fields by excavators being widely circulated and disseminated on the Internet and media, thus drawing Taiwanese society’s attention. The controversial point is that the Miaoli County government was still in the process of negotiation with the relevant household, yet, the government has removed the fields before reaching any consensus with the households. In July 2010, households being affected under land expropriation all around Taiwan, together with experts and scholars who have been paying close attention to this issue, gathered outside the Presidential Palace and raised three demands, ‘amend the Land Expropriation Act’, ‘stop enclosing the land’ , and ‘call for a countrywide agricultural and land meeting’. In the following year, there was the completion of a draft amendment for the Land Expropriation Act among the Taiwanese public, with subsequent forums and discussions related to land expropriation also started. However, the government kept expanding its expropriation territory and became reluctant to give a formal and official version of the amendment for the Land Expropriation Act. In result, farmers and the young academics went for petition on 16th and 17th July 2011 again, raising a few concerns, the first one was again ‘amend the Land Expropriation Act’, and the remaining ones were mainly focusing on food security and water resources. Within two days, the expropriated households have explained one by one on stage 49

book print.indd 48-49

22/04/2014 3:45 PM

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

problems facing them, with experts sharing their relevant experiences and resolutions of these mentioned problems. Young people from different domains, including legal practitioners-to-be, musicians and artists have been using their own means to deliver their voices in relation to land expropriation in these two years. A Taiwanese band named “The Armed Youth in Farmland” expressed their views on this issue through music. There are specific land expropriation cases happened in Taiwan shown in their video, e.g. land in Xiangxiliao (相思寮聚落) was forcibly expropriated due to the development plan of the Taiwan Central Science Park (中部科學工業園區). Opinions of the local farmers and the government officials’ responses to these opinions were also recorded in the video.

Problems of land expropriation system before amendment of the Act The implementation of the partially amended provisions for the Land Expropriation Act was promulgated on 4th January 2012. The current situation and problems of land expropriation in Taiwan can be examined in the following three parts. Firstly, it is the problems in the land expropriation system before the Act was amended. Next, it is the amended bill to the Act. Lastly, it is necessary to examine whether the system has successfully met the requirements of the International Covenant on Civil and Political Rights and International Covenant on Economic Social and Cultural Rights. Justices of the Constitutional Court, Judicial Yuan, the body responsible for constitutional interpretation in Taiwan, has stipulated in the reasoning of No. 409 of Judicial Yuan Interpretation, “As the expropriation of land is by its very nature a significant encroachment on people’s property rights, the requirements and procedures of expropriation should be comprehensively laid out in the relevant laws. Purposes and end uses should be specified, and standards for balancing public interests and justifying emergency expropriation should be provided in legislation. Otherwise, the administrative organizations managing the expropriation process and the judicial organizations which have to review the legality of any expropriation will have no benchmark by which to assess their deliberations. In particular, to balance 50 book print.indd 50-51

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

public and private interests and to improve the transparency of decisionmaking, the opinions and comments of landowners and relevant persons should be heard before the finalization of an expropriation plan”. As can be seen, “In land expropriation, besides raising a concrete criteria in assessing whether there is valid public interest, strict administrative procedures should also be carried out for assurance”. This ought to be the authoritative principle in both the legislation and interpretation of the Land Expropriation Act. However, there was no concrete implementation of the above principles during the Act’s legislative process in 2000. Land expropriation in Taiwan can generally be divided into two categories: the first one is ordinary expropriation, for the purpose of public interests. The State may expropriate private land, to the extent strictly required by undertakings and make payments of compensation in accordance. The second one is zone expropriation. According to scholars, Department of Land Administration and Ministry of the Interiors, zone expropriation is for the needs of national economic policy, new community development, enhancement of social benefits, or specific target enterprise. Zone expropriation is an integrated land development project by which the government compulsorily purchases all the land within a section or district for re-planning and redevelopment. After the development is completed, the government will take direct control over land designated for public facilities. A part of the remaining constructible land can be taken back by the original landowners after going through some complex calculation processes. The rest is for the use of urban development, which promotes land utilization in that district, and to achieve the goal of land profit sharing. The emphasis of zone expropriation is placed on “re-planning and redevelopment”, such that the government can directly control and use the land for public facilities without any considerations. This would in a way lower construction expenses. As a result, zone expropriation is often regarded as a self-redeeming policy that can achieve the goal of land profit sharing, thus attaining a win-win situation for both the government and the public. It is criticized as the benefit obtained due to land development is the determining cause for the cooperation between the government and the developer. Due to the pressure to compensate the cost of construction and development under zone expropriation, the authorities that are in need of land always increase the area of land transferred or sold in order to increase their income. As a result, the original 51 22/04/2014 3:45 PM

