Vietnamese law on land requisition in states of emergency

Vietnamese law on land requisition in states of emergency Vietnamese law on land requisition in states of emergency Vietnamese law on land requisition in states of emergency

IN STATES OF EMERGENCY

Phan Trung Hien' Abstract: Most state management activities are based on long-term, medium-term, or short-term programs and plans However, along the state management process, there are also arising activities which need to be addressed for common interests such as performing tasks ofnational defence and security or responding to the state af war or emergency and so on "Therefore, the Vietnamese Constitution has established land requisition rules during states of emergency Land is an asset in principle; nevertheless, itis a special property since according to the Vietnamese Constitution, “land is owned by the people and managed by the State.” Thus, the issue to be raised is how land requisition in Vietnam, especially in response to states of emergency, is regulated Conditions in which the State requisitions land and requirements to ensure that compensation is commensurate with the damage caused by land requisition and limit negative impacts on legal rights and interests of land users in Vietnam are noteworthy questions which will be addressed one by one in the present article

Key words: Requisition, land requisition, property requisition 1 DEFINITION OF LAND REQUISITION IN STATES OF EMERGENCY

Requisition is the act of temporarily taking an item by a state agency for use during a certain period of time for a specific task due to special requirements.? According to

Clause 4, Article 54 of the 2013 Constitution of Vietnam, “the state requisitions land

in cases of extreme necessity as prescribed by law to carry out national defence and security tasks or in the state of war, emergency, or natural disaster prevention and mitigation.”

“A state of emergency” is a situation whereby the Government of a country may suspend the performance of some normal functions in the state administrative apparatus, or the provision of certain services of public non-business units and types of businesses, as well as warn citizens to change their behaviour due to suspension of civil liberties Emergencies are often implemented to prevent the risk of wars, natural

disasters, and epidemics, defined in the constitution, and specified in a country’s acts

On that basis, it is possible to define land requisition in a state of emergency as the compulsory transfer of land use rights by the State for a temporary period from a legal land

' Assoc.Prof Dr Phan Trung Hien, senior lecturer, Vice Dean, Faculty of Law, Cantho University * Hoang Phe (chief editor): Vietnamese dictionary, Danang Publishing House, Da Nang, 2003, p- 1055.

92 LAW ON THE STATE OF EMERGENCY - PHÁP LUẬT VỀ TINH TRANG KHAN CAP

user to the State under administrative procedures, not due to the land user’s faults, in cases of extreme necessity to deal with emergencies as well as to prevent and mitigate natural disasters Thus, land requisition activities in states of emergency are characterized by the following:

- The requisition is only applied in cases of extreme necessity due to states of emergency This feature reflects the urgency of requisitioning activities in order to

prevent risks of wars, natural disasters, and epidemics that are likely to affect national

defence and security as well as protect national interests

- The State is the only institution that has the jurisdiction to requisition land

through competent state agencies

- Those whose land is requisitioned are land users such as organizations,

individuals, households, domestic communities, foreign organizations and

individuals holding land use or house ownership rights in Vietnam

- The right to use the requisitioned land still belongs to the person whose land is requisitioned The right to manage and use the requisitioned Jand during the requisition period belongs to the State

Previously, Vietnam’s Law on Land still has some ambiguity between “land requisition” and “land acquisition” For example, Decree No 151-TTg of April 14", 1959 of the Government Council temporarily stipulates land requisition as follows: The requisition of the people's land to construct works managed by the State must base on the principle of ensuring the sufficient area needed for the construction works in a timely manner, and, at the same time, paying due attention to the rights and life of the people whose land is requisitioned In fact, changing land use purposes and using land for construction of fixed structures is “land acquisition” rather than “land requisition”

In general, land requisition differs from land acquisition in the following key points': Firstly, land requisition aims to prevent risks of war-and natural disasters, while, land acquisition is planned for the purpose of national and social development’ The requisition activity is temporary while land acquisition is permanent Secondly, land requisition is an unplanned activity whereas land acquisition is conducted in accordance with land use planning and schemes* and must be presented in texts with detailed procedures.‘ Thirdly, land requisition indicates urgency, which means added pressure of the time factor Meanwhile, land acquisition shows necessity but

1 Phan Trung Hien: “Laws on land acquisition when implementing planning and regulations on

land requisition in Vietnamese law”, Journal of Jurisprudent, No 3, 2011, p 18-23

