Two Just Laws: 85 and 86
In 1983 the Sandinista government decided not to carry out the urban reform that had already been designed. This move deprived the revolution of a juridical framework in a most important area. In 1990 a legal framework had to be created in precipitous fashion.
Miguel Ernesto Vigil
Over the past five years, a small but powerful group of Nicaraguans has dedicated a considerable amount of energy to delegitimizing Laws 85 and 86, passed during the March 1990 transition period [to legalize urban houses and lots provided to new owners but never titled by the Sandinista government]. As if one or two hundred acts of abuse could invalidate hundreds of thousands of acts of justice. As if, just because there are criminals who commit crimes, someone should try to denigrate and annul the country's criminal code.
What led to the promulgation of Laws 85 and 86? From July 21, 1979 until the end of the Sandinista administration, many responsibilities fell to me in the area of urban property. Based on that experience, I am able to speak with first hand data.
In Search of Urban Reform: 1979 1983The revolution was an historic political fact with legal consequences. With the disarticulation of the Somoza government, one of the first measures taken by the Government Junta for National Reconstruction was to repeal the most recent Somocista Constitution, passed into law in 1974. Nicaragua came under a revolutionary junta, endowed with the legality and legitimacy to decree and pass fully valid laws. This situation, covered by international law, was recognized by all world governments and international organizations.
The revolutionary government did not come to power without a program. In 1979, a very serious governmental program had already been drawn up, with clear policy indications in a number of areas. Referring to housing, the Government of National Reconstruction said the following in a general proclamation dealing with a number of issues:
"An authentic urban reform shall be carried out, with an eye to resolving, among others, problems of environmentally unhealthy conditions, and of the limits to which urban property tenure should be subjected in the marginal barrios, in the illegal settlements. High priority will be given to the regulation of rents, in order to avoid speculation." One of the signatures on this first proclamation was that of Violeta Barrios de Chamorro, then a member of the five person Government Junta.
That first proclamation served as my guide when I was named to head the Ministry of Housing and Human Settlements (MINVAH). The revolution had been carried out under this very concrete banner, it was precisely what the revolution offered to the Nicaraguan people and it was my obligation to help make that promise reality.
In order to fulfill the revolutionary program we had to carry out an urban reform. And, in that first stage, that was our goal. The first thing we tried to do was define the theoretical framework within which we would be working. We began to gather ideas and request advice. Among the Latin American contributors to housing theory, two Argentine theorists particularly interested us: Jorge Hardoy and Oscar Moreno. They had jointly written a treatise on urban land, in which their key contribution was to define what urban land is.
Within a classic liberal scheme, and virtually since the time of the Romans, urban land has been considered one more item in a larger market a good that is "mine" and that I can therefore sell, buy or give away. It is a good I can both use and abuse.
Hardoy and Moreno state that urban land is not part of a market, but rather fulfills a social function that does not correspond to the market. They say that urban land allows people to realize one of their most basic human rights that of having a home. Thus, urban land is one of those goods that society has the obligation to facilitate to its citizens, just as it does education, culture, sports or health care. Housing, and the land on which it is constructed, is a good of socially necessary use. It is like the air we breathe, or the water we drink. Naturally, this is not to say that urban land should not have an owner. But possession of urban land is different from that of other goods, because if urban land has a social function to fulfill so as to be able to benefit those citizens who have the right to a home, the state's obligation is to regulate property with the end goal of putting its acquisition within reach of all.
Everyone An OwnerThis theoretical concept was fundamental for us. We discussed the idea and adopted it. And based on this theoretical concept, we began to draw up our proposal. We found the ethical foundation for taking on such a revolutionary principle not in Marxism I am not a Marxist and in the Ministry, the majority of the workers were not Marxists. We found it rather in the doctrine of the church fathers of the first three Christian centuries who, though they of course had never specifically analyzed urban land, did prophetically speak of private property in general. Guided by these fathers, we came to Saint Thomas, who some centuries later set forth as a basic principle that the common good should always prevail over the individual good.
We concentrated our efforts on drawing up what we called "A Law to Regulate Housing." We didn't feel it appropriate to call it the "Urban Reform Law," since that name had been used by the Cubans, and, as we were not copying their law, we did not want to be open to accusations that we were. We were, however, very much aware of what had gone on in Cuba, because we had the advice of many Cuban experts.