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

landowners may regain a smaller plot of land due to the decreasing ratio of one’s land in relation to the total area expropriated. Zone expropriation may even be used as a tactic to re-zone the use of land for construction and development and as the source of funding in the eyes of the local government. According to the Act, it is not necessary to run the zone expropriation system in the name of public interest. Since zone expropriation is always associated with the benefits of land construction and development, the authorities that are in need of land do not have to prove the zone undertaken has met the need of public interest. Therefore, there are severe doubts on the necessity of public interest in and legitimacy of the expropriation cases in Taiwan. Using the Dapu Miaoli case above as an example, Miaoli County is located in central western Taiwan, where the good landscapes are located. This part of Taiwan is relatively poor in comparison to western Taiwan. Moreover, the Northern and Southern Taiwan Science Parks are located beside Miaoli, resulting in the Miaoli County government’s plan to expand the existing science park by expropriating the Dapu area. The land planned to be expropriated for the case is categorized as special agricultural zone before expropriation, i.e. farmland required special protection or in good quality. About 23 hectares of land was planned to be expropriated initially, yet a specific factory owner released a statement requiring more land. Therefore, about 30 hectares of land was planned to be expropriated for the future Science Park. A one-developer expropriation plan for the construction of science park was in itself problematic enough. However, the government made things worse by expropriating a total of 136 hectares of land, which was 100 hectares more than originally planned, without giving any clear explanation. This latest plan might be a way to balance out construction expenses with a rise in income. It was not made known to the public the way the 136 hectares of expropriated land was decided and whether the expropriation was made at a cost of sacrificing the special agricultural zone. Before the legal reform on Taiwan’s land expropriation system, there was no expressed stipulation on how “public interest” is defined and assessed, and thus it was doubtful that whether this land expropriation case met the requirements for public interest. There is always 52 book print.indd 52-53

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

this association of Science Park with economic development, and hence public interest in Taiwan. There is yet to be a thorough and logical thinking behind perceiving them as equivalent or distinct. In the United States, after the ruling on the Kelo v. City of New London by the Federal Supreme Court, 43 states has enacted some form of reform legislation, prohibiting the use of eminent domain for economic development. This case may serve as our reference. Given the high vacancy rate of land and buildings in science parks, it is necessary to carefully consider the reasonableness and public interest in land expropriation for the construction and development of science parks, instead of merely agreeing on what the government says. Attention must also be paid to food security when we are considering zone expropriation of farmland.

The Procedure of the Land Expropriation System in Taiwan and the Problem of Public Participation The Land Expropriation Act of Taiwan has stipulated that, prior to the application of land expropriation to the Central Competent Authority’s Ministry of the Interior, the competent authorities have to hold a public hearing to gather opinions of the affected landowners and interested parties, negotiate with the landowners or by other means to reach an agreement on the acquisition of land. The owners of land should also be notified in written form to express their opinions on this issue. If it is a case of zone expropriation, the municipal or county (city) government has to hold additional explanatory meetings. Once the government agencies that required land expropriation have done the aforementioned procedures, they shall prepare a detailed expropriation plan and submit it together with a map of the land or a list of land improvements under expropriation, as well as a map of proposed land use planning to the Ministry of the Interior for approval. The land expropriation committee within the Ministry of the Interior shall review and determine the land expropriation application, once the case is being approved by the Ministry of the Interior. The municipal or county (city) government shall forthwith to make a public announcement for 30 days. The following comes the problems of this system. Firstly, the procedures for price negotiation regarding land expropriation are not yet confirmed in the present. Since the government agencies in need of land perceive price negotiation as timeconsuming, they subjectively decide to obtain land by expropriation and 53 22/04/2014 3:45 PM

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

use a price equals to the compensation fee to ask whether the landowners accept the expropriation or not, thus it is merely a form of fake negotiation. Secondly, since the government agencies requiring land manage both the hearings and notifications of opinions from landowners, thus it is hard to guarantee that the landowners’ opinions have accurately reflected to the Ministry of the Interior. Although it is stipulated that the municipal or the county (city) government has to hold additional explanatory meetings in zone expropriation scenarios, since the government agencies requiring land are often the municipal or the county (city) government themselves, with the explanatory meetings being a top-down model. Thus, there are doubts as to whether the landowners can effectively express and raise enquiries. On the other hand, the organizational rules of the Ministry of Interior’s land expropriation review committee have stipulated that the government agencies and administrative authorities which are responsible for handling applications can present during the review of land expropriation cases. On the other hand, it is not stipulated that landowners can present and give their opinions. In result, the information and messages delivered to the land expropriation review committee who have the authority to review land expropriation cases are often partial. These requirements are not doing any good to the landowners for delivery of their opinions. Thirdly, there are big loopholes in the members and review principles of land expropriation review committee, the committee members are mostly selected by the government, thus the committee tends to be a body consisting of representatives of administrative authority. The hegemony lies at the representatives of administrative authority. The provisions have not stipulated the principles and limitation of the committee. On top of this, the reasons for passing or refusing reviews are not stipulated to be given as well, thus the landowners have no means to examine the legitimacy of the review procedures, as well as judging whether there is sufficient public interest in plans or not.

Problems under the Compensation System of Land Expropriation in Taiwan In ordinary land expropriation, the government usually compensates the landowners with a price far lower than the market price. Very often, the entity that evaluates the price of land is the county (city) government, which is the reason behind why it is hard to ensure the Land Value Evaluation 54 book print.indd 54-55

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

Committee of the county (city) government to be objective and neutral in determining prices. Furthermore, since there are no resettlement schemes before the reform, and the number of recipients for statutory compensation is rather limited, thus it is impossible to fully compensate the loss suffered by the ones whose land are being expropriated. As regarding zone expropriation, although it is stipulated that a certain proportion of land can be taken back by the original landowners, the government agencies requiring land, for the purpose of profit maximization, often boost the area of expropriated land and its bidding price. This would reduce the area of land redeemed by original landowners. Original landowners may on average receive only 40% to 45% of their total area of expropriated land as compensation. After a series of complicated conversions, what the original landowners retained is only a value of right. According to the statistics provided by land scholars, original landowners very often only redeemed 20% to 25% of the total area of their expropriated land. This is an infringement of people’s properties, providing that the compensation is far from sufficient. Farmers are made homeless under expropriations too.

