Venice - March 11-12 1999
Concepts and Paradigms of Urban Management
in the Context of Developing Countries
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International workshop Venice - March 11-12 1999 Concepts and Paradigms of Urban Management in the Context of Developing Countries |
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Ann Varley (UCL, London)
"New models of urban land regularisation in mexico: decentralisation and democracy vs. clientilism"
This paper is for the workshop on ‘Urban management issues in developing countries: driving role or hegemony of the World Bank and the United Nations organisations? What room for other approaches?’. I have been asked to address two questions likely to be of interest to other workshop participants:
1) To what extent does Mexican policy follow the World Bank market-oriented/decentralisation model?
2) What can other countries learn (politically more than technically) from the Mexican experience?
I propose to answer these questions as a preface to the case study with which the rest of the paper is concerned. The arguments I put forward in this preface are somewhat speculative as they are intended primarily to contribute to debate. They are based as much on my previous work on the ‘traditional’ model of regularisation by the federal government as on the experiments that have recently been taking place in the city of Guadalajara.
1) Mexico and the World Bank model
Mexican policies follow the World Bank model closely in their emphasis on the provision of full individual title to land. They do so primarily for cultural reasons relating to the historical importance of property ownership, and because experiments with restrictions on ownership such as patrimonio familiar have proved counterproductive, promoting illegal land and housing sales.
Since 1989, Mexican policies have also apparently decentralised urban management and increased community participation to promote more efficient and transparent government. The National Solidarity Programme, which reportedly legalised 2.5 million properties from 1989-94, was supposedly a major force for decentralisation. Solidarity did lead to some deconcentration of regularisation agencies’ operations, but overall it reinforced political centralism. It did so because, although policy makers subscribe to World Bank arguments about promoting investment in housing improvement and settlement upgrading, the logic of national regularisation programmes has always in practice had little to do with urban planning and a great deal to do with politics. The Solidarity programme used regularisation on a massive scale to counter the loss of electoral legitimacy of the ruling party, the PRI; its impressive achievements were a product of a powerful central imperative emanating directly from the Presidency. Decentralisation only went beyond rhetoric, in relation to regularisation, when associated with opposition government at municipal or State level. The new approaches discussed in my paper, although far too recent and vulnerable to have yielded significant results as yet, are exciting because they show that a less politically-manipulative model of regularisation could emerge in Mexico, linking decentralisation, democracy and urban management.
Lessons to be learned from the Mexican experience
A) Regularisation as practised in Mexico is a complex, expensive and slow procedure that is nonetheless attractive to politicians because of its ability to win the votes of the urban poor for parties promoting the ‘social integration’ of illegal settlements.
B) Differences in political affiliation between local and regional/central governments offer fertile ground for the emergence of local regularisation initiatives. As legalisation and servicing are often the main areas in which municipal governments can respond to the needs of the urban poor, regularisation is likely to be a popular tool of urban management at this level. The danger is that it will also become a vehicle for populism. The Mexican case demonstrates the effectiveness of regularisation as a populist strategy, and therefore its seductiveness.
C) Whilst ‘delivering the goods’ is a legitimate aim of urban governance, populist motivations for regularisation are problematic for various reasons. First, there is a dangerous of rushed and therefore ‘botched’ legalisation and servicing projects, leading for example to infrastructure maintenance problems, an increase in the complexity of irregular tenure within the area that is ‘regularised’, and an extension of illegality to nearby areas. Secondly, whether the logic behind the choice of beneficiary areas is to undermine the opposition vote or to punish it, selection is not based on need and individual projects can be suspended once immediate political objectives have been achieved. This is an anti-democratic, unfair and inefficient approach to urban management.
D) How, then, can the dangers of populism be avoided in alternative approaches to regularisation?
The danger of this latter approach is that if illegal developers are too strongly discouraged from pursuing their activities, the supply of unserviced land for low-income home-builders could be adversely affected. This points to the heart of the problem in regulating illegality and legalisation. There is a tension between the need to regularise urban development processes, in all respects, and the need to maintain access to land and housing by the urban poor. At present, this is crucially dependent on the existence, in the first place, of an illegal development process. World Bank arguments about regularising property rights and land registration systems creating more open land markets, and thus decreasing prices in the city as a whole, may be theoretically impeccable. It is however extremely difficult for me to imagine their having enough of an impact on either property prices in already-consolidated areas or the supply of vacant land at the urban periphery to support the orthodox justification for regularisation.
Politically, then, the question would seem to be how to shift the balance between the regular and the irregular sufficiently towards the former that people are subject to a minimum of abuse by either land developers or the politicians who promote regularisation, without undermining the illegal processes on which access to land and housing by the urban poor seems set to depend for the foreseeable future. How can this be done without asking governments explicitly to embrace illegality?
