The taking of private property for expropriation can only be validly done if there is genuine necessity and the necessity is public in character.
Together with police power and the power oftaxation, the power of eminent domain, sometimes referred to as expropriationor condemnation, is one of the tripod of great powers that inheres in the Statein the exercise of sovereign authority. Inthe context of the Philippines today, this power has become awesome anddeserves examination.
The notion of eminent domain comes from the writings of 17th-century natural-law jurists Hugo Grotius and Samuel Pufendorf. Dutch jurist Hugo Grotius, in his legal treatise De Jure Belli et Pacis uses the term dominium eminens (Latin for supreme lordship) or the right of the state to use or even destroy property of subjects for the ends of public utility or extreme necessity but with compensation. German jurist Samuel Pufendorf advanced the legal theory that legitimacy of property rests on two conditions: occupation and state sanction.
Over the centuries, most civil and common law countrieshave adopted the practice of eminent domain, by way of constitutional orstatutory dicta, as an exercise of sovereign power.
What the Constitution, Supreme Court say
In the Philippines, the power of expropriationis also set in stone as it is enshrined in all our constitutions, present andpresent. Under the 1987 Constitution, the power of eminent domain is containedin article III section 9, which provides: Private property shall not be takenfor public use without just compensation.
As early as 1910, the Supreme Court in US v.Toribio defined the power of eminent domain as “the right of a governmentto take and appropriate private property to public use, whenever the publicexigency requires it, which can be done only on condition of providing areasonable compensation therefor.”
From this definition, we cull the recognized elements of the valid exercise of eminent domain, namely: (1) the property taken must be private property; (2) there must be genuine necessity to take the private property; (3) the taking must be for public use; (4) there must be payment of just compensation; and (5) the taking must comply with due process of law.
Eminent domain, although vested in thelegislature, may be validly delegated to local government units, other publicentities and public utilities, subject to the terms stated in the delegatinglaw.
As abovementioned, the taking of private property for expropriation can only be validly done if there is genuine necessity and the necessity is public in character.
Thus as explained in the case of Jesus is Lord Christian School Foundation vs. City of Pasig, the government may not capriciously or arbitrarily choose which private property should be expropriated. Such public necessity must be proven by preponderance of evidence.
It must be for public use. Over the years the concept has acquired an expansive meaning to include any use that is of “usefulness, utility, or advantage, or what is productive of general benefit to the public.”
Past cases: Expropriation cannot benefit private entities, persons
There is likewise a plethora of cases to the effect that an expropriated property devoted for public use cannot be further expropriated for another public use.
This is the Court’s ruling in the case of City of Manila v. Chinese Community of Manila where the Court invalidated the expropriation of the Chinese cemetery in the City of Manila as it is already devoted to public use and may no longer be taken for another public purpose. In principle, no private property for public use can be expropriated for the same use because no public use or necessity could be subserved thereby.
Where the expropriation is exercised for thebenefit of a private individual or private entity, it will be at war with theconstitutional mandate for public use. The practical reason behind theproscription of taking for private benefit is because a private beneficiary hasa more powerful incentive to concentrate benefit or private aggrandizement andsubvert the eminent domain process which may not be the case where the takingis primarily for the general public.
The owner of the private property subject of the taking must be justly compensated; meaning the owner must be paid in a timely or prompt manner of an adequate value sufficient to recoup the loss suffered by the property owner.
As explained in Yujuico v. Atienza, just compensation means not only the correct determination of the amount to be paid to the owner of the land but also the payment of the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered “just” for the property owner is made to suffer the consequence of being immediately deprived of his/her land while being made to wait for 5 years.
These well-entrenched principles will serve asguiding posts for any plan by any public entity to exercise its delegatedauthority to expropriate, even for public purpose and especially when privateparties will benefit from the expropriation.
This is not an academic issue that will ariseonly in the future. We see this already playing out in the on-going fightbetween Panay Electric Company, Inc. (PECO) and MORE Electric and PowerCorporation (MORE) for the right to distribute electricity in the City ofIloilo.
As I have written in one of my Eagle Eyescolumns, PECO was the sole power distributor of the city for almost a centurybut its franchise has expired while MORE, a mining corporation, has acquired alegislative franchise but is now seeking to expropriate the facilities andassets of its predecessor.
The battle is between a veteran with nofranchise but with all its power facilities and assets already in place andready for use as against an upstart with a franchise. Should MORE be allowed toexpropriate assets of PECO which are already used for public purpose? Will thetaking by MORE redound to public or private benefit?
Given the basic principles on eminent domain,recalled in this article, the answer is straightforward. A provision in theMORE franchise authorizing such private takeover of the assets of a privatecompany would not be consistent with such principles. This applies toelectricity as well as other franchises. – Rappler.com
