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Call on Clarifying the 'Public Interest'

Clarifying the term "public interest" has become a crucial issue in implementing the constitutional amendment that enshrines the protection of legal private properties for Chinese citizens.

The reason is simple. Legal scholars have long considered the abuse of power by governments at all levels a major threat to citizens' private properties. If public interest is not clearly defined, some government departments may seek the all-encompassing umbrella of "serving the public interest" to infringe on personal rights.

The constitutional amendment made at this year's National People's Congress (NPC) offers more protection for private interests.

The amendments, including 14 articles, safeguard human rights and the ownership of private property, putting the private assets of Chinese citizens on an equal footing with public property, both of which are "not to be violated."

The amendments also stipulate that "the State shall make compensation for land expropriated or requisitioned for the public interest in accordance with the provisions of law." Originally, there was no constitutional article requiring the State to make such compensation.

Despite the new articles enhancing private rights, the Constitution does not define the term "public interest." So far, dozens of property-related codes - including the land law and the State Council's regulation on the administration of urban housing - have stipulated that the State can appropriate private properties for the public interest, but none of them defines that term.

Due to the lack of a constitutional and legal definition of public interest, some local governments continue to infringe on private properties, particularly in the field of relocation in cities and towns, which has sparked hot debate.

In many cases of relocation, local governments acquire the land, urge the residents to move with very low compensation, then sell the land to real estate developers under the pretext of serving the public interest. Real estate developers can make handsome profits via such government-backed "public interest projects." In other cases, residents have been moved and their land use rights abolished by local governments to develop some non-profit projects such as cultural and infrastructure facilities.

The recent legal struggle of villa residents of the Art Village in suburban Guangzhou in the nation's south against a local government order to take back their land and demolish their properties to construct Guangzhou College Town is an example.

The first type of these cases might be easier to exclude from true public interest projects because some players - particularly real estate developers - obtain visible private interests through those deals. From that fact, one criterion to distinguish non-public interest projects from public interest projects can be deduced - that is, public interest projects should not include those mainly aimed at creating profits.

This is consistent with a recent theory proposed by Zheng Chengliang, president of the National Judges' College, who insists that public interest means the interest of every citizen can be potentially satisfied.

The second type of case, such as the recent debate in Guangzhou's Art Village, is more complicated, yet some principles can still be sorted out.

First of all, public interest projects should benefit all social strata. Therefore, military bases or highways might be true public interest projects but a college town might not be because its beneficiaries do not include the general public.

If a project like a college town, by creating more chances for college students, is really serving the public interest, it should be made clear whether such a project can be done without harming private interests. It must be understood that public interests are never an abstract concept. Public interests always consist of various private interests and the public interest projects should not be based on the losses of private interests unless there is no other alternative.

In the case of the relocation of Guangzhou's Art Village, as in many other urban and rural relocations, the private properties are to be demolished to construct a highway and greenery for the Guangzhou College Town. Yet there is some vacant land near the art village to build highways, so it is possible to find an alternative which, while advancing public interest projects, does not harm private interests.

Last year in Beijing, the last batch of ancient housing along the capital city's trunk line Chang'an Avenue was demolished to develop urban greenery. Experts had appealed to reserve the traditional housing because bulldozing these ancient dwellings would infringe on private properties. Leaving them intact as a public cultural heritage would both benefit the public interest and maintain private properties.

When there is no way to co-ordinate public and private interests in public interest projects, individuals must be fully, fairly and reasonably compensated.

In the case of urban relocation, the compensation should be based on the market value of their lost properties and these individuals must be able to buy similar housing in similar locations. Now, in most cases, relocated urban residents can only afford cheap suburban housing with their small compensation.

But how to decide if an urban development really serves the public interest?

That requires all policy-making processes of public projects to be transparent, and the public, especially those citizens who could suffer negative impacts, must participate in the decision-making process. Individuals should be given the opportunity to question local governments' decisions and local courts must be independent of local governments so that they are free to give an independent and objective ruling.

Finally, government officials should be made accountable and responsible for their decisions to build public projects. And if those projects fail to really satisfy true public interest, the government officials responsible should be punished.

(China Daily July 12, 2004)

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