NEW MODELS OF REGULARISATION: THE CASE OF GUADALAJARA
INTRODUCTION
The regularisation of illegal housing areas has long been a paradigm of urban governance in Mexico.[2] For almost three decades it has enabled the state to maintain its claim to govern the nation’s cities in the face of two threats to the plausibility of that claim. First, regularisation avoids the need for the state to acknowledge that it cannot or will not fulfil its Constitutional commitment to ensuring that Mexicans enjoy decent housing conditions. Tenure legalisation and settlement upgrading are presented as a concession to the urban poor, the product of the state’s benevolent paternalism towards its citizens. This overlooks the fact that the lack of affordable formal sector housing leaves the poor no option but to acquire land in an illegal settlement in order to build their own homes. Regularisation enables the government to take the credit for a system of access to shelter operating largely outside state norms and policies[3]. The illegality of this process, however, undermines the state’s ability to control and be seen to control the nature and direction of urban growth. Secondly, therefore, regularisation masquerades as a strategy for regulating urban development. Government agencies respond to a ‘need’ for intervention created primarily by discourses originating within the state itself, which present legal tenure as a necessary condition for installation of services. In practice, the processes of upgrading and legalisation have mostly operated independently. Regularisation as practised to date in Mexico might therefore be described as a form of governance by sleight of hand.
If the need for tenure legalisation is to some extent artificial, however, there is nothing artificial about the political uses of the process. Regularisation is often described as a process of social integration of the urban poor into the life of the city, but it is also - and even primarily - a process of political integration of the urban poor into a system of government dominated for many decades by the Partido Revolucionario Institucional (PRI). Regularisation provides a vehicle for clientilistic practices delivering land titles and services in exchange for electoral support and social tranquillity. It demobilises the political opposition presented by social movements and remobilises social activism in pursuit of legal and infrastructural benefits along established channels leading to a renewal of government by the PRI.
To decry the political uses of regularisation is not, however, to argue that legalisation is in itself undesirable. It serves a useful purpose in increasing residents’ security of tenure, protecting them against threats arising not so much, in practice, from government agencies as from other (would-be) residents, neighbours, unscrupulous tenants or disaffected family members.
This being so, is it possible to imagine a different model of regularisation from that which has held sway until now? In an ideal world, of course, regularisation would be unnecessary, since the poor would not be obliged to step outside the law to acquire land. Illegal land purchase means that services and property titles will not be available for years, and usually not without mobilisation by residents to obtain these ‘goods’ in a clientilistic pact trading their civic rights for the satisfaction of immediate material needs. Given that illegal land acquisition is set to remain the main form of access to housing for the poor, however, is it possible to envisage a model of legalisation that delivers the desired benefits without subjecting the beneficiaries to the risk of political manipulation?
This paper discusses recent attempts to construct alternative, ‘democratic’, models of land regularisation in the city of Guadalajara. The key to the emergence of these new models is the combination of opposition government and decentralisation policies placing greater emphasis on the municipality as the locus of urban governance. The new initiatives undertaken by municipal and State governments run since 1995 by the Partido de Acción Nacional (PAN) are as yet tentative and the results vulnerable to undercutting by traditional clientilistic practices. The paper describes the characteristic features of the new strategies, showing how they differ from the existing, anti-democratic, model of regularisation in Mexico. In particular, I explore the nature of the relationship between decentralisation and these new models of regularisation, given that such high hopes are placed on decentralisation as a key strategy for urban governance in the 21st century - the ‘age of decentralization’ [World Bank 1997].
The evidence on which this paper is based comes from interviews conducted in 1997-98 with municipal and State government officials in the Guadalajara Metropolitan Zone.[4] I also refer to documents produced by the State of Jalisco’s Procuraduría de Desarrollo Urbano (the office of the State’s Attorney for Urban Development) and the Comisión de Regularización de Fraccionamientos y/o Subdivisiones created in 1996 in Tonalá, the poorest of the four municipalities in the Metropolitan Zone. The Commission for the Regularisation of Subdivisions has not been reticent about its contribution to the emergence of a new model of regularisation, promoting its experiences as a ‘pilot programme’ for the regularisation of private land throughout the State, and even for the regularisation of ejido land (the responsibility of a federal agency, the Comisión de Regularización de la Tenencia de la Tierra, CORETT).[5] There are, however, common elements in the responses to illegal settlement of panista administrations in the other peripheral municipalities of Guadalajara, Tlaquepaque and Zapopan.
AN ANTI-DEMOCRATIC MODEL OF TENURE REGULARISATION
I use this phrase to describe the existing system of land tenure regularisation that has applied in Mexico since the 1970s, and which reached its apogee in the administration of Carlos Salinas de Gortari. I have described the workings of this model of regularisation elsewhere [Varley 1993, 1996, 1998b] and do not propose to repeat the detailed arguments here. It is necessary only to outline the major characteristics of this model in order to bring out the contrast with the new models.
My first observation about the existing model of regularisation is that it is highly centralised. A key reason for this is that most regularisation has taken place on ejido land, and the procedures to be followed have therefore been determined by the federal laws governing agrarian matters in Mexico. Illegal settlements on ejido land have been legalised by expropriation in favour of the federal regularisation agency CORETT (the Commission for Land Tenure Regularisation), and each expropriation has to be authorised by the President [Azuela 1989]. Consequently, regularisation has lent an agrarian logic, the logic of Mexican corporatism, to urban politics [Varley 1993].