Problems of the Amended Land Expropriation Provisions Implemented Lately The publicly amended version of the Land Expropriation Act is completed in November 2010, attempting to solve problems regarding public interest, public participation and compensation mechanism. In the provisions related to ‘public interest’, besides specifying the prohibition on expropriating within special agricultural zones, the evaluation standard of ‘public interest’ has also been added. In this way, government agencies are required to attach an evaluation report of public interest along with their expropriation plans when applying for land expropriation in the future. There is this stipulation of hearing procedure for public participation, such that government agencies requiring land are given chances to communicate with affected landowners. It also clarifies the scope and matters in reviews of land expropriation. The committee should consists of at least 2/3 of members from the public, recommended and selected by public and private universities in Taiwan, as well as non-governmental organizations of the relevant fields. In terms of compensation, it is stipulated that the normal transaction price in the market should be adopted as the standard for land expropriation com55 22/04/2014 3:45 PM

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

pensation. The government agencies requiring land should appoint at least three land property appraisers to carry out the price evaluation. Moreover, officials should also make a resettlement scheme to provide accommodation for affected parties who are made homeless and have facts of inhabitation before the public announcement of expropriation. The newly amended provisions have included one or two public’s suggestions, yet it does not make the overall structure logical. Scholars have suggested that the amendments have not solved the problems in reality. Firstly, in the evaluation of ‘public interest’, although there are the additional requirement of a public interest and necessity evaluation report as well as the prohibition of expropriation of special agricultural zone by the government agencies that need lands, there are quite a number of exceptions that are stipulated: if it is an undertaking of national defense, communication, transportation, water conservancy, a public utility enterprise for erecting power transmission lines, or for use in an infrastructure project already approved by the Executive Yuan. If too much room for determination is given to administrative authorities, the ‘prohibition’ may merely be a formality, thus failing to achieve the initial purpose of protection the special agricultural zone. Secondly, the issue lies at public participation. Although there is this additional requirement of hearing, it is still the government agency that needs land which is responsible in holding the hearing and the hearing will only be held when there are disputes over the approval issued by the Executive Yuan on expropriating special agricultural zone. Yet, the definition of ‘dispute’ remains ambiguous and is subjected to multiple interpretations, thus failing to establish an objective and neutral channel for public participation. Thirdly, although it is stipulated that the normal transaction price in the market is adopted as the compensation standard, the entity who evaluate the land value is the Land Value Evaluation Committee of the county (city) government, which is difficult to stay objective and neutral. Although there is the additional resettlement scheme, it is only applicable to low-income households or medium-low income households with facts of inhabitation one year before the public announcement of expropriation, normal households who are expropriated and thus become homeless do not fall under this resettlement scheme. As we can see, the land expropriation act which was announced to be enforced this year is in fact incapable of solving the problems mentioned previously, that is the reason why many Taiwan scholars have criticized the redundancy of such reform. 56 book print.indd 56-57

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

Land Expropriation and the Implementation of the International Covenant on Civil and Political Rights and international covenant on economic social and cultural rights Taiwan signed the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights on 14th May, 2009 and ratified it on 10th December of the same year. According to Article 2, 3, and 4 of the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, general comments of the human rights provisions and Committees of the two Covenants have domestic legal status, thus may regulate all measures and judgments of executive and judicial authorities respectively. In addition, Taiwan has submitted a report on the implementation of the Covenant in accordance to Article 40 of the Covenant. According to the implementation of the International Covenant on Civil and Political Rights in 2012, the initial report of state party, under Article 40 of the Covenant, states in paragraph 177, “The necessity of expropriation and public interest are questioned. Land expropriation has failed to follow the negotiated price. The expropriation price is based on the latest announced current land value with additional compensation on top if necessary. There is, however, no resettlement plan in place. Moreover, effective communications are lacking during the expropriation process. Therefore, public opinions have doubt the Government for being completely out of the people’s context. The compulsory expropriation approach has also been criticized. For example, an excavator entered and destroyed fields laden with ripe rice. This was an infringement upon the people’s right to property and right of existence.” It has clearly pointed out the defects of this land expropriation system. Yet, paragraph 179 has raised that “after the Law was amended, expropriation procedures are stricter, requiring both compensation at market value and a resettlement plan”. However, scholars have raised many concerns over the amended provisions, including the rigidity of the expropriation procedures. The NGO’s Shadow Reports on ICCPR and ICESR have pointed out that “not until the public has exerted severe pressure did the Legislative Yuan began to examine the amendments of the Land Expropriation Act. Taiwan Rural Front raised six principles in the debate in the Legislative Yuan: ‘Spe57 22/04/2014 3:45 PM

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

A Study on the Current Situation and Problems of Land Expropriation in Taiwan

Taiwan

cial Agricultural Zone cannot be expropriated’, ‘Clarify the requirements of “public interest” and “necessity”’, ‘Procedures for participation in a hearing’, ‘Implement a complete compensation principle’, ‘To establish clear regulation on resettlement plan’, ‘To correct flaws in the law of zone expropriation’ etc. These recommendations were not concretely implemented in government- led bills”. It has precisely pointed out the problems brought up by the new land expropriation provisions. There are still doubts regarding the compatibility of the land expropriation system with the two Covenants. To conclude, from the various cases in Taiwan, one may see that people have often got their land expropriated unexpectedly, which affected their lives greatly. Everybody should give their thoughts on how to reform the land expropriation system in the future. *Since 2010, Ms. Lee, along with some Taiwanese professors and Mr. Thomas Chan of the Primordial Law Firm, has been drafting the amended bills of the Land Expropriation Act among the public. She has at the same time assisted in some landmark cases regarding land expropriation in Taiwan. Her law firm was also entrusted by the Government to conduct a research on the evaluation of Taiwan’s land expropriation system in 2011.

