An Arab Spring of Constitutional Reforms

The Egyptian parliament is currently selecting a constituent assembly to draft Egypt’s new constitution. The members will choose 100 constituents to form the committee from a list that so far numbers 2,000 nominees. Fifty will come from the parliament, and 50 from state institutions, universities, professional syndicates, trade unions and other public figures. Liberal judges and democracy activists, among others, have responded in protest, objecting to the 50% of the elected members that will come from within the parliament itself. This was changed at the last minute from 40%, resulting in many liberal parties boycotting the process. Those detractors believe that the constituent assembly will represent a parliament that, although democratically elected, is unrepresentative of the constituency as a whole and true national interests. For example, women and Copts form only 2%. The proposals discussed in parliament so far have concerned cultural issues, and much less the vital issues of economy and foreign policy.

Tunisia is well on its way to debating its new constitution through the postrevolutionary Constituent Assembly. However, identity politics still intervenes to subordinate material priorities, accountability issues, victims’ rights and national reconciliation.

The rewriting of the constitution potentially could provide civil society and citizens a chance at real reform, to exercise citizenship effectively and put in place a vanguard to prevent future abuses of power like those of the previous and current regime. Many serious constitutional proposals relate to habitat in aiding the process to build the state’s legal architecture. In this regard, the state is comprised of (1) the land, (2) its peoples and (3) its institutions, including government. Enshrining human rights to adequate housing, water and land in the constitution is vital.

Notably, articles providing that property must fulfill its social function are found in numerous constitutions, including Egypt’s present one. This recognizes owners’ obligation to ensure property is considered in the context of the wider community needs, meaning that the social function should strike a balance between private property rights and the right to housing and livelihood for all. Enshrining the social function of property also would harmonize with the deepest ethical traditions of the region, including Islamic and pre-Islamic Arab norms.

Constitutions of other newly reformed states provide valuable examples of how this could be done. The social function of property is already recognized in the constitutions of Ecuador, Columbia, Kenya, South African and Brazil. The principle difference between those countries and the Arab Spring processes is the depth of civic education preceding their constitutional changes, wherein such concepts as the social function of property, the human right to adequate housing and land rights already have been long debated with the assertive participation of broad social movements.

The Columbian Constitution obliges governments to “promote” many positive state obligations, as well as embodies the negative provisions to protect human rights, such as prohibiting the arbitrary confiscation of property. Article 59 states explicitly that property has an inherent social function that implies corresponding state obligations. Concerning public interest, Article 58 states that this value always trumps private interests.

The Constitution of Ecuador also states in Article 30 that “Persons shall have the right to a safe and healthy habitat and adequate and decent housing.” This right is also guaranteed in separate articles specifically for elderly and disabled persons. The ways and means for the state to regulate uses of land is also more specifically provided, for example, through the prevention of gain through speculative land practices and changing uses of land from rural to urban, or public to private (Article 376). Similarly, Article 282 “forbids” large estate farming and land concentration, and monopolization or privatization of water. The latter is also reiterated and developed in Articles 12 and 318.

Brazil’s constitutional Article 170 stresses that the economic order should treat private property with regard to its social function. The Constitution of Brazil guarantees compensation in loss or damage of property and establishes a tax to discourage the retention of unproductive real property, particularly conferring corresponding authority on local municipalities (50% of proceeds from tax), which ”may be progressive…to ensure achievement of the social function of property.” A similar principle is adopted in separate legislation in Colombia, as Land Development Law 388 (1997), recovering “socially created” values (plusvalía) to benefit the public and the poor. Such local self-determination with democratic participation would be indeed revolutionary for local governance in the MENA region.

The other non-Arab African constitutions cited here make no explicit mention of the “social function of property,” but instead recognize “the right to accessible and adequate housing,” stipulated in both the South African and Kenyan constitutions. Additionally, they prohibit arbitrary deprivation of property. These countries’ strong constitutional provision of Economic, social and cultural rights has enabled progressive jurisprudence to redress and deter forced eviction and uphold victims’ right to reparations.

Concerning other state obligations to respect, protect and fulfill (Article 7) the human right to housing, South Africa’s constitution provides that the ”state must take reasonable and legislative measures within available resources to achieve the progressive realization of this right” (Article 26.2). However, it does not stipulate how this will take place. That is the detailed task of legislators, policy makers and the judiciary.

