I. Summary of Petitioners’ Statements
1. While reviewing the exclusion of infringement case of 101-Su-158 (2012) of the Taiwan Yunlin District Court, Petitioner 1 considers that Article 11, Paragraph 2, First Sentence of the Act of Irrigation Association Organization, as amended and promulgated on February 9, 1970, which was to be applied, stipulates that “lots originally used for irrigation projects shall be put to use as of old.” (Article 11, Paragraph 1 of the Irrigation Act promulgated on July 22, 2020, has the same meaning, which provides that “land provided for the use of irrigation associations prior to the coming into effect of this law shall continue to be used as before,” hereinafter collectively referred to as “the Disputed Provision”). Petitioner 1 has doubts about the constitutionality of the Disputed Provision. Following the ruling to suspend the trial proceedings, a petition for a constitutional interpretation was filed on August 3, 2012 in accordance with the intentions of Judicial Yuan Interpretations Nos. 371, 572, and 590. The purport of the petition is that: At the time of legislation, the Disputed Provision did not consider the specific circumstances such as the reasons, necessity, alternative solutions, and costs required for the use of land owned by the people for irrigation. The Disputed Provision uniformly stipulated that the use of private lots should continue as of old without giving any compensation to the people, which is obviously contrary to the intention of guaranteeing the people’s right to property as provided by Article 15 of the Constitution.
2. Petitioner 2, in connection with the compensation case, believed that the Disputed Provision as applied in the Supreme Administrative Court Judgment 106-Pan-453 (2017) to be unconstitutional and therefore petitioned for an interpretation of the Constitution. The purport of the petition is briefly as follows: The Disputed Provision clearly prescribes that the land originally provided for irrigation use should continue to be used for that purpose, therefore making it impossible for the people to use the land for general purposes or to receive reasonable compensation, which gives rise to concerns regarding the infringement of people’s property rights guaranteed by Article 15 of the Constitution.
II. Grounds for Granting Review
Article 90, Paragraph 1 of the Constitutional Court Procedure Act (the “Act”) provides that, except otherwise provided in the Act, the provisions of the Act apply to all the pending petitions before the Constitutional Court lodged before the coming into force of the Act. However, whether such petitions would be admissible shall be decided pursuant to provisions that were applicable before the coming into force of the Act. Petitioner 1 filed the petition on August 3, 2012, and Petitioner 2 filed the petition on August 23, 2019. Whether to accept their petitions or not should be decided in accordance with Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act (hereinafter referred to as the “Interpretation Procedure Act”). Regarding Petitioner 1’s petition, it meets the requirements for judges to file a constitutional interpretation petition as set forth in Judicial Yuan Interpretations Nos. 371, 572, and 590. In addition, regarding Petitioner 2’s petition, it meets the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Interpretation Procedure Act for the people to file a constitutional interpretation petition. Both of the petition filed by the judge and the petition filed by the people should be accepted. Since both petitions pertain to the issue of whether the Disputed Provision is constitutional, they share the issue in common and thus have been consolidated for review and judgment.
III. Legal Grounds for the Holdings
1. Fundamental Rights and Principles for Review
Article 15 of the Constitution provides that the people’s right to property shall be guaranteed. The purpose of this Article is to guarantee each individual the freedom to exercise their rights to use, benefit from, and dispose of their property as long as the property exists, and to prevent infringement by the government or any third party, so as to ensure individual freedom, personal development, and the preservation of personal dignity (see Judicial Yuan Interpretations Nos. 400, 732, 747, and 813 for reference). The State designates certain properties owned by the people as public properties, hence the people cannot freely use and profit from these properties. Based on the requirements of a state governed by the rule of law, it is necessary to have the legitimate authority to establish the public property. In the absence of such authority since this has resulted in special sacrifices of individuals, the land shall be expropriated according to the law, and adequate compensation shall be provided in accordance with the constitutional intention of protecting people’s property rights.
2. Land provided for the use of irrigation is considered public property, and its continued use is to ensure the realization of particularly important public interests
Agricultural irrigation work includes irrigation, drainage, and flood control of farmland, which is essential for agricultural development and is closely related to the national economy and people’s livelihoods. Agricultural irrigation in Taiwan has a long history. During the period under Japanese rule, agricultural irrigation, which was originally privately operated, was gradually incorporated under government authority. Various agricultural irrigation associations, such as public irrigation canal cooperatives, government-established irrigation canal cooperatives, and water conservancy cooperatives, were established successively. Although their modes of operation are slightly different, they all shared the characteristics of public corporations or public agencies, which were established and operated according to laws and regulations, were supervised by the government, exercised public authority, and had related disputes adjudicated by government offices. Before the end of the Japanese colonial period, the various agricultural irrigation organizations in Taiwan were integrated and consolidated into irrigation cooperatives with the character of public corporations.
