31 January 2012

Property and economic rights

Only now it is property (and economic) rights' turn though one could deduce from the present public ideology that safeguarding property rights (especially those of the most riches ones) is perhaps the only sense of humanity's existence. But safeguarding huge properties is not a purpose of property right, the very purpose of them is to safeguard dignified existence of every individual in the society. Provisions of the European constitution have to meet challenges of present time. Whereas in earlier times a danger was imminent that a totalitarian state would take property from an individual an so damage him, the present danger is contrary, namely that mighty individuals with their immense properties would bring the society and the state under their control. Threats of present time therefore must be also taken into consideration in the constitutional section concerning property rights.

First letter (a) of the section concerning property rights proceeds from the Universal Declaration of Human Rights whose article 17 says that everyone has the right to own property alone as well as in association with others. I completed this provision with some words. For property can not only be owned but also be used which need not necessary occur parallel. Except owning and using property should everybody also have a right to hand over his property to others, especially through a testament. I added therefore these two rights (to use property and to hand it over) to the provision adopted from the Universal Declaration. This is however not sufficient because also who owns property has its significance. We know periods in Europe's history when private property was restricted in favour of interests of a totalitarian state and its oligarchy rulers but at the present time, we can see contrary tendencies in many European countries: to prefer private property to common (state, cooperative) property's disadvantage. Therefore I add, following a pattern of the Portuguese constitution (articles 80 and 82), a sentence to this provision that safeguards the same position to all kinds of property that deserve the same protection from the society.

Likewise the letter (b) is founded on a provision of the Universal Declaration. I completely take over the second paragraph of the same article 17 prohibiting willfully to remove property from anybody. But it is necessary to complete this provision because the word “willfully” can be explained differently, apart from other things that private property is inviolable. Property can be expropriated which is a usual practice in European states and constitutions of European states commonly make it possible. I added to this letter's suggestion therefore a sentence allowing expropriation in public interest and according to the law and for a fair compensation. I leave deliberately open what a fair compensation is, it can depend on specific circumstances of time and place. I inserted also – unlike the constitution of Finland that prohibits it – words about restriction of proprietary rights in the provision concerning expropriation – it may also be necessary in public interest.

The provision of the letter (c) is a reaction to a contemporary pernicious ideology and practice concerning taxes. Holders of great and giant properties are less and less willing to share their property with the society and they hold society's claim that they pay taxes proportional to their wealth to be almost a crime against humanity and above all violation of their guaranteed right to freely have their property at disposal. It is the reason why to add a provision in the European constitution that say that obligation to pay taxes proportional to one's income and amount of property is not a violation of the right to own. It is not a completely new provision, the article 53 of the constitution of Italy speaks similarly and so I partially took over its wording.

All charts of rights protect property but almost none of them protects against property. It has been however known for thousands of years that the greater property the more influence of its holder on other people. If majority of the society shall not be leaved at the mercy of holders of great (and giant) properties, execution of property rights have to be regulated, at least on the ground of the principle “rights of one man end where rights of other one begin”, which nobody will disagree with. The constitution of the European federation, in the section concerning human rights, therefore must determine that the law shall regulate using property, namely in that way so that it is not inconsistent with public interest and in particular with rights and freedoms determined in the European constitution.

My suggestion of letter (e) determines a principle that private property cannot be without limits if it relates to public interest. Then the letter (e) is again in contradiction with present ideology according which ideally everything should be in private possession, also in cases when a property that serves interests of the whole society is the matter. But longing of private persons for enlargement of their property, not longing for doing the society a service through private property important for the society however is behind this ideology. The suggested letter (e), in fact, expands on the previous letter of my proposal which says that using property must not be inconsistent with public interest and if some property serves interests of the whole, there is public interest that mentioned property is not subordinate to interests of one private possessor. Interests of the whole will be safeguarded in the case of specific kinds of property at least by enumerating them in the constitution, e. g. by saying which of it should be property of the whole society. Provisions of some European constitutions tell what should be public property and I took them over. The Portuguese constitution speaks about public possession in the case of sea and continental water, atmosphere, mineral wealth, underground water, underground natural cavities and public roads and railways. I took it all over in my suggestion because those are the most significant kinds of public property. But it is not an exhaustive list, the Portuguese constitution also writes that other goods in public property will be given by the law. I add therefore to the stated enumeration other items. Namely I added forests and archeological and cultural objects from the constitution of Lithuania, then – from the French constitution (its preamble from 1946) – a provision that can seem rather vague yet excellently hits substance of public possession: property and enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of the society.

The last letter of my proposal concerns not protection of property and delimitation of its use, it speaks about economic power (a power arisen from practicing economic activity) and its influence on the society. Nobody can doubt rightfulness of association of words “power” and “economy” in the present time. Already for a lot of years it has been said in public that great supranational firms have greater power than many states. But it is paradoxical that state constitutions focus in detail on “taming” political power but on the other hand, they pay only small attention to regulation of economic power or indeed pay no attention to it. The situation of present time however requires at least to lay down necessity of regulation of economic activity in a constitution as well as putting it under democratic control. It is not unknown to some constitutions. The Portuguese one speaks about subordination of economic power to democratic political power and I take it over as a very good formulation. On the other hand, subordination of economic activity to political power can raise fears that political power may misuse control over economy to subordinating the society under its own power as it was in eastern Europe in the second half of the twentieth century (though present threats are quite contrary). It is therefore necessary to state more precisely what should be aim of control of economic power from political power. The constitution of Lithuania contains an appropriate and well formulated provision in its article 46 – it says about necessity to subordinate economic activity in order that it serves the general welfare. I took over this provision into my suggestion of the European constitution, only with specification that citizens of the European Union are for whose well-being economic activity should be practiced and regulated.