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27 June 2009

Analysis of the Social Problem of Land Rights in East Timor

The Constitution of the Democratic Republic of East Timor states that one of the goals of the nation and the state is the creation of welfare and prosperity. This welfare and prosperity is achieved in part through the exploitation of God’s creation, land. The optimal utilization of land by the state will benefit the people, both through land management and through the use of the natural resources found in the earth, sea and land of East Timor.

The resources found on the surface and below the land are national economic resources which should be utilized justly and evenly in the interests of the sustainability of the nation and state of East Timor. With this in mind, article 141 of the Constitution of RDTL clearly regulates ownership, use and development of land as a factor in national economic production.

The majority of East Timorese people are still agrarian so the land and the water located within the earth are central to their livelihoods and must be utilized to optimal effect for the welfare and prosperity of the people.

Land legislation in RDTL to date is not definitive as a consequence of legal dualism namely the law of RDTL and the law of Indonesia, in terms of recognition of ownership.

Act No 1/2003 Law on Immovable Properties was designed to provide protection in terms of land use and ownership issues in East Timor, however this has not been the case because the law is too general and unspecific in details regarding land ownership and control.

This legislation actually has prospects for legal application; as stated in article 19, however Indonesian law, the Agrarian Act and the implementing regulations, are only used as subsidiary or additional provisions. In this context the agrarian legislation applied as subsidiary law only serves to fill a legal vacuum.

For this reason RDTL Act No 1/2003 basically functions as a national law characterized by lex spesialis legi generali which is applied as the legal basis for the resolution of land cases. However, as the main source of authority this legislation does not regulate in detail the procedures and requirements for land ownership etc. This includes land owned by individuals, private organizations and the Government.

This national legislation of East Timor Act No 1/2003 has raised social problems in its application, because it does not guarantee the ownership and control of land rights. This has occurred in two land conflict cases during the governance of RDTL. The two cases referred two are those of Ir. (Engineer) Mario Viegas Carrascalao and the acquisition and control of community land by the government (F-FDTL ) in Metinaro Dili District.

In the land conflict involving Ir. Mario Carrascalao the government evicted Mario from his house because according to the government the land and the house were government owned. Ir. Mario Carasscalao had evidence of ownership of the land. With the title issued by the Indonesian government, the government did not recognise that Ir.Mario owned the land in question and did not provide him with any compensation.

In the case in Metinaro the government acquired and took control of community land to establish the headquarters of F-FDTL without providing adequate compensation to the community as the landowners.

At present, other problems relating to land in RDTL are the tendency for the government to disregard land owned by individuals and private organizations based on land titles issues by the Indonesian government. During the Indonesian occupation, the total recorded number of titles issued is more than 44,000 whilst during the Portuguese period around 2700 land ownership titles were issued to legitimate the ownership of land rights.

To date these problems have not resulted in any legal certainly regarding land ownership in East Timor under the two types of colonial law.

It would appear that government has taken arbitrary action to acquire community owned land and actions which disregard the land rights titles issues by the Indonesian government. For these reasons the immediate regulation of land ownership and control of land by individuals, private organizations and the government through legislation is required.

We hope that this land legislation can be established and enacted as soon as possible to provide legal certainty and guarantee legal protection with regard to the ownership and control of land rights. Read the full report...

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