Owning property in Japan is a constitutional right, but it has its limits. The government can take private property for uses that advance the public welfare.
Expropriating property takes time, though, and the Land, Infrastructure and Transport Ministry (formerly the Construction and Transport ministries) wants to speed up the process. If it succeeds, Japan could see an erosion of landowners’ rights and a flood of incontestable public-works projects.
Article 29 of the Japanese Constitution recognizes the government’s rights of eminent domain, stating: “The right to own or to hold property is inviolable. Property rights shall be defined by law, in conformity with the public welfare. Private property may be taken for public use upon just compensation therefor.” In short, if a public-works project is determined to be for “the public welfare,” private land can be expropriated for “public use.”
After World War II, as Japan embraced development, “the public welfare” was understood to mean “what’s good for the economy.”
Few would argue the necessity of infrastructure in a society that produces and moves great volumes of goods, energy and information. Still, public works are not always in the public’s long-term best interests.
Today, high-tension wires crisscross most mountains and most rivers are impounded with concrete or are dammed. More than 50 percent of Japan’s coastline has been altered by development, and few wetlands remain untouched by landfill. Ring roads and cloverleafs have replaced neighborhoods, and highways loom like great canopies over urban rivers and avenues.
This spring, the Diet will consider amendments to the Land Expropriation Law (1951). The new law will streamline the expropriation process, making it easier to take private property, while closing loopholes that citizens have used to oppose roads, dams, garbage dumps and other projects.
Developers are not the only ones who want to change the law, however. Conservationists want revisions, too, arguing that the law is vague and undemocratic and excludes citizens from participating in project decision-making.
Because there is no mechanism for public input on what projects are approved or how, public works opponents have to rely on “trust movements” to obstruct the expropriation process and stall construction. In a trust movement, property targeted for expropriation is divided into small parcels and sold, sometimes to hundreds of individuals.
“Under the present law,” says Atsuko Masano, a specialist on the bill, “if there are many landowners, the ministry or the project promoter must go to each landowner and get a signature and seal, and define how much land they have.” This process is time-consuming and costly, and can delay a project for years, even decades.
Ministry bureaucrats want to shut down this form of opposition, allowing projects to get underway more quickly, says Masano. They hope to save time and money, and make public works more effective economic stimulators.
Under proposed amendments to the law, Masano explains, “If there are more than 100 landowners in a small place and each person holds land valued at 10,000 yen or less, authorities don’t have to go to each landowner, they just go to the city hall and notify the mayor, and [release] forms can be made without each individual’s approval.”
Masano is a legislative aide to Diet member Yoko Hara, a representative from Kanagawa Prefecture.
Unfortunately, debate over the new bill has focused on the expropriation and compensation process, ignoring the primary weakness inherent in all Japanese laws related to the siting and approval of public-works projects: There is no legal mechanism ensuring meaningful public participation in the project decision-making process.
Because citizens have no input early on in the project-formulation stage, the only recourse for opponents is to obstruct the back end: the expropriation process. By this time, project plans have long since been decided, and developers and authorities are loath to consider opponents’ criticisms and suggestions. Without constructive dialogue at the front end, developers and conservationists inevitably come to loggerheads, guaranteeing a standoff in which each side accuses the other of ignoring the “needs” of the people.
A further source of public resentment and suspicion is the expropriation approval process. Under the present law, applications to expropriate land and approval of those applications take place under the same roof, at the Ministry of Land, Infrastructure and Transport. Not surprisingly, every application is approved.
The Land Expropriation Law does state, “If necessary, a public hearing must be held,” though according to Masano, such a hearing has never been held. The law also allows the public to submit comments and criticisms on proposed projects, but authorities need not respond, she says, and do not.
While proposed amendments to the law would require a public hearing, critics call this a disingenuous charade. Holding one public hearing on a multibillion-dollar dam, highway or tunnel project is mere theater; no meaningful dialogue is expected.
“Public hearings in Japan,” says Masano, “are really only ‘listening,’ one-way comments, and there is no discussion and no question-and-answer [session]. It is ceremony and process only.”
Nevertheless, once a hearing is held, developers can claim to have considered public input, making it politically easier to forge ahead.
“None of the laws relating to public works really include any public participation procedures,” explains Masano. “It is said that the best public works-related law is the Urban Planning Law, because under that law authorities notify the public [of a project] and make information available. But the city office only allows people to come and look at the information, they can’t even make copies.”
“Other than that,” she notes, “we have the River Law, the Road Law, the Dam Construction Law, but none of these call for public participation. There is no need for [project developers] to provide information during the planning process, they simply say, ‘Here is the project we are going to build, you have to agree.’ “
Masano believes that meaningful public participation in the siting and development of projects is essential, as is more transparent decision-making. “Diet members understand the need to change the law,” she says, “but unless there is a lot of public pressure they won’t move.”