Right to land: Is a fundamental right!
RIGHT to land is inextricably related with right to food, right to work and a host of other human rights. In the context of developing counties right to land appears with a community's identity and their livelihood. Because it's not just about land, it's about everything that comes with it, water, trees, wildlife, all the things that people need to grow their food, earn a living and survive. Bangladesh is a land hungry country where the density of the population is highest in the world; the very word “land” appears to be an indispensable indicator of power, hallmark of social prestige, happiness and ecstasy to the people.
The Constitution of the Peoples' Republic of Bangladesh ensures the right to land as a fundamental right in the garb of 'right to property'. Article 42 of the Constitution states: (1) “Subject to any restriction imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law”. (2) “A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid, but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate”.
Thus, the constitutional provisions regarding property rights gives citizens a fundamental right to own, acquire, hold, transfer or otherwise dispose of property. But interestingly, the very same article empowers the state acquire any piece of property, if required for public purpose or public interest on payment of proper compensation. But what amounts to proper and just compensation is left with the hand of state exclusively. The constitution itself provides that acquisition law providing 'inadequate compensation' cannot be called into question before any court of law. Furthermore, test of 'assessment principles' always remained under controversy. However, the standard principles of assessment of compensation are established in human rights jurisprudence and interpretation of reasonableness doctrine. Thus the power of the sovereign to acquire private property for public good and the consequent right of the owner of such property to compensation are the fundamental principles of the law relating to land acquisition. The two basics of these principles may be stated as follows:
a) Public necessity is greater than private necessity, and
b) Regard for public welfare is the highest law.
These principles have been translated into a legislative framework which may be dated back to the promulgation of Bengal Regulation I of 1824 conferring the state the right to acquire property for the purpose of construction of roads, canals etc. Eventually after a series of similar Acts, the Acquisition Act was passed in 1894. The Acquisition and Requisition of Immovable Property Ordinance, 1982 is latest in the series to regulate the land acquisition in Bangladesh. The basic principles of land acquisition remain almost same in this document.
Beside the national laws, some of international and regional Human Rights instruments also spoken about land rights with particular emphasis. These instruments have stressed on the principle that for the billions of the world's rural poor, land security must be seen as a necessary precondition for the realization of other internationally protected human rights. Article 17 of the Universal Declaration of Human Rights states:
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
The reference to property rights was altogether dropped in the two human rights Covenants (ICCPR & ICESCR) adopted by the United Nations in 1966. In addressing the right to be free from hunger, Article 11 of the ICESCR makes only one indirect reference to land when it encourages states parties to develop or reform “agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources”. The first Protocol to the European Convention on Human Rights states: No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
However, these provisions shall not “in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 21 of the American Convention on Human Rights states: “Everyone has the right to use and enjoyment of his property .
The law may subordinate such use and enjoyment to the interest of society. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest and in the cases and according to the forms of established law. United Nations declarations more specific to land include the Declaration on Social Progress, adopted by the General Assembly in1969, which recognises the social function of property, including land, and calls for forms of land ownership that ensure equal rights to property for all. Hence right to land is firmly footed in human right jurisprudence.
The Writer is Assistant Professor of Law at BUBT.