After the end of World War II, the government took over the agricultural irrigation cooperatives of the Japanese colonial period and underwent several reforms. Article 3 of the Water Act was amended and promulgated on January 19, 1955, which stipulates that “(Paragraph 1) the term ‘competent authority’ as referred to herein shall refer to the central irrigation authority at the central level, the provincial government at the provincial level, the city governments at the city level, and the county governments at the county level. (Paragraph 2) The competent authority may, in view of the needs of each local region, approve the establishment of local self-governing irrigation bodies to assist the government in promoting water conservancy undertakings. (Paragraph 3) The self-governing irrigation bodies referred to in the preceding paragraph shall be public corporations, and their organization acts shall be prepared by the provincial government and submitted to the Executive Yuan for approval.” Thereafter, in April of the same year, the Taiwan Provincial Government Committee and the Provisional Taiwan Provincial Assembly reviewed and approved the Organization Regulations of the Irrigation Association in various regions of Taiwan Province pursuant to the above provisions. The Regulations were submitted to and approved by the Executive Yuan and were promulgated and implemented on September 17 of the same year. From then on, all existing agricultural irrigation organizations in Taiwan Province were uniformly renamed as the Taiwan Provincial Irrigation Association of XX (the location). The Water Act was further amended on December 10, 1963, with Article 12 stipulating that “(Paragraph 1) the competent authority may, in view of the needs of local regions, approve the establishment of irrigation associations to assist the government in promoting farmland irrigation undertakings. (Paragraph 2) The irrigation associations referred to in the preceding paragraph shall be public corporations, and their organization acts shall be prescribed separately.” Consequently, the Act of Irrigation Association Organization was formulated and promulgated on July 2, 1965. In addition, although there are cases where the agricultural irrigation organizations have legally acquired the ownership or the right to use the land since the Japanese colonial period pursuant to the law, there were also cases where the agricultural irrigation organizations had used the land without acquiring any right. Article 37 of the Enforcement Rules of The Land-to-the-Tiller Program for Taiwan Province prescribes that “the water sources, wells, ditches, and other water conservancy facilities which were originally used for irrigation and drainage on the land being expropriated shall continue to be utilized in the original manner after the land is expropriated, and the owners shall not refuse such use.” Furthermore, the Taiwan Provincial Government announced in the Order Fu-Chien-Shui No. 50502 on May 29, 1953, that farmers using other people’s lands for waterways should continue to use them as before. However, the Supreme Court ruled otherwise and, in order to avoid disputes over irrigation, the Disputed Provision was amended and promulgated on February 9, 1970 (see the Legislative Yuan Bill-Related Documents Yuan-Tzung-293 of the 20th meeting of the 44th session of the 1st Legislative Yuan, Government Proposal No. 1030; The Legislative Yuan Gazette 2(59): Committee Records, 1-2 for reference).
In order to achieve administrative objectives, in addition to the direct administration through a hierarchical administrative system, administrative entities with independent legal personality shall also be established through indirect administration, provided that there must be an organization act as the basis for the establishment and the responsibilities of their operations are closely tied to the purpose of the establishment under the supervision of the State. Moreover, it is understood that the fulfillment of administrative tasks requires not only the assignment of administrative personnel, but the use of public property as well.
Since the amendment and promulgation of Article 3 of the Water Act on January 19, 1955, and the promulgation of the Organization Regulations of the Irrigation Association in various regions of Taiwan Province on September 17 of the same year, irrigation associations have become public corporations and the administrative entities of the State under indirect administration, assisting the government in promoting water conservancy undertakings, and are subject to the supervision of the State (see Article 31, Paragraph 2 and Chapter VI on supervision and guidance of the Act of Irrigation Association Organization promulgated on July 2, 1965 for reference). The farmland water conservancy facilities and land used for irrigation purposes that were constructed, managed, maintained, or improved by the irrigation associations were established for the purpose of promoting the development of farmland water conservancy matters and providing public use for accessing, drawing, transporting, storing, draining water or other related irrigation activities within the farmland water conservancy activity areas, and are considered public property by their very nature (Article 3 of the Irrigation Act for reference). The Irrigation Act was promulgated on July 22, 2020, and came into force on October 1 of the same year, whereby transforming irrigation associations from public corporations into administrative agencies. The farmland water conservancy facilities and land used for irrigation purposes that were originally managed by the irrigation associations before the enforcement of the Irrigation Act reverted to direct administrations of the State and were placed under the jurisdiction of the Council of Agriculture of the Executive Yuan (hereinafter referred to as the “COA”) (see Article 10 of the Act of Irrigation Association Organization and Articles 1, 2 and 18 of the Irrigation Act for reference). Their nature as public property remains unchanged.