Centralism increased dramatically during the Salinas presidency. After the shock of near-defeat for the PRI in the 1988 presidential elections, drastic measures were needed to ensure political continuity. Regularisation played a leading role in the strategy adopted for this purpose: delivery by the National Solidarity Programme of a range of benefits to the rural and, to a greater extent than the rhetoric suggested, urban, poor.[6] The centralism involved was apparent, for example, in the simultaneous adoption by most Mexican States of measures making regularisation cheaper and more efficient, and the transfer of procedural improvements from ‘urban’ to ‘agrarian’ sector agencies, although these were traditional rivals [Varley 1996, Azuela and Duhau 1998]. Central control of the programme was indeed deliberately publicised, with Salinas receiving petitions and handing out land titles as well as other benefits on a punishing schedule of weekly official visits to the provinces [Dresser 1991]. The reason for all this frenetic activity and the high public profile of Solidarity is that the programme was designed to reinforce the legitimacy of the Presidency as the key to ensuring political stability, even if this meant bypassing the PRI itself along the route [Dresser 1994, Knight 1994]. It was spectacularly successful, reversing the electoral fortunes of the PRI in just three years - perhaps the most dramatic demonstration ever of the effectiveness of Mexican clientilism.
That the existing model of regularisation is a centralised and anti-democratic one, reinforcing clientilism, does not mean that it is inefficient. Quite the opposite: the Salinas administration yielded an extraordinary improvement in the efficiency of regularisation. It accounted for almost two-thirds of ejido expropriations since 1973 (when CORETT was set up), just over one-half of the total area expropriated, and four-fifths of the titles issued for individual properties [Varley 1998a, 1998b].
The efficiency of the existing model of regularisation owes a great deal to its centralism, in the sense that the federal legislation establishes clear procedures and, if these procedures are correctly observed, an unanswerable case for ejido expropriations. This may well be why Mexico has what Antonio Azuela and Emilio Duhau [1998] describe as one of the world’s leading regularisation programmes. Other Latin American countries have not developed such large programmes. As Peter Ward [1998: 4] observes, governments are usually unwilling to regularise private land without the owner’s consent: ‘With the exception of Mexico, governments are reluctant to expropriate in the social interest’. What Ward fails to add is that Mexican State governments, legally responsible for regularisation of private land, have also been generally reluctant to employ this method, although it is the most efficient one available, because expropriation of private land is a more complex matter. As a result, little has been achieved in the regularisation of illegal settlements on private land over the decades. It is, therefore, the existence of the ejido that has enabled Mexico to have such a successful regularisation programme, and success in ‘delivering the goods’ to the residents of illegal settlements is needed if clientilism is to succeed in delivering continued electoral support for the party in government [Varley 1998a, 1996].
One of the noteworthy characteristics of regularisation under Salinas, however, was its extension to encompass both private land - for which expropriation was now introduced[7] - and even public housing projects. In the Federal District, rather more private than ejido land was expropriated from 1988 to 1994 [Varley 1998a]. By demonstrating the feasibility of regularising private land, Salinas may, unwittingly, have established a precedent for the emergence of alternative models of regularisation by State and municipal governments controlled by opposition parties.
THE CHALLENGES FACING OPPOSITION GOVERNMENT IN GUADALAJARA
Eduardo López Moreno [1996: 436] rightly questions the reliability of statistics concerning the extent of illegal urban development in Guadalajara (or elsewhere, one might add). He estimates, nonetheless, that 1.23 of the city’s 2.8 million inhabitants were living in illegal settlements in 1994, that is, 44 per cent of the population. Urban growth on ejido land accounted for 20.3 per cent of the built-up area in 1990 [Becerra Mercado 1997] and over 5,500 hectares had been expropriated by CORETT from ejidos belonging to the four municipalities of Guadalajara by the end of 1994.[8] Illegal subdivision of private land has also been of major importance in Guadalajara, although the existence of illegal settlement prior to the surge of urban growth onto ejido land in the 1970s has generally been overlooked by academics and government officials alike [Vázquez 1989, Varley 1989].[9] Private subdivisions are particularly important in Tonalá, which has relatively little ejido land compared with the other peripheral municipalities.[10] Although Tonalá accounted for only one-eighth of the built-up area of the Metropolitan Zone in 1995, it has over one-quarter of the city’s illegal settlements (by area). Tlaquepaque and Zapopan each have a similar area occupied by illegal settlement, but both occupy a larger share of the built-up area. Tonalá is therefore the Metropolitan Zone municipality worst affected by illegal development [López Moreno 1996, Ramírez 1998]. Elsewhere in the State, in extreme cases as much as 95 per cent of the ‘urban’ area in a given municipality suffers from problems of illegal tenure.[11]
In February 1995 the PAN gained power in all four municipalities of Guadalajara, as well as the State Governorship. The following year the co-ordinator of the Regularisation Commission in Tonalá wrote a short report on the problem of illegal settlement facing the incoming administration.[12] For the previous 15 years, the government had neglected the problem, with the result that there were now over 80 illegal settlements in the municipality and over 70,000 families who had built their homes in these areas.[13] This was largely a product of the ease with which the regulations for ‘Social Interest Subdivisions’ (Fraccionamientos de Objectivo Social) established in the State Subdivision Law of 1984 had been manipulated by subdividers. Although the ‘minimum [servicing and layout] norms’ for low-income subdivisions were in principle a step in the right direction, making land more affordable to the poor [López Moreno 1996], the developers had simply failed to install any services at all. They got away with this, ‘in most cases, because of deals (tratos) made with the municipal authorities or straightforward corruption’. This accounted for a ‘lack of political will on the part of previous administrations’ to do anything about the problem of irregularity.
