Land allocation & the principle of eminent domain

Published: November 28, 2010
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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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Reader Comments (10)

  • Salman Ahmad
    Nov 28, 2010 - 1:16AM

    Justice done with the topic. Very well explained the philosophy and rightly identified the weak link. Ayesha Siddiqa’s articles are most of the time to the point and without undue criticism. Recommend

  • Talat
    Nov 28, 2010 - 6:51AM

    As I understand it, the concept of Eminent Domain authorizes the State to acquire private property under certain circumstances. How don’t see any relation of Eminent Domain to the prime ministers discretionary power to allocated “state’s” land to public servants or military officials. Furthermore, If an individual is aggrieved by state’s decision to buy his land, he/she can always challenge it in a court on the grounds you probably have mentioned in your writing.Recommend

  • Hamza
    Nov 28, 2010 - 8:34AM

    India is far superior to Pakistan in all respects area wise, population, military might and it has also out smarted Pakistan corruption and land grabbing. India Generals have outsmarted Pakistan General in land grabbing and looting war widows, see Adarsh scam, land scams in Mumbai and scores of other places in India- but now Pakistan need not to enter into this rate. Ayesha Ji now needs to write a book on India Military inc.Recommend

  • parvez
    Nov 28, 2010 - 2:02PM

    ” the media, judiciary,military and civilian bureaucracy tend to use the power of the state to create benefits for themselves ” — this says it all.
    Answer is : they have to burn. Harsh but there appears to be no other way.
    Question is : who will light the torch for this cleansing.Recommend

  • Talat
    Nov 28, 2010 - 2:09PM

    I am sure the military man would have said this during an informal conversation. It is not fair to publish such informally expressed opinions.Recommend

  • Ayesha Siddiqa
    Nov 29, 2010 - 3:04AM

    Talat: Eminent domain is not just about private property but about the larger principle of the acquisition and use of land by the state. In Pakistan’s case, property that belongs to the provincial and federal governments and should be used for the larger benefit of people is distributed amongst a few. The primary principle is of using assets for the larger benefit of the people rather than a select few.Recommend

  • Talat
    Nov 29, 2010 - 5:23AM

    I agree with you that state’s land should only be used or disposed off for the “larger benefit of people” However, the validity of your argument entirely depends on how you interpret the words “larger benefit”. It can be argued that legally allotting public.land satisfies this requirement.These are people who have served their country for many years- the fact they in fact loot public money and most of them don’t serve to be there is irrelevant as it is a theoretical discussion.

    Furthermore, in the 17th century all land belonged to the monarch. In states where absolute right of ownership of private land is recognized this principal might not be applicable. However, I also believe that Prime minister should not have unfettered discretion with regard to allotting public immovable property. Recommend

  • Nov 29, 2010 - 1:31PM

    Lands are not allotted to senior post people because of their services to state but it is meant to control their services as per requirement of ruling groups.It is actually price of their conscious, diverting of their approach from real oath for which they are hired and for getting timely support on weak decisions of corrupt rulers.
    These lands are not for humanitarian basis but an open bribe given to them from state treasury.This is he price of one’s loyalty toward individuals who are capable of running state matters for personal projections and gains.Recommend

  • Usman
    Nov 30, 2010 - 1:18AM

    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.Recommend

  • Ammar
    Dec 2, 2010 - 3:51PM

    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.Recommend

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