The Cuban Urban Reform Law was a two stage law. In the first stage, the government gave individual property titles to those renting houses. In the second stage, property rights to the houses were not handed over to individuals, but given in usufruct, with the state reserving all property rights. Our law had as a goal actually handing property over to people. We wanted all Nicaraguans to own a home. Just one home. This was the main point of the law we were drawing up.
It was a prodigious task that took us months. Finally, at the end of 1982, the draft legislation was ready. The law started out this way: "With the goal that they be acquired by their renters or legitimate owners, as their own property, all those buildings used as residences or built for use as housing but are not currently inhabited or occupied, totally or partially, by their owners, are covered under this law whether they have natural or legal status...." This law effectively expropriated all rental properties, and the infamous "barracks." The law also addressed all vacant urban property, expropriating it as well. And, of course, it established compensation for these expropriations.
An Unexpected DecisionThere is no legal basis for claiming that any of the laws adopted between 1979 and 1987 were unconstitutional. There was no Constitution. All laws and codes had equal status, and thus any law promulgated by the revolution could repeal any earlier law, regardless of how longstanding or venerable it might have been. It should not be forgotten that the very essence of revolutions is to change what is considered an unacceptable legal framework. This happened with the American Revolution and with the French Revolution, to mention only two cases that have been questioned by very few. When a new Constitution was passed into law in Nicaragua on January 9, 1987, all the laws passed by the revolutionary government in earlier years were reaffirmed as legal. The "Regulatory Housing" bill was signed into law in December 1982 by the three members of the Government Junta at that time: Daniel Ortega, Sergio Ramírez and Rafael Córdova Rivas. Later, we met with the nine members of the National Directorate, who agreed with the project, but played devils' advocate, seeking out the project's weakest points in order to insure its solidity. With that test passed, the bill was discussed, article by article, in the Council of State.
The right wing, which had its representatives in the Council of State, made so many objections that it was decided to take the bill out to the barrios of Managua and the rest of the country, in open town meetings, to let the people have their say. During most of 1983, we spent our time visiting barrios, cities and villages, explaining the law and gathering the opinions of everyone who participated in the consultation.
But the pressures continued and the political climate in the country became even more tense with the stepped up US war. Such were things in October 1983, that Comandante Carlos Núñez, president of the Council of State, suddenly and unexpectedly communicated to me that the bill was being indefinitely taken off the debate agenda, on the decision of the National Directorate. The decision was a total surprise to me. We had our little crying session in MINVAH. We had put so much effort and hope into the law, convinced that it was the best contribution we could possibly make to resolving the housing problem facing nearly all Nicaraguans, so it was difficult for us to accept the Directorate's decision.
No one ever explained to me why the decision was made. My personal sense is that pressure from those whose property was going to be affected was decisive. I also had the feeling that adopting this "frontier" law, the only one that questioned the legal system we had inherited and still have, since the revolution did not change it could have had serious political consequences, perhaps even of an international nature.
What Had More Weight? I don't know exactly how much weight to give the considerations that went into withdrawing the legislation from debate. I don't know what had more weight: the desire not to offend the US, not to offend the "patriotic producers" of the Nicaraguan right, or not to offend those Sandinistas who were willing to give their lives, but not their mother's land! And I say this precisely because I personally know that many people were caught up in that very contradiction. I was a very unpopular person at that time in some Sandinista media, precisely because of the turbulent law we had proposed.
What had more weight? I really can't say. The reality is that the National Directorate made its decision, thus definitively shelving that legislation. This deprived the revolution of a key legal framework in such an important area. The opportunity was lost to hammer out such a framework. If that law had been approved, we would not be enmeshed in this property conflict today. The situation would have been very different and different roosters would have been crowing at us.
Urban Land Distribution: 1984 1988Since we weren't simply going to sit back with our arms crossed, we continued working. Taking advantage of the gaps and voids in Nicaraguan legislation regarding housing and of the capacity to maneuver that we had from within MINVAH, we began taking a series of measures to better redistribute urban land.
