Explained: The Role of Public Benefit in Unrestricted Expropriation

Public benefit is considered the fundamental purpose of expropriation, justifying the sacrifice of individual ownership for the public good. In theory, no official entity can request expropriation unless it aims to implement projects of public benefit. It is also not permissible for such entities to change the intended project to go against the decision of public use for which the expropriation was issued.

The scope of public benefit can be widened to include all administrative activities involving the provision of public services, regulation of public facilities, construction of infrastructure and establishment of institutions to align with the state’s overall plans and policies.

One requirement of public benefit is that it serves the interest of unspecified people or groups. If it is directed toward a specific group or to individuals, then the public nature of the benefit disappears. The Supreme Administrative Court confirmed this in its Jurisprudence No. 409 of 1980, which considered that an expropriation decree, if it benefits specific individuals by the nature of their work, even if they are not limited, is not immune from legal challenges over violation of the constitution and law, and the judiciary may exercise its oversight.

The close link between an expropriation decree and the concept of public benefit makes expropriation, which lacks the characteristics of public benefit, an infringement on private property. The Administrative Judiciary Court confirmed this principle in Jurisprudence No. 786 of 1996 when it stated that “expropriating part of a property by forcibly including it in an expropriation, despite the lack of need for it in implementing the expropriation project, is considered a major flaw that reduces the expropriation deed to a state of non-existence.”

Although the Expropriation Law No. 20 of 1983 and various judicial rulings have outlined the general guidelines of public benefit, they have left it to the expropriating entity to assess whether there is a public benefit to a given project without clarifying the nature of that benefit or the reasons on which it should base this assessment. Jurisprudence No. 979 of 1978 affirms this, stating that “the assessment of the existence of public benefit in expropriation is left to the discretion of the administration without question from the judiciary.”

Of course, these powers granted to administrative bodies, namely, to assess the existence of public benefit without legal or judicial controls, can lead to administrative arbitrariness and infringement on individual property rights.

Sometimes, the expropriating party may delay the implementation of the expropriation project for so long that the public benefit for which the expropriation decree was issued no longer exists. Although the Expropriation Law does not address this situation, judicial reasoning in issues 9-10 of the Lawyers’ Journal in 1999 confirmed that “Expropriation, which is the forcible deprivation of property, was originally legislated to implement public benefit projects. Considering that the expropriating administration did not implement the expropriation project within 30 years, the idea of public benefit from its expropriation disappears, and with it, the legitimacy of its expropriation.”

The Expropriation Law greatly expanded the concept of “administration.” It includes ministries, public administrations, public institutions and local administrative units, the Baath Party, and “popular organisations,” which refers to various types of unions (workers, youth, women, etc.) set up by the Baath Party. All these bodies can request expropriation to implement public benefit projects, after which an expropriation decree is issued based on the proposal of the relevant minister. This decree is final and may not be appealed, meaning it is beyond judicial oversight.

However, the amendment to the Expropriation Law issued by Decree No. 11 of 1986 required an expropriation decision to come via decree of the Prime Minister, which can be modified or annulled by a decree from the Syrian president. Therefore, the oversight of expropriation decisions lies with the president. Nevertheless, this does not equate to judicial oversight, which all administrative actions should be subject to, given the independence that the judiciary must enjoy, making it the competent authority in determining legitimacy per the requirements of law and justice.

Barring expropriation from judicial oversight could lead to instances of it taking place without actual justifications. This necessitates the establishment of legal controls on expropriation, through amending Decree No. 20 of 1983, and making expropriation subject to administrative judicial review. The administrative judiciary is responsible for settling disputes between public bodies and interests on one side and private entities and interests on the other. Administrative disputes usually concern the annulment of administrative decisions, halting their implementation, or ruling on compensation for any resulting damage to prevent any infringements on property rights.