November 2017
Circular 352: The right to build or lack thereof?

Circular #352 issued by Minister of Interior Nouhad Machnouk allowing citizens from across the country to construct structures of up to three stories high violates the most basic principles of the Lebanese building law and zoning regulations. It is yet another example of high-level decision makers failing current and future generations with inadequate policies that undermine the very basis of our collective livelihoods.

The opportunism of the decision requires further scrutiny. Without extending any support or justification for this circular, I want those reading this essay to understand that the circular responds to a real need: The difficulty that the vast majority of citizens face when needing to access land to build or expand a home and/or a workspace.

This notwithstanding, outcry against Minister Machnouk’s decision has been almost unanimous. From within and outside the establishment, a vocal condemnation has recognized that at the very basic level, the circular causes irreversible damage to our physical and natural environments. The Order of Engineers and Architects has denounced the decision, arguing that it violates the first and second articles of the Lebanese building law. The order’s president has vowed to challenge it legally.

Many also decried the way it undermines national food security and natural resources by bypassing the protection of agricultural lands, forests, and waterways imposed by the National Physical Master Plan of the Lebanese Territory (decree 2366/2009). Others also pointed to exposing people’s safety in the absence of appropriate building controls, destroying the character of towns and roads by allowing building sprawl, and, more generally, precipitating the deterioration of our living and natural environments.

Taking into account the aforementioned points, I would like to highlight three things that I find absent in the debate about this circular.

First, Minister Machnouk’s response displaces a serious challenge to which real policy responses need to be developed, namely, the fact that land has become unaffordable because our policymakers have denied its social value and reduced it to a financial asset only. If people struggle to build a home and need a circular such as this one to add a floor to an existing building and/or expand over agricultural land, even if those are “illegal”, it is because the regulatory framework in place prevents them from accessing the land they direly need to build a home or a workspace.

A true response to people’s needs should recognize the shortcomings of a national financial policy that has encouraged speculative investments in land and pegged land prices to financial markets outside the reach of most people. Such responses would need to tax and curtail land speculation and introduce frameworks of land ownership such as land trusts that facilitate shelter acquisition for those who need it. It should also earmark urban zones of special interest where land prices are maintained below market level and prices are controlled to secure land for housing and work for those who cannot otherwise afford it. A well-crafted policy would also lift permit taxes and/or revise building and zoning regulations and ease them where needed to channel and facilitate construction in responsive, realistic forms to meet the need for building affordable homes and workspaces.

Second, these measures can and should occur within the framework of the law to secure equal entitlement and responsibilities for all citizens vis-à-vis their state and the collective it represents, not a patron to whom they are forced to act as clients indefinitely. Indeed, by responding to a true need posed by citizens through an exceptional measure that extends illegally and exceptionally a permission to build, the decision by Minister Machnouk perpetuates a situation in which the majority of citizens are tolerated occasionally and exceptionally to build as a favor, never as a right. The decision recognizes that the majority of citizens are unable to secure or expand homes and/or workspaces on account of the existing frameworks through which land and buildings are managed. It however falls short of questioning these frameworks, or recognizing the “right to build”. Instead, the framework of the “favor” engages citizens as “grantees” who owe a favor to the particular individual(s) and/or political parties who have granted them the favor. They have no recognized entitlement or right from the state where they have citizenship, they are only clients of powerful politicians to whom they owe favors.

Let us not fool ourselves that this tolerance will lead to the extension of equal rights or entitlement equal to those citizens who benefited from a temporary cover to build a home. It is indeed fitting that on the same day Minister Machnouk issued circular #352, another ad-hoc decision issued elsewhere by other Lebanese public officials, had opted to stop “tolerating” some of the commercial developments in the neighborhood of Hayy el Sellom. There, dwellers who had incrementally built their homes for decades, in violation of building and zoning regulations, benefiting from the same forms of “tolerance”, learned that favors are revocable when political conditions change. So long as we organize the building process through favors and not rights, we maintain the majority in the status of “clients”, not “citizens”.

Third, Circular #352 undermines the authority of local planning agencies and municipal authorities. It is evident that municipal authorities, no matter their level of competence or good intentions, are unable to resist this measure and block building permits even when the latter are clearly destroying agricultural fields and/or the historical and cultural characters of their old towns. Having served on a municipal council myself, as an experienced professor of planning, at a time when a similar measure was extended, I can attest that the authorization granted by the minister makes it impossible for local authorities to resist the pressure. There are indeed no legal criteria, no frameworks, no structural means through which local authorities can explain to their constituencies why they are unwilling to grant them what the minister has openly announced as theirs. Pressured by their future voters who are typically their own family members and/or supporters, local authorities find it impossible to resist issuing permits particularly when their citizenry point to the widespread extralegal practices of people in power who typically flaunt so-called development projects that violate routinely and flagrantly building, environmental, and urban regulations.

In closing, let us note that Circular #352 falls clearly in the current logic of policymaking: A highly informal, ad-hoc process of decision-making that rejects the consistency of legal frameworks where citizens and their representatives have rights and responsibilities. If indeed, as many have said, it amounts to an ‘electoral bribe’, then the loud denunciations it has received should serve to tell those who still want to engage us as clients that we are ready for citizenship and we hope to vote for real policymakers who will activate the “oversight” role of the parliament and make ministers accountable when they fail to uphold the law.