The Arab Eastern Region (AER)

The Arab region was selected as it covers a vast and diverse area in the Middle Eastern country’s sample with the majority of an Arab and Muslim. During the last decades, the Arab region in the Middle East knew a remarkable increase in demographic growth and an accelerated urbanization. In this study, the term “Arab Region” goes well beyond a strictly geographical connotation of the term, it is used here in the country coverage of the regional area from Iraq to Morocco, from east to west. In spite of ethnic diversity, the Arab region is unified by the predominance of Islam and its rules as a main source of the administrative regulations.

In the State of Arab cities report, UN-Habitat (2012) has divided the Arab region into four main areas; the western ‘Maghreb’, eastern ‘Mashreq’, Gulf Cooperative Council (GCC), and Southern area, where Iraq is particularly counted on the Mashreq zoning and shares the land-tenure characteristics of this area. In this research, the Arabian Eastern Region (AER) includes 5 countries such as Iraq, Palestine, Syria, Lebanon and Jordan (see UN-Habitat, 2012). Therefore, the AMR is selected geographically and socially where Iraq is located, thus, the AMR aspects of LTA presented in this research as a comprehensive reviewing of the theoretical and practical aspects of the LTA in this region (as illustrated in Figure 3.1).

Historically, the social/ cultural, traditional conceptions of ownership and inheritance continue to regulate a large part of the LTA system in the AER. Administration, majority of the systems of LTA has codified by the Ottoman administration within a set of regulations that were derived essentially from the Islamic rules. Also, there is an existence of customary guidelines accepted by the majority of systems. However, many of LTA systems in the Arabian independent countries that were under the Ottoman Empire have been boarded upon modern reforms under the local influences of the

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Nationalism and Socialism ideologies. It is therefore an essential that efforts are made to identify the current factors that involve the current strengths/weaknesses influences of the LTA in the AER aspects.

The next section provides a close look on LTA experiences in whole AER systems.

 LT managements

In AER systems, official categories are covered by laws under statuary system, ultimately registered in registry institutions. Usually, customary system of tenure is dominated in rural areas, which is suitable for agriculture lands. Public tenures are

defined as ‘Miri’, and it is according to the interpretation of the Ottoman land law, as

well as much of the land defined as ‘Mawat’ (not farmed lands), (seeWarriner, 1957;

Rae, 2002; UN-Habitat, 2012). As seen in previous samples in AMR, (see Figure 3.2),

as a religious endowment, the ‘Waqf’ is common tenure, but mainly acknowledged to be

transferred or sold and registered in the state land. However, the Private tenure’s rights

are served under the individual’s right of full ownership of the ‘Mulk’. In practice, the

same main types of land tenure existed by the ottoman codes are still active in the region countries (see Figure 3.2). The core of land management activities in AMR is carried out by a land administration of interpretation of the Ottoman land law. In this context, the following types of tenure are summarised land tenure managements in this region:

a. Private lands (Mulk): this type is to an individual’s right of full ownership of

the land;

b. State lands (Miri or Amiri): this type is used when the ultimate owner is the state forward while the individual’s cultivators have the right to use and benefit from the land often in agricultural use;

c. Endemic lands (Waqf): this type of tenure is a religious form within the Islamic regulations of public ownership (e.g. Charitable) purpose;

d. Unclaimed lands (Mawat): this type is mainly used for grazing under common property regimes, and occasionally, individuals or tribal groups try to obtain the use of this type with varying results.

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As seen in previous samples in AER, the land management activities in the majority of this region are carried out by a land administration agency at the province / state level. FAO (2002) showed that the organisational structure in AER is built within institutional hierarchies, which are consistent with a national level, province and city levels. The province/state is divided into divisions work in the districts. According to Rae (2002) and UN-Habitat (2012) the LTA and supervision authorities in AMR are performed by district directorates at national level, the ‘Divisions’ are then divided into

districts and a ‘District’is sub-divided into sub-offices. In general, local land

managements are responsibilities of the provincial governments through their revenue departments and district administration; whereas land management activities are implicated at the local levels (more details in Chapter 4, Figure 4.4).