2 See Article 61 and 62 of the 2013 Land Law 3 See Article 63 and 69 of the 2013 Land Law + See Article 66 and 69 of the 2013 Land Law

must follows steps to implement planning and schemes Fourthly, land requisition can be proceeded quickly and neatly either with official documents, or orally with certifications, and takes effect right at the moment of speaking or signing for promulgation.’ Meanwhile, land acquisition must always be presented in texts Fifthly, the nature of compensation in land acquisition is compensation for all damage to properties and property rights caused by land acquisition activities Meanwhile, that in land requisition focuses on the damage caused by “the priority of the State's temporary land use rights”

2 THE PROCESS OF DEVELOPING REGULATIONS ON LAND REQUISITION IN VIETNAM

In order to better understand the provisions on land requisition, especially for cases of land requisition due to states of emergency, it is necessary to study the

process of formation and development of these in Vietnamese law

2.1 From 1946 to 1959 (the 1946 Constitution)

In the spirit of the Declaration of Independence, which President Ho Chi Minh read on September 24, 1945, the 1946 Constitution was established to define the legality of the Democratic Republic of Vietnam (currently the Socialist Republic of Vietnam) Born in such a special circumstance, the 1946 Constitution was very concise, consisting of only 70 articles focusing on the most crucial contents such as the state government, citizens’ rights and obligations, and principles of organization and operation of key institutions in the state apparatus Therefore, regulations on compulsory purchase and property requisition were not specified in the 1946 Constitution, except for those related to property ownership Article 12 stipulated that “Vietnamese citizens’ property rights are guaranteed.” However, right from the first days of founding the country, the President of the Provisional Government of the Democratic Republic of Vietnam stipulated: “In the period when the country still needs to protect and strengthen its independence throughout the territory, military or administrative authorities, if failing to negotiate with individuals, have the rights to requisition real estate as well as expropriate or requisition movable property.”

2.2 From 1959 — to 1980 (the 1959 Constitution)

The 1959 Constitution was the first Constitution in Vietnam to mention “requisition” Accordingly, “only when it is necessary for common interests, the State can conduct compulsory purchase and requisition or expropriation with adequate compensation of capital goods in urban and rural areas, within the scope and conditions prescribed by law” (Article 20) Thus, the 1959 Constitution was the first

* See Article 6 of the 2008 Law on Compulsory Purchase and Requisition of Property

* Order No.68 of November 30", 1945 of the Provisional Government President on fixing regulations on compulsory purchase, requisition and convocation.

2.3 From 1980 — to 1992 (the 1980 Constitution)

Inheriting provisions contained in the 1959 Constitution, after the country was completely liberated, the 1980 Constitution continued to acknowledge “requisition” and “expropriation” and added “compulsory purchase” Article 28 of the Constitution of 1980 states: “When it is extremely necessary for common interests, the State may conduct compulsory purchase, requisition or expropriation with compensation for properties of individuals or collectives Forms of these activities are prescribed by law.” Thus, (i) the reason for the requisition, ie “when it is extremely necessary for common interests” was very general, and consequently, it was unclear whether the scope of “common interests” was national or local; (ii) property requisition had to associated with “compensation for properties of individuals or collectives”, but it was not specified whether the principle of compensation was applicable to all damage or just central to the regeneration of “capital goods in urban and rural areas”; (iii) the Constitution stipulated that “forms of these activities are prescribed by law”, which means that these could be either legislative or regulatory However, for a long time, in the country, there were no legal documents with general provisions on requisition, expropriation, or compulsory purchase of properties

2.4 From 1992 — to 2013 (the 1992 Constitution, amended in 2001}

On the basis of changing perceptions and thinking, the 1992 Constitution acknowleged Vietnam’s establishment of a socialist-oriented market economy in the direction of opening up and attracting both domestic and foreign investment Article 23 of the 1992 Constitution clearly stated: “The legal assets of individuals and organizations are not nationalized In cases of extreme necessity for national defense and security as well as national interests, the State may conduct compulsory purchase or requisition with compensation for properties of individuals or organizations at market prices Forms of these activities are prescribed by law.”

This article remained unchanged when the National Assembly amended the

1992 Constitution by Resolution No 51/2001/NQ10 of December 25%, 2001 Thus, the

1992 Constitution, amended in 2001, made the following progress:

Firstly, it clearly stated the compensation for properties of individuals and organizations due to the compulsory purchase and requisition Moreover, this compensation guaranteed the principle of “adequacy”, ie compensation “at market prices” ˆ

Secondly, forms of compulsory purchase and requisition in the 1992 Constitution were “set by statute” instead of being generally referred to as “prescribed by law” This indicated that the importance of “compulsory purchase and requisition” was fully recognized, and these activities needed to be regulated by a statute