Opposition parties can be expected to blame PRI officials for the problems facing their incoming administrations, but there is little reason to doubt the truth of what was reported for Tonalá. The Regularisation Commission has produced files on each illegal settlement setting out its history, supported by the available legal documents and interviews with residents and, in some cases, the original landowners. To quote two examples: former (PRI) Municipal Presidents and Regidores were involved in the development of Lomas del Manantial, a particularly problematic subdivision in the west of the municipality, and a former PRI Regidor and his daughter were the main developers of Colonia Flores Magón, further south.[14]
The proliferation of illegal settlement presents ‘a serious drain on the municipality’s economic resources’, resources which could otherwise be used for the installation of infrastructure and introduction of services. As the Tonalá report continues:
The income foregone includes local property taxes (impuesto predial) and taxes on the transfer of ownership (2 per cent on the value of sale), income from property valuations and definition of boundaries, V.A.T. on notaries fees, tax on profits arising from land sales, income tax from the payment of honoraria, payments for cadastral registration, for building permits, for property alignment, and from official [house] numbers ...[15]
This graphic account of the impact on municipal finances of illegal urban development is echoed in the words of officials concerned with regularisation in Tlaquepaque and Zapopan. In Tlaquepaque for example:
the problem is that since these areas are illegal they don’t generate taxes, and there’s no way we can provide them with services. There is no income from the impuesto predial, the only thing that really counts when we’re talking about property matters, so we can’t afford to install services.[16]
In Zapopan, ‘the municipality has to take on board the worst aspects of the human settlement problem ’ as illegal subdivision causes ‘damage to municipal resources’ (daño patrimonial al municipio).[17]
THE RESPONSE OF OPPOSITION GOVERNMENT TO ILLEGAL SUBDIVISION
In this section, I describe how the panista administrations in Guadalajara and the State of Jalisco have responded to the problem of illegal settlement, before going on to explain why I consider these to amount to the emergence of alternative models of regularisation and to examine the role of decentralisation in this context.
The creation of new institutions to respond to the problems of illegal settlement
As several people in Guadalajara have commented to me, the PAN administrations which came to power in 1995 had little understanding of urban matters. The panistas are characterised as people from the private sector with no experience of public administration (hardly surprising given the PRI’s former monopoly of government in the State). Their ideology committed them to combating illegality in all aspects of public life and to running efficient, business-like, municipal governments, but they lacked the means to translate these general objectives into specific urban policies. They also lacked personnel and their first task was therefore to find suitable candidates to fill the vacancies in city government. This meant looking to people from outside the party, repeating a pattern observed in PAN governments, for example, in Chihuahua and Baja California [for this and other parallels, see Ward 1995, Rodríguez and Ward 1994].
The result was that people who were not necessarily PAN sympathisers were brought in to deal with the problems of illegal settlement in Guadalajara. Their arrival coincided, by no means accidentally, with the creation of new human settlements agencies within the municipal governments. In Zapopan, an architect and former trainee for the priesthood, with strong humanist and centre-left intellectual tendencies, was appointed to head the Departmento de Asentamientos Populares created in May 1995, three months after the PAN won the elections. This was originally part of the planning department, but a year later, the head of the Department convinced his superiors to make it into a Sub-Directorate and later Directorate, giving him greater freedom to develop its work as he thought fit. In Tonalá, an alliance of opposition interests brought a long-time left wing social activist, described by a friend as ‘one of the generation of ’68’ into the PAN administration. His earlier activities had included involvement in the civic movements protesting the inner-city explosions of 22 April 1994 and seeking compensation for its victims. The panista authorities employed him because of his professional expertise as a lawyer and persuasive vision of the role of regularisation in urban governance, and he enjoyed the confidence of the Municipal President to the extent that he did not in practice have to answer to anyone else within the administration.
In May 1996 the Commission for the Regularisation of Subdivisions was set up in Tonalá. Although it was housed in the offices of the Department of Public Works and Urban Development, which should have handed over its records on Tonalá’s subdivisions, the Commission worked on its own and had to start from scratch when creating its files on each settlement. The lack of co-operation from other departments included an internal campaign against the Commission by the municipality’s Legal Department [Ramírez 1998].