In this connection, Security of users’ tenure rights in AER is usually assured by a multitude of factors; people have always had a very strong spiritual attachment to the land. Traditionally, customary laws still exist with the statutory, especially under the domination of tribal and family conceptions. Despite Arabian Constitutions were inspired by a desire to reform that gave private right of possession and to help the women to own land, a few women do. The system is still not fair with women right influenced by old and rigid regulations of local society’s conceptions that trend towards discriminated shares, according to gender (Rae, 2002; FAO, 2002). For example, Women under the customary rules grant less than the inheritance shear of men, widows inherit only one-eighth of the deceased spouse property and that inherited land is commonly transfer it to their sons’ names only, as a result, daughters inherit half the share of land inherited by sons, and under society’s conceptions daughters in rural areas tend to left their inherited land rights to their brothers, especially at marriage (see Coulson, 1964; Nakash, 1994; Wiley, 2004; UN-Habitat, 2005a and 2011). For a variety of reasons, land reform programmes were supportive, but often below expectations under the Islamic/ society pressure and rigidities, inadequate planning systems and mismanagement was dominated in this region system (see Rae, 2002: the Syrian Arab Republic, Jordan, Egypt, and Iraq country profiles). This clearly underlines that massive role of local society’s conceptions that influence the tenure rights and then engaged in terms of inequity and gender differences in order to secure the family tenures.

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 Focus on Sub regional Issues in AMR: a. Syria

Regarding the legislative managements, there is a significant portion of laws dealt with tenure matters in Syrian civil code, including individual’s ownership, acquisition, binding promises to sell property, and possession rights. In this context, land-use planning law was issued in Syria on September 30, 2010, this law repealed Law 14/1974 and applied to areas designated for land-use planning purposes by the various local administrative authorities throughout Syria (see Syria Laws: 14/1974 and 82/2010). With the changes in economic policy, a significant portion of the Civil Code deals with property law matters including a social market economy. Article 790 of the Civil Code was reactivated by Law 1/2015, which reduced a number of restrictions contained in previous Law 11/2008. Also, a certain degree of foreign ownership over property was allowed by Law 11/2008 which replaced Legislative Decree 189/1952 (Syrian Law Journal, 2017). Also, the Syrian law included the property investment issues, for example, law 15/2008 which established the General Commission for Real Estate Development and Investment (GCREDI), to enable both the Syrian native and feigns investors to have the right to invest in the real estate sector. The laws of the landlord and tenant (see Laws 6/2001 and 20/2015) seek to deal with problems that have arisen between landlords and tenants. Further restrictions have been inserted into this Law that seek to protect tenants from eviction (see Syrian Laws: 111/1952 and 6/2001).

However, rapid urbanisation and distorted land markets present a serious problem to the system. Worsening conflicts and putting all the governmental system at risk of being further harmed, peoples' rights are affected. In Syrian case, an estimated 12.5 million of Syria’s 22.5 million populations live in urban areas and 32% of them live in informal settlements (ibpus.com, 2013; World Vision Inc., 2016). Land tenure and administration in this region is designed to deal with two broad categories; state land and private land, while the underlying tenure system includes a wider range of customary, Islamic and informal rights. In Syria case, the state land presents a ratio of 62%, but only an estimated 20% of state land is registered in all 14 Governorates (Global Protection Cluster, 2013). Syria is also accommodating refugees from most of the region such as

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Palestine, Iraq, Afghanistan, Iran, Sudan and Somalia. In general, elements of distorted land markets in this case are reportedly that many Syrians cannot afford to buy houses in many urban centres. Under the civil war sphere, public administrative records and management systems may be at massive risk of loss, damage or destruction, creating an urgent need over tenure rights.

b. Egypt

The Constitution and Civil code of Egypt recognise three types of ownership of real

estate: public, private and cooperative (see Egyptian Civil code, Article 29). Also,

private real estate cannot be expropriated except for a public purpose and with payment of fair compensation (see Articles 34 and 35, and Civil Code, Article 805). In this context, the LTA system in Egypt as elsewhere is complexity. Traditionally, the Egyptian system of land tenure included the same main types of land tenure existed in

the Arab region. In general, the privately owned land (Mulik), community owned land

