STRIKING THE RIGHT BALANCE BETWEEN PUBLIC AND PRIVATE INTERESTS IN LAND ACQUISITION: CONCEPTUAL FRAMEWORK AND POSITION IN UNITED STATES, AUSTRALIA AND MALAYSIA

Abstract

The right to own property is an intrinsic human right that grants ownership and enjoyment to the landowners. The right to property is not absolute, however, because it is subject to the state's authority to acquire the private land. Land acquisition, as the term implies, is the power given to the state to acquire any privately owned land for a public purpose in consideration for adequate compensation.[1] Land acquisition is a critical development tool for the state to overcome the land scarcity when it is required to establish railways, airports or any infrastructure for the public good. On the other hand, land acquisition is a labourious process affecting a wide range of stakeholders. It often involves competing interests between the state (representing the general public) and impacted persons towards their private property. As a result, the land acquisition regime is ostensibly a way of balancing competing interests. However, many countries especially developing nations are having difficulties in striking a balance between public and private interests due to a lack of legal protection and a traditional top-down approach by the state's government branches.[2] This article analyses the approaches taken by the United States, Australia and Malaysia in maintaining the balance in land acquisition. The methodology employed in this study is primarily focused on comparative legal analysis. Present research has shown that, there is little attention given to the balance of rights between the public and private interests in Malaysian land acquisition laws. [1] Keith, Simon, Patrick McAuslan, Rachael Knight, Jonathon Lindsay, Paul Munro-Faure, David Palmer, and L. Spannenberg, "Compulsory acquisition of land and compensation," FAO Land Tenure Studies, 10 (2008): 7-8. [2] See generally, Ghimire, Subash, Arbind Tuladhar, and Sagar Raj Sharma. "Governance in land acquisition and compensation for infrastructure development." American Journal of Civil Engineering 5, no. 3 (2017): 169-178; Rose, Hadley, Frank Mugisha, Andrews Kananga, and Daniel Clay. "Implementation of Rwanda’s Expropriation Law and Its Outcomes on the Population." In Proceedings of the Annual World Bank Conference on Land and Poverty, Washington, DC, USA, (2016): 14-18.