The early years of the panista governments in Guadalajara therefore saw people who were not party militants brought in to deal with the problems of illegal settlement. The creation of new agencies for this purpose was in part a product of their setting up their own ‘teams’, but it underlines the inadequacy of the existing institutional framework for responding to illegal subdivision of private lands within the peripheral municipalities.
The ‘municipalisation’ of regularisation
One of the first problems that the Tonalá Commission sought to address was its inability to act autonomously in the field of regularisation. The existing process was almost entirely in the hands of the State government. Three technical authorisations had to be obtained from the State planning authorities before a regularisation proposal could be submitted for formal State government approval enabling land titles to be issued for individual properties. Although the 1993 State of Jalisco Law of Urban Development emphasised procedural simplification and greater municipal involvement, the State authorities were still heavily involved in the process, particularly with respect to any subdivisions started under the 1984 Subdivision Law which remained in force. One reason for State involvement in the process was that, in addition to the areas of land to be donated to the municipality for public services, the 1984 Law required subdividers to donate land and money to the State government for schools and a drainage system.[18]
The involvement of State agencies in regularisation was regarded as an obstacle to development of a more efficient process that would improve living conditions for the residents and strengthen municipal finances. They were regarded as being too close to previous PRI administrations, inefficient and, in some cases, corrupt. The Tonalá Commission therefore persuaded the municipal president to put forward to the State governor a proposal that regularisation should be ‘100% municipalised’.[19] A pilot programme in Tonalá would serve as the basis for developing a process of municipal regularisation in the other 123 municipalities in Jalisco. In October 1996, the Tonalá government decreed the ‘municipalisation’ of regularisation within its jurisdiction, on the basis of a retroactive application of Article 12 of the 1993 Urban Development Law (giving the municipality the right to ‘intervene in the regularisation of land tenure’) to all private subdivisions in Tonalá.[20]
These initiatives found an ally in the Procuraduría de Desarrollo Urbano, whose responsibility it is to ensure the correct application of the laws governing urban development.[21] They were favourably received by the State government, particularly after State officials came face to face with the problems associated with illegal subdivisions in a visit to one of the municipality’s largest and most conflictive settlements.[22]
In September 1997, therefore, the State government passed a decree establishing the legal basis for permanent involvement of the municipality in the response to illegal subdivision of private land [Decreto No. 16,664, Diario Oficial del Estado de Jalisco, 25 September 1997]. Regularisation Commissions were to be set up in each municipality in the State, bringing together municipal representatives and officials and the Procuraduría. The right to decide which settlements can be regularised was reserved for the Procuraduría (cutting out several State government departments regarded as a source of delay).[23] Most of the work, together with the final approval of inscription of a subdivision in the Public Property Register (allowing titles to be issued), is, however, to take place at the municipal level.
Decree No. 16,664 also made it possible for the authorities involved in regularisation to grant exemption from the requirements of a range of State of Jalisco laws, including the 1984 Subdivision Law, thus removing a potential source of delay in the regularisation of particular settlements. In addition, it enabled individual properties to be incorporated into the municipal tax base whilst the process of regularisation and service installation was still underway. Residents will generally have to bear much of the cost of servicing themselves.[24]
Respect for the law and civic rights
The authorities working on the human settlements problem in Guadalajara are well aware that regularisation of existing settlements is at best only part of the solution.[25] At the same time, they are taking other measures that can be considered part of the emerging models of regularisation in a broader sense.
The first of these comprises efforts to avoid the further spread of illegal settlement. These efforts have been co-ordinated by a special commission of municipal and State representatives, which has been particularly concerned to anticipate and prevent land invasions.[26] The most problematic case they have faced concerns the southern side of the Cerro del Cuatro, a hill whose northern slopes had already been entirely occupied by illegal settlement housing approximately 150,000 people. Constant struggle over the profits to be made from the sale of adjacent areas has led to their invasion. These invasions, which have more to do with land speculation than immediate housing needs, have been repelled by the authorities.
The commission also wishes to create a special police department with specific responsibility for urban property matters and to put into effect provisions in the Penal Code penalising fraudulent land sales. The law has never been effective in this respect: ‘cases always fall through because the judges don’t know enough about urban law’.[27] One aim is to prevent people accused of fraudulent sale of either ejido or private land from getting out on bail. The difficulties facing the authorities have been increased by subdividers forming an Asociación Civil to prevent individuals from being arrested. This device has been used, for example, by ‘indigenous communities’ (of dubious authenticity) and social movements in Tlaquepaque and Tonalá. Even where subdividers claim to be members of an Asociación Civil, they are now more frequently being sent to jail.