(Musha), state-owned but privately operated cropland (Miri), and these uncultivated

land (Mawat) used mainly for grazing under customary rights. Again, these categories of

tenure are driven from the Ottoman land codes and mainly registered in the twentieth century. Mohamed Ali authorities in 1820 can be considered the Egypt’s period of modernisation. According to Jon Rae (2002) this period sets the nationalising land

property and controlling the endowment tenures ‘Wagf’ in Egypt. Subsequently, the

Egyptian land use rights were granted within a clear system to power base groups in the state. In 1867 & 1884, a set of regulations was adopted by the government, which accepted the cultivation of land as property (see Articles 57 and 874 of 1948 of Egypt's civil law). On the eve of the 1952 revolution, Egyptian ownership of land was heavily controlled by landlords, according to the old system of feudalism particularly in the rural lands. For example, about 0.1 percent of landowners possessed one-fifth of the total lands (Rabenau, 1994; Jon Rae, 2002). The 1952 land reforms aimed to reorganise rural resources, and shift the country from agriculture power to support urban growth. It was argued (see Seyam and El Bilassi, 1995; Alfiky, 2004; Bush, 2002) that the reforms of 1952 were reasonably successful, and users enjoyed the security of tenure and the right of inheritance such as Law No.178, 1952. As part of wider structural adjustment

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legislation, land tenure reform continued, regulating the relationship between owners and tenants of agricultural land included the assurance to the tenant against the forced eviction from the house on tenancy land until the government can provide alternative (see Law No. 96 in 1992).

Nevertheless, customary land right types were controlled between the Egyptian clans and tribes. Traditionally, Customary tenure is evolving in response but remains to address some issues such as the clan right to graze their herd on uncultivated communal land, Traditional water rights, orchard planting and other rights for permanent use (see Jon Rae, 2002; USAID, 2005a). With rapidly rising human populations across the country, the Egyptian government had modified their system objective of promoting equitable access to land tenure, towards finding new groupings of alternatives to enhance productivity and better resource management practices. In the socio-economic sphere, the Egyptian LTA system passed the earlier system of feudal tenure to the co- operatives and state organisation promoted the use of modern arrangements. Also, the

Egyptian constitution issued that principles of Islamic jurisprudence are occupying a

significant place in the legal structure (Constitution of the Arab Republic of Egypt, 2014: Article 2).

Administratively, the Egyptian system of LTA is governed by the three principal government counterparts, the Ministry of Justice, the Ministry of State for Administrative Development, and the Egyptian Survey Authority. The Egyptian registration system of real estate is involving 77 bureaucratic procedures at 31 agencies, within high-ranking government official system (Bush, 2002). However, the field study of the legal framework for property registration in Egypt by USAID (2005a, technical

Report No.5;USAID land tenure country profile, 2014) reported a negative note that it

is commonly estimated that 90% of Egypt’s property is unregistered. Whether this figure is accurate or not, Egypt has two registration systems; the old one is operating in

urban area called Sigueal el-shaksi (the “Deeds” system), and another was issued in

1964 as Sigueal el-ainee (the “Title” system), which has only been implemented in rural

areas (see Law 142 of 1964). In general, these systems set up a property-based system in which all matters affecting a particular property are registered. Egyptian law recognizes

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the concepts of ownership, which is well-established in Egyptian law (see Civil Code Articles 856 through 869). The Egyptian law also stressed that every person has the right to own property and register it in the registry record. In this connection, the real estate lending has a general framework, which is governed more specifically by the

Egyptian real estate finance Law (see Law No. 148 of 2001,Articles 1030 through 1084

of the Egyptian Civil Code). Also, Egyptian law gives users rights to the owner/tenant

with the legal ability are formalized and have a strong basis in theEgyptian Civil Code

(see Article 1085). The next section provides a closer look at LTA challenges in whole AER systems.

