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05 September 2012

Land disputes a continuing cause of violence in Timor-Leste

Destroyed house, Dili, 2006
ETLJB 05/09/2012 - In August, village heads from all over the country met with the President of the Parliament to express their concern about the parliament’s efforts to address policy issues at the local level. The village heads requested that the Parliament consider policy implications more thoroughly before enacting laws.

In particular, the village chiefs were very concerned about land conflicts and land laws. According to local security sector monitoring civil society organisation, Fundasaun Mahein, in the last five years a number of people have died or been wounded in conflicts over land in the districts of Ermera, Baucau, Bobonaro, and Dili. The violence has included attacks with machetes and stomping.

These conflicts are partly the result of unclear land laws and the lack of institutionalised dispute resolution mechanisms at the local level as well as the reluctance of residents to use government agencies to resolve land disputes. Instead, parties to land disputes have resorted to taking the law into their own hands in disregard of the rule of law.

Fundasaun Mahein says that these violent conflicts over land could have been prevented if there had been effective institutionalised conflict resolution protocols tailored to land disputes. The current system is not visible, lacks complaint-intake centres and are, in the end, ineffective. The law-making institutions therefore need to consider how the state can create visibility and accessibility to the rule of law for interpersonal conflicts and prevent citizens from turning to illegal means of settling disputes.

Fundasaun Mahein (FM) recommends that the government institutionalise land and other civil dispute resolution protocols within the police administration at the village level so that civil conflicts do not lead to criminal activity including the most extreme sort, killings. FM would also like to see an empowered, fully-implemented community police service working with village leaders to facilitate conflict prevention.

ETLJB respectfully disagrees with the proposals by Fundasaun Mahein. Civil disputes must not involve the criminal law enforcement authorities such as the police.
It is not the role of the police to enforce the civil laws. Rather, that is the role of the Courts. The FM proposals confuse the separation of powers doctrine by involving the executive organs of the state into the role and functions of the judicial organs; namely, the Courts.

It is true that many land conflicts are the result of unclear policy and a vacuum in the land law regime which have failed to address the many land disputes that were essentially created by the interventions of the Portuguese colonial state and the occupying Indonesian state; as well as poor land administration policy under the United Nations Transitional Administration in East Timor.

The land law reforms that are necessary to address the problem of land conflicts in East Timor raise complex social, political, cultural and economic questions which can not be addressed through any local dispute resolution machinery at the local level; least of all one that involves the police force.

There must be a national land policy and  clear land laws that clarify at least the following:
  1. what land rights from the Portuguese, Indonesian and customary land tenure systems are legally valid;
  2. which parties are entitled to compensation in the event that a land dispute resolution results in the loss of acquired or statutory land rights or of long-term occupations or illegal appropriations;
  3. what communal land tenure systems are acknowledged;
  4. what the rights of the state are in relation to land;
  5. the vexed question of land redistribution where large landholders' land is acquired by the state and granted to the landless; and
  6. the administrative and judicial dispute resolution institutions. In this last regard, there must also certainly be implementation at the local level but it must be based on a nation-wide land law scheme.

There must be a national land policy and a clear land laws that clarifies at least the following:
  1. what land rights from the Portuguese, Indonesian and customary land tenure systems are legally valid;
  2. which parties are entitled to compensation in the event that a land dispute resolution results in the loss of acquired or statutory land rights or of long-term occupations or illegal appropriations;
  3. what communal land tenure systems are acknowledged;
  4. what the rights of the state are in relation to land;
  5. the vexed question of land redistribution where large landholders' land is acquired by the state and granted to the landless; and
  6. the administrative and judicial dispute resolution institutions. In this last regard, there must also certainly be implementation at the local level but it must be based on a nation-wide land law scheme.
Towards this end, there needs to be constituted a Land Commission to thoroughly investigate these issues and to make recommendations for the government and the Parliament based on empirical data, comparative studies and established land law theories and principles.

Some land laws that have already been enacted since independence are also in need of urgent review; particularly the Law on Immovable Property No 1 of 2003 that entrenches the undemocratic process of executive evictions.

One central question that must be finalised is whether the fundamental basis of the land law system is one that is based on private property or state control and to construct a framework that posits the one or the other as the foundation of the property regime. This will determine whether a capitalist social, political and economic order will prevail in East Timor or whether a state-controlled socialistic economy will be necessary to further poverty alleviation and ultimately, the achievement of democratic ideals.

Only then will certainty of land tenure and the resolution of land disputes be achieved.

Security of tenure is an essential element of the civil peace and without it, social stability will continue to be threatened by land conflicts in East Timor.

Several analyses of some of the land law problems in East Timor have been published on the East Timor Law Journal* and an archive of information and reports on land problems may be searched on the East Timor Land Studies web site.

*See, for example:

Ethnicity, Violence & Land and Property Disputes in Timor-Leste
Some Land Tenure Issues in Post-Conflict East Timor
On the occasion of the International Conference on Traditional Dispute Resolution & Traditional Justice in Timor-Leste
A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992
UNTAET Land Policy
Some Observations on UNTAET Regulation No 27/2000 on the Temporary Prohibition on Transactions in Land by Indonesian Citizens
Some Observations on the Report on Research Findings & Policy Recommendations for a Legal Framework for Land Dispute Mediation in East Timor
An Overview of East Timor’s Law No 1 of 2003 on the Juridical Regime on Immovable Properties
Report on Research into Adat Land Law in East Timor
UNTAET Guidelines for the Administration of Public & Abandoned Property by District AdministrationsFinding Ways of Resolving Land Problems in East Timor
 
Author: Warren L. Wright BA LLB, Former UNTAET Property Rights Adviser

Related story: Timor Leste Land Network asks Hilary Clinton ‘not to abandon the people’s land rights’ and criticises USAID-funded land program


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