In Tonalá, the Regularisation Commission has encouraged residents to make denunciations for fraud against subdividers and settlement leaders involved in land sales. The force with which the head of the Commission has pursued the subdividers - telling residents, for instance, that they would have to participate in the legal case against the vendors if they wanted to enjoy the benefits of regularisation[28] - has led to fierce protests and counterclaims [Siglo XXI, 30 August 1997]. The Commission’s main objective, however, was not so much to win these legal cases as to teach residents to know and defend their legal and civic rights, so that in future they would less readily let themselves be manipulated by those from whom they have acquired land or the leaders of residents’ associations connected with the PRI.[29]
The ‘lack of civic culture’ and failure to respect legal norms also concerns the director of human settlements in Zapopan:
people take a gamble on getting something for nothing, but in the long term it costs them more. We’re in a stage of changing the way people think (la etapa de la transición de credibilidad). There’s a real problem with people’s lack of awareness...’[30]
To counter this, he wants to get university specialists in urban planning and continuing education to create a ‘People’s Center for Urban Planning’ (Centro Popular de Ordenamiento Urbanístico) offering training for residents to become ‘neighbourhood inspectors’. Training would cover environmental, legal, planning and technical matters, but would aim above all to teach residents about their civic rights.
NEW MODELS OF REGULARISATION
The panista administrations’ response to the problems of illegal settlement in Guadalajara can be described as a search for new models of regularisation. I use the plural ‘models’ to emphasise the ‘municipalisation’ of the process, since not all municipalities react in the same way. The authorities in Tlaquepaque, for example, have adopted a more conventional approach. There are, however, common elements in different administrations’ response to illegal settlement. What is more, the Tonalá programme has played such an influential role in the emergence of a State regularisation policy that we can compare the overall characteristics of the Jalisco model with the existing model described above (see Figure 1).
The ‘anti-democratic’ model uses clientilistic practices to deliver the ‘goods’ (titles and - separately - services) to the urban population in exchange for continued support for the PRI.[31] By contrast, the ‘democratic’ model tries to instil in the urban poor a civic culture reducing the likelihood that they will trade their civic rights for material benefits and tenure security. It seeks to ‘deliver the goods’ by efficient government operating in a ‘culture of legality’.[32] Any shortfalls in this respect are to be made good by citizens’ defending their civic rights (and paying for what they receive), not by clientilistic deals when it comes to election time. The economic attractions of this model of regularisation to opposition governments have already been outlined. Politically and ideologically, it is attractive because it offers the possibility of demonstrating that life without clientilism is possible, leaving people free to make their choice of governments on the basis of considerations other than immediate material need. Since the opposition believes that its ‘legal’ model of governance is inherently a better one, it will
logically expect to gain continued electoral support; but in any case the outcome of a ‘democratic’ model of regularisation will be greater democracy. Both models, therefore, are self-reinforcing, and they are diametrically opposed to each other. Each seeks to demonstrate the inadequacies of the other in order to attain its own ends (hence, both are shown ‘cutting through’ the strategy of the opposing model).
That the new models of regularisation are intended to undermine clientilism (and therefore support for the PRI) is confirmed by those involved. In Zapopan, the aim is ‘to break with clientilistic practices’ (romper con esquemas clientilistas). In Tonalá, the head of the Regularisation Commission constantly emphasised that ‘urban development is politicised’ (se politiza la urbanización) by PRI governments promising to solve everything ‘with one wave of a magic wand’, creating ‘procedural flaws and conflicts of interest’ (vicios e intereses). By contrast, the new model will ‘put an end to this paternalistic system’ and ‘depoliticise [urban development] from a party-political point of view’ (not, note, in general: citizens demanding that governments respect their rights is a highly desirable process from the activist’s point of view).[33]
PROSPECTS FOR THE FUTURE
There is an inherent instability in the ‘democratic’ model of regularisation I have described. If it succeeds in promoting democracy, it will not necessarily be self-reinforcing, because beneficiaries may exercise their civic rights by voting for the PRI, thus re-entering the clientilistic circuit. In the 1997 elections, Tonalá was recovered by the PRI. The future of the Regularisation Commission is therefore a matter for speculation. The PAN’s failure to retain Tonalá does not, however, mean that the new regularisation model had been (too) successful in promoting democracy. For one thing, the Regularisation Commission had only been operating for 18 months. In addition, as Ramírez [1998] argues, the opposition aroused by its battle with subdividers and settlement leaders connected with the PRI may have played a part in bringing about the PAN’s downfall in Tonalá.[34]
Although the return of priísta government to Tonalá is unlikely to bode well for the local regularisation programme, the Procuraduría is actively pursuing the State programme. Each municipality is now legally obliged to set up a regularisation commission to co-operate with the State government. This is one of the most significant achievements of Decree No. 16,664. The threat of a possible change of government undermining the programme was addressed by setting up a legal framework intended to ensure some measure of continuity. As Rodríguez [1995: 171] argues, it is ‘a major achievement’ to get innovative processes of municipal governance off the ground, but ‘an even greater achievement to sustain [them] from one administration to the next’. Decree No. 16,664 makes it possible for municipalities wishing to undertake their own regularisation programme to do so, regardless of which party holds the State government. In addition, the Decree requires the Procuraduría to make a weekly report to the State Congress on the activities undertaken by each municipal commission. The Decree therefore offers the State legislature the ability to put pressure on the executive to keep the regularisation programme moving (particularly useful if the majority in the legislature is held by a different party from that of the State Governor).