In fact, land requisition was regulated by the 1993 Land Law as follows: “In cases of an urgent need by war and natural disaster prevention or other states of emergency, land requisition is determined by People’s Committees of rural districts, urban districts, towns, provincial cities or municipalities Upon the expiry of the requisition period, land shall be returned to the land user who shall be compensated for the damage caused by land requisition in accordance with the law” (Article 28) This content continued being maintained in the 2003 Land Law as follows: “The State requisitions land for a definite time in cases of an urgent need by war, natural disasters or other states of emergency Upon the expiry of the land requisition or fulfillment of its purpose, the State shall return the land and pay the person whose land is requisitioned with compensation for the damage caused by this activity The

Government stipulates land requisition” (Article 45)

It shows that land requisition was always determined to be regulated by the Land Law However, this activity was regulated by the Law on Compulsory Purchase and Requisition of Property when this was issued in 2008 (Clause 6, Article 55)

2.5 From 2013 - to now (the 2013 Constitution)

The 2013 Constitution states: “The State may conduct land requisition in cases of extreme necessity set by statute to perform national defence and security tasks or in states of war or emergency, or in response to a natural disaster (Clause 4, Article 54) Thus, the 2013 Constitution has raised the following new issues:

Firstly, regulations on “land requisition” are separated and constitutionalized Although Vietnam’s law stipulates compulsory purchase and requisition of properties’, the 2013 Constitution only discusses “land requisition” activities This shows the importance of constitutionalizing land requisition

Secondly, apart from the fulfilment of national defence and security tasks as well as responses to the state of war, new cases of land requisition are added It can be said that

’ See the 2008 Law on compulsory purchase and requisition of property.

Thirdly, inheriting the 1992 Constitution (which was amended in 2001), the

2013 Constitution states that the requisition of land must be “set by statute” instead

of being generally referred to as “prescribed by law” Nevertheless, the currently emerging matter now is that which statute is responsible for identifying the principles, conditions, jurisdiction, procedures, and compensation methods when the State “requisitions land” Although it is declared that articles on land requisition are only stipulated in the Land Law and its implementing guidelines’, the general principles and conditions of property requisition are still valid in the Law on compulsory purchase and requisition of properties

Thus, “land requisition” activities were stipulated in acts for a long time before

being constitutionalized in Clause 4, Article 54 of the 2013 Constitution Besides,

the stipulation of “the State requisitions land in cases of extreme necessity as set by

statute” in this clause is not really reasonable In fact, unlike land acquisition, “land

requisition” represents “urgency”, i.e being urgent at the moment of the decision

on land requisition? Therefore, the Constitution should use the phrase “extreme

urgency” in the case of land requisition instead of the phrase “extreme necessity”

3 CASES AND CONDITIONS FOR LAND REQUISITION IN STATES OF EMERGENCY

In principle, the restriction of civil rights is only introduced when the State declares a state of emergency on the basis of the Constitution and emergency acts According to Clause 1, Article 5 of the 2008 Law on Compulsory Purchase and Requisition of Properties, the compulsory purchase and requisition of properties may only be carried out when the State needs to use such properties but other mobilization

measures cannot be implemented, including the following cases: “The country is in

a state of war or in a state of national defense emergency in accordance with the law on national defense and emergency law.” However, it is important to understand that rather than being immediately conducted under such circumstances every time they emerge, compulsory purchase and requisition will only be carried out in cases of extreme necessity when all the other essential solutions adopted are ineffective?

1 Articles 67 and 97 of Decree No 43/2014/ND-CP dated May 15", 2014 of the Government detailing the implementation of the Land Law

Phan Trung Hien: “Laws on land acquisition when implementing planning and regulations on land requisition in Vietnamese law”, Journal of Jurisprudent, No 3, 2011

Phan Trung Ly: “Compulsory purchase and Requisition: Concepts and Conditions”, Journal of Legislative Studies, No 119 March 2008, quoted from Civil law information page, hitps:// thongtinphapluatdansu.edu.vn/ 2010/02/24/4741/, posted on February 24%, 2010 [accessed on May 29", 2020]

Regarding “regulations on states of emergency”, on December 21*, 1999, the National Assembly promulgated Resolution No 34/1999/QH10 on assigning the

Standing Committee of the National Assembly to promulgate the Ordinance on states

of emergency Then, on March 23, 2000, the Standing Committee of the National Assembly of Vietnam issued the Ordinance on states of emergency but kept it in secret

mode On that basis, the Government’s Decree No 71/2002/ND-CP of July 232, 2002

specified the implementation of a number of articles of the Ordinance on states of emergency in case of major disasters or dangerous epidemics Accordingly, states of emergency during major disasters or dangerous epidemics (hereinafter referred to as states of emergency) are prescribed as follows:

Firstly, according to Article 1 of Decree No 71/2002/ND-CP}, the jurisdiction to declare a state of emergency belongs to the Standing Committee of the National Assembly (in the form of a Resolution) or the State President (in the form of Order) Article 2 of the Ordinance on States of Emergency stipulates the jurisdiction to declare a state of emergency as follows: At the proposal of the Prime Minister, the Standing Committee of the National Assembly issues a resolution to declare a state of emergency In case it cannot hold a meeting immediately, at the request of the Prime Minister, the President should issue an order to declare a state of emergency?

Secondly, in accordance with law on states of emergency in natural disaster prevention and mitigation, it is specified in Clause 1, Article 11 of Decree No 66/2014/ ND-CP guiding the implementation of a number of articles of the Law on Natural

Disaster Prevention and Mitigation that in case natural disasters exceed level 4, the

Prime Minister requests the President to declare a state of emergency for natural

disasters Decision No 46/2014/QD-TTG on forecast, warning, and communication

during natural disasters stipulates: “A disaster emergency is a situation when the risk of natural disasters specified in Article 3 of this Decision is at level 5, potentially causing catastrophes and heavy damage to life, properties, infrastructure works, and ecological environment” (Clause 35 of Article 4); a disaster emergency must be communicated in case of declaring a state of emergency in major disasters or dangerous epidemics (Article 28)

* Decree No 71/2002 / ND-CP of July 23", 2002 detailing the implementation of a number of articles of the Ordinance on states of emergency in case of major disasters or dangerous epidemics

See the General Department of Disaster Prevention and Control, Office of the Central Steering Committee for Disaster Prevention and Control: Correct understanding of the declaration of emergency natural disasters, hftp;/phongchongthientaigov.vn/tin-tuc/hieu-dung-ve-viec- ban-bo-tinh-trang-thien-tai-khan-cap-/-c6235.html, [accessed on 0 6-2020].

98 LAW ON THE STATE OF EMERGENCY - PHAP LUAT VETINH TRANG KHAN CAP

According to Article 2 of Decree No 71/2002/ND-CP!, the implementation of the Resolution of the Standing Committee of the National Assembly and the President's

Order declaring a state of emergency as well as the application of special measures must comply with the following principles: (1) Ensure direct, comprehensive, and absolute leadership of the Communist Party of Vietnam; (2) Ensure the concentrated and unified direction of the Prime Minister in accordance with emergency law; (3) Prioritize rescuing people and properties of the State, agencies, organizations, and people, especially areas with serious consequences, minimizing the consequences of disasters and epidemics; (4) Completely comply with as well as promptly implement decisions, orders, and directives of the Prime Minister and the Steering Committee for the implementation of the Resolution of the Standing Committee of the National Assembly and the President’s

Order declaring a state of emergency (hereinafter called the Steering Committee); (5) Mobilize the synergy of forces, agencies, organizations and the masses to prevent, limit,

and overcome the consequences of disasters and epidemics; (6) Strictly forbid the abuse of the state of emergency to infringe upon state interests as well as legitimate rights and interests of agencies, organizations and individuals

In fact, the 2000 Ordinance on the State of Emergency is kept in secret in accordance with the provision: “Legal documents must be published on the Official Gazette or posted on the mass media, except for those containing state secrets.” The provision on cases of “secret” legal documents continues being maintained in the 2008 Law on Promulgation of Legal Documents (currently the 2015 Law on Promulgation of Legal Documents) However, this is inconsistent with the current principles of developing and promulgating legal documents: “Ensure transparency in provisions of legal documents” and “ensure publicity and democracy in the process of receiving and responding to opinions and recommendations of individuals, agencies and organizations in the process of developing and promulgating legal documents” (Clauses 3 and 6, Article 5 of the 2015 Law on Promulgation of Legal Documents) If

this is considered the principle, “secret” documents should be issued in other modes,

beyond the scope of legal documents On the other hand, if promulgated in the form of legal documents, the principles of development and promulgation in accordance with the 2005 Law on promulgation of legal documents must be complied with

4, COMPENSATION FOR DAMAGE CAUSED BY LAND REQUISITION

In Western countries, ownership is the natural human right, thus being sacred and inviolable? Both constitutions and acts in those countries recognize the ownership as

? Decree No 71/2002/ND-CP of July 23%, 2002 detailing the implementation ofa number of articles of the Ordinance on states of emergency in case of major disasters or dangerous epidemics 2 John Locke, The Second Treatise on Government, Prometheus books, 1986, p 70