58 book print.indd 58-59

59 22/04/2014 3:45 PM

Unjust Acquisition of Hong Kong Lands

Hong Kong

Unjust Acquisition of Hong Kong Lands Chu Hoi-dick, member of Land Justice League Executive Committee Unlike Taiwan, Hong Kong does not have a system of private sector led land acquisition for farmlands. All land expropriation plans have to be commenced by Hong Kong’s administrative departments. In other words, private parties cannot apply to the government for commercially-motivated land expropriations. The government’s acquisition of farmlands is often welcomed by private farmland owners. This is due to the majority of farmlands in Hong Kong, prior to the British lease of New Territories, were owned by indigenous farmers who lived there. These farmlands were owned collectively by these indigenous farmers.

Hong Kong

This type of collective ownership makes it really difficult for them to sell their lands, which is why they would rather resort to the government’s public power. Through this way the indigenous people may divide up the profits gained by the government’s purchase of their lands. This is the primary reason that entices the indigenous inhabitants to welcome land acquisitions. For instance, the media reported the enormous joy shared amongst indigenous inhabitants of the New Territories, as they each pocketed tens of thousands of dollars as a result of the land expropriation plans taken place for the construction of high-speed railway in Hong Kong. Even though there are Hong Kong farmers, they are not landowners themselves. The land acquisitions are welcomed by landowners of New Territories, but this does not imply that everybody is happy about it.

Three Methods of Land Expropriation in Hong Kong Presently, there are three types of land expropriation in Hong Kong. The first type is completely government-led. It is proposed by the government’s administrative departments. This method is used in the construction of railways, roads or other infrastructures. The second type is partly led by the government, which is mainly commenced through district offices of the Urban Renewal Authority. The Urban Renewal Authority is statutorily estab61 book print.indd 60-61

22/04/2014 3:45 PM

Unjust Acquisition of Hong Kong Lands

Hong Kong

lished by the government. The Authority is given the power to commence redevelopment projects in different districts in Hong Kong. They may exercise public power to seize residential lands and property assets. The third type is private acquisition, which has been extensively discussed recently. In 1999, Hong Kong passed the Land (Compulsory Sale for Redevelopment) Ordinance (Cap. 545). In 2010, such provision provided that for the purpose of compulsory sale of land, the threshold for owner’s consent was reduced from ninety percent to eighty percent. A proposal to construct residential properties, requiring old buildings to be taken down, would be authorized as long as eighty percent of proprietors consent to the proposal. The proposer may, in the name of public power, compulsorily put the remaining twenty percent of affected properties on sale.

Problems Caused by the government’s Acquisition of Land There are two kinds of government acquisition of land-- Official and semiofficial. The features of these two land or property acquisitions are: Firstly, under Hong Kong law, administrative bodies possess incredible amount of power. Basically, if a plot of land is chosen, it means that the Chief Executive decides to use it for public interest, then the provision to acquire that piece of land could be applied. Hong Kong society does not seem to understand the concept of public interest, and is satisfied as long as the land expropriated is for public use. However, the definition of public use is often determined by the administrative bodies, which makes them hold enormous power. Secondly, Hong Kong has a reverse procedure for acquisition of land. Using the recent construction of high-speed railroad as an example, there were railroad provisions to build a railroad. In this process, the developer gave affected persons two months to object to the building of the railroad. A farm village called Garden Village had to be torn down. Many of the villagers were not landowners but only inhabitants and farmers. These villagers objected on the basis that they were victims of the land expropriation. Within the two-month objection period, they grouped together and wrote 16,000 objection letters, which set a record in Hong Kong. These 16,000 objection letters were to oppose the Hong Kong government’s proposal to acquire their land. The administrative body set up a committee to review 62 book print.indd 62-63

Unjust Acquisition of Hong Kong Lands

Hong Kong

these objections. The review process was very speedy. Even though the administrative body provided a channel for objection, the result remained the same. These objections were invalidated. The administrative body would give you a chance to bother them, varies usually from a few months to a year. The opposition of the Garden Villagers took place between November 2009 and September 2010, after which the file was closed. During these eleven months, the objections were declared invalid. Another example is an old district in Hong Kong, Kwun Tong. Kwun Tong is interesting as an example for district redevelopment plan. The administrative body provided a channel for objection, which even included public participation, but the result remained the same. The administrative body was very clever and knew it had a lot of power. Approximately between 2002 and 2006, the administrative body wanted to increase the legitimacy of the entire project so it began to slowly establish public relations to give the impression that the project was democratic. According to the system governing the redevelopment of Hong Kong districts, affected residents were not given the opportunity to share the redevelopment proceeds. For instance, when an old building was to be dismantled, there were no procedures allowing the resettlement of old building residents to new buildings. However, the Urban Renewal Authority would administer workshops to allow people to give their opinion on district development, including thoughts on certain concepts and building models. The problem was, despite giving opinion on certain concepts and building models, one did not have a share in the final plan. The entire participatory process and planning lasted for about two years. After two years, the Urban Renewal Authority would report these activities to the media in order to demonstrate how democratic and engaging the participatory process had been. In the end, public power was used to seize land. However, in reality, the preceding involvement processes and activities were schemes to demonstrate democracy, so that people could not complain them. The third feature is about public use. We have not thought about how to respond to public use. A professor once said, “if your property is acquired for the sole purpose of commercial development, you cannot say that it is for public interest”. In Hong Kong, acquisition of properties is said to be for the purpose of improving living standards, in which it is interpreted as public interest, even though it is purely for the purpose of commercial 63 22/04/2014 3:45 PM