By September 1998, regularisation commissions had been established in all but five of Jalisco’s 124 municipalities. They report that there are 1,620 illegal settlements on private land, occupied by over 200,000 families, in 70 municipalities. The Procuraduría holds files on 54 settlements, and two settlements - in Autlán, a municipality held by the PRI - are ready for regularisation. This is more than the officials involved had hoped, because ‘the difficult bit is getting going’.[35]
Caution is required, however, in assessing the prospects for the regularisation programme. Most municipal commissions are more likely to exist on paper than in practice, so much will depend on the willingness of the State government to make the programme effective. In addition, we need to question how many settlements readily lend themselves to legalisation. The results achieved by the highly motivated team in Tonalá are instructive. By the end of the administration, they had files on 83 illegal settlements, 74 of them on private land. Forty-five subdivisions had rapidly been classified as presenting major difficulties, and no action was taken in these cases. Only nine settlements had been the subject of formal decisions to proceed [Ramírez 1998]. Given that this was the product of less than two years’ work, starting from scratch, it is no mean achievement; but it is also evident that the settlements regularised were those presenting least difficulty.[36]
I have argued elsewhere that a lack of technical capacity is a major barrier to the decentralisation of regularisation [Varley 1998a]. The ‘one-size-fits-all’ approach to local government in Mexico means that municipal authorities with a very small tax base are meant to undertake the same functions as major city governments [Dillinger 1994]. Consequently, ‘municipal governments seldom have ... the resources to embark on substantive works’ and most still lack the administrative machinery to collect the impuesto predial themselves (instead, State governments charge a percentage for collecting the tax on their behalf) [Rodríguez 1997: 119, 133]. How, then, are they to deal with either the cost or the technical difficulties of regularisation?
As regards the cost: a ‘Partial Urban Development Plan’ (Plan Parcial de Urbanización) is supposed to be drawn up for each area regularised. This is the main reason why initially enthusiastic local authorities have shown ‘resistance’ to the State government’s programme: they do not see how they can afford to pay the cost of producing these plans. Given the long list of requirements for these plans - divided into 15 categories in Article 86 of the Urban Development Law - it is easy to see why.[37] The Procuraduría has sought to demonstrate that a Plan Parcial can comprise less than a dozen pages with highly generalised responses to a number of the legal requirements. However, it still has to be accompanied by a detailed map of the area, showing the current dimensions of each plot, and it is this that costs the most and presents the most scope for things to go wrong [Varley 1998a].
As regards the technical complexity: ironically, the settlements most in need of regularisation are likely to be the most conflictive ones, particularly where there are rival claims to ownership of the area prior to subdivision. Yet these are the cases the authorities are most likely to defer. Furthermore, the problems of illegal settlement facing local governments are becoming increasingly complex. On the one hand, the transfer of ejido property to the private ownership of individual ejidatarios is leading to the appearance of ‘new forms of illegality’ [Melé 1994: 33; Jones and Ward 1998, Varley 1998a]. These could easily outweigh the problems associated with subdivision of private land in the past. On the other hand, the tactics adopted by subdividers to avoid legal retribution are becoming more sophisticated. A variation on the Asociación Civil device mentioned above is provided by two recent subdivisions in Tonalá, Granjas El Mirador and Las Jícamas (occupying over 80 hectares each). Purchasers are registered as co-owners of the entire area, such that each plot is owned in common by all of them.[38] This device is intended to conceal the subdivision that has actually taken place. By this means (plus, presumably, more ‘traditional’ ones), Las Jícamas has been registered in the Public Property Register without any municipal authorisation whatsoever. The difficulties of trying to sort out such cases and ensuring that taxes are paid in these areas seems likely to deter all but the best-resourced and technically capable city governments.
In the most conflictive cases, the only way to deal with illegal settlements will probably be by an expropriation in favour of the State government. Expropriation is, however, a highly unpopular device, because it represents an imposition of authority from above - albeit in the public interest - and because owners want and are entitled to be compensated for their loss, even when they are responsible for creating the problem in the first place. It is feared by State governments because it creates ‘bad’ publicity and a drain on their resources in the form of compensation and legal costs occasioned by the amparos (judicial review cases) which landowners habitually bring when threatened with the ‘loss’ of their property [Varley 1998a].[39]
CONCLUSION: THE ROLE OF DECENTRALISATION
In conclusion, it is worth asking what role decentralisation has played in the emergence of the new models of regularisation described in this paper.
The discussion has centred on processes associated with PAN governments in Jalisco. However, a key enabling factor in these processes was the role in urban governance attributed to the municipality in the 1993 State Law of Urban Development which was passed under the previous, PRI, State government. This law was published on 13 July 1993, eight days before the Salinas government’s new Human Settlements Law, and its wording echoes that of the federal legislation. It was, then, part of the paradox of a centralist strategy promoting decentralisation in urban governance.
