2015年10月5日 星期一

Ma should pay for land grab, not taxpayers

Huang Di-ying  黃帝穎
(Huang Di-ying is a lawyer and director of Taiwan Forever Association)
(作者為律師、永社理事)

Translated by Eddy Chang

TAIPEI TIMES / Editorials 2015.10.04
http://www.taipeitimes.com/News/editorials/archives/2015/10/04/2003629210

Last month, the Council of Grand Justices issued Constitutional Interpretation No. 732, which said that the Mass Rapid Transit Act (大眾捷運法) and other laws used by the Taipei City Government to expropriate land for the MeHAS City (美河市) housing complex in New Taipei City’s Sindian District (新店) infringed upon people’s right to property and freedom of residence. As a result, the council declared that the city’s actions were unconstitutional.

According to media, the total amount of state compensation for the case could be as high as NT$20 billion (US$603.2 million). This astronomical sum should be paid by President Ma Ying-jeou (馬英九) — who as Taipei mayor at the time was the decisionmaker behind the project and the expropriation — instead of taxpayers.

The housing complex was completed and handed over to buyers in 2013, before the council issued its interpretation. This means that it will be difficult for private landowners who had their land taken away to regain the properties.

Based on state compensation litigation practice, the government is to give the owners monetary compensation. Land in the MeHAS City area sells for about NT$1.2 million per ping (3.3m2), while the expropriated area was about 19,000 ping, so the Taipei City Government could face compensation demands of up to NT$22.8 billion.

As Article 2 of the State Compensation Law (國家賠償法) states: “Should the damage result from an act committed with intent or gross negligence on the part of the employee of the government, the compensating authority shall have the right to reimbursement from the said employee of the government.”

In other words, the government has the right to ask for compensation from employees who neglect their duties. Given the huge compensation in this case, the Taipei mayor at the time, rather than the public, should be held responsible.

After the Taipei City Government compensates those affected by unconstitutional land expropriation, it should ask Ma to compensate the city for signing a contract with Radium Life Tech Co (日勝生) to build the adjoining MRT Xiaobitan Station and for carrying out the land expropriation.

Ma, who has a doctoral degree in law, was an associate professor in the Department of Law at National Chengchi University and likes to talk about the Republic of China (ROC) Constitution. As a former Taipei mayor, he must have known that forceful expropriation of neighborhoods would violate people’s freedom of residence, right to property and the proportionality principle protected by Articles 10, 15 and 23 of the Constitution respectively. Even if he lacked the legal knowledge and had no intent to breach the Constitution, a criterion in the State Compensation Law, he should at least be held responsible for gross negligence.

The Control Yuan has issued a correction to the Taipei City Government for forcefully expropriating land, changing land use designations and using its influence to benefit a conglomerate, while the Taipei District Prosecutors’ Office brought charges of undue influence against some Taipei officials.

As the main decisionmaker at the time, even if Ma can escape criminal prosecution over improper influence and does not accept administrative responsibility by avoiding a Control Yuan “correction,” he cannot escape the demand for reimbursement according to the State Compensation Law.

No matter how many billions of New Taiwan dollars the Taipei City Government will have to pay in the future, it has the legal right to demand reimbursement from Ma, because such compensation should not be paid by taxpayers.