Unjust Acquisition of Hong Kong Lands

Hong Kong

Unjust Acquisition of Hong Kong Lands

Hong Kong

development. This is the impression Hong Kong government officials have always given us. In other words, making profit is one thing, but the process of generating profit actually benefits Hong Kong as a whole. Instead of seeing old buildings, future visitors who tour these old districts of Hong Kong, similar to Kwun Tong, will see only new buildings. From this we can see how the administrative body’s interpretation of public use is contradictory to common sense. Or, we can say, when discussing public interest, we are talking about the administrative body’s pretence, which confuses Hong Kong citizens.

instance, whether the property is for private living purposes would be considered in the district redevelopment compensation scheme. Property owner would receive a hundred percent of compensation as long as the owner lives in the property. However, if property is rented out or vacant, compensation can be reduced by up to thirty to forty percent. Seeing this from the property owner’s perspective, one may feel the system is unfair. What is the logic behind punishing property owners for vacating their properties? When one does complain about this, the authorities carry out a ‘black-box operation’, which holds you back from understanding the situation.

Yet another example is taken from Hong Kong’s love in developing railroads in combination with property development. More than ten years ago, a new railroad was built in Hong Kong, namely the West Rail Line, which is located at the west-end of New Territories. I reviewed the land acquisition records and found that many of these records involve “acquisition of land or farmland for the purposes of building stations and rail tracks”, but did not state the construction of residential properties on top of these stations. My feeling is that this is quite derivative, since the Executive should have explained completely the purpose of farmland acquisitions in the application of railroad provisions. If, during acquisition, the Executive knew it was for the purpose of developing residential properties as well, then they should have informed us through government announcements. However, they did not do so.

Farmland acquisition also involves many different categories. For example, for farmlands of similar size, even though they may both be fertile, the compensation may differ drastically. In some occasions the compensation of one may be four to five times of another. This difference is due to the land use after the acquisition of farmland. If the acquisition is for the construction of public housing, the compensation is the lowest. If the acquisition is for railroad construction, then the compensation is the highest. These categories are indeed very ‘special’.

The Compensation Scheme is Unjust The fourth feature is about the compensation scheme. There are two deeprooted beliefs regarding this in Hong Kong. Firstly, if one’s property is acquired, one’s friends will call and say, “congratulations, you are going to be rich!” Secondly, if one holds back oneself or other people from becoming rich, then you are sinful. Hindering others from becoming rich in Hong Kong is a “crime”. These two beliefs are written expressively in the compensation scheme. For instance, concerning land or property acquisition for the purpose of district redevelopment, there are clear-cut compensation schemes. The main feature is that firstly, what is written is very specific. Secondly, there is no room for objection. Thirdly, compensation is split into different categories. For 64 book print.indd 64-65

What is so special about this complicated compensation scheme? One of the more positive features is that this mechanism involves many “administrative measures” to protect those who are not eligible for legal aid. For instance, a flat owner may have a tenant he or she wants to evict. Originally, he or she needs to follow only the law governing flat owners and tenant relations to give the tenant sufficient notice without the need to compensate the tenant. But where the matter is one involving a district redevelopment project, then the Urban Renewal Authority can commence a registration procedure namely “freezing account”. Compensation and plans for moving out will be compulsory for all rented flats after such procedure. This is not required by law, it is instead an administrative arrangement. There is great problem when it comes to the private acquisition of farmland in the New Territories. The reason is that, according to Hong Kong Land Law, everything on a plot of acquired land is owned by the landowner, which means there is no compensation for land users. For instance, in the process of expropriating farmland for private purposes, farmers do not receive compensation for trees that farmers plant on that plot of expropriated land. However, if farmland is expropriated by the government, for instance 65 22/04/2014 3:45 PM

Unjust Acquisition of Hong Kong Lands

Hong Kong

for the construction of high-speed railroads, then farmers are compensated for his trees planted on that particular plot of acquired land. Where the law does not specify compensation, the government has a way of providing compensation through non-legal administrative means. Hong Kong’s farmers are not landowners but tenants. They build houses on top of the land they live. If the land has to be acquired, then landowners are happy, leaving tenants devastated. When the government acquires land, they only compensate tenants with pension funds of about two to three hundred thousand Hong Kong dollars, or a maximum of around five to six hundred thousand Hong Kong dollars. This would hopefully allow tenants to rent another place or purchase a relatively cheaper place in exchange.

Due to this type of compensation scheme, whenever the majority of Hong Kong citizens hear about government land expropriation, they do not react as though it is the end of the world. With the two aforementioned beliefs in mind, most people think that it is not a bad idea. Of course there might be psychological suffering in the process of land expropriation. Some cases below will illustrate this point.

