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Comment: Defining the 'public interest'
By Yuan Shuhong (China Daily)
Updated: 2004-08-17 01:35

In many land abuse cases, local governments are found to have illegally requisitioned land parcels in the name of the "public interest."

That makes it imperative to define the term "public interests" clearly and strictly within the law in order to prevent it from being misused for devious purposes.

The amendment to the Constitution, agreed to by the National People's Congress earlier this year, stipulates that for the need of public interest, the State can requisition land or citizens' private property according to the law, while offering compensation.

The amendment has established a principle that the public interest should be defined by law.

However, local governments' practice in land abuse cases has obviously flown in the face of the principle.

Last year, a township government in Jiangsu Province forced more than 4,000 farmers to move away for a 400-hectare steel plant beside the Yangtze River. Investors in the plant paid 1.7 million yuan (US$204,000) for each hectare, whereas the local government gave farmers 20,000 yuan (US$2,410) or so per hectare -- at periodic stages over more than 10 years. Township officials told farmers that much of the land income had to pay State taxes.

In Jiahe County, Hunan Province, the county government granted a shopping mall project last year without going through urban planning procedures, and then issued certificates for using the land parcel although the developer had not pay the assignment fee. The county government also forced 11 families to move this year for the project without providing an adequate relocation scheme, providing enough compensation, or even holding a public hearing.

When the law does not have clear stipulations on certain situation, some government agencies often take advantage of the term "public interest" to issue administrative orders requisitioning land or private property. Such practices are seriously against the Constitution's spirit and the rule of law.

Public interests are honoured by restricting or depriving some of private rights, and present-day constitutions usually only entitle the legislative authority to define the scope of public interests through law making.

Administrative agencies, however, can only limit or deprive of citizens' rights according to the law, and work for the public interest by enforcing the law.

In this sense, a government agency would have crossed the line if it restricts citizens' rights in the name of public interests without clear authorization from the law.

Administrative agencies should abide by the law when deciding on the requisition of land or private property. If they do so in the name of the "public interests" but cannot present adequate legislative support, their conduct can only be affirmed as null and void.

To define the public interest correctly, the legislature should adhere to several basic things.

First is the public nature of the affairs in question. Beneficiaries of public interests are general and not specific. The realization of public interests mainly hinges on a government-centred public system rather than a market-led private system.

Second, the definition of public interests should be reasonable. As the satisfaction of the public interest often eats into private interests in some ways, the legislature should limit public interests to a reasonable scope in correct proportion to private rights.

Legislators should strike a balance between local public interests and overall public interests, between short-term ones and long-term ones, and between the increased public interests and sacrificed private interests. Such comparisons can prevent an interest being acquired at the expense of bigger costs.

Another intrinsic feature of public interests is validity. In defining public interests, the legislature must listen to the public's voice, which is a way to guarantee the definition is based on wide public opinions.

The stipulation of public interests should also be fair. It would be unfair not to compensate those who surrender their individual interests for public good. It is also unfair if the compensation is not reasonable.

The compensation should be equal to the loss incurred in the exercise of public interests. The compensation standard should neither be too nominal to cover the real losses nor too flexible to implement.

There are some technical points the legislature needs to observe in legislating on public interests.

It can define the scope of public interests in both direct and indirect ways.

For example, the law on prevention and cure of infectious diseases states that the purpose of mandatory administrative measures taken by health authorities is "to prevent, control and eliminate the occurrence and spread of infectious diseases and safeguard human health." This is a direct way of listing public interests concerned in a certain aspect.

Instead, the indirect way of definition is to merely set up the criteria of public interests, and let administrative agencies judge by these criteria in their daily work.

Public interests is such a complicated issue that it is hard to list them all in legislation. Therefore, sometimes the legislature can opt for more procedural means to honour public interests.

Rather than naming the substantial contents of public interests one by one, the legislature can simply stipulate clear criteria of public interests and strict procedures of their exercise, and ensure the public's involvement. Such procedural arrangements can help make up the defects in substantive sides.

The legislature should also design an effective supervisory and complaint system to prevent administrative agencies from violating citizens' rights in the name of the public interests.

(The author is vice-president of the National School of Administration.)

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