Eminent domain is the power of the State to take private property, without or against the owner’s consent, for public use with just compensation. The idea is that the public good overrides private rights. It is for the common interest and is a necessity in a functional society.
Private property is easily understood. There are a few cases when public use is debated or debatable. In the context of the infrastructure of roads, bridges, mass transport, airports and terminals, there is no argument on the nature of their use. If the owner agrees to be paid, the property to be expropriated is transacted on the agreed price.
Almost always, delays center on what is just in the compensation. The landowner watching out solely for his economic interest will charge a sky-high price (not based on current market value but on future market value) against a set budget from government. For a reasonable owner, the determination of what is the current or fair market value is not simple. To require appraisals will add more variables. This is gridlock of the first order.
A solution can be to provide option pricing of the lower, or higher, or average of a factor of the zonal value vis-a-vis the declared current market value of the owner, much like how transfer taxes on property are computed. Then allow for two cycles of offer and counter-offer within three months to close the deal.
But what is not evident is the other major cause of delay — the judicial procedure that necessarily comes with the expropriation proceedings when negotiation fails.
In cases where the owner cannot be identified or located, courts typically do not allow the deposit of the amount equivalent to the BIR zonal valuation of the property to the court but instead wait for the proper identification of the owner so that payment may be made directly to him. This begs the question as precisely the owner is not identified or cannot be located. The court will insist on the requirements of due notice to the owner and it is such a burden to monitor the amounts deposited.
When the owner is known, payment to him is difficult to comply with because there are no specific guidelines for expropriation cases where the property to be expropriated is currently under dispute; (ii) the owner of the property cannot immediately be determined; (iii) the owner, though known, cannot be located; and/or (iv) the property is yet to undergo extrajudicial or judicial settlement by the heirs.
The 2016 Right of Way Act addresses these issues by mandating the number of days to act and specifies the cases when payments can and are to be deposited in court. Despite these details, there is always the need for implementing circulars from the Supreme Court for clear, consistent and uniform implementation.
During the hearings, the courts are also constrained to hear expropriation cases where only a general description of the property is provided. There is limited or no available information with regard to the lot number, survey number, and technical description of the property even after extensive research by the government. This offends the judicial need for specificity and certainty.
Courts should be allowed to accept alternative descriptions of the property for purposes of the immediate issuance of the Writ of Possession in cases where such property lacks technical record or description.
On the timing of the payment, the law provides that the court shall determine the just compensation to be paid the owner within a fixed period from the date of filing of the expropriation case. This is to protect his right to property with the fixed assurance of payment. However, the Rules of Court also requires the appointment of three commissioners to determine the proper amount as just compensation which results in a longer period, more confusion, and further delays. Judges are not experts in judging economic values.
There is also a semantic delay. When the law and the rules call for the issuance of the Writ of Possession “immediately” and assign the operative value of seven days to this term, the ministerial nature of the writ is subject to different interpretations on the length of time.
The problems of right of way and its acquisition continue to hound public discourse. We experience congestion at its worst when highways abruptly narrow or stop, or when MRT lines are broken because of the lack of cooperation of individuals, the inefficiency and corruption of government, and the complicated nature of our laws and rules.
This discussion returns to the core advocacy that economic development requires as sine qua non, or at the very least to be in tandem and in sync with legal reforms. Economics is quantifiable and is focused on measurement; law is qualitative and answers to the precept of truth and justice. Each field has its own toolkit. Only with a working judicial system can resources be channeled to allow markets to function and for development to happen.
