الحق في الملكية الخاصة : دراسة دستورية مقارنة == The right to private property A comparative constitutionality study
Author name:
محمد عبد علي خضير الغزالي
Supervisor name:
علي يوسف عبد النبي الشكري
General topic:
Law
Specific topic:
Constitutional Law
Degree:
Doctorate
University:
University of Babylon - Faculty Of Law - Department Of Public Law
Language:
Arabic
University location:
Babylon
First pages:
13T1683 - p.pdf
Abstract:
Public rights and freedoms occupy a distinguished place in the field of legal and political studies with the individual at the centre of any legal organization. In order to enable an individual to exercise his rights and freedoms and enjoy them in a structured framework, there is a clear need for legal processes to ensure the individual can participate and benefit from these rights and freedoms. The law is the main tool that provides the structure that ensures the balance between public and private interests; hence there is a close correlation between the legal process and the rights of the individual. The law regulates the obligations and rights granted.It is well recognized that rights and freedoms coexist so that if one of them collapsed both collapse and one of the most important of these are property rights and economic freedoms. The right to private ownership is considered central to those rights as a basic objective of every political organization and legal state entity, it is an extension of the human personality and the expression of his freedom, so it has been said, where there are no ownership there is no freedom, and the extent of restriction on private property is a reflection on the restriction to human freedom, and vice versa.The concept of private ownership varies according to different economic systems; the capitalist system is based on private ownership of the means of production which has been criticized for unfair exploitation. The socialist system has called for the abolition of private ownership of the means of production entirely. Both systems were obliged to revise their processes and redraw them in line with changes in the conditions that affected the two systems over time. Islam views private ownership differently, it dislikes absolute individual property ownership, but at the same time it does not follow the extreme doctrine of capital punishment for private ownership as this is likely to destroy the competitive spirit for work. Islam has combined the approval of private ownership of property for individuals and the collective benefit of the community and established a vital link between them to ensure the benefit of the community, and established Islamic law as a balance between the interests of individuals and the interests of society.Interest in the right to private property is not confined to the attention of religions; it extends to the attention of human rights and constitutions. The Declaration of the Rights of Man and of the Citizen passed by France’s National Constitutional Assembly in 1789 emphasizes that human rights are natural rights immortal and sacred, and that people are born and remain equal in rights and that the goal of every political society is the maintenance of human rights, and include liberty, property, security and the right to resist tyranny.Despite the emphasis on private ownership in Islamic law and other judicial rights and constitutions, this does not necessarily mean that it is an absolute and inviolable right, it has evolved and been subjected to many restrictions. Article 17 of the Declaration of the French Law stipulates that “Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified”.The restrictions on the right to private property may be aiming to achieve public interest necessitated by economic factors, for example, confiscation of private property in the public interest, or nationalization in the public interest related to political or social necessity, as in the case of the imposition of receivership or restrictions on the owner's authority. The utilization of private ownership should not be contrary to the laws and regulations, taking into account the need for the owner to take advantage of his private ownership, within the limitations of his powers regardless of whether those restrictions arose in civil law or in other legislation.Restrictions on private property does not mean restricted to a degree that violates this right or detracts from it, because this would be an assault on private property, whatever the source of the abuse, public authority or individuals, they represent an assault on the human right and freedom, depriving the individual of his private property without legal reasons means depriving him of his most effective means in protecting his right to his property. Hence the importance of developing the necessary guarantees for the protection of the right to private property and the most important of these is judicial oversight. It may be that the attack on the right to private property is on the part of the authors of the law itself and this shows the importance for the role of the constitutional judiciary in the protection of this right in the face of any legal texts that infringe on private ownership of individuals, the abuse may be the result of an administrative error, the role of the administrative court is crucial to ensure the subordination of the administrative body to the principle of legality and the rule of law, the protection of the administrative court is to the extent that the relationship exists between private ownership and public power.In short : The right to private property as contained in constitutional and legal provisions is not enough and does not achieve the required protection of the right to private property, unless it is enhanced by effective supervision to ensure the exercise of this right, which highlights the need for judicial oversight, monitoring restrictions on the right to private property, and ensures the integrated safeguards in the exercise of this right protecting it from the state or the individual.The right to private property really becomes a figurehead if the citizen did not have available to him the constitutional and judicial guarantees, having these will ensure an obligation on constitutional institutions not to override the constitutional, legal and procedural terms of reference, as there would be no value to a constitutional text, whatever it’s idealism, unless there is an access to a reliable authority that can look in to the accuracy of the legislative and administrative actions .Second : the importance of the topic The importance of research on this topic of private property lies in its constitutional and legal frame work and includes the following : 1) The right to private property is closely linked to human nature, usually acquiring this right from effort and enduring sacrifice, ownership is a necessity for man to confirm his independence and freedom, it leads him to maintain social peace, the seriousness of the subject is reflected in the restrictions and costs that are incurred by the