With regards to land, the South African and Kenyan constitutions have more specific articles. The Kenyan Constitution, like Brazil’s, with its emphasis on state planning, stresses that principles of land management should be compatible with national land policy. Article 62.2 provides that “Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission.” The Constitution stipulates also that “Public land shall not be disposed of or otherwise used except [by] an Act of Parliament specifying the nature and terms of that disposal or use” (Article 62.4). The Kenyan Constitution also establishes the functions of the National Land Commission to include initiating investigations and recommending appropriate redress for “present or historic land injustices” (Article 67.2[e]).

The rewriting of the Arab Spring constitutions is currently overshadowed by questions of representation to include all segments of the population. The present stage foretells little about the consideration for social, economic and cultural (ESC) rights, the demand for which lie at the heart of the people’s revolution.

When considering the habitat and related ESC rights and the social function of property, their articulation in the constitution and its application, global experience instructs us that certain indispensable tasks for drafters and constituents remain:

(1)  To consider the multidimensional use of land and housing, and how property should provide a set of social entitlements and responsibilities, instead of simply being an economic consideration. This should be done by focusing on how people use the land in question in everyday life and livelihoods.

(2)  This determination needs to be carried out by communities and through intercommunity participation, not solely by engaging with formal centralized or local formal power structures such as governorates and municipalities. Engagement with the community must not simply rest on self-elected representatives or all-too-familiar nepotism and cronyism, but with minorities, women, youth and land-dependent communities as full decision-making partners. Women are particularly important to alternative planning, both as guardians of the home and simultaneously as persons vulnerable to spatial control (in public places and in the home).

(3)  Although the state and successive governments have a large role to play in regulation and setting the conditions to ensure the social function of property to be realized (by progressive taxation, regulation, adverse property rights, etc.), the social function ultimately must be realized by the participation of those who will use the property, by actively seeking out disused land and making it more socially productive. This can be achieved, in practice, through techniques of social production of habitat. (See examples of social production of habitat on HIC-HLRN’s Middle East/North Africa program website.) [Arabic link: http://www.hic-mena.org/arabic/spage.php?id=pW4=]

(4)  Recognize that the issue of land and housing policy inevitably cause conflicts of interest and trade-offs, and are not issues of neutral consensus. Constitutional drafters must be honest in disclosing their position and their property holdings. The social function of property as a constitutional provision is potentially a good basis for requiring subsequent governments to formulate more-specific housing and land policies.

(5)  Recognize informal areas as an integral part of the economy, while possessing their own dynamics. The complex interaction between the internal economy of “slums” and the external influence of government policy must be weighed with a bundle of human rights considerations.

(6)  Agricultural land also must be seen as having a social function in the context of the local community, as well as a strategic value for the nation and food sovereignty. Constitutional articles that forbid foreign investors buying land are not enough to prevent land grabbing and deprivation of indigenous small producers who are the principal feeders of the nation’s population. Allowing investors to lease large plots of land for prolonged periods can have as much a hemorrhaging effect on agricultural and food sovereignty as granting large-scale freehold land tenure to external “owners.” (The legacy of colonialism and settler colonialism is never sufficiently far away from this consideration.)

 (7)  It must be considered that “owners” and “tenure holders” constitute a wide range of actors, from individuals, to collectives, to the state (not to be confused with governments), to corporations, some of which operate extraterritorially. Therefore, to apply the social function of landed property, the complications of dealing with these different actors must be considered in the national interest and the general welfare of the national population, not only as sources of cash.

Most indispensable of all considerations in this unique constitutional-reform process is national consultation on these vital matters in a way that creates a culture of citizenship. No single pundit or patriarchal process confined to the capital city will successfully supplant the true reciprocity and mutuality at the national level that is to be reflected in the new constitution’s text. Consultation on the habitat issues involved and the values at stake among the major constituents of the nation (or nations) within the state will help the Arab Spring countries catch up with the rest of the democratizing world, including the examples mentioned above.

Photo: Scene from the first session of the new Tunisian Constituent Assembly, 22 November 2011.