Public property is established to achieve administrative purposes so that public interests can be realized, and its operation should be maintained until the public property relationship is terminated. The land used for irrigation is public property, which is indispensable for promoting the development of farmland water conservancy matters, closely related to the national economy and people’s livelihood, as well as of special public interest. For the land that has been used for irrigation purposes for a long period of time without interruption, unless the circumstances change and there is no longer a need for continued use for irrigation purposes, thereby terminating the public property relationship, the use of such land as public property should be maintained to ensure the realization of particularly important public interests. Therefore, the Disputed Provision clearly stipulates that the land originally provided for irrigation projects shall be used as before.
3. If the land owned by the people continued to be used without obtaining the right to use it, it should be expropriated in accordance with the law
The State designates the land owned by the people as a public property and requires the owner to tolerate the land for public use, thereby depriving the people of the ability to freely use and benefit from that land. Based on the requirements of a state governed by the rule of law, there should be a legal basis for establishing the public property relationship. The lack of such a basis will result in special sacrifices for individuals. Consequently, the land should be expropriated according to the law, and adequate compensation should be provided, in order to comply with the intention of Article 15 of the Constitution to protect people’s property rights.
As mentioned above, the land required to continue to be used in accordance with the Disputed Provision has the nature of public property. If such land is owned by the people, the people shall tolerate the use of the land for irrigation purposes and cannot engage in any acts that impede its operation (see Articles 8, 16, 27, and 30 of the Irrigation Act for reference). The people are therefore deprived of the freedom to use and benefit from that land, resulting in severe restrictions on their property rights. Pursuant to the requirements of a state governed by law, the establishment of such privately owned land as public property for continued use for irrigation purposes should have a legal basis for the public property relationship to be established. If the land intended for continued use by water conservancy facilities already has a legal basis for the public property relationship, there would be no issue. Otherwise, the legal basis should be obtained through leasing, negotiated purchase, or by other means (see Articles 9 and 26 of the Irrigation Act). The lack of such a legal basis will result in special sacrifices of individuals. In consequence, the land shall be expropriated in accordance with the law, and adequate compensation shall be provided. A plan for expropriation and compensation should be formulated within three (3) years, and funds should be raised so that the expropriation and compensation can be completed within a reasonable period of time, in order to conform to the spirit of Article 15 of the Constitution, which guarantees the right of property to the people.
4. Information and References
Pursuant to the COA’ statistics, farmland water conservancy facilities occupy approximately 6,171 hectares of land owned by others, of which about 5,932 hectares are used as of old without compensation as stipulated in the Disputed Provision, including 2,624 hectares of public land, 397 hectares of land owned by government-owned enterprises, and approximately 2,911 hectares of private land. The total appraised present value was estimated to be approximately NT$173.2 billion in 2016, excluding approximately NT$81 billion of the public land, land owned by government-owned enterprises (approximately NT$5 billion) and private land (approximately NT$87.2 billion) totaled approximately NT$92.2 billion (as referenced in the Council of Agriculture Letter Nung-Shui No. 1060082614 on June 6, 2017). After the reform of the irrigation associations, the Irrigation Agency under the COA required that all management offices dealing with cases of disposal of assets from the Farmland Water Conservancy Activities Operational Fund shall allocate ten percent of the proceeds from the disposal of assets for renting or acquiring the right of use of land that shall continue to be used as before according to Article 26 of Irrigation Act. Nevertheless, from 2015 to 2021, the total expenditure for leasing or purchasing land was approximately NT$446.92 million, including NT$10.96 million for leasing land and NT$205.48 million for purchasing land after the reform. The remaining balance of the deposit for acquiring land for continued use is only approximately NT$1.85959 billion (see the Council of Agriculture Letter Nung-Shou-Shui No. 1116022467 on April 29, 2022, and the Council of Agriculture Letter Nung-Shou-Shui No. 1116025114 on August 3, 2022, for reference). In contrast, it is evident that the acquisition of usage rights for land used in accordance with the Disputed Provision has been slow and ineffective. The balance of the escrow account is insufficient and is apparently unable to cover the needs for leasing or acquiring land for continued use. In view of this, the competent authority should set a time limit, actively secure financial resources, or consider the feasibility of acquiring legal rights through methods other than outright expropriation of ownership, in order to expedite the acquisition of legal rights over land used for continued irrigation purposes, and thereby comply with the intention of Article 15 of the Constitution to protect people’s property rights.
Furthermore, pursuant to the Disputed Provision, the people’s land that continues to be used for agricultural irrigation and water conservancy can only be used for the purpose of agricultural irrigation and water conservancy and must adhere to the principle of minimum infringement (must not hinder the exercise of the landowner’s right to use the land, insofar as it does not interfere with the use of the land for agricultural irrigation and water conservancy). To ensure the protection of people’s property rights, the competent authority should conduct a comprehensive review of the specific circumstances, such as whether the land is still used for agricultural irrigation and water conservancy in its present condition or whether there are other alternatives. If there is no longer a need for continued use for irrigation purposes, the authority should promptly proceed to terminate the public property designation.