The Outsourcing of Responsibilities and Marginal Protests The present problem is, the Hong Kong government, being able to exercise public power to expropriate land or assist property developers in land expropriations, is slowly shifting away from exercising official or semiofficial land expropriations. Instead, the Government wishes to pass on the land expropriating power to private property developers through law. Why does the government do that? The reason is to outsource its responsibilities, including its power to expropriate and to compensate, as well as any political responsibility that they have to bear. This is not a new trend. Since the 1980s, outsourcing responsibilities has already begun. The government will now outsource even more, through the Sale of Land by Auction Ordinance (Cap. 27). What is lethal about this method of outsourcing? The Government lets every building become a battlefield – a battlefield for each and every tenant. Land acquisition then becomes a political game. And 66 book print.indd 66-67

Unjust Acquisition of Hong Kong Lands

Hong Kong

no matter how dirty and pathetic these games become, the effect on the affected tenants would be limited to only a very small district. As long as Hong Kong people hold this belief of ‘we need the speculation of land, development always comes first’, then they will always agree to the law of land expropriation and compulsory sale, allowing property developers to launch development plans within local districts. In 2010, this scheme reduced the threshold of compulsory sale to eighty percent, which led to a rapid increase in land expropriation caes, from 8 cases in 2009 to 46 cases in 2011. In the first four months of 2012, there were 39 cases, which demonstrated a steep increase. From the government’s perspective, the law succeeded. The government needed only to activate a certain provision to outsource its responsibilities or allow developers to concentrate on developing collective and large plots of land.The current problem is, even if we make complaints, we do not know who to file the complaints to, since the law has already permitted private developers to compulsorily expropriate land with over eightly percent of affected owner’s consent. Should we complain these developers and Lee Ka-Shing? Lee KaShing is used to daily complaints from everyone and does not mind it. What can we do as rights organizations? The present problem has already changed – if the land or property expropriation was commenced by the government, then those who do not qualify for legal aid are compensated by the government or are given pension funds. Where the land or property was expropriated through compulsory sale or acquired by developers, marginalized people such as tenants will be devastated. Therefore, our primary work at present is to think about how we may assist these marginalized people affected under the new scheme. There is very little room for us to do anything with regards to legal rights, since the law in Hong Kong regarding this subject is quite rigid. Therefore, we can only commence action by voicing our opinion in our Legislative Council or through media. Finally, developers may feel obliged to deal with these marginalized parties in order to save face.

67 22/04/2014 3:45 PM

Unjust Acquisition of Hong Kong Lands

Hong Kong

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

But as a whole, with the government’s reductionist strategies, it will be increasingly difficult for citizens to fight for their rights.

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Authority

*Chu Hoi-dick is an executive committee member of the Land Justice League. He proposed a judicial review for the dismantlement of Queen’s Pier.

The Honourable Mr. James To Kun-sun, Hong Kong Legislative Council Member I became a lawyer since 1988 but have not actually practiced. This is because since 1991 to the present day, I have been a Legislative Council member. During my tenure, I was appointed to be part of the Land Development Corporation. The Land Development Corporation is a company involving public sector work which specializes in district redevelopment. The company was established in 1995 and was replaced by the Urban Renewal Authority in 2001. In 2008, I was appointed as the Director of the Urban Renewal Authority. My appointment period only ended this year (2012). Therefore, basically, I have a holistic understanding of the history of Hong Kong’s land acquisition and urban redevelopment. Whether I was the Land Development Corporation member or the Director of the Urban Renewal Authority, I am a relatively active member. Other than being the chair of a few committees, I have also submitted a few proposals during my tenure as Director. Starting approximately twenty years ago, every time the Land Development Corporation plans to redevelop an old district, many people will oppose the idea. Why is that the case? This is because, since 1991, property prices have been rising steadily until 1997. The price today for takeover may be at least twenty or even ten percent less than the price a week ago. It is increasingly difficult for the Land Development Corporation to chase after the housing market since the price has been skyrocketing. Back then, in 1991, I successfully stopped the Mongkok Market from being redeveloped. Times are different now. Today, there are more and more flat owners and tenants who initiate urban redevelopment of their district. Since I have always been a District Councilor, they will even request me to start a petition to collect seventy, eighty, or even ninety percent of flat owner signatures for the purpose of urban redevelopment of their district. They will even request the Urban Renewal Authority to commence acquisition of flats and redevelopment plans in accordance with the Authority’s guidelines. According to the guidelines, the Urban Renewal Authority will compensate private living

68 book print.indd 68-69

69 22/04/2014 3:45 PM

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

flat owners with the flat price of other similar age buildings of seven years. Sometimes, tenants and flat owners will initiate price reduction despite the Authority’s guideline of seven years. They are willing to accept a ten-year old flat as compensation in order to raise their priority on the redevelopment list. I believe that is pure insanity. I will usually reject the suggestion of “reducing demand in exchange for raising priority with the Urban Renewal Authority”. But this is the reality, in that presently, more and more flat owners are hoping that the Urban Renewal Authority will redevelop their district.

