24 July 2018

Res Furtivae and the Land Law of East Timor

Image: Copyright wlw2002
The Indonesian War of Aggression in East Timor (1975-1999) was essentially motivated by Indonesian imperialism and the conquest of the land comprising the territory of the nation of East Timor; to occupy it, to be as master of it.

Indonesia extended its land law to the then illegally occupied land in 1976. [1]

Indonesia then proceeded with a genocide in East Timor for 24.5 years; soaking the land in the blood of the innocent and filling the earth with the dead; perpetrating unspeakable crimes against humanity for which there has been no accounting.

During that darkest of East Timor's history, many fled their homes or were forcibly evicted as the wave of violence at the hands of the Indonesian security forces swept across the landscape leaving in their wake destruction, displacement, homelessness, refugees and an ocean of suffering.

Their homes were subsequently occupied and in many cases sold to bona fide purchasers - if any such purchasers ever existed since all knew of how these lands had come to be in the possession of persons other than their true owners.

In many cases, when the war finished in 1999, the true owners returned to their former homes in Dili and the countryside estates only to find them in the possession of others.

Land conflicts in East Timor have ever since been frequent and violent. The 15-year failure of all governments to enact East Timor's own land law reflects the complexity of the problem. The new land law is now in place yet it remains to be seen whether it is an effective resolution of the social problem of land disputes.

Res furtivae is a term of the ancient Roman law. [2]

By the law of the ancient jurists of Rome, if a thing is stolen and where a thing is found to be in the possession of another, most likely it had been stolen. Lawful title could never be acquired by prescription of any length of time (prescriptio temporis). Under the Lex Atinia (? 198BC), the taint attaching to stolen goods (res furtivae) could not be removed until they got back into the possession of the true owner.

Even a subsequent bona fide possessor did not acquire ownership of the thing by prescription.

Land was not an object of theft although earlier sources of the Roman law such as Gaius tells us that some of the even older Roman writers thought it was. The English philosopher Thomas Hobbes said 'Tis true that the Land can not be stolen nor the right of a Mans Tenure...[3]

In any event, under Roman law, the taint that attached to stolen movables also attached to land or houses from which the owners had been driven by violence (res vi possessae).

These ideas are pertinent to East Timor. Res furtivae as a jurisprudential doctrine under the Roman Law could form a just and rational, ethically sound and philosophically justified foundation for the resolution of land disputes in East Timor.


Warren Leslie Wright
Lawyer

NOTES
[1] Law No 7 of 1976 on the Legalisation of the Unification of East Timor into the Unitary Republic of Indonesia
[2] Introduction to Roman Law by the late William A. Hunter, MA LLD of the Middle Temple author of Roman Law, in the Order of a Code Revised by Lawson FH All Souls Reader in Roman Law in the University of Oxford Ninth Edition Revised London Sweet & Maxwell 1934.
[3] Thomas Hobbes Writings on Common Law and Hereditary Right Oxford University Press 2005 and at page 88

Post Script: Land has always had its own highly sophisticated conceptualisation and expression of the rights attaching to land by unique principles and ideas. The Land Law forms its own entire jurisprudence in the law of almost every property system.
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