Mon, Apr 09, 2012 page8

• Government failing in its basic duty

  • By Chen Hurng-yu 陳鴻瑜
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  Almost two weeks, ago members of a family surnamed Wang (王) were forcibly evicted from their properties along Wenlin Road (文林) in Taipei’s Shilin District (士林) and their houses were torn down by the city to make way for an urban renewal project. The construction company was able to have the Wangs’ private property forcibly torn down despite their objections because a majority of neighboring property owners gave their consent to the project.

  This equates to the government condoning the oppression of a few by the majority. Since the Taipei City Government correctly says it was acting within the law, the real issue to examine is the Urban Renewal Act (都市更新條例). For this kind of thing to happen, and for a law of this nature to be on the books despite Taiwan’s robust democracy, is not only regrettable, it borders on inconceivable.

  I would like to approach this question from the perspective of property rights and how they work within a system of constitutional government to illuminate the relationship between the guarantees of protection of property and the right to be free from fear.

  The 17th-century English philosopher John Locke was a major advocate of freedom of speech, regarded as an important liberal thinker in early 18th-century Britain and known for his position that people are justified in resisting the unwarranted use of power against them. According to Locke, if a government supports usurpers or engages in despotic actions, then it loses its legitimacy to govern and people are free to oppose it.

  Locke’s ideas on property rights formed the underpinnings of Western capitalist and socialist systems. For Locke, property rights are a natural right, on par with those of life and liberty, and therefore a right of free peoples, for without property rights it is impossible to be free. According to Locke, political society is founded on the protection of such rights, being at once the goal of government and the reason why individuals choose to participate in society.

  It was an idea Locke pushed to its extremes, at one point saying that a soldier who deserts a mission on which death is the most likely outcome can justly be sentenced to death, but the government is not justified in removing his personal property. Locke even placed the foundations of morality on individual property rights, believing that the violation of these rights constitutes an injustice.

  Locke wrote that property originally comes about by the exertion of labor upon natural resources and thus property rights are linked with the dignity of the individual and constitute one of an individual’s unalienable rights. When the people agree to form a government, that government is responsible for protecting the property rights of each individual, an idea central to the Lockean concept of a social contract. Consequently, any government that violates this contract opens itself to being overthrown by a popular revolution and the people would be justified when taking part in such a revolution.

  All levels of Taiwan’s government are currently democratically elected, having gained the majority support of the electorate. According to Western political theory, the goal of these government departments should be the protection of Taiwanese national’s property. However, the current version of the Urban Renewal Act makes it permissible for the government to oversee the demolition of property if the majority of property owners in a building or area consent to such action, regardless of whether a minority of owners oppose it.

  The details of this are laid out in Article 22 as well as Article 23, which states: “In order to draft the urban renewal business plan, the implementers can appoint persons to enter into public lands or buildings within the renewal area for investigation or survey. The persons should notify the owner, manager or the user before entering the land or buildings,” and they can “remove obstacles on that land” when conducting said investigation or survey, should the need arise, as long as they inform the owner, manager or user.

  The articles are both in clear violation of the principles of protecting an individual’s property rights as well as their right to liberty within democratic countries. A democratic government should only overrule citizens’ property rights when actions are required to ensure the continued public interest or for reasons of national security.

  It should be added that the means to determine when property rights can be superseded has to be legislated for, adequate compensation should be provided and, most importantly, the action must be authorized by public law and carried out by government institutions. It certainly cannot be carried out on the approval of a majority of people within a designated area and neither can the authorities invest private companies or institutions with the power to deny citizens their property rights.

  However, the Urban Renewal Act empowers private contractors, with the support of the authorities, to have other people’s property and places of residence razed. Regardless of the grand reasons given in the act itself, the tearing down of people’s property is a violation of guarantees of the protection of individual property rights. If the government allows private contractors to demolish people’s property on the basis of the consent of a majority of owners, it has relinquished the reason for its own existence.

  The removal of an individual’s property rights is tantamount to the removal of their liberty. The point of establishing a government is to have rule by democratic, constitutional law with the government protecting individual liberty and property rights. How is a government different from a despotic regime if it allows private contractors to destroy citizens’ property in this way; on the basis of majority consent negating the rights of the few?

  The Urban Renewal Act applies to the whole country. It will leave the residents of many communities nationwide, who choose not to consent to having their property demolished, feeling very uncomfortable. This legislation, allowing for the oppression of the few by the majority, rides roughshod over constitutional guarantees of equality and the individual’s right to freedom from fear.

  There is no need for a constitutional interpretation, which can be time-consuming, to deal with this matter. Any legislator or political party with democratic credentials could propose for this unfair, unjust legislation to be either amended or scrapped altogether.

  Chen Hurng-yu is a professor at Tamkang University’s Graduate Institute of Asian Studies.

  Translated by Paul Cooper
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