individual to safe guard his right to private property. As for the community, what justifies the introduction of private ownership is that it’s the best way to promote financial investment and economic development; this has been proven over time and by experience. The recognition of private property and its protection, as a natural reflection of ownership, and the core evidence of society’s progress, any interference or compromise in this area will inevitably lead to economic collapse. Such a trend is politically authoritarian and totalitarian, contrary to democracy.The collapse of many totalitarian regimes as well as the demise of the idea of the public sector, and the privatization efforts of the public sectors by the majority of countries around the world expanding the scope of private ownership is the best evidence in support of this model.2) The various interim Iraqi constitutions with the exception of the Transitional Administration phase, did not pay any realistic attention to the right to private ownership, they were words without genuine meaning and a theoretical concept without any practical application, but during the time of the Transitional Administrative Authority there was the beginning of the actual process to proceed with the establishment of the right to private ownership as it began to think seriously about bringing this right into reality.3) The Constitutions of 2004 and 2005 established several institutions for transitional justice as a prelude to the removal of the heavy legacy of the former regime of social splits and disagreements, as well as the existing gap on an ethnic and sectarian basis. The establishment of The Committee to deal with Property Ownership Disputes, over several years of work the Commission has been able to recover some of the usurped rights to their owners, the establishment of such a committee by constitutional legislator was a clear indication of a move to protect the right to private ownership, which is also a move from the theoretical constitutional frameworks to the practical.Third : Scope of This Research : It may seem strange to look at the right to private property in a public law study, as discussion of this matter finds its natural place in the rules of private law, and the rules of private law organizes control among individuals, but the rules of private law also determine what the individual’s rights are, as well as what the individual’s responsibilities toward society ensuring the collective rights of society are protected.On the other hand, the study determined in the context of a relationship between the right to private ownership and public authority and including imposed restrictions on individuals, which means the owner taking into account the advantage and use and disposal of the things he owns as well as the limitations on his powers, both whether those restrictions are in civil law or in other legislation.The private ownership referred to in the framework of this research is the collective ownership of the means of production that other people also have the rights to, and in which the owner complies with performing his social duties, as for private ownership of consumable materials, these remain out of the scope of this research.As private ownership is such a wide and expansive topic, this research will be limited to the study of private property (urban and agricultural), due to its economic importance and its role in overall development.Fourth : Issues related to this researchThere are a number of issues that can be summarized as follows : 1) Many contemporary constitutions have emphasized the right to private property, but the reality of this right does not seem compatible with the theoretical written texts, the constitutions of many dictatorial countries include the emphasis on the right of private property ownership and these constitutional references appear on the surface to be compatible in appearance and shape with the philosophical foundations of this right.2) The constitutional legislator usually finds himself compelled under the pressure of technical and material considerations that surround the process of drafting constitutions not to go into the details. The task of organizing this right is usually left to the ordinary legislator, which in practice means the ordinary legislator will have in this respect and consequently the upper most influence on this important right to private property ownership and bringing the legal status of this right, whatever the original aims of the constitution were, subject to the decision of ordinary legislation and not the decision of the constitutional provisions which are no more than mere constitutional promise, so long as the legislature does not intervene to put this promise into practice and to include detailed clear reference in the legislation, here it is worth asking the question what are the limitations to the authority of the legislature in organizing this right?3) The right to private property ownership is one of the upper most constitutional rights in all constitutional systems, but is far from a theoretical concept, but the practical application of the theoretical concept is the acid test that separates the wheat from chaff in relation to constitutions, this represent the quandary that requires jurisprudential expertise.4) This section relates to the contention between the private and public, public related legislations were written so as to deal with issues of private legislations, but any private legislation cannot proceed if it is in conflict with public legislations, public legislations have priority over anything else. 5) In relation to Iraq this right has been through several stages and has been influenced by the constitutional reality and political scene. It could be observed that this right is one of the indicators and trends of the state of the political system, good or bad.Fifth : Research MethodologyThe importance of this study requires a specific scientific method and the most important of those approaches that I will follow include : 1) the theoretical and analytical : through the application of general rules on the specific situation and the division of the whole into its constituent parts, and returning it to its elements and through this approach to analyze the constitutional texts and legislations as well as analyzing the trends in Constitutional and Administrative Justice Systems to a number of constitutions including the French constitution of 1958 and the Constitution of Egypt of 1971 and the amended Constitution of 2012 and the constitution of Iraq for the year 2005.2) Comparative Approach : I used this approach by comparing the legal solutions and remedies and the directions of the Judicial and Administrative legal restrictions on the right to private property ownership in the countries under study.3) Finally, I used a descriptive approach which is based on the diagnosis of the phenomenon to identify what are the causes of it, and then propose a suitable solution in order to achieve the goal of the study.