The Mechanism for Protecting Affected Flat Owners and Tenants Urban Renewal Authority members come from different political parties The Urban Renewal Authority’s directors’ meeting members are appointed by the Hong Kong Chief Executive. Since 2001, the Hong Kong SAR Government and the Chief Executive will usually appoint at least one member from a political party elected directly to the Legislative Council as a directors’ meeting member. For instance, the Democratic Party has James To, the Civic Party has Tanya Chan, the Alliance Party has Ip Kwok-him (a former directly elected Legislative Council member), and the Hong Kong Federation of Trade Unions has Wong Kwok-kin. Since there are Legislative Council members in every political party, they can understand the viewpoint from flat owners and decide whether the Urban Renewal Authority’s pricing is fair or not – we have a heated debate about this inside the directors’ meeting. The majority of Legislative Council members will have heated debates inside the directors’ meeting. Usually other members will reconsider the matters in question, delay execution, or establish a special committee to reconsider the matter. This is because they believe that when Legislative Council members have heated debates, there will be more problems when the plan is executed. Sometimes we have internal conflicts in order to perfect or design a better plan for affected flat owners and tenants.

Urban Renewal Authority’s 4R Strategy About ten to fifteen years ago, the Land Development Corporation was al70 book print.indd 70-71

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

ways complained against for only using the method of complete torn down before redevelopment. However, the Urban Renewal Authority has the 4R strategy. Redevelopment is tearing down and then rebuilding. Rehabilitation is, where the age of the building is not old or there are no severe damages to the building, then some money will be invested for repairing, for the purpose of preservation and revitalization. This means that the Urban Renewal Authority has an additional responsibility of preserving history and cultural sites. In the first two projects of the Urban Renewal Authority, we applied the Lands Resumption Ordinance (Cap. 124), in an attempt to preserve the historical sites and culturally valuable architectural buildings along Shanghai Street and Price Edward Road. At that time, we did not know whether it is a battle against the law, or whether it is suitable to use this provision for the purpose of acquiring land to preserve history because there were no case precedents. However, the Urban Renewal Authority has other options and tearing down for the purpose of redevelopment is only one of those options. We commenced an alliance with non-governmental organizations and universities to begin our research. The purpose is to investigate whether the proposal by the Urban Renewal Authority will affect the tenants more severely and to consider the severity of the effect before making our decision on whether or not to execute our plan.

Urban Renewal Authority’s Compensation Scheme When the Urban Renewal Authority begins redevelopment through purchase, the Authority must first consult with flat owners. However, consultation with flat owners is not very practical since the law already specified that the Authority may only provide compensation for the price of a seven-yearold building. The content between the Authority and the flat owner’s consultation mainly revolves around the flat owner or the Authority’s market quotation report and whether the Authority’s purchase price for redevelopment is similar to the price of a seven-year-old building.

Urban Renewal Authority’s “Imperial Sword” Even though the Urban Renewal Authority’s power is statutory, requires the Government to apply the provisions of the Lands Resumption Ordinance 71 22/04/2014 3:45 PM

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

(Cap. 124) to purchase remaining flat units for redevelopment. This takes place one to two weeks after the Authority proposes to purchase for redevelopment purposes. For flat units that do not wish to be sold, we know that where the Authority cannot reach a mutual agreement to purchase seventy to eighty percent of the flat ownership, the Government and Executive Council will usually not consider applying the â&#x20AC;&#x153;imperial swordâ&#x20AC;?. In other words, where seventy to eighty percent of ownership is not successfully acquired, the Authority will not be able to acquire that piece of land. Of course, the Authority since 2001 has not failed in acquiring purchase for redevelopment. However, in the event of drastic change in society or the market, then the purchase price may not be able to attract at least seventy to eighty percent of the flat owners, and the purchase for redevelopment will fail. I do not know what will happen to the Authority in the event that the Authority is able to secure only sixty percent ownership and the Government refuses to take the rest.

Where the Flat Owner Initiates the Redevelopment Scheme In the past, someone has complained against the Urban Renewal Authority and allege that they took away all the options, including whether or not to redevelop, because they are the only ones who can make the decision. This is because there is no relevant mechanism governing redevelopment in the past. All redevelopment plans have to be initialized by the Authority. Presently, the Authority already has a new proposal. For old buildings, only two-thirds of flat owners need to agree for the Authority to commence redevelopment. Redevelopment of their district allows the land to be put to good use. This is a bottom-up model, where in addition to small flat owners having a bigger involvement in the decision, tenants also gain. When the Authority begins redevelopment, the Authority must inform the tenants of the new housing rearrangements. Otherwise, if any private developers utilize non-legal methods to acquire the land, the tenants will have no new housing arrangements. All this are areas requiring improvement for the Authority.

The Debate Surrounding Redevelopment Tenants Evicted Recently, there is a special case, where the Authority proposed to announce the redevelopment of a certain district. Before the 72

book print.indd 72-73

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

Authority announces the purchase price, the flat owners of that district attempted to use powers conferred by law to evict their current tenants. This denied the tenants compensation by the Authority, so that they can claim even more as private living flat owners. In result, the flat owners evicted the tenants, but the tenants still cannot claim back their compensation because the Authority cannot confirm their identity as flat owners. This is a lose-lose situation.

We cannot comprehend this situation. When we reconsider the entire compensation scheme, even if the current tenants are evicted, the acquisition of land process is not connected to the Urban Renewal Authority. We are still required to compensate the tenants evicted. There should instead be a special scheme every time when we encounter special cases.