My contention is that this strategy alone would not have been enough to bring about the new approach to regularisation. The responsibility for legalising settlements on private land already lay with State governments, but little had been done until the electoral shock of 1988 gave the Salinas government a reason to extend and intensify regularisation by all available means in the National Solidarity Programme [Varley 1998b].
It was, rather, the possibilities opened up by the new urban development legislation as put into practice by opposition government that led to the appearance of new models of regularisation in Jalisco. Without democratisation, decentralisation would have achieved little in this respect as there was little need for municipal governments to worry about regularisation under the old ‘rules of the game’. They simply needed to sit tight, and sooner or late State or federal government funds for service installation would be forthcoming, providing that these were used to ensure continued support for the PRI. Opposition governments cannot, by contrast, rely on this system. They have therefore done all they can to raise revenue from sources under their own control, reversing the traditional reliance on federal redistribution of tax revenues [Rodríguez and Ward 1994, Rodríguez 1995, 1997]. The need for this strategy is beautifully illustrated by events in early 1998 in the State of Puebla, where local elections were to be held in November. The larger municipalities, including the city of Puebla, were held by the PAN. In January, Manuel Bartlett, the priísta Governor of the State, rushed through a law changing the way in which federal resources are assigned between municipalities (which normally depends on population size). The logic was superficially impeccable: the new formula would ensure that a greater share of resources went to the poorer municipalities. It was however no coincidence that the municipalities to lose resources were those governed by the PAN [La Jornada 29 January 1998].
The impuesto predial is the cornerstone in opposition governments’ strategy to reduce their financial dependence on higher levels of government [Rodríguez 1997]. As a result, the connection between tenure legalisation, taxes and services, more of a fiction than a reality in ejido regularisation, becomes a matter of real and pressing importance. The strategy adopted for regularisation may seek to kill several birds with one stone, to break the vicious circle of clientilism, but the basic motivation is economic. This is not to say that all opposition government officials are prepared to abandon the old way of doing things. Many wish to continue to play by the old ‘rules of the game’, merely substituting their own financial or electoral interests for those of their priísta rivals [Ramírez Sáiz 1998]. Conversely, some PRI administrations in cities formerly controlled by the PAN have continued the financial strategies of their predecessors, and ‘PRI-governed cities have also begun to demonstrate civic responsibility and effectiveness in responding to citizens’ service needs’ [Rodríguez 1997: 121].
Regularisation of illegal settlement, then, allows the opposition to demonstrate to the citizenry the virtues of good, honest, governance. Although it is a far from easy strategy to follow when the cards are still heavily stacked in favour of the clientilistic model, the pressure is undoubtedly on the PAN and PRD to show that they too can ‘deliver the goods’. For, if the PRI has used decentralisation to increase the legitimacy of its role in federal government - ‘"let[ting] go" in order to hold on to the reins of power’ [Rodríguez 1997: 141] - it also gives the opposition enough rope to hang itself.[40] If opposition government fails to live up to the high expectations created by emphasis on ‘a culture of legality’, the PRI can turn round and say to the citizenry: ‘we told you so: our way is the only way, and we are the only ones who can make it work for you’.
It is worth noting, however, that centralism can also have its uses for opposition governments at the State or municipal level. If unpopular actions need taking, it is convenient if these are taken by the federal government, because local authorities can then deny responsibility for the measure. This applies, for example, to land expropriation.[41]
In conclusion, I would argue that the emergence of new models of regularisation in the State of Jalisco is a product of a close inter-dependence between the processes of decentralisation and democratisation - or, following Dennis Rondinelli’s typology, of administrative and political decentralisation [Rondinelli 1990]. Some of the general enthusiasm for decentralisation seems to suggest, perhaps rather naively, that it is a route to democratisation ‘by the back door’. The experiences described in this paper indicate that, in this case at least, the processes have gone hand-in-hand. Without opposition government at the local level, the decentralisation strategy instituted by the 1993 federal and State urban development legislation would probably have remained no more than a paper promise. Without decentralisation, the regularisation programme I have described is unlikely to have emerged, since existing State of Jalisco procedures for regularisation were ineffective and likely to remain so under opposition government. Hence, the key element in the new strategy to promote regularisation of private subdivisions was ‘municipalisation’ of the process. Although control of the process remains, in practice, in State hands, the initial demand from Tonalá was for ‘100% municipalisation’, going well beyond what the PRI’s centralist legislative initiative had envisaged.
What the eventual outcome will be is difficult to predict. The obvious danger is that the process will become ‘routinised’ and ineffective, avoiding difficult cases and losing the politically-inspired drive of the Tonalá initiative. There are, then, no grounds for complacency in assessing the future of Jalisco’s fledgling regularisation programme, but it at least demonstrates that in the right circumstances committed local officials can now design and secure State approval for a new model of regularisation, one that does not rely on governance by sleight of hand.
NOTES