”Property in fine print: a half right?”

CONSTANZA HUBE and ROCÍO CANTUARIAS Professors of Constitutional Law and Constituent Conventions

CONSTANZA HUBE and ROCÍO CANTUARIAS

One of the great triumphs of civilization (and a guarantee of social peace) has been to recognize and protect the right to property.

Property is considered one of the most important classical freedoms that has been the object of protection since the origins of modern constitutionalism. This is how the Magna Carta of 1215 prohibited a person from being deprived of their liberty and their property, and should be compensated if this were the case. For its part, the Universal Declaration of the Rights of Man and of the Citizen, of 1789, established that the right to property is inviolable and sacred, and that someone can only be deprived of its enjoyment when a legally proven public need demands it, and upon payment of fair compensation.

“The New Constitution proposal should have had as a priority to ensure the right to property, because it is a pillar of civilization. But it was not like that”.

Why is it assigned so much importance? Because this right assures all people control over the fruits of their work and effort, protecting them from the abuses and arbitrariness of the State or third parties. The due protection that the legal framework should grant to this right, and the legal certainty associated with it, are decisive for a prosperous society of free citizens.

How is the right to property pseudo “protected” by the Constitutional Convention? Insufficiently, weakening the current expropriation rules and giving, at the same time, special protection to indigenous property.

What was approved regarding the expropriation? That the owner will be paid the “fair price” and that there may be payment methods. That is to say, the certainty that we have today (payment in cash and in cash) is buried and some questions arise. Who will determine the “just price”? Or, why was the payment in cash and in cash not consecrated?

At times, it seems that the word “property” generates allergy or animosity for most of the conventional, except when it comes to indigenous property, because in this case its “special protection” was expressly enshrined, by recognizing and guaranteeing the right of indigenous peoples and nations to their lands, territories and resources, and likewise, the State is obliged to establish effective legal instruments for their registration, regularization, reparation and restitution, among others.

Lastly, it is expressly stated that restitution constitutes a “preferential reparation mechanism”, of public utility and general interest. And it even went so far as to enshrine that indigenous peoples and nations have the right to “use the resources that they have traditionally used or occupied.” 90% of Chileans would already like this protection and, without a doubt, today they are left out of it.

The proposal for the New Constitution should have had as a priority to ensure -in a scenario of uncertainty like the current one- the right to property, because this is part of civilization. And it is the opposite of barbarism, since, without property, there is no freedom or social peace.

Leave a Reply