OPINION

EWC vs Constitutionalism

Koos Malan explains why property rights are essential to the proper functioning of constitutional democracy

The implications of expropriation without compensation for constitutionalism

Analysis by Professor Koos Malan, Professor of Public Law at the University of Pretoria, for Sakeliga as part of Sakeliga’s submission to the Constitutional Review Committee on the question of amending the Constitution for expropriation without compensation

1. Summary

Expropriation without compensation, more correctly, the confiscation of property, is a patent invasion into the basic right to private property. More importantly, it is also an offence against the very foundation of constitutionalism. Even though Parliament may amend the written text of the South African Constitution to allow for expropriation without compensation, such amendment would be constitutionally illegitimate for its offending the very foundation of constitutionalism as such. The same applies for a pro–confiscation interpretation of the present text of the Constitution. Should the present text be interpreted to permit expropriation without compensation, such interpretation, though in conformity with the Constitution, would be an affront to the idea of constitutionalism.

2. The foundation of constitutionalism

Constitutionalism presupposes the pursuit of justice on a grand scale, that is, for the whole of the polity, and more specifically for all individuals and communities within the polity. In this way, constitutionalism is inextricably associated with the pursuit of justice, but this normative commitment – the commitment to justice – is only one side of the constitutional idea. The second element of constitutionalism relates to power: power that has to serve as a rampart that supports the normative – the justice element.

Hence the normative element has to be complemented by a real element, which consists in the structures for the suitable allocation and checks on political power, thus to ensure that power is not abused; to ensure that it is exercised for the benefit of the whole instead of degenerating into privateering for the sake of only a segment – either a minority or a majority. The structural element is essential to constitutionalism. Precisely for that reason questions around governmental power – its allocation, exercise, limitation and control – are and have always been essential for constitutionalism.

In the present context the following two prerequisites, both relating to the real element of constitutionalism, are crucial. The first is citizenship and the second is the notion of the dispersal of power and (mutual) checks and balances.

- Citizenship in the real sense of the word is not viable without the protection of personal property rights, that is, the property rights of individuals and juristic persons; and

- Constitutionalism is founded on the basis of the dispersal of power among the largest possible number of centres of power, more specifically not only the three centres of state power, but the widest range of loci of private, civil and economic power (here in after referred to as institutions of civil society).

These loci of power must be strong enough to counter-balance governmental power and strong enough to counter-balance each other, thus to ensure that no locus of power grows so strong that it gains absolute power that would allow it to abuse its power to the detriment of any segment of the populace.

Once any locus of power, and specifically the state, is so strong that it can act in an unconstrained fashion, it becomes absolutist. That rings the death knell of constitutionalism. Institutions of civil society constitute loci of power capable of discharging their check and balance function only when they have their own property, which allows to them act autonomously.

Both these crucial foundations of constitutionalism – citizenship and the discharge of the check and balance function by institutions of civil society – require vigilant protection of the right to property.

3. Citizenship

It is important to clarify the meaning of citizenship. That requires, amongst other things, that citizenship be distinguished from the concepts of subject and consumer. The latter two should not be confused with that of citizenship; in reality they stand in opposition to the idea of citizenship.

From the point of view of constitutionalism, it would be most inappropriate to view the populace – also the South African populace – as a collection of subjects. Subjects denote a relationship of subordination, inequality and dependence of the populace vis-à-vis government. It is an inappropriate, essentially monarchical concept, which is incompatible with the very notion of republicanism which is the idea on which the South African constitution claims to be premised.

Viewed through the prism of constitutionalism it would be equally inapt to conceive of the South African populace as collection of consumers. A consumer is by definition in a commercial relationship in which the identity of buyer, tenant, borrower, or whatever other commercial identity stands at the centre.

In contrast to the above, in pursuance of the very notion of constitutionalism, the appropriate public identity of members of the populace should be that of citizens. Citizenship, unlike the identities of consumer and subject, primarily denotes the ability to participate independently and on an equal footing with all other citizens in the joint endeavour to govern the polity in the public good and to the benefit of the citizenship body as a whole, through a process of even-handed rational public discourse and compromising decision-making.

Independent participation of all citizens in the continuous enterprise of government for the public good, is impossible, however, if the people are economically reliant, especially solely reliant on another person or entity, more specifically if people are reliant on the state. When the populace is dependent on the state for their livelihood they are not citizens anymore. Then they are but subordinate subjects and state-dependent consumers.

This is precisely what is occurring when the state (or any other entity) becomes the sole or primary property holder. Precisely that is the effect of schemes such as the confiscation of property. It nullifies the status of citizenship and the ability of active participation in the governance of the polity that goes along with it. Once private property rights are invaded and property is taken away from private property holders people are relegated to dependent consumers of state hand-outs and the status of subordinate subjects, forced to look up to someone or something else – the state – for their livelihoods.

The right to private property is therefore not limited to the realm of private law. It is as significant if not more for constitutional law. It serves as the guarantee for the autonomy of people. A(n) (individual) man of straw without property – without the ability of affording a living – and who has to look someone else in the eye to survive, also does not have the freedom of his / her own views, or, at least, does not have the freedom to openly express their own views. Such person is for all practical purposes devoid of her / his citizenship and degraded to the status of a reliant subject and dependent consumer of state hand-outs. Such powerless, reliant subject and needy consumer can only hope that the state would be willing and able to meet his / her basic needs through the allocation of state sponsored charities in the form of social grants.