“being sacred” Compulsory land requisition in these countries is approached from the perspective of compulsory ownership infringement due to wars or emergencies Therefore, land requisition is still conducted but on very strict conditions The restriction of this right can only be introduced by the Constitution for cogent reasons with jurisdiction and strict procedures as well as commitment to compensation

In Vietnam, despite not applying the system of private land ownership, the 2013 Constitution still guarantees: “Land use rights are protected by law” (Clause 2, Article 54), Therefore, land requisition can only be applied due to objective requirements such as to perform national defense and security tasks or respond to the state of war, emergency, as wel] as prevention and mitigation of natural disasters and epidemics Only in these cases, the State would be forced to “influence” land use rights, restricting the rights of land users for a certain period of time However, the Vietnamese Constitution does not mention any compensation principle when the State requisitions land

According to Clause 7, Article 72 of the Land Law, compensation for damage caused by land requisition is stipulated as follows:

a) The person whose land is requisitioned is entitled to compensation in case the requisitioned land is destroyed, or he suffers an income loss caused directly by the land requisition

b) In case the requisitioned land is destroyed, compensation shall be made in cash at the market price of land use right transfer at the time of payment

c) In case the owner of requisitioned land suffers an income loss directly caused by the land requisition, the compensation level shall be determined by the actual income loss calculated from the date of land assignment to that of land return stated in the decision to return the requisitioned land The actual income loss must be commensurate with the income generated by the requisitioned land under normal conditions before the time of land requisition

d) The President of the People’s Committee of the province or district where the land is requisitioned shall set up a Council to determine the compensation for damage caused by the land requisition done on the basis of the land user’s written declaration and cadastral records Based on the compensation level determined by

the Council, the President of the People’s Committee of the province or district shall

decide on the level of compensation

e) The financial compensation for damage caused by land requisition is paid in a lump sum by the State budget directly to the owner of the requisitioned land within 30 days from the date of land return

According to Clause 25, Article 3 of the 2013 Land Law, “land destruction is

an act of deforming the topography, reducing land quality, causing soil pollution,

¬

100 LAW ON THE STATE OF EMERGENCY - PHAP LUAT VETINH TRANG KHAN CAP losing or reducing the potential of the land to be used according to its determined purpose.” Accordingly, “in case of land destruction, compensation shall be paid in cash at the market price of land use right transfer at the time of payment.” The - “land requisition” in this case has the same consequences as the “land acquisition” Certainly, the jurisdiction, sequences, and procedures for land acquisition and land

requisition are different.’ However, the determination of land prices in case of land

destruction is not clearly defined In fact, in the regulations on land acquisition with over 70%? of the total complaints and grievances in Vietnam, what matters is that the price of land compensated is “commensurate with its market price” In case of land requisition, the principles, methods, jurisdiction and sequences to ensure fairness and proportionality are the issues that need guidance

5 CONCLUSION

In summary, the State requisitions land in cases of extreme necessity to perform national defence and security tasks or in the state of war, emergency, as well as natural disaster prevention and mitigation The reasons for land requisition are also those for requisition of other properties, including land requisition in states of emergency However, land requisition displays some special features since the person directly affected is the land user rather than the property owner This creates subjectivity among officials and civil servants performing official duties such as in determining the scope of land requisition, determining the compensation for the damage caused by land requisition because they think that the land to be requisitioned belongs to

the owner rather than the land user Therefore, in order to carry out the requisition

in accordance with the law, even in states of emergency, it is necessary to do the following: (i) Ensure that land requisition must be conducted in cases of “extreme urgency” rather than “extreme necessity”; (ii) Ensure that compulsory purchase and requisition is subject to the Land Law or the Law on Compulsory Purchase and Requisition of Properties so that the guidance can be consistent and synchronized; (iii) Guarantee the principle of publicity and transparency of legal documents, even in states of emergency; (iv) Establish regulations on the principle of determining land prices to calculate compensation for land in case the land is destroyed, directly affecting land users’ legitimate rights and interests

' Article 66, Article 69 and Article 72 in the 2013 Land Law

? Thu Hien: “Need to fundamentally renovate the land transfer mechanism for profit-making purposes”, Interview with Prof Dang Hung Vo in the Customs Newspaper around the issue of complete land market in Southern Vietnam next time, https://haiquanonline.com.vn/can- doi-moi-can-ban-co-che-chuyen-dich-dat-dai-phuc-vu-muc-dich-sinh-loi-110515- 110515.html, Published August 28, 2019, [accessed on June 6, 2020].