The Purchase Price of Retail Shops are Comparatively Lower We cannot prevent the occurrence of debates on special issues. Firstly, no matter whether we are talking about shop owners or operators, the Urban Renewal Authority or the Land Development Corporation usually sympathizes more with the flat owners or tenants as compared to retail shops. The Authority is more willing to provide a discounted compensation scheme to these flat owners or tenants because redevelopment would affect their livelihood. Retail shops usually obtain lesser compensation, because they are commercial. Their rent period is usually around two to three years and rent renewal is unlikely, especially when the property market price is volatile. In an ideal environment, it is common for commercial tenants to switch hands. The Authority constantly believes that where shop owners or tenants have lost their shop units, many of them can replace their lost shop units with something else from the market. Of course we know that where there is more and more old district redevelopment or rebuilding of old buildings, then it will be increasingly difficult for commercial tenants and shop operators to find other shop units at a suitable price from the market. Since we know this problem exists, we have attempted to raise the selling price of commercial shop units. But this attempt has led to a lot of opposition. 73 22/04/2014 3:45 PM

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

The Problem of Compulsory Sale Land (Compulsory Sale For Redevelopment) Ordinance (Cap. 545) (Known as “Compulsory Sale Ordinance”) enables private developers to purchase, after attainment of a certain percentage of ownership (eighty to ninety percent), and to apply to the Lands Tribunal for compulsory sale of the relevant building. The present trend shows us that society opposes to more and more of these provisions. This is because there are more and more private developers using these provisions to acquire land. I believe the present law needs to be amended in order to safeguard the private flat owner’s rights. Firstly, from all the past cases of compulsory sale, every time where the case gets to the Lands Tribunal or the courts, usually only the developer bids. This bid is also the lowest required bidding price according to requirements of the court. One of the reasons why this is a complicated issue is because there are different developers and each of them have different blueprints. None of them wish to fight with the other developers to obtain the project, since doing so means the other developer will also compete against them.

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

In addition, there is the option of compulsory sale mediation. The Government is currently promoting mediation services for private compulsory sale cases. However, where mediation is required by law and where legal aid and Government-funded legal representatives are provided, at least flat owners will have the opportunity to gain better bargaining power over the purchase price, and be able to obtain a better quotation. Urban redevelopment requires continuous work. Not only does it affect the aesthetics of the entire city, but also the livelihood of every citizen. In the past I have been fortunate to be involved in such redevelopment. In the future, I hope to have more opportunities to be involved in order to make Hong Kong more dynamic and more comfortable to live in. * James To is a practicing lawyer, Legislative Councilor and non-executive director of the Urban Renewal Authority in Hong Kong.

Whether they are done intentionally or not, how do we resolve this conflict between the developers, especially when there are conspiracies between small and medium-sized developers? One solution is to request the Authority to calculate the budget of the redevelopment project and the highest purchase price before commencing bids. The Authority will calculate the budget in a similar way as the private developers. Where the Authority comes up with a higher price, then it will be similar to an official price bidder, where the flat owner’s rights will be protected. But where, after the Authority calculates the budget, they cannot come up with a better pricing, this means that the purchase price is the current market price and flat owners can then be protected from oppression from the developers. Secondly, even though there are already provisions regarding compulsory sale of organizations, public benefit, and public safety under the current Compulsory Sale Ordinance, there is still room to broaden the coverage. For instance, the Ordinance can include provisions specifying factors to be considered by the judge before permitting compulsory sale of land, such as building safety, building hygiene, and public safety. Further, a higher threshold should be established for each case, so that the public can be better protected. 74 book print.indd 74-75

75 22/04/2014 3:45 PM

An In-depth Discussion on the Work and Related Questions of the Hong Kong Urban Renewal Author

Hong Kong

Epilogue The articles in this booklet mainly come from the scripts of the five speakers in a seminar co-organized by Centre for Comparative and Public Law of the Faculty of Law of the University of Hong Kong and China Human Rights Lawyers Concern Group, on 9th June 2012, namely, “Land Expropriation: Rights Defense and Law”. The five speakers were from Hong Kong, Taiwan and Mainland China respectively. They introduced the current situation, policies and problems of land expropriation in their places, as well as examined the defense of rights to housing and strategies of development in detail. The introduction provided a comprehensive review on expropriation that meets international standard and the right to adequate housing. This booklet is published by China Human Rights Lawyers Concern Group. Established in January 2007, China Human Rights Lawyers Concern Group (CHRLCG) is a Hong Kong-based non-profit organization that aims to advocate for the protection of the rights of human rights lawyers and legal rights defenders in China. Our work includes:

Aid to human rights cases:

We provide humanitarian assistance to the detained human rights lawyers and their family. We also provide legal aid to the human rights cases the human rights lawyers handle. We publish statements, articles and reports on situation of human rights lawyers in China. We call for support to human rights lawyers and legal workers who fight for the rights of the underprivileged. We appeal to the authorities to release detained human rights lawyers and legal workers.

Capacity Building:

We conduct seminars on international law and human rights covenants, cross-strait legal professions’ exchanges and training workshops.

Education:

We organize public activities and school talks, as well as publishing commentaries on the development of rule of law in China. 76 book print.indd 76-77

22/04/2014 3:45 PM

Land Expropriation: Rights Defense and Law Design / Type-setting: Ash, Emerald Published by China Human Rights Lawyers Concern Group info@chrlawyers.hk http://www.chrlawyers.hk ISBN 978-988-18813-3-5 First edition: April 2014 All rights reserved; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the publishers.