True citizenship can be achieved only when the reliant subject status is relieved and if people are in a position to earn the means to become the proprietor of assets. In this way the crucially important independence, which is a prerequisite for genuine citizenship and accompanying citizen participation in the enterprise of government, can be achieved.

4. Dispersal of power and checks and balances

The notion of the dispersal of power and attendant checks and balances lies at the very core of the constitutional idea. This is particularly also true for South Africa priding itself of a constitutional dispensation that purports to subscribe to the idea of constitutionalism. It is important to emphasise that the dispersal of power is not limited to the traditional idea of the trias politica – the threefold separation of power between the legislature, executive and the judiciary. Trias politica, though important, provide but the basic rudiments for a full-fledged system of power dispersal. Dispersal of power goes much broader than trias politica.

It includes a rich plethora of power centres of civil society, commercial enterprises and other economic endeavours, cultural and religious endeavours, educational institutions, religious institutions, charity organisations and many more non-governmental organisations and many more institutions of civil society. The need for the dispersal of power among all these centres is a generally accepted prerequisite of sound modern-day constitutional law. In their absence the spectre of absolutism, more specifically of unrestrained governmental power which is by definition an outrage against the very foundation of constitutionalism, looms dangerously large.

The mentioned plethora of institutions of civil society fulfils two important roles.

In the first place they provide the best rampart against absolutism. They act as a counter-balance against absolutism of an excessively powerful, centralised government. Bills of Rights, that seek to protect the rights of individuals against actual and threatened governmental violations of rights, is more often than not of no practical value. Individuals lack the required muscle to take on a powerful rights-infringing government. Moreover, even if an individual does have the power to sue for the remedying of rights, the courts may rule in favour of government because they share the same ideological convictions.

Even if a court does rule in favour of (an) individual/s, orders are not complied with and turn out to be judicial wishes rather than true binding orders. The South African experience of the past decades are swamped of such cases, where the executive and the state administration have proven to be unwilling and / or able to heed to words of the judiciary. Institutions of civil society are the only instruments with sufficient muscle to provide the required check on an infringing state and that can, at the same time, enlist the resources to fill the void left by a faltering state. Institutions of civil society in this way is the only genuine guarantee for the rights and interests of people and for sustaining constitutionalism.

Secondly, institutions of civil society also act as a mutual power balance and check on each other, thus avoiding and / or countering the abuses accompanied by economic monopoly practices in a way similar to how they keep a rights-infringing centralised government in check and/ or fill the gap left by a faltering state.

The private property rights of individuals and of institutions of civil society are an absolute conditio sine qua non for fulfilling these check and balance and rights-guaranteeing functions. Institutions of civil society can perform these functions only if they have the material means – the independent proprietary basis – to that end. The institutions of civil society as well as their individual members that constitute their support base must therefore be in a position to accumulate material assets in the form of protected property.

The privately owned property of institutions of civil society and their members enable these institutions (and their members) to act autonomously and in that way place them in the position to discharge their responsibility to act as a check and balance against a rights-infringing absolutist government and also to stand in for a faltering state.

Citizenship and autonomous institutions of civil society also mutually imply one another:

- Citizenship – the capacity to participate in the governance of the polity – is reinforced and strengthened when people assemble and act through institutions of civil society, instead of acting individually on their own with much greater difficulty; and

- Institutions of civil society on the other hand cannot be viable without citizens joining these institutions and without them materially contributing towards such institutions, thus enabling these institutions to discharge their check and balance function.

5. Conclusion

Constitutionalism is to a considerable extent premised on the protection of private property rights. Private property provides the oxygen for free, active and politically participating citizens and renders the basis for the autonomous institutions of civil society acting as a check and balance against bad government and on one another, securing (individual) freedom.

Thus viewed preference should be given to promote and expand property rights in order to enable the largest number of people – inhabitants of South Africa in the present case – to become property holders, thus affording them the opportunity to cultivate meaningful citizenship.

The plea for property rights does not amount to arguing for the rigid maintenance of existing patterns of asset ownership in South Africa; on the contrary, it is a plea for the exact opposite, namely to make it possible that the existing patterns can be changed, and more specifically that it can be expanded so that many more people can become property owners. This calls for the exact opposite of expropriation without compensation. It calls for policies that could enable more people to become property owners, and in doing so to become true citizens and active participants in governance and in fending off absolutism through meaningful participation in strong institutions of civil society.

On close analysis the undoing of private property through schemes of confiscation masquerading as expropriation without compensation or other schemes with a similar effect is therefore undermining the very idea of constitutionalism itself. A constitutional dispensation that allows for the confiscation of property or a constitution which in its text allows for the confiscation of property (for expropriation without compensation) ceases to be a real constitution because it reneges on the very notion of constitutionalism. Such constitution continues to be a constitution only in name, but in substance it is a constitution no more.

In substance it descends into an instrument of state absolutism and violation of the idea of citizenship and violation of the notion of dispersal of power and checks and balances. It descends into a wicked instrument of rights violation that cannot command respect and which warrants rejection instead of compliance. Being devoid of the genuine core content of constitutionalism and having ceased to be a true constitution, such false constitution forfeits legitimacy and loses the legal (constitutional) basis for the voluntary obedience by the citizenry. It revives as an actual constitution only once it regains core constitutional content by safeguarding private property, protecting citizenship and bolstering power dispersal and checks and balances.

ENDS