 Main Challengesin AER

This context of urban mutation and social/cultural re-composition contributes to the problem of land administration as it could observe above. In this context, the land reform doing has faced a serious slow progress contributing to different aspects such as the Weak legal and institutional frameworks, and a lack of information. For example, till the end of 1999, only 25 percent of Jordan’s territory mainly cultivated and populated areas were Cadastred, and only by mid-2002 the desert and other underdeveloped areas were mapped for cadastral purposes (Madanat, 2010). Furthermore, in rural areas land is transferred by informal deeds due people still rely on oral history for identification and use witness’s confirmation of identity and enforceability of rights (UN-Habitat, 2012). At the same time, many registration procedures are still long and complicated, involving complex processes for no obvious reason (El Kafrawy, 2012; USAID, 2005a). As the previous discussion showed, live in informal and slum areas is dominated in most

capitals of AER, for example, well over 50% of urban inhabitants (70% in Greater

Cairo) live in informal neighbourhoods and settlements, where housing is constructed

without building permits on land, or in Slum areas, where people live in degraded and precarious housing (Horii, 2011). Furthermore, a complex property registration system is presenting another problem in AER systems. Although the registration of private property is required under the legislative and institutional framework in order to be

considered legally owned. Until quite recently, the routine and the bureaucratic and

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complicated, and even passed under different forms of corruption and bribes (USAID,

2005, 2005a and 2014). In this connection, Jon Rae (2002) emphasised that the

uncertainties in LTA management and slow reforms are significant barriers to further reform in AER systems. As long as the sphere of wars and ethnic clashes in the most of these countries persists, the authority performance and its administrative roles in LTA will still unacceptable. Conflicts and inter-communal violence are major constraints to develop a tenure security with potentially grave consequences on the users’ rights, as refugees often become dependent on subsistence-level assistance in the AMR systems of LTA because of the lack of durable solutions. In the insecurity sphere, this is primarily after the terrorist wave of the Daesh (ISIS) in 2014 in the region; a significant Ethnic clashes, violent problem was erupted, thus, millions of householders were forced to lose their land/ rights and also to authorities to control such migrations within such political situations. After the violence in Iraq and Syria, World Vision Inc. (2016) estimates 13.5 million people in Syria need humanitarian assistance, 4.6 million Syrians are refugees, and 6.6 million are displaced within Syria; half are children, and more than 1.4 million people live in camps. While being, the government insecurity and inter-communal violence is also a constitutive factor of the weakness and fragility of the urban mutation in this region, which is working an important role to activate the dislocated millions of people (chapter 4, section 4.4.5).

In general, land authority projects in AER should be encouraged to do urgent steps in their LTA system to improve the registry data systems, establishing fair and transparent procedures that reduce application time and bureaucratic steps, and to present their legal process an attractive to native and foreign investors. This underlines that the reform tendency throughout the region in recent years is a constant and the urgent legal development is required. In fact, the issue of equity and systems sustainability in the AER is so closely linked to the governance gaps and security issues and then the existing level of authority organisational efficiency of the land operation. It is a significant note that legal systems and tenure policies in the AER are also intertwined with the insecurity sphere of global concerning the whole MER such as the terrorist wave (particularly the Islamic terrorism and local ethnic clashes), developing the sense of security and stability in this region will help the authority body of system to gain a

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time and chance to re-manage and implement effectively its strategies regarding LTA, confirming people’s rights in tenures.

More details about this system are summarised in Table 3.4.

Table 3.4: LTA experiences in the AMR, Middle Eastern country’s sample.

Samples Suitability of system with the users’ needs Satisfaction of stakeholders with the system

The Arab Mashreq region

 The land tenure system is rooted in the Islamic-ottoman understanding of land reforms as ultimate bases, which still in effective level within the recent Arabian legal operation.

 Tribal traditional regulations and family morals are mostly dominated and shown to be as a main driver of systems.

 In this system; a set of Islamic religious and local society, tribal forms were formed the local statutory and customary law of tenure.

 Sets of conflicting laws coexist uneasily and may be an administrative problem.

 There are slow but continues changes involved in land management. These changes in law and custom have strengthened the women’s claim to the right to be involved in land management.

 The existing system had experienced a varied arrangements and knowledge through their local and religious conceptions.

 The Constitutional system on managing land affairs authorized the state to govern and protect directly the public and private