Land allocation & the principle of eminent domain

Those that get the land justify it on the basis of their right as citizens performing certain tasks for the state.


Ayesha Siddiqa November 27, 2010

It is almost every second day that we come across a news item about distribution of free land or on concessional rates to significant members of the state and society. It was just a year ago that there was an uproar about land allocation to journalists. Just a couple of days ago there was the story about the chief justice of the Supreme Court, Justice Iftikhar Chaudhry, having received a plot of land under the Musharraf government. Not to forget the more popular and controversial story of military officers and civilian bureaucrats being allocated land.

Those that get the land justify it on the basis of their right as citizens performing certain tasks for the state. The military guys believe that they deserve to be allocated agriculture or urban land as compensation for their services to the state. Other groups hold a similar belief as well. In fact, the logic of land allocation from a recipient’s angle is a cyclic logic, meaning that once a group or individual gets such a reward, others feel automatically justified in claiming such a compensation. Each group pretends to be deserving of this preferential land allocation scheme without even admitting that the allocation is based on the state’s recognition of their nuisance value and relative power rather than a more judicious formula for land distribution.

Despite the propaganda in the media about land allocation, no one has ever challenged the prime minister’s traditional and questionable power to arbitrarily distribute state land. The reason is, perhaps, because we are not clear as to how such land allocation violates the principle of ‘eminent domain’, a concept defined by 17th century Dutch jurist Hugo Grotius as the law governing the acquisition of the property of the subjects of the state. According to Grotius: “The property of subjects under the law of eminent domain belongs to the state, so that the state or the person who represents the state, can make use of that property, can even destroy or alienate it…whenever it is to the public advantage.”

In simple language, land is a trust that the government holds for the benefit of the public. It can do whatever with the land as long as there is a justification on the basis of the usage being for public benefit. The law of eminent domain was interpreted in the US in light of the liberal philosophy of Englishman John Locke. So the Fifth Amendment to the US Constitution advocates the preservation of the right of private property. Locke had enunciated the right of a government to draw its costs to rule but without excessively threatening an individual’s right to private property or all such rights that generate happiness. This right is upheld in the French Declaration of the Rights of Man and of the Citizen of 1789 as well. The declaration stipulates that: “Property being an inviolable and sacred right, no one can be deprived of it unless the public necessity plainly demands it, and upon condition of a just and previous indemnity.” These approaches, it is noteworthy, evolved as a result of years of struggle by the people in France and the US to establish the primacy of private property or rights of people. Although the Land Acquisition Act of 1894 used in Pakistan puts down specific conditions such as ‘public purpose’ for acquisition of private land by the government, the rules are implemented in letter and not in spirit due to the authoritarian nature of politics.

One could even suggest that in Pakistan, we follow the Hobbesian notion of deciding what is the public good; as being a representation of what is in the interest of the ruling oligarchy. Thus, the media, judiciary, military and civilian bureaucracy tend to use the power of the state to create benefits for themselves. Such distribution highlights their power to get a share in the distribution of property kept as public trust.

Surely, all recipients have genuine need for land or other assets. Major-general Shaukat Sultan once talked about how he deserved such a reward (and many like him) because he had several daughters of marriageable age. Sadly, this is not sufficient justification for such improper usage of public assets.

Published in The Express Tribune, November 28th, 2010.

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COMMENTS (10)

Ammar | 10 years ago | Reply This discussion is pretty much relevant. This is public property and the government has no right to distribute this land among the functionaries. For thirty plus years this land of the pure has been ruled by Oligarchs and they made the rules to loot and plunder the public wealth. This is time to change the rules and withdraw all the powers from chief executive that allows him/her to do this injustice. Ours is a country where we are not provided basic necessities of life but public servants have gymkhanas, polo grounds, golf courses, country clubs, and rest houses etcetera. To further victimize the public they get agricultural and commercial land as reward for upholding this injustice. If our governments want to utilize these public assets better then these assets can be sold or leased out to provide food, shelter, health and education to our majority poverty ridden population. What country our public servants are guarding and serving where people are died due to cold, lack of health facilities, and hunger if they escape a suicide attack.
Usman | 10 years ago | Reply This discussion is incorrect - as Talat pointed out. Eminent domain - and specifically the example of the 5th Amendment to the US Constitution - has nothing to do with the parceling out of land by the state, it applies only to the state compelling citizens to sell their property to the state (as would be the case in forced sales when the state decided to build a road for example). While I agree with the general principle you're advocating - of accountable distribution of land - your forcing the argument into a discussion of eminent domain is completely incorrect.
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