It was in this second stage that the "Law of Expropriation of Vacant Urban Lands" was approved. That allowed us to carry out the policy of so called progressive urbanizations, which, in my judgment, constitutes the only possible solution able to deal with the housing problem faced by Nicaragua's popular classes. But, without an appropriate legal framework, we could not deed those lands, just "adjudicate" them, a judicial move not contemplated within our legal system. We gave people documents of adjudication, and with that, they had their lots in the progressive urbanizations we started all over Nicaragua. I would estimate that over 100,000 lots were given to people as part of the progressive urbanizations project.
During an international housing seminar held in Nicaragua, we toured a number of these progressive urbanizations. One of the international participants was from the United States, an expert from USAID. He came over to me and said, rather secretively, "Congratulations, these are the first functioning lots and services projects that I've seen in Central America." It's a shame that such valuable experience was not taken into account by those who succeeded us in the responsibility of attending to the problem of popular housing.
We worked with the Presidency to create a compensation fund in the Ministry of Finances when the "Law of Expropriation of Vacant Lands" was decreed it was expropriation, not confiscation, and thus included compensations. MINVAH negotiated a price for their property with those who were going to be expropriated, based on the assessed value or some other basis. We were able to reach agreement in many cases, but the great majority of those affected were either no longer in the country or, if they were, were not interested in coming to any sort of agreement with us. They felt that the revolution was reversible and that the moment would come when they would be able to recover their properties.
Thousands and Thousands of DeedsDuring this stage, we also undertook massive transfers of the housing units that had been administered by INVI or BAVINIC and had not been cancelled or transferred essentially, the majority of the cases. We gave the housing units to their occupants, after working out a series of irregular situations BAVINIC had faced. Here's an example of a situation we frequently ran into: BAVINIC might have given 10 houses in an urbanization to a sergeant in Somoza's National Guard. Even during the Somoza era, this violated BAVINIC norms, since these houses were designated as having "social interest" and were supposed to resolve housing problems, not be handed over to somebody who would then turn around and rent the units.
What did we do? We gave titles to the renters in those houses so they could go register them in the pre 1979 urbanizations of INVI and BAVINIC.
For some time, signing those titles was a task that took up all my mornings. It was something we couldn't stop, because we simply couldn't let so many pending titles pile up. We had no other choice but to submit to the Nicaraguan legal system, one designed to meet the needs of last century. But we could make some improvements. The BAVINIC Protocol was created, with the advantages that this meant for both the beneficiaries and the institution itself. We got to the point where we were drawing up some 200 title deeds on a daily basis.
MINVAH was also the implementing agency of another revolutionary law: the "Law of Intervention in Illegal Settlements." At the beginning, the intent was to end this exploitative business, which flourished primarily after the 1972 Managua earthquake. We began by collecting the monthly payments each resident made toward buying the house, and invested it in the neighborhood. Later, it was decided to attend to the demand of renters who wanted the property. For this massive issuance of titles, we managed to change the laws and handed out more than 50,000 special deeds. That law had its imperfections as well, but it allowed those living in illegal settlements to register their properties in the registries of public deeds. As far as I know, these titles have never been questioned, nor have they caused problems. Perhaps that's why they are never mentioned in the media, as if they had never existed.
The Priority? I don't have precise overall statistics at my fingertips, but I would estimate that, taking into account all these programs, the Sandinista revolution benefited some 200,000 urban families in Nicaragua. More than half of those families received lots or houses through the revolutionary government. In spite of all the efforts carried out, however, thousands of those houses and lots were never registered.
In the stage of distributing and handing over land, we were most interested in resolving the problem of the people packed into those barracks rooms than in completing the legal process so one more family would have legal standing. We had to make a choice. The reality is that it is costing the Chamorro government more money today to hand over a deed than it cost us then to hand over a lot. Seeing things rationally from the viewpoint of the country's real necessities, I think the priority is to give a lot to someone who has nothing, rather than give a deed to someone who at least has the key problem of land resolved.
MINVAH Shuts DownOn May 31, 1988, MINVAH closed its doors as a result of the statewide cutbacks touched off with the February 1988 implementation of the unsuccessful structural adjustment program. Thus, the second stage distribution came to an end just as MINVAH did. It was decided that, from then on, the new Ministry of Construction and Transportation would take on all housing related issues, but with no one central entity anymore, or resources, almost all activities we had been working on at that moment came to a halt.
I initially thought that my responsibilities for housing would also end then, but some days later I received instructions from the Presidency to coordinate the newly created National Commission on Urban Housing Legalization. Many took part in that commission, including lawyers with clear and progressive ideas and some old MINVAH officials. During the remainder of 1988 and all of 1989, we attempted to put in order something we had only been able to give scant attention to during the MINVAH era.
This time the issue was houses that had been confiscated from Somocistas or abandoned when their owners went abroad and were now being inhabited by other families. The majority of these houses were in the so called residential neighborhoods, where the country's best housing is found.
What was to be done in these cases? We tried to come up with individual solutions, but found ourselves thwarted by the lack of an appropriate legal framework. We thus once again set ourselves the task of designing a legal system that would permit a broad, inclusive solution.
The key to this solution was found in the 1987 Constitution. The initial idea of carrying out an urban reform had influenced the Constitution to a certain degree and been incorporated in Article 64. That article granted constitutional rank to all Nicaraguans' right to decent housing and underscored that the state was to promote the full realization of this right. I think that no Central American Constitution, very few Latin American ones and only 60 in the whole world consider the right to housing as an essential right of all citizens.
In November 1989, I informed then Vice President Sergio Ramírez that we had already more or less visualized the magnitude of the problem, as well as the route to an adequate solution. Although Sergio was interested, he reminded me that we were entering the electoral period, and that it would be better to take this up after the elections. Neither he nor I doubted that the FSLN would win the February 1990 elections, and that we could then easily continue our plans.
The 1990 Transition: Laws 85 and 86On February 27, 1990, as I left that historic "grieving session" in the Olof Palme Convention Center, I received instructions to work on the whole housing problem during the two month transition period before the new government was inaugurated.
We worked in a team, in which we were obliged to overcome two obstacles. We had neither sufficient material nor psychological time for the task at hand. The mood we had all been thrown into with the FSLN's electoral defeat and the uncertainty, in terms of both one's own and the nation's future, did not create ideal conditions for drawing up solutions.
It was evident to us that the only possible solution was one of a legal nature. We had to find the way to prevent the new government which we assumed would be a revanchist one, given the rhetoric of many of the winners would dismantle everything that had been done for the people, and at such an incredible effort. We also had to make sure that those who had served Nicaragua during the Sandinista government at great personal sacrifice would not be exposed to evictions or persecution. In any event, we had to be just, with the concept of justice we had used in the area of housing since 1979.
We initially conceived of only one law, but soon realized we were dealing with two very different urban phenomena: houses and lots. Thus we proposed two different laws which ended up being known as Laws 85 and 86.
The prior work carried out by the National Commission for the Legalization of Urban Housing, precursor to the Law Regulating Housing and, more than anything, Article 64 in the Constitution, were the foundations upon which we based ourselves as we prepared the drafts for Laws 85 and 86.
Just and Valid LawsThese laws have obvious imperfections, but they were drawn up in the same spirit in which we had carried out all our previous work. The result was adequate and just; Laws 85 and 86 are valid and constitutional. Those who argue against them point out that they challenge the property rights consecrated in the Constitution, but Article 64 of that Constitution gives equal constitutional ranking to the right to a home.
Laws 85 and 86 contain mechanisms perhaps insufficient ones against abuse. It is well known that some people, including highly placed outgoing government and FSLN officials, ended up with a number of properties. In the case of housing, I estimate that the abuses do not go beyond 100 or 200 cases. In any case, whatever the quantity, the government's obligation is to prosecute those who abuse these or any other laws.
The Nicaraguan right, bent on rejecting the validity of Laws 85 and 86, focuses on the abuses, not so that they will be corrected and the abusers dealt with, but to stir things up, to take attention away from the clear fact that these laws should be complied with and respected. Laws 85 and 86, published on March 31, 1990, took effect, transferred the properties and finished their task, all on that same day. No subsequent law can modify the legal transfers effected that day because that would be a law with retroactive effects and thus unconstitutional. And, more